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I 


LIBRARY 

OF  THE  . 

UNIVERSITY  OF  CALIFORNIA. 

GIFT    OF 


Class 


WAR  DEPARTMENT  ::  OFFICE  OF  THE  JUDGE-ADVOCATE  GENERAL 

THE 

MILITARY  LAWS  OF  THE 
UNITED  STATES 

Fourth  Edition,  1901 


Prepared  under  the  direction  of 

The  Honorable  ELIHU  ROOT,  Secretary  of  War 
By  Brig.  Gen.  GEORGE  B.  DAVIS,  Judge- 
Advocate  General,  United  States  Army 


WITH  SUPPLEMENT  SHOWING  CHANGES 
TO  MARCH  4,  1907,  AND  APPENDICES 

By  MAJ.  JOHN  BIDDLE  PORTER 
Judge-Advocate,  United  States  Army 


WASHINGTON 

GOVERNMENT  PRINTING  OFFICE 
1908 


tool 


WAR  DEPARTMENT. 

Document  No.  31 1 . 

Office  of  the  Judge- Advocate  General. 


TABLE  OF  CONTENTS. 

Page. 


CHAPTER  I.  The  Executive 

II.  Provisions  Applicable  ,to  the  Several  Executive  Departments  . .      12-44 

III.  The  Department  of  War 45.55 

IV.  Provisions  Applicable  to  Several  Classes  of  Officers 56-71 

V.  The  Department  of  the  Treasury — The  Accounting  Officers 72-120 

VI.  The  Post-Office  Department. 121-126 

VII.  The    Department  of  Justice — Habeas  Corpus — The  Court  of 

Claims 127-158 

VIII.  The  Department  of  the  Navy — The  Marine  Corps 159-165 

IX.  The  Department  of  the  Interior 166 

X.  The    Revised    Statutes— The    Statutes    at    Large— The   Army 

Regulations — The  Army  Register 167-182 

XI.  The  Military  Establishment — General  Provisions  of  Organiza- 
tion    183-204 

XII.  General  Officers,  Aids,  and  Military  Secretaries 205-207 

XIII.  Rank  and  Command — Tactical  and  Territorial  Organizations. . .  208-213 

XIV.  The  Staff  Departments — General  Provisions — Disbursing  Offi- 

cers    214-252 

XV.  The  Adjutant-General's  Department 253-258 

XVI.  The  Inspector-General's  Department 259-264 

XVII.  The  Judge- Advocate-General's  Department 265-268 

XVIII.  The  Quartermaster's  Department 269-292 

XIX.  The  Subsistence  Department 293-308 

XX.  The  Pay  Department ; 309-349 

XXI.  The  Medical  Department 350-365 

XXII.  The  Engineer  Department 366-438 

XXIII.  The  Ordnance  Department 439-459 

XXIV.  The  Signal  Department 460-465 

XXV.  The  Record  and  Pension  Office 466-473 

XXVI.  Post  and  Regimental  Chaplains 474-476 

XXVII.  Commissioned  Officers 477-502 

XXVIII.  Brevets — Medals  of  Honor — Certificates  of  Merit — Foreign  Dec- 
orations    503-508 

XXIX.  Enlisted  Men 509-532 

XXX.  Troops  of  the  Line 533-542 

XXXI.  The  Military  Academy— The  Service  Schools '. . . .  543-565 

XXXII.  Contracts  and  Purchases 566-596 

XXXIII.  The  Public  Lands— Military  Reservations— Military  Posts 597-626 

XXXIV.  The  Public  Property 627-634 

XXXV.  The  Militia— The  Militia  of  the  District  of  Columbia— The  Ter- 
ritorial Militia 635-670 

XXXVI.  Military  Tribunals— Courts-Martial— Courts  of  Inquiry 671-748 

XXXVII.  Citizenship  and  Naturalization 749-757 

XXXVIII.  The  Indians— Indian  Agents— The  Indian  Country 758-791 

XXXIX.  Employment  of  Military  Force— (1)    In   Resisting  Invasion; 
(2)  In  Suppression  of  Insurrection;    (3)  In  Support  of  the 

Civil  Authority 792-831 

\3 

166431 


4  TABLE    OF    CONTENTS. 

Page. 

CHAPTER  XL.  Pensions 832-886 

XLI.  The  Soldiers'  Home 887-895 

XLII.  The  National  Home  for  Disabled  Volunteer  Soldiers.. 896-911 

XLIII.  The  Government  Hospital  for  the  Insane 912-914 

XLIV.  National  Military  Parks— The  Yellowstone  Park 915-953 

XLV.  National  Cemeteries 954-959 

XLVI.  Flag  and  Seal  of  the  United  States 960-961 

XLVII.  The  Articles  of  War 962-1026 

APPENDICES. 

I.  The  Geneva  Convention  of  1864 1029-1034 

II.  Additional  Articles  of  October  20,  1868 1034-1040 

III.  Additional  agreement  of  July  29,  1899,  for  the  Adaptation  of  the 

Rules  of  the  Geneva  Convention  to  Maritime  Warfare 1041-1043 

IV.  The  American  National  Red  Cross 1044-1047 

V.  The  Army  Reorganization  Act  of  February  2,  1901 1048-1066 

VI.  The  Maximum  Punishment  Order 1067-1073 

VII.  Instructions  for  the  Government  of  the  Armies  of  the  United  States 

in  the  Field  (General  Orders,  No.  100,  War  Department,  of  1863) .  1074-1095 
VIII.  Civil  Service  Rules..  .  1096-1116 


CHAPTER    I. 


THE  EXECUTIVE. 


Par. 

1.  The  executive  power. 

2.  Power  of  the  President  as  Commander 

in  Chief;  the  Cabinet;  the  pardoning 
power. 

3.  Term  of  office. 

4.  Succession  of  Vice-President. 

5.  Succession    to    President    and    Vice- 

President. 

6.  The  same. 

1.  The  executive  power1  shall  be  vested  in  a  President 

of  the  United  States  of  America.     He^  shall  hold  his  office  t^1™'  Art  11, 
during  the  term  of  four  years.  *     *      Constitution, 

Art.  II,  sec.  1. 

2.  The  President  shall  be  Commander  in  Chief  of 


Par. 

7.  The  treaty-making  power;    appoint- 

ments to  office. 

8.  Recess  appointments. 

9.  The  same. 

10.  Commissions. 

11.  Notification  of  appointments  to  Sec- 

retary of  the  Treasury. 

12.  The  same,   nominations,   rejections, 

etc. 


Army  and  Navy  of  the  United  States,  and  of  the  militia  of  chiSmander  in 
the  several  States,  when  called  into  the  actual  service  of     Sec- 2i  ibUL 
the  United  States;2  he  may  require  the  opinion,  in  writing, 

1  The  Executive  Power. — The  executive  power  is  vested  in  a  President,  and,  as  far 
as  his  powers  are  derived  from  the  Constitution,  he  is  beyond  the  reach  of  any  other 
Department,  except  in  the  mode  prescribed  by  the  Constitution  through  the  impeach- 
ing power.  Kendall  v.  U.  S.,  12  Pet.,  524,  610;  Marbury  v.  Madison,  1  Cranch, 
137,  166. 

Execution  of  the  laws. — The  President  is  required  to  see  that  the  laws  are  faithfully 
executed,  but  he  is  not  obliged  to  execute  them  himself.  IV  Opin.  Att.  Gen.,  515; 
Williams  v.  U.  S.,  12  Pet,  524,  610.  The  President  speaks  and  acts  through  the 
heads  of  the  several  Departments  in  relation  to  subjects  which  appertain  to  their 
respective  duties.  Wilcox  v.  Jackson,  13  Pet.,  498,  513;  Wolsey  v.  Chapman,  101  U. 
S.,  755;  Runkle  v.  U.  S.,  122  U.  S.,  543,  557.  As  a  general  rule,  the  direction  of  the 
President  is  presumed  in  all  instructions  and  orders  issuing  from  the  competent 
Department.  VII  Opin.  Att.  Gen.,  453.  In  a  matter  which  the  law  confides  to  the 
pure  discretion  of  the  Executive,  the  decision  of  the  President,  or  proper  head  of 
Department,  on  any  question  of  fact  involved  is  conclusive,  and  is  not  subject  to 
review  by  any  other  authority  in  the  United  States.  VI  Opin.  Att.  Gen.,  226. 
Marbury  v.  Madison,  1  Cr.,  137, 166.  The  President  can  not  be  restrained  by  injunc- 
tion from  executing  a  law  of  Congress.  Mississippi  r.  Johnson,  4  Wallace,  475; 
Bates  r.  Taylor,  11  S.  W.  Rep.,  266. 

2 Powers  as  Commander  in  Okie/.— As  Commander  in  Chief  he  is  authorized  to  direct 
the  movements  of  the  land  and  naval  forces  placed  by  law  at  his  command,  and  to 
employ  them  in  the  manner  he  may  deem  most  effectual  to  harass  and  conquer  and 
subdue  the  enemy.  He  may  invade  the  hostile  country  and  subject  it  to  the  sover- 
eignty and  authority  of  the  United  States.  But  his  conquests  do  not  enlarge  the 
boundaries  of  this  Union,  nor  extend  the  operations  of  our  institutions  and  laws 
beyond  the  limits  before  assigned  to  them  by  the  legislative  power.  Fleming  r.  Page, 
9  How.,  603,  615.  The  power  of  command  and  control  reserved  by  the  Crown  was 

5 


6  MILITARY    LAWS    OF   THE    UNITED    STATES. 

The  cabinet,  of  the  principal  officer  in  each  of  the  Executive  Depart- 
ments upon  any  subject  relating  to  the  duties  of  their 

The  pardoning  respective  offices,  and  he  shall  have  power  to  grant  re- 
prieves and  pardons  for  offenses  against  the  United  States, 
except  in  cases  of  impeachment.1  Constitution,  Art.  77, 
sec.  2. 

placed  by  the  Constitution  in  the  hands  of  the  President.  Street  v.  U.  S.,  24  Ct.  Cls., 
230;  25,  ibid,  515,  113,  U.  S.,  299.  See,  also,  the  chapter  entitled  THE  EMPLOYMENT 
OP  MILITARY  FORCE.  „ 

Power  to  establish  rules  and  regulations.— The  power  of  the  Executive  to  establish 
rules  and  regulations  for  the  government  of  the  Army  is  undoubted;  The 

power  to  establish  implies,  necessarily,  the  power  to  modify  or  repeal,  or  to  create 
anew.  U.  S.  v.  Eliason,  16  Pet.,  291,  301.  The  Army  Regulations,  when  sanctioned 
by  the  President,  has  the  force  of  law  because  it  is  done  by  him  by  the  authority  of 
law.  U.  S.  v.  Freeman,  3  How.,  556,  567. 

May  form  military  governments  in  occupied  territory. -^-As  an  incident  of  the  exercise 
of  belligerent  rights,  the  President  may  form  military  and  civil  governments  in  the 
territory  of  the  enemy  occupied  by  the  armies  of  the  United  States.  Cross  v .  Harri- 
son, 16  How.,  164, 190,  193.  The  Grapeshot,  19  Wall.,  129,  132.  He  may  also  insti- 
tute temporary  governments  within  insurgent  districts  occupied  by  the  national 
forces.  Texas  v.  White,  7  Wall.,  700,  730. 

May  establish  courts  in  occupied  territory — Limitation. — The  courts  established  or 
sanctioned  in  Mexico,  during  the  war,  by  the  commanders  of  the  United  States  forces, 
were  nothing  more  than  the  agents  of  the  military  power,  to  assist  it  in  preserving 
order  in  the  conquered  territory,  and  to  protect  the  inhabitants  in  their  persons  and 
property,  while  it  was  occupied  by  the  American  armies.  They  were  subject  to  the 
military  power,  and  their  decisions  were  under  its  control  whenever  the  command- 
ing officer  thought  proper  to  interfere.  Neither  the  President  nor  any  military  officer 
'  can  establish  a  court  in  a  conquered  country,  and  authorize  it  to  decide  upon  the 
rights  of  the  United  States,  or  of  individuals  in  prize  cases,  nor  to  administer  the 
laws  of  nations.  Jecker  v.  Montgomery,  13  How.,  498,  515.  The  Grapeshot,  9  Wall., 
129,  132. 

For  authority  to  employ  secret  agents  in  time  of  war,  see  Totten  v.  U.  S.,  92  U.  S., 
105,  107.  For  powers  and  duties  of  the  Executive  in  connection  with  the  Army,  the 
Militia,  and  the  Army  Regulations,  etc.,  see  the  chapters  so  entitled. 

The  constitutional  power  of  the  President  to  command  the  Army  and  Navy,  and 
of  Congress  "to  make  rules  for  the  government  and  regulation  of  the  land  and  naval 
forces"  are  distinct;  the  President  can  not,  by  military  orders,  evade  the  legislative 
regulations;  Congress  can  not,  by  rules  and  regulations,  impair  the  authority  of  the 
President  as  Commander  in  Chief.  Swaim  v.  U.  S.,  28  Ct.  Cls.,  173.  When  a  law 
is  passed  for  the  regulation  of  the  Army,  which  does  not  impair  the  efficiency  of  the 
President  as  Commander  in  Chief,  he  becomes,  as  to  that  law,  an  executive  officer", 
and  is  limited  in  the  discharge  of  his  duties  by  the  statute.  McBlair  v.  U.  S.,  19 
ibid.,  528. 

1  The  pardoning  power. — A  pardon  is  an  act  of  grace  proceeding  from  the  power 
intrusted  with  the  execution  of  the  laws,  which  exempts  the  individual  on  whom  it 
is  bestowed  from  the  punishment  the  law  inflicts  for  a  crime  he  has  committed.  It 
is  the  private  though  official  act  of  the  executive  magistrate,  delivered  to  the  indi- 
vidual for  whose  benefit  it  is  intended,  and  not  communicated  officially  to  the  court. 
U.  S.  v.  Wilson,  7  Pet.,  150,  161;  Coke,  3d  Inst.,  233.  The  power  which  the  Consti- 
tution confers  upon  the  President  to  grant  pardons  can  not  be  controlled  or  limited, 
in  any  manner,  by  Congress.  Ex  parte  Garland,  4  Wall.,  333,  380;  U.  S.  v.  Klein, 
13  Wall.,  128,  147;  IV  Opin.  Att.  Gen.,  458;  19  ibid.,  476. 

Delivery  and  acceptance. — The  pardon  is  a  private  though  official  act.  It  is  official 
in  that  it  is  the  act  of  the  Executive;  it  is  private  in  that  it  is  delivered  to  the  indi- 
vidual and  not  to  the  court.  It  must  be  pleaded,  or  brought  officially  to  the  knowl- 
edge of  the  court,  in  order  that  the  court  may  give  it  effect  in  any  given  case.  There 
is  nothing  peculiar  in  it  to  distinguish  it  from  other  acts  It  is  a  deed  to  the  validity 
of  which  delivery  is  essential,  and  the  delivery  is  not  complete  without  acceptance'. 
It  may  be  rejected  by  the  person  to  whom  it  is  tendered,  and,  if  rejected,  there  is  no 
power  in  the  court  to  force  it  upon  the  individual.  U.  S.  v.  Wilson,  7  Pet.,  150. 

Effects. -^Subject  to  exceptions  therein  provided,  a  pardon  by  the  President  restores 
to  ita  recipient  all  rights  of  property  lost  by  the  offense  pardoned,  unless  the  prop- 


MILITARY    LAWS    OF   THE    UNITED   STATES.  7 

3.  The  term  of  four  years  for  which  a  President  and    J^g*  office- 
Vice-President  shall  be  elected  shall  in  all  cases  commence 

on  the  4th  day  of  March  next  succeeding  the  day  on  which 
the  votes  of  the  electors  have  been  given. 

4.  In  case  of  the  removal  of  the  President  from  office,  .succession   of 

„,.,,  .  .  .,.-,.  "Vice-  President. 

or  of  his  death,  resignation,  or  inability  to  discharge  the  Constitution, 
powers  and  duties  of  the  said  office,  the  same  shall  devolve 


erty  has,  by  judicial  process,  become  vested  in  other  perscns.     Osborn  v.  U.  S    91 
U.  S.,  474;  V  Opin.  Att.  Gen.,  532. 

Power  to  mitigate  and  commute. — The  President  may,  by  an  exercise  of  the  pardon- 
ing power,  mitigate  or  commute  a  punishment  imposed  by  any  court  of  the  United 
States.  Ex  parte  Wells,  18  How.,  307;  In  re  Ross,  140  U.  S.,  453.  In  mitigating  the 
sentence  of  a  naval  court-martial  the  President  may  substitute  a  suspension  for  a 
term  of  years  without  pay  for  an  absolute  dismissal  from  the  service;  as  suspension 
is  but  an  inferior  degree  of  the  same  punishment.  I  Opin.  Att.  Gen.,  433. 

Conditional  pardons. — The  language  of  the  Constitution  is  such  that  the  power  of 
the  President  to  pardon  conditionally  is  not  one  of  inference,  but  is  conferred  in 
terms,  the  language  being  "to  grant  reprieves  and  pardons,"  which  includes  abso- 
lute as  well  as  conditional  pardons.  Under  this  power  the  President  can  grant  a 
conditional  pardon  to  a  person  under  sentence  of  death,  offering  to  commute  that 
punishment  into  an  imprisonment  for  life.  If  this  is  accepted  by  the  convict  he  has 
no  right  to  contend  that  the  pardon  is  absolute  and  the  condition  of  it  void  Ex 
parte  Wells,  18  How.,  307;  Osborn  v.  U.  S.,  91  U.  S.,  474;  U.  S.  v.  Wilson,  7  Pet.,  150. 
When  a  pardon  is  granted  with  conditions  annexed  the  conditions  must  be  performed 
before  the  pardon  is  of  any  effect.  Waring  v.  U.  S.,  7  Ct.  Cls.,  501.  One  who  claims 
the  benefit  of  a  pardon  must  be  held  to  strict  compliance  with  its  conditions.  Haym 
v.  U.  S. ,  7  Ct.  Cls. ,  443 ;  Scott  v.  U.  S. ,  8  ibid. ,  457.  The  condition  annexed  to  a  pardon 
must  not  be  impossibte,  unusual,  or  illegal;  but  it  may,  with  the  consent  of  the 
prisoner,  be  any  punishment  recognized  by  the  statutes,  or  by  the  common  law  as 
enforced  by  the  State.  Lee  v.  Murphy,  22  Grat.  (Va.),  789. 

Time  of  exercise.—  The  President  of  the  United  States  has  the  conditional  power  to 
pardon  as  well  before  trial  and  conviction  as  afterwards;  but  it  is  a  power  only  to  be 
exercised  with  reserve  and  for  exceptional  considerations.  VI  Opin.  Att.  Gen.,  20; 
1  ibid.,  341;  2  ibid.,  275;  5  ibid.,  687;  Ex  parte  Garland,  4  Wall.,  333;  Dominick  v. 
Davidson,  44  Ga.,  457;  5  Blair  v.  Com.,  25  Grat.  (Va.),  850.  It  is  competent  for  the 
President  to  grant  a  pardon  after  the  expiration  of  the  term  of  sentence,  thereby 
relieving  from  consequential  disabilities.  Stetler's  Case,  1  Phil.,  IX,  38;  Com.  v. 
Bush,  2  Duv.  (Ky.),  264. 

Limitation  upon  trie  pardoning  power. — The  Constitution  gives  to  Congress  the  power 
to  dispose  of  the  public  property  and  to  the  President  only  the  power  to  pardon 
crimes;  and  the  President,  having  no  title  to  forfeited  property,  can  not  restore  it, 
though  he  may  pardon  the  offense  which  caused  the  forfeiture.  Property  confiscated 
by  judgment  to  the  United  States  is  beyond  the  reach  of  executive  clemency  and  is 
absolutely  national  property.  Knote  v.  U.  S.,  10  Ct.  Cls.,  397,  406;  U.  S.  v.  Six  Lots 
of  Ground,  1  Woods,  234;  Osborn  v.  U.  S.,  91  U.  S.,  474,  477. 

Pleading. — A  pardon  is  a  deed,  to  the  validity  of  which  delivery  is  essential,  and 
delivery  is  not  complete  without  acceptance.  *  *  *  The  pardon  may  possibly 
apply  to  a  different  person  or  to  a  different  crime.  It  may  be  absolute  or  conditional. 
It  may  be  controverted  by  the  prosecutor  and  must  be  expounded  by  the  court. 
These  circumstances  combine  to  show  that  this,  like  any  other  deed,  ought  to  be 
brought  before  the  court  by  plea,  motion,  or  otherwise.  U.  S.  v.  Wilson,  7  Pet,  150, 
161;  Ex  parte  Reno,  66  Mo.,  266.  The  recital  of  a  specific,  distinct  offense,  in  a  par- 
don by  the  President,  limits  its  operation  to  that  offense,  and  such  pardon  does  not 
embrace  any  other  offense  for  which  separate  penalties  and  punishments  are  pro- 
vided. Ex  parte  Weimer,  8  Biss.,  C.  Ct.,  321.  The  conviction  having  been  of  two 
offenses,  and  the  pardon  reciting  only  one,  the  pardon  operates  upon  the  offense 
recited.  State  v.  Foley,  15  Nev.,  64. 

Officers  of  the  United  States. — Any  person  occupying  a  position  under  the  Federal 
Government,  conferred  upon  him'  by  a  legally  authorized  election  or  appointment, 
whose  duties  consist  in  the  exercise  of  important  public  powers  and  trusts,  as  a  part 
of  the  regular  administration  of  the  Government,  such  duties  being  continuing  and 
permanent,  not  occasional  or  temporary,  and  prescribed  by  the  Government  or  by  a 


8  MILITARY    LAWS    OF   THE    UNITED   STATES. 

on  the  Vice-President,  and  the  Congress  may  by  law  pro- 
vide for  the  case  of  removal,  death,  resignation,  or  inabil- 
ity, both  of  the  President  and  Vice-President,  declaring 
what  officer  shall  then  act  as  President,  and  such  officer 
shall  act  accordingly,  until  the  disability  be  removed,  or 
a  President  shall  be  elected.  Constitution,  Art.  //,  sec.  1, 
par.  6. 

provision  for     5.  Tn  case  of  removal,  death,  resignation,  or  inability  of 

»hoSSPvS!ancyboth  the  President  and   Vice-President  of    the  United 

ofSJdentaSd States,  the  Secretary  of  State,  or  if  there  be  none,  or  in 

in'!,'  19? Vs^^  case  of  his  removal,  death,  resignation,  or  inability,  then 

the  Secretary  of  the  Treasury,  or  if  there  be  none,  or  in 

case  of  his  removal,  death,  resignation,  or  inability,  then 

the  Secretary  of  War,  or  if  there  be  none,  or  in  case  of 

his   removal,   death,    resignation,   or   inability,   then   the 

Attorney-General,  or  if  there  be  none,  or  in  case  of  his 

superior  officer,  and  whose  compensation  is  paid  out  of  the  Treasury,  is  an  officer  of 
the  United  States.  U.  S,  t>.  Hartwell,  6  Wallace,  385;  U.  S.  v.  Germaine,  99  U.  S., 
508;  U.  S.  v.  Maurice,  2  Brock.,  103.  Unless  one  in  the  service  of  the  United  States 
holds  his  office  by  virtue  of  an  appointment  made  by  one  of  the  courts  of  justice  or 
heads  of  departments  authorized  by  law  to  make  such  appointment,  he  is  not,  strictly 
speaking,  an  officer  of  the  United  States.  •  U.  S.  v.  Mouat,  124  U.  S.,  303;  U.  S.  v. 
Hendee,  124  U.  S.,  309;  U.  S.  v.  Smith,  124  U.  S.,  525.  Noncommissioned  officers 
are  not  officers  in  the  sense  in  which  the  latter  term  is  generally  used.  Babbitt  v. 
U.  S.,  16  Ct.  Cls.,  202. 

Appointments  to  office. — Appointments  provided  for  by  act  of  Congress,  merely  in 
general  terms,  must  be  made  by  and  with  the  advice  and  consent  of  the  Senate.  VI 
Opin.  Att.  Gen.,  1.  When  a  person  has  been  nominated  to  an  office  by  the  Presi- 
dent, confirmed  by  the  Senate,  and  his  commission  has  been  signed  by  the  President, 
and  the  seal  of  the  United  States  affixed  thereto,  his  appointment  to  that  office  is 
complete.  Congress  may  provide  *•  that  certain  acts  shall  be  done  by  the 

appointee  before  he  shall  enter  on  the  possession  of  the  office  under  the  appointment. 
These  acts  then  become  conditions  precedent  to  the  complete  investiture  of  the  office; 
but  .they  are  to  be  performed  by  the  appointee,  not  by  the  Executive;  all  that  the 
Executive  ran  do  to  invest  the  person  with  his  office  has  been  completed  when  the 
commission  has  been  signed  and  sealed,  and  when  the  person  has  performed  the 
required  condition,  his  title  to  enter' on  the  possession  of  the  office  is  also  complete. 
I'.  S.  r.  Le  Baron,  19  How.,  73,  78;  U.  S.  v.  Stewart,  ibid.,  79;  Marbury  v.  Madison, 
1  Cranch,  137. 

J'otcei'8  of  officers. — All  the  officers  of  the  Government,  from  the  highest  to  the  lowest, 
are  but  agents  with  delegated  powers,  and  if  they  act  beyond  the  scope  of  their  dele- 
gated powers  their  acts  do  not  bind  the  principal.  U.  S.  v.  Maxwell  Grant,  21  Fed. 
Rep.,  19.  An  officer  can  only  bind  the  Government  by  acts  which  come  within  a 
just  exercise  of  his  official  power.  Hunter  v.  U.  S.,  5  Pet.,  173,  178;  The  Floyd 
Acceptances,  7  Wall.,  666;  State  v.  Hastings,  12  Wis.,  596.  It  is  a  question  of  law 
for  the  court  whether  an  act  is  a  part  of  the  official  duty  of  a  public  officer.  U.  S.  v. 
Buchanan,  8  How.,  83.  Every  public  officer  is  required  to  perform  all  duties  which 
are  strictly  official,  although  they  may  be  required  by  laws  passed  after  he  comes  into 
office,  and  may  be  cumulative  upon  his  original  duties,  and  although  his  compensa- 
tion therefor  be  wholly  inadequate.  In  such  case  he  must  look  to  the  bounty  of  Con- 
gress for  any  additional  reward.  Andrews  v.  U.  S. ,  2  Story,  202.  An  officer  is  bound 
to  use  that  care  and  diligence  in  the  discharge  of  his  duties  that  a  conscientious  and 
prudent  man,  acting  under  a  just  sense  of  his  obligations,  would  exercise  under  the 
circumstances  of  a  particular  case,  and  if  he  fails  and  neglects  to  do  so  he  is  culpable. 
U.  S.  r.  Baldridge,  11  Fed.  Rep.,  552. 

Presumptions  as  to  official  nets.— The  acts  of  an  officer  to  whom  a  public  duty  is 
assigned,  within  the  sphere  of  that  duty,  are  prima  facie  within  his  power.  U.  S.  v. 
Arredondo,  6  Pet,  691;  U.  S.  v.  Clarke,  8  ibid.,  436,  452;  Percheman  v.  U.  S.,  7  ibid., 
51;  Delassus  r.  U.  S.;  9  ibid.,  117,  134;  Strother  v.  Lucas,  12  ibid.,  410,  438;  U.  S.  v. 


MILITAEY    LAWS    OF   THE    UNITED   STATES.  9 

removal,  death,  resignation,  or  inability,  then  the  Post- 
master-General, or  if  there  be  none,  or  in  case  of  his  re- 
moval, death,  resignation,  or  inability,  then  the  Secretary 
of  the  Navy,  or  if  there  be  none,  or  in  case  of  his  removal, 
death,  resignation,  or  inability,  then  the  Secretary  of  the 
Interior,  shall  act  as  President  until  the  disability  of  the 
President  or  Vice-President  is  removed  or  a  President  shall 
be  elected:  Provided,  That  whenever  the  powers  and  duties  Proviso. 
of  the  office  of  President  of  the  United  States  shall  devolve 
upon  an}r  of  the  persons  named  herein,  if  Congress  be  not 
then  in  session,  or  if  it  would  not  meet  in  accordance  with 
law  within  twenty  days  thereafter,  it  shall  be  the  duty  of 
the  person  upon  whom  said  powers  and  duties  shall  de- 
volve to  issue  a  proclamation  convening  Congress  in  extra- 
ordinary session,  giving  twenty  days'  notice  of  the  time 
of  meeting.  Act  of  January  19,  1886,  %4  Stat.  Z.,  L 

Peralta,  19  How.,  343,  347.  When  a  particular  functionary  is  clothed  with  the  duty 
of  deciding  a  certain  question  of  fact,  his  decision,  in  the  absence  of  fraud,  is  conclu- 
sive. Logan  r.  The  County,  16  Wall.,  6.  He  who  alleges  that  an  officer  intrusted 
with  important  duty  has  violated  his  instructions  must  show  it.  The  courts  ought 
to  require  very  full  proof  that  an  officer  has  transcended  his  powers  before  they  so 
determine.  U.  S.  r.  Peralta,  19  How.,  343,  347;  Delassus  v.  U.  S.,  9  Pet.,  117,  134. 
AVhen  a  public  officer  is  to  do  any  act  on  proof  of  certain  facts,  of  the  competency 
and  sufficiency  of  which  he  is  to  judge,  it  is  to  be  presumed,  from  the  doing  of  the 
act,  that  the  proof  was  regularly  and  satisfactorily  made,  and  its  sufficiency  is  not 
subject  to  reexamination.  Phil,  and  Tren.  R.  R.  Co.  v.  Stimpson,  14  Pet.,  448. 

Tenure. — The  power  to  appoint  includes  the  power  to  remove,  when  the  Constitu- 
tion has  not  otherwise  provided,  and  when  the  laws  of  Congress  have  not  fixed 
a  tenure  of  office.  Ex  parte  Henneri,  13  Pet.,  230;  Parsons  v.  U.  S.,  167  U.  S.,  324; 
U.  S.  v.  A  very,  Deady,  204.  When  Congress,  by  law,  vests  the  appointment  of  infe- 
rior officers  in  the  heads  of  Departments,  it  may  limit  and  restrict  the  power  of 
removal  as  it  deems  best  for  the  public  interests.  U.  S.  v.  Perkins,  116  U.  S.,  483. 

Resignation. — That  a  public  office  may  be  vacated  by  resignation  is  established  by 
long  and  familiar  practice,  and  is  recognized  by  express  provision  of  law.  Nor  can 
there  be  any  doubt  that  a  resignation  may  be  effected  by  the  concurrence  of  the 
officer  and  the  appointing  power;  its  essential  elements  are  an  intent  to  resign  on  the 
one  side  and  an  acceptance  on  the  other.  It  may  be  either  in  writing  or  by  parol, 
expressly  or  by  implication.  To  perfect  a  resignation  nothing  more  is  necessary 
than  that  the  proper  authority  manifest  in  some  way  its  acceptance  of  the  offer  to 
resign.  It  then  becomes  effectual,  and  operates  to  relieve  the  incumbent  either 
immediately  or  on  the  day  specially  fixed  according  to  its  terms.  An  offer  to  resign 
is  revocable  prior  to  acceptance;  after  acceptance  and  before  it  has  taken  effect  it 
may  be  modified,  or  withdrawn  by  consent  of  both  parties,  but  this  control  extends 
no  further.  When  a  resignation  once  takes  effect  the  official  relations  of  the  incum- 
bent are  ipso  facto  dissolved;  he  has  no  longer  any  right  to,  or  hold  upon,  the  office. 
XIV  Opin.  Att.  Gen.,  259. 

Removal. — In  the  absence  of  all  constitutional  provision  or  statutory  regulation,  it 
would  seem  to  be  a  sound  and  necessary  rule  to  consider  the  power  of  removal  as 
incident  to  the  power  of  appointment.  In  re  Hennen,  13  Pet.,  230,  259.  It  was  the 
purpose  of  Congress,  in  the  repeal  of  the  tenure  of  office  sections  of  the  Revised 
Statutes  (sees.  1767-1775,  Rev.  Stat.,  repealed  by  act  of  March  3,  1887,  24  Stat.  L., 
500),  to  again  concede  to  the  President  the  power  of  removal,  if  taken  from  him  by 
the  original  tenure  of  office  act,  and,  by  reason  of  the  repeal,  to  thereby  enable  him 
to  remove  an  officer  when  in  his  discretion  he  regards  it  for  the  public  good,  although 
the  term  of  office  may  have  been  limited  by  the  words  of  the  statute  creating  the 


466,  601,  and  Blake  v.  U.  S.,  103  U.  S.,  227. 


10  MILITARY    LAWS    OF   THE    UNITED   STATES. 

legibility.  6   The  preceding  section  shall  only  be  held  to  describe 

and  apply  to  such  officers  as  shall  have  been  appointed  by 
the  advice  and  consent  of  the  Senate  to  the  offices  therein 
named,  and  such  as  are  eligible  to  the  office  of  President 
under  the  Constitution,  and  not  under  impeachment  by 
the  House  of  Representatives  of  the  United  States  at  the 
time  the  powers  and  duties  of  the  office  shall  devolve  upon 
them  respectively.1  Section  #,  ibid. 

Treatymaki  g  7.  jje  shall  have  power,  by  and  with  the  advice  and  con- 
sent of  the  Senate,  to  make  treaties,  provided  two-thirds 
of  the  Senators  present  concur;  and  he  shall  nominate, 

Appoint!  ngand  by  and  with  the  advice  and  consent  of  the  Senate, 
shall  appoint  ambassadors,  other  public  ministers  and 
consuls,  judges  of  the  Supreme  Court,  and  all  other  offi- 
cers of  the  United  States,  whose  appointments  are  not 
herein  otherwise  provided  for,  and  which  shall  be  estab- 
lished by  law;  but  the  Congress  may  by  law  vest  the 
appointment  of  such  inferior  officers,  as  they  think  proper, 
in  the  President  alone,  in  the  courts  of  law,  or  in  the  heads 
of  Departments.2  Constitution,  Art.  II,  sec.  %,  par.  2. 

8.  The  President  shall  have  power  to  fill  up  all  vacancies 
that  may  happen  duing  the  recess  of  the  Senate,  by  grant- 
ing commissions  which  shall  expire  at  the  end  of  their  next 
session.  Ibid.,  par.  3. 

Recess  ap-     9.  The  President  is  authorized  to  fill  all  vacancies'  which 

may  happen  during  the  recess  of  the  Senate  by  reason  of 

death,  or  resignation,  or  expiration  of  term  of  office,  by 

granting  commissions  which  shall  expire  at  the  end  of  their 

s  \?aii  2p  1Sol  s'  nex*  sessi°n  thereafter,  and  if   no  appointment,  by  and 


3  vpi66p  1769'  "'  w^n  ^ne  advice  and  consent  of  the  Senate,  is  made  to  an 
office  so  vacant  or  temporarily  filled  during  such  next  ses- 
sion of  the  Senate,  the  office  shall  remain  in  abeyance, 


1  Sections  146,  147,  148,  and  149  of  the  Revised  Statutes  were  repealed  by  the  act 
of  January  19,  1886  (24  Stat.  L.,  1). 

2  Public  office.  —  An  office  is  a  public  station,  or  employment,  conferred  by  the 
appointment  of  Government.     The  term  embraces  the  ideas  of  tenure,  emolument, 
and  duties.  The  duties  are  continuing  and  permanent,  not  occasional  and 
transitory,  and  are  defined  by  rules  prescribed  by  Government  and  not  by  contract. 
*    *    *    A  Government  office  is  different  from  a  Government  contract.     The  latter, 
from  its  nature,  is  necessarily  limited  in  its  duration  and  specific  in  its  objects.     The 
terms  agreed  upon  define  the  rights  and  obligations  of  both  parties,  and  neither  may 
depart  from  them  without  the  assent  of  the  other.     U.  S.  v.  Hartwell,  6  Wall.,  385, 
394;  U.  S.  v.  Maurice,  2  Brockenbrough,  103.     A  public  officer  is  the  incumbent  of 
an  office  "who  exercises  continuously,  and  as  a  part  of  the  regular  and  permanent 
administration  of  the  Government,  its  public  powers,  trusts,  and  duties."     Sheboy- 
gan  Co.  v.  Parker,  3  Wall.,  93,  96.     Unless  a  person  in  the  service  of  the  Government 
holds  his  place  by  virtue  of  an  appointment  by  the  President,  or  of  one  of  the  courts 
of  justice  or  heads  of  Departments  authorized  by  law  to  make  such  an  appointment, 
he  is  not,  strictly  speaking,  an  officer  of  the  United  States,     U.  S.  v.  Mouat,  124  U.  S., 
303,  307;  U.  S.  v.  Germaine,  99  U.  S.,  508,  510. 


MILITARY    LAWS    OF   THE    UNITED   STATES.  H 

without  any  salary,  fees,  or  emoluments  attached  thereto, 
until  it  is  filled  by  appointment  thereto  by  and  with  the 
advice  and  consent  of  the  Senate;  and  during  such  time  all 
the  powers  and  duties  belonging  to  such  office  shall  be  , 
exercised  by  such  other  officer  as  may  by  law  exercise  such 
powers  and  duties  in  case  of  a  vacancy  in  such  office.1 

10.  The  President  is  authorized  to  make  out  and  deliver,    commissions, 
after  the  adjournment  of  the  Senate,  commissions  for  alli^,  s.Vv. HP' 
officers  whose  appointments  have  been  advised  and  con-  sec.  1773,  E.  s. 
sented  to  by  the  Senate.1 

11.  Whenever  the  President,  without  the  advice  and    Notification  of 
consent  of  the  Senate,  designates,  authorizes,  or  employs s e'er e tary8 0° 
any  person  to  perform  the  duties  of  any  office,  he  shall    Mar.  2,'i867,  c 
forthwith  notify  the  Secretary  of  the  Treasur}7  thereof,  and  431! 

the  Secretary  of  the  Treasury  shall  thereupon  communicate 
such  notice  to  all  the  proper  accounting  and  disbursing 
officers  of  his  Department.     The  Secretary  of  the  Senate    Notification  of 
shall,  at  the  close  of  each  session  thereof,  deliver  to  the  JSESSJ1  e?c!, r£ 
Secretary  of  the  Treasury,  and  to  each  of  the  Assistant  lreasuryary 
Secretaries  of  the  Treasury,  and  to  each  of  the  Auditors,  m^.'^v^illp. 
and  to  each  of  the  Comptrollers  in  the  Treasury,  and  tolec.  1775,  B.  s. 
the  Treasurer,  and  to  the  Register  of  the  Treasury,  a  full 
and  complete  list,  duly  certified,  of  all  the  persons  who 
have  been  nominated  to  and  rejected  by  the  Senate  during 
such  session,  and  a  like  list  of  all  the  offices  to  which  nomi- 
nations have  been  made  and  not  confirmed  and  filled  at 
such  session. 

lFor  statutory  requirements  in  respect  to  commissions  to  military  officers  see  the 
chapter  entitled  COMMISSIONED  OFFICERS. 


CHAJPTER    II. 


PROVISIONS  APPLICABLE  TO  THE  SEVERAL  EXECUTIVE 

DEPARTMENTS. 


Par. 

12.  Application  of  title. 

13-19.  Temporary  vacancies;  how  filled. 

20.  Regulations  for  Executive  Depart- 
ments. 

21-24.  Chief  clerks;  disbursing  clerks. 

25-31 .  Appointment  of  clerks  ;  restric- 
tions. 

32-37.  Classification  of  clerks. 

38-42.  Salaries. 

43-45.  Leaves  of  absence;  sick  leaves. 

46-48.  Legal  holidays. 

49-51.  Administration  of  oaths. 

52, 53.  Hours  of  labor  in  Executive  De- 
ments. 

54-60.  Contingent  funds. 

61.  Requisitions  for  funds;  advances, 
warrants. 


Par. 

62-78.  Estimates. 

79-81.  Procurement  of  supplies;  con- 
tracts and  purchases. 

82.  Purchase  of  stationery. 

83-85.  Inspection  of  fuel  in  the  District 
of  Columbia. 

86-91.  Annual  reports. 

92.  The  Official  Register. 

93-102.  Miscellaneous  requirements. 

103-105.  Destruction,  forgery,  etc.,  of 
public  records. 

106, 107.  Disposition  of  useless  papers. 

108.  Books  and  papers  to  be  open  to  ex- 

amination of  accounting  officers  of 
the  Treasury. 

109.  Departmental  libraries. 
110-116.  Prosecution  of  claims. 


12.  The  provisions  of  this  title  shall  apply  to  the  follow- 
ing Executive  Departments: 

First.  The  Department  of  State. 

Second.  The  Department  of  War. 

Third.  The  Department  of  the  Treasury. 

Fourth.  The  Department  of  Justice. 

Fifth.  The  Post-Office  Department. 

Sixth.  The  Department  of  the  Navy. 

Seventh.  The  Department  of  the  Interior. 

The  word  "  Department"  when  used  alone  in  this  title, 
and  titles  five,  six,  seven,  eight,  nine,  ten,  and  eleven, 
means  one  of  the  Executive  Departments  enumerated  in 
the  preceding  section.1 


The  titles  so  numbered  in  the  Revised  Statutes  are  the  ones  above  referred  to. 
12 


Application  of 
provisions  of  this 
title. 


Sec.  158,  K.  S. 


Sec.  159,  K.  S. 


Word  "Depart- 
ment." 


MILITARY    LAWS    OF   THE    UNITED    STATES.  13 


TEMPORARY    VACANCIES. 


Par. 


17.  Restriction    on    temporary   appoint- 

ments. 

18.  The  same. 

19.  No  extra  compensation  for  temporary 

officers. 


Par. 

13.  First  assistant  to  act. 

14.  Vacancies  in  subordinate  offices. 

15.  Discretionary  authority  of  the  Presi- 

dent. 

16.  General     Commanding    Army    and 

heads  of  bureaus  to  act  as  Secre- 
tary of  War. 

13.  In  case  of  the  death,  resignation,  absence,  or  sick- 
ness of  the  head  of  any  Department,   the  first  or  solemj^23  im  c 
assistant  thereof  shall,  unless  otherwise  directed  by  the  ^7,  s.  i,  V.  15,' p. 
President,  as  provided  by  section  one  hundred  and  seventy-    Se<>- 177'  K- s- 
nine,1  perform  the  duties  of  such  head  until  a  successor  is 
appointed,  or  such  absence  or  sickness  shall  cease. 

14.  In  case  of  the  death,  resignation,  absence,  or  sick-  snbSrdtnate^f1- 
ness  of  the  chief  of  any  Bureau,  or  of  any  officer  thereof,  ficje^y23  1868  c 
whose  appointment  is  not  vested  in  the  head  of  the  Depart-  ^  s-  2>  v- 16>  P- 
ment,  the  assistant  or  deputy  of  such  chief  or  of  such    Sec- 178>  B- s- 
officer,  or  if  there  be  none,  then  the  chief  clerk  of  such 

Bureau,  shall,  unless  otherwise  directed  by  the  President, 
as  provided  by  section  one  hundred  and  seventy-nine,  per- 
form the  duties  of  such  chief  or  of  such  officer  until  a  suc- 
cessor is  appointed  or  such  absence  or  sickness  shall  cease.2 

+  ~     T  P   ^  ^    -      .i  j-  Discretionary 

15.  In  anv  of  the  cases  mentioned  in  the  two  preceding  authority  of  the 

s  xu       j      xu  x-  v,  -i     President. 

sections,3  except  the  death,  resignation,  absence,  or  sick-    July 23, ises, c. 
ness  of  the  Attorney-General,  the  President  may,  in  hisies'-,  'jun'e  '22, 

T  ^  Ai_        •  i    j-  ^        t.        J      £  Ai_         T^       1870, C.  150,  s. 2,  v. 

discretion,  authorize  and  direct  the  head  of  any  other  De-i6,p.i62. 
partment  or  any  other  officer  in  either  Department  whose 
appointment  is  vested  in  the  President,  by  and  with  the 
advice  and  consent  of  the  Senate,  to  perform  the  duties  of 
the  vacant  office  until  a  successor  is  appointed,  or  the  sick- 
ness or  absence  of  the  incumbent  shall  cease.* 

16.  The  President  may  authorize  and  direct  the  Com- 
manding General  of  the  Army  or  the  chief  of  any  military 
Bureau  of  the  War  Department  to  perform  the  duties  of 

the  Secretary  of  War  under  the  provisions  of  section  one|fa^retary 
hundred  and  seventy-nine  of  the  Revised  Statutes,  and  22^pu^|; 1882>  v- 
section  twelve  hundred  and  twenty-two  of  the  Revised 
Statutes  shall  not  be  held  or  taken  to  apply  to  the  officer 


1  Section  179,  Revised  Statutes,  paragraph  15,  post: 
2 See  XIX  Opin.  Att.  Gen.,  503. 


3  Sections  177  and  178,  Revised  Statutes,  paragraphs  13  and  14,  ante. 

4  The  vacancy  occasioned  by  the  retirement  of  the  head  of  a  staff  department  may 
be  temporarily  filled  by  an  ad  interim  appointment,  under  tlje  authority  conferred,  by 
section  179.  Revised  Statutes.     XIX  Opin.  Att.  Gen.,  500. 


14  MILITARY    LAWS   OF   THE    UNITED    STATES. 

so  designated  by  reason  of  his  temporarily  performing  such 
duties.     Act  of  August  5,  1888  (88  Stat.  Z.,  838). 
Temporary  ap-     17    A  vacancv  occasioned  by  death  or  resignation  must 

pointments  lim-  J  1,1  T  j.' 

fted^  to  thirty  not  be  temporarily  tilled  under  the  three  preceding  sections 
ajyuiy23,i868,c.  for  a  longer  period  than  thirty  days.     Act  of  February  6, 

227,  s.  3,  v.  15,  P.  ion-f  (toft  gfaf    £      733)  168;  Feb.  6, 1891,  v.  26,  p.  733. 

Restriction  on  igt  ]^o  temporary  appointment,  designation,  or  assign- 
pointments.  ment  of  one  officer  to  perform  the  duties  of  another,  in  the 

July  23, 1868,  c.  1111 

227,  s.  2,  v.  15,  p.  cases  covered  by  sections  one  hundred  and  seventy-seven 
Sec.  isi,  B.  s.  and  one  hundred  and  seventy-eight,1  shall  be  made  other- 
wise than  as  provided  by  those  sections,  except  to  fill  a 
vacancy  happening  during  a  recess  of  the  Senate. 
Extra compen-     19.  An  officer  performing  the  duties  of  another  office, 

sation    disal-  ,  .,        .        ,    ,  ,.  i_        j        i 

lowed.  during1  a  vacancv,  as  authorized  by  sections  one  hundred 

July  23, 1868,  c.  J  '  .          ,        ,  ,  .     ,  ,    rT. 

227,  s.  3,  v.  15,  p.  and  seventy-seven,  one  hundred  and  seventy-eight  [Kev. 
s'ec.  isa,  R.  s.  Stat.],  and  one  hundred  and  seventy-nine  [ibid.],  is  not  by 
reason  thereof  entitled  to  any  other  compensation  than  that 
attached  to  his  proper  office. 

REGULATIONS  FOR  EXECUTIVE  DEPARTMENTS. 

re  Diffiotmental  20-  The  head  of  each  Department  is  authorized  to  pre- 
4  viy228*ie' t'  scri°e  regulations,  not  inconsistent  with  law,  for  the  gov- 
is.nsg.cavv.  i,  ernmentof  his  Department,  the  conduct  of  its  officers  and 
49^9seCpt7'  2'  1789'  clerks,  the  distribution  "and  performance  of  its  business, 
June  I'  1872'  ^  an(*  ^e  custody,  use,  and  preservation  of  the  records,  pa- 
A35rV3o7'i798^8c'Pers'  an(^  Pr°Perty  appertaining  to  it.2 

35,  v.  1,  p.  553';  June  22,  1870,  c.  150,  s.  8,  v.  16,  p.  163;  Mar.  3, 1849,  c.  108,  v.  9,  p.  395.     Sec.  161,  R.  S. 

Sections  177  and  178.     Revised  Statutes:  paragraphs  13  and  14,  ante. 

a  The  President  speaks  and  acts  through  the  heads  of  the  several  Executive  De- 
partments in  relation  to  subjects  which  appertain  to  their  respective  duties.  Wilcox 
r.  Jackson,  13  Pet,  498,  513;  Wolsey  v.  Chapman,  101  U.  S.,  755.  It  is  the  general 
theory  of  departmental  administration  that  the  heads  of  the  Executive  Departments 
are  the  executors  of  the  will  of  the  President.  X  Opin.  Att.  Gen.,  527.  As  a  gen- 
eral rule  the  direction  of  the  President  is  to  be  presumed  in  all  instructions  and 
orders  issuing  from  the  competent  Department.  VII  id.,  453.  Official  instructions 
issued  by  the  heads  of  the  several  Executive  Departments,  civil  and  military,  within 
their  respective  jurisdictions,  are  valid  and  lawful,  without  containing  express  ref- 
erence to  the  direction  of  the  President.  VII  id. ,  453.  The  duties  of  the  heads  of  the 
several-  Executive  Departments  are  derived,  in  part,  from  the  Constitution,  and  are, 
in  part,  imposed  by  statute.  In  the  execution  of  the  former  they  act  as  the  repre- 
sentatives of  the  President,  to  whom  they  are  responsible  for  their  correct  perform- 
ance. For  duties  imposed  by  statute  their  responsibility  is  to  the  legislature,  and 
they  are  controlled  in  all  matters  relating  to  performance  by  such  statutory  rules 
and  regulations  as  Congress  may  see  fit  to  impose.  (See  Mar  bury  v.  Madison,  1  Cr., 
137,  and  par.  1,  note  1.) 

The  executive  power  is  vested  in  a  President,  and  so  far  as  his  powers  are  derived 
from  the  Constitution  he  is  beyond  the  reach  of  any  other  Department,  except  in 
the  mode  prescribed  by  the  Constitution  through  the  impeaching  power,  but  it  by 
no  means  follows  that  every  officer  in  every  branch  of  that  Department  is  under  the 
exclusive  direction  of  the  President,  *  *  There  are  certain  political  duties 
imposed  upon  many  officers  in  the  Executive  Department  the  discharge  of  which  is 
under  the  direction  of  the  President,  but  it  would  be  an  alarming  doctrine  that 
Congress  can  not  impose  upon  any  executive  officer  any  duty  they  may  think 


MILITARY    LAWS    OF    THE    UNITED   STATES. 


15 


CHIEF  CLERKS;   DISBURSING  CLERKS. 


Par. 

21.  Duties  of  chief  clerks. 

22.  To  distribute  clerical  duties;  monthly 

reports. 


Par. 

23.  Action  on  report. 

24.  Disbursing  clerks;    duties  and  com- 

pensation. 


21.  Each  chief  clerk  in  the  several   Departments,  and  chief  clerks  to 
Bureaus,  and  other  offices  connected  with  the  Departments,  di 


proper,  which  is  not  repugnant  to  any  rights  secured  and  protected  by  the  Con- 
stitution, and  in  such  cases  the  duty  and  responsibility  grow  out  of  and  are  subject 
to  the  control  of  the  law  and  not  to  the  direction  of  the  President,  and  this  is  em- 
phatically the  case  where  the  duty  is  of  a  ministerial  character.  Kendall  v.  U.  S., 
12  Pet.,  524,  610.  See,  also,  the  title  Army  Regulations  in  the  chapter  entitled  THE 
REVISED  STATUTES;  THE  STATUTES  AT  LARGE;  THE  ARMY  REGULATIONS. 

Ministerial  and  discretionary  duties.  —  The  duties  performed  by  the  heads  of  the  sev- 
eral Executive  Departments  are  either  ministerial  or  discretionary  or  quasi  judicial 
in  character.  "The  question  whether  the  legality  of  an  act  of  the  head  of  a  Depart- 
ment be  examinable  in  a  court  of  justice  or  not  must  always  depend  on  the  nature  of 
the  act.  By  the  Constitution  of  the  United  States  the  President  is  invested  with  cer- 
tain important  political  powers  in  the  exercise  of  which  he  is  to  use  his  own  discre- 
tion, and  is  accountable  only  to  his  country  in  his  political  character  and  to  his  own 
conscience.  To  aid  him  in  the  performance  of  these  duties  he  is  authorized  to  appoint 
certain  officers,  who  act  by  his  authority  and  in  conformity  to  his  orders.  In  such 
cases  their  acts  are  his  acts,  and,  whatever  opinion  may  be  entertained  of  the  manner 
in  which  Executive  discretion  may  be  used,  still  there  exists  and  can  exist  no  power 
to  control  their  discretion.  The  subjects  are  political.  They  respect  the  nation,  not 
individual  rights,  and  being  intrusted  to  the  Executive,  the  decision  of  the  Execu- 
tive is  conclusive.  The  conclusion  is  that  where  the  heads  of  Departments 

are  the  political  or  confidential  agents  of  the  Executive,  merely  to  execute  the  will 
of  the  President,  nothing  can  be  more  perfectly  clear  than  that  their  acts  are  only 
politically  examinable.  Marbury  v.  Madison,  1  Cr.,  137,  166;  Kendall  v.  U.  S.,  12 
Pet.,  524,  611;  Decatur  v.  Paulding,  14  Pet.,  497,  515.  We  are  not  aware  of  any  case 
in  England  or  this  country  in  which  it  has  been  held  that  a  public  officer,  acting  to 
the  best  of  his  judgment  and  from  a  sense  of  duty,"  in  a  matter  of  account  with  an 
individual,  has  been  held  liable  for  an  error  of  judgment.  *  *  *  A  public  officer 
is  not  liable  to  an  action  if  he  falls  into  error  in  a  case  where  the  act  to  be  done  is  not 
merely  a  ministerial  one  but  is  one  in  relation  to  which  it  is  his  duty  to  exercise 
judgment  and  discretion,  even  though  an  individual  may  suffer  by  his  mistake.  A 
contrary  principle  would  indeed  be  pregnant  with  the  greatest  mischiefs.  Kendall 
v.  Stokes,  3  How.,  87,  98;  Gould  v.  Hammond,  1  Me  All.,  235,  243;  Noble  v.  Union 
River  Logging  Co.,  147  U.  S.,  165,  171. 

A  ministerial  duty  the  performance  of  which  may  in  proper  cases  be  required  of 
the  head  of  a  Department  by  judicial  process  is  one  in  respect  to  which  nothing  is 
left  to  discretion.  It  is  a  simple,  definite  duty,  arising  under  conditions  admitted  or 
proved  to  exist  and  imposed  by  law.  Mississippi  v.  Johnson,  4  Wall.,  475,  498;  Mar- 
bury  v.  Madison,  1  Cr.,  137;  Kendall  v.  Stockton,  12  Pet.,  524.  As  a  mandamus  can 
only  be  granted  because  there  is  no  other  adequate  remedy  at  law,  an  action  for  dam- 
ages can  not  be  afterwards  sustained  for  the  same  cause  of  action,  the  two  being 
inconsistent.  Kendall  v.  Stokes,  3  How.,  87,  102. 

Liability  for  damages.  —  The  executive  officers  of  the  United  States  are  personally 
liable  at  law  for  damages,  in  the  ordinary  forms  of  action,  for  illegal  official  or  min- 
isterial acts  or  omissions  to  the  injury  of  an  individual.  Marbury  v.  Madison,  1  Cr., 
137,  166;  Gaines  v.  Thompson,  7  Wall.,  347;  Amy  v.  The  Supervisors,  11  Wall.,  136, 
137,  166.  Where  a  ministerial  officer  acts  in  good  faith  he  is  not  liable  in  exemplary 
damages  for  an  injury  done,  but  he  can  claim  no  further  exemption  where  his  acts 
are  clearly  against  the  law.  Tracy  v.  Swartwout,  10  Pet.,  80. 

Measure  of  damages.  —  Where  the  law  requires  absolutely  a  ministerial  act  to  be 
done  by  a  public  officer,  and  he  neglects  or  refuses  to  do  such  act,  he  may  be  com- 
pelled to  respond  in  damages  to  the  extent  of  the  injury  arising  from  his  conduct 
A  mistake  as  to  his  duty  and  honest  intentions  will  not  excuse  the  offender.  Amy 
v.  The  Supervisors,  11  Wall.,  136.  Where  an  action  is  brought  for  an  injury  done  in 
the  discharge  of  an  official  duty,  the  damages  are  measured  generally  by  the  extent 
of  that  injury.  Bispham  v.  Taylor,  2  McLean,  408.  Pierce  v.  Strickland,  2  Story, 
"92.  For  general  provisions  respecting  .public  officer,  see  Chapter  IV  and  par.  4, 
.ante. 


16  MILITARY    LAW8    OF   THE    UNITED    STATES. 

2o£usgif  V18?'?'  shall  supervise,  under  the  direction  of  his  immediate  supe- 
B  rior,  the  duties  of  the  other  clerks  therein,  and  see  that 

Sec.  17«>,  K.  ». 

they  are  faithfully  performed.1 

chief  clerks  to  22.  Each  chief  clerk  shall  take  care,  from  time  to  time, 
ticket?.111  "that  the  duties  of  the  other  clerks  are  distributed  with 

Aug.  26,  1842,  c.  .  .,  ,  .  ,  ,  .,    ,  , 

202,  s.  is,  v.  5,  p.  equality  and  uniformity,  according,  to  the  nature  or  the 

sec.  174,  B.  s.  case.     He  shall  revise  such  distribution  from  time  to  time, 

for  the  purpose  of  correcting  any  tendency  to  undue  accu- 

mulation or  reduction  of  duties,  whether  arising  from 

individual  negligence  or  incapacity,  or  from  increase  or 

diminution  of  particular  kinds  of  business.     And  he  shall 

report  monthly  to  his  superior  officer  any  existing  defect 

that  he  may  be  aware  of  in  the  arrangement  or  dispatch  of 

business. 

Duty  of  chief     23.  Each  head  of  a  Department,  chief  of  a  Bureau,  or 

on  receipt  of  re-  L  .    .  ,  . 

port.-  other  superior  officer,  shall,  upon  receiving  each  monthlv 

Aug.  26,  1842,  c.  i  •       i  •    •     i  j 

202,  s.  13,  v.  5,  p.  report  of  his  chief  clerk,  rendered  pursuant  to  the  preced- 
s'ec.  no,  B.  s.  ing  section,  examine  the  facts  stated  therein,  and  take 
such  measures,  in  the  exercise  of  the  powers  conferred 
upon  him  by  law,  as  may  be  necessary  and  proper  to  amend 
any  existing  defects  in  the  arrangement  or  dispatch  of 
business  disclosed  by  such  report. 

Disbursing  24.  The  disbursing  clerks  authorized  by  law  in  the 
clMar.'  3,  1853,  c.  several  Departments  shall  be  appointed  by  the  heads  of 
209,82n;VMarp3',  the  respective  Departments,  from  clerks  of  the  fourth 
10,  '^'*Mar.  class;  and  shall  each  give  a  bond  to  the  United  States  for 


J!  the  faithful  discharge  of  the  duties  of  his  office  according 
S*  to  law  in  such  amount  as  shall  be  directed  by  the  Secretary 
of  the  Treasury,  and  with  sureties  to  the  satisfaction  of 
the  Solicitor  of  the  Treasury  ;  and  shall  from  time  to  time 
renew,  strengthen,  and  increase  his  official  bond,  as  the 
compensation.  Secretary  of  the  Treasury  may  direct.  Each  disbursing 
clerk,  except  the  disbursing  clerk  of  the  Treasury  Depart- 
ment, must,  when  directed  so  to  do  by  the  head  of  the 
Department,  superintend  the  building  occupied  by  his 
Department.  Each  disbursing  clerk  is  entitled  to  receive, 
in  compensation  for  his  services  in  disbursing,  such  sum  in 
addition  to  his  salary  as  a  clerk  of  the  fourth  class  as  shall 
make  his  whole  annual  compensation  two  thousand  dollars 
a  year. 

1  For  authority  of  chief  clerks  to  administer  oaths  of  office,  see  the  act  of  August 
29,  1890  (26  Stat.  L.,  371),  paragraph  49  post;  for  statutory  duties  of  the  chief  clerk 
of  the  War  Department,  see  paragraphs  22,  23,  and  134  post. 


MILITARY    LAWS    OF    THE    UNITED    STATES. 


17 


APPOINTMENT    OF    CLERKS;    RESTRICTIONS    ON    APPOINTMENT. 

Par. 


29.  Voluntary  service  prohibited. 

30.  Civil  pension  roll  prohibited. 

31.  Payment  of  incapacitated  persons. 


oniyr°pm 


Par. 

25.  Authority  to  employ. 

26.  Restriction  on  employment. 

27.  Payments    from   specific   appropria- 

tions. 

28.  Employees  elsewhere  not  to  be  de- 

tailed in  Washington. 

25.  Each  head  of  a  Department  is  authorized  to  emplo}T    Authority   to 
in  his  Department  such  number  of  clerks  of  the  several  and  °othere  em- 
classes  recognized  by  law,  and  such  messengers,  assistant    Mar.  3, 1875,  c. 

.    /  .  129,  v.  18,  pp.  360, 

messengers,  copvists,  watchmen,  laborers,  and  other  em-36i,  365;  c.  130, 

'  ss.  2,  3,  v.  18,  p. 

ployees,  and  at  such  rates  or  compensation,  respectively,  399. 
as  may  be  appropriated  for  by  Congress  from  year  to  year.  * 

26.  The  executive  officers  of  the  Government  are  hereby    Employing 

.  clerks,  etc.,  be- 

prohibited   from    employing  any  clerk,  agent,  engineer,  yond  provisions 
draughtsman,  messenger  watchman,  laborer,  or  other  em-    sec.  5,  Aag.tt, 
ployee,  in  any  of  the  Executive  Departments  in  the  city  of 
Washington,  or  elsewhere  beyond  provision  made  by  law.2 
Sec.  5,  act  of  August  15,  1876  (19  Stat.  Z.,  169). 

27.  No  civil  officer,  clerk,  draughtsman,  copyist,  mes- 
senger, assistant  messenger,  mechanic,  watchman,  laborer, 

or  other  employee  shall,  after  the  first  day  of  October  next,  i882,%.422fpg255.' 
be  employed  in  any  of  the  Executive  Departments,  or  sub- 
ordinate bureaus  or  offices  thereof  at  the  seat  of  Govern- 
ment, except  only  at  such  rates  and  in  such  numbers, 
respectively,  as  may  be  specifically  appropriated  for  by 
Congress  for  such  clerical  and  other  personal  services  for 
each  fiscal  year;  and  no  civil  officer,  clerk,  draughtsman, 
copyist,  messenger,  assistant  messenger,  mechanic,  watch- 
man, laborer,  or  other  employee  shall  hereafter  be  employed 
at  the  seat  of  Government  in  any  Executive  Department 
or  subordinate  bureau  or  office  thereof  or  be  paid  from  any 
appropriation  made  for  contingent  expenses,  or  for  any 
specific  or  general  purpose,  unless  such  employment  is 
authorized  and  payment  therefor  specifically  provided  in 
the  law  granting  the  appropriation,  and  then  only  for 
services  actually  rendered  in  connection  with  and  for  the 
purposes  of  the  appropriation  from  which  payment  is 
made,  and  at  the  rate  of  compensation  usual  and  proper  for 
such  services. 

*For  authority  of  chief  clerks  to  administer  oaths  of  office,  see  the  act  of  August 

29.  1890  (26  Stat.  L.,  371),  paragraph  49  post;  for  statutory  duties  of  the  chief  clerk 
of  the  War  Department,  see  paragraphs  22,  23,  and  134  post. 

2  For.  rules  regulating  the  procurement  of  services  in  the  several  Executive  Depart- 
ments see,  in  Chapter  IV,  the  title  The  Civil  Service. 

22924—08 2 


18  MILITARY    LAWS    OF    THE    UNITED    STATES. 

civil  officers,     28.  After  the  first  day  of  October  next  section  one  hun- 
lmpioyed!nottodredand  seventy -two  of  the  Revised  Statutes,  and  all  other 

be   detailed   for,  J  n  ,    .  .   .     ,.  .    .  „ 

duty  in  the  Dis-  laws  and  parts  of  laws  inconsistent  with  the  provisions  or 

trict  of   Colum-    ,  ~.        .    .  ,, 

wa.  this  act,  and  all  laws  and  parts  of  laws  authorizing  the 

R.    S.    172    re-  .  .    , 

pealed.  employment  of  officers,  clerks,   draughtsmen,  copyists, 

messengers,  assistant  messengers,  mechanics,  watchmen, 
laborers,  or  other  employees  at  a  different  rate  of  pay  or 
in  excess  of  the  numbers  authorized  by  appropriations 
made  by  Congress,  be,  and  they  are  hereby,  repealed;  and 
thereafter  all  details  of  civil  officers,  clerks,  or  other  sub- 
ordinate employees  from  places  outside  of  the  District  of 
Columbia  for  duty  within  the  District  of  Columbia,  except 
temporary  details  for  duty  connected  with  their  respective 
offices,  be,  and  are  hereby, -prohibited;  and  thereafter  all 
moneys  accruing  from  lapsed  salaries,  or  from  unused  ap- 
propriations for  salaries,  shall  be  covered  into  the  Treasury.1 
Sec.  4,  act  of  August  5,  1882  (%<2  Stat.  Z.,  255). 

vo^nte^Ter?-     29<  Hereafter  no  Department  or  officer  of  the  United 

1CMay  i  1874  v  States  shall  accept  voluntary  service  for  the  Government 

23,  p.  17.  or  employ  personal  service  in  excess  of  that  authorized  by 

law,  except  in  cases  of  sudden  emergency  involving  the 

loss  of  human  life  or  the  destruction  of  property.     Act  of 

May  1,  1874  (83  Stat.  Z.,  17). 

wm^roEfbited1      ^'  ^e  establishment  of  a  civil  pension  roll,  or  an  hon- 
30Fpb846ll8"'v'  orabl6  service  roll,  or  the  exemption  of  any  of  the  officers, 
clerks,  and  persons  in  the  public  service  from  the  existing 
laws  respecting  employment  in  such  service  is  hereby  pro- 
hibited.2    Act  of  February  %  1899  (30  Stat.  Z.,  846). 
pereon?enperma-     «*1.  The  appropriations   herein   made   for  the  officers, 
£ted.y  incapaci"  clerks,  and  persons  employed  in  the  public  service  shall 

JThe  act  of  August  5,  1882  (22  Stat.  L.  255),  contained  the  following  provisos: 
"That  the  sums  herein  specifically  appropriated  for  clerical  or  other  force  hereto- 
fore paid  for  out  of  general  or  specific  appropriations  may  be  used  by  the  several 
heads  of  Departments  to  pay  such  force  until  the  said  several  heads  of  Departments 
shall  have  adjusted  the  said  force  in  accordance  with  the  provisions  of  this  act;  and 
such  adjustment  shall  be  effected  before  October  first,  eighteen  hundred  and  eighty- 
two.  And  in  making  such  adjustment  the  employees  herein  provided  for  shall,  as 
far  as  may  be  consistent  with  the  interests  of  the  service,  be  apportioned  among  the 
several  States  and  Territories  according  to  population:  Provided  further,  That  any 
person  performing  duty  in  any  capacity  as  officer,  clerk,  or  otherwise  in  any  Depart- 
ment at  the  date  of  the  passage  of  this  act  who  has  heretofore  been  paid  from  any 
appropriation  made  for  contingent  expenses  or  for  any  contingent  or  general  purpose, 
and  whose  office  or  place  is  specifically  provided  for  herein,  under  the  direction  of 
the  head  of  that  Department,  may  be  continued  in  such  office,  clerkship,  or  employ- 
ment without  a  new  appointment  thereto,  but  shall  be  charged  to  the  quotas  of  the 
several  States  and  Territories  from  which  they  are  respectively  appointed,  and  nothing 
herein  shall  be  construed  to  repeal  section  166  of  the  Revised  Statutes  of  the  United 
States."  See  also  3  Dig.  Dec.  2nd  Compt.,  par.  82. 

2  Section  2  of -the  act  of  June  2,  1900  (31  Stat.  L.,  261 ),  contained  a  similar  require- 
ment. 


MILITARY    LAWS    OF    THE    UNITED   STATES.  19 

not  be  available  for  the  compensation  of  any  persons  per-    Mar.  3, 1901,  v. 
manently  incapacitated  for   performing    such    service.131 
Act  of  March  3,  1901  (31  Stat.  Z.,  1009). 


CLASSIFICATION    OF    CLKRKS. 


Par. 


Par. 

32.  Four  classes. 

33.  Examination. 

34.  Employment  of  women. 

32.  The  clerks  in  the  Departments  shall  be  arranged 
four  classes,  distinguished  as  the  first,  second,  third,  and c1^'  3  1353 


35.  Distribution. 

36.  Keduction  to  lower  grade. 

37.  Preference  in  reduction. 


f  nil  vr  h  (Aft  «<SP«  77»  s-  3>  v-  1°'  P-  2°9;  Mar-  3-  1855,  c.  175,  s.  4,  v.   o,  p.  669; 

Aug.  15,  1876,  c.  287,  s.  3,  v.  19,  p.  169.    Sec.  1W,R.  S. 


33.  No  clerk  shall  be  appointed  in  any  Department  in 

either  of  the  four  classes  above  designated  until  he  has       ia      i8> 
been  examined  and  found  qualified  by  a  board  of  three  c^75t8.4,v.io,  p. 
examiners,  to  consist  of  the  chief  of  the  Bureau  or  office    Sec-  16*'  E-  s- 
into  which  such  clerk  is  to  be  appointed  and  two  other 
clerks  to  be  selected  by  the  head  of  the  Department.2 

34.  Women  may,  in  the  discretion  of  the  head  of  any    clerkships 

J  7    .  /  open  to  women. 

Department,  be  appointed  to  any  ot  the  clerkships  therein  0  July  12.  i8J°.  c. 

,  .    .  251,  s.  2,  v.  16,  pp. 

authorized  bv  law,  upon  the  same  requisites  and  condi-  ^  25o-  _ 

»  A  Sec.  loo,  It.  S. 

tions,  and  with  the  same  compensations,  as  are  prescribed 
for  men. 

35.  Each  head  of  a  Department  may,  from  time  to  time,  cle^ribution  o£ 
alter  the  distribution  among  the  various  bureaus  and  offices  18^%3'2^Iay1TO' 
of  his  Department,  of  the  clerks  and  other  employees    Sec.iee,  R.  s. 
allowed  by  law,  except  such  clerks  or  employees  as  may  be 
required  by  law  to  be  exclusively  engaged  upon  some  spe- 

cific work,  as  he  may  find  it  necessary  and  proper  to  do, 
but  all  details  hereunder  shall  be  made  by  written  order 
of  the  head  of  the  Department,  and  in  no  case  be  for  a 
period  of  time  exceeding  one  hundred  and  twenty  days: 
Provided,  That  details  so  made  may,  on  expiration,  be 
renewed  from  time  to  time  by  written  order  of  the  head 
of  the  Department,  in  each  particular  case,  for  periods 
of  not  exceeding  one  hundred  and  twenty  days.  All 
details  heretofore  made  are  hereby  revoked,  but  may  be 
renewed  as  provided  herein.  Sec.  3,  act  of  May  28,  1896 
(29  Stat.  Z.,  179). 

'The  acts  of  February  24,  1899  (30  Stat.  L.,  846),  and  April  17,  1900  (31  ibid.,  134), 
contained  the  same  requirement. 

2  For  rules  regulating  appointments  in  the  several  Executive  Departments  in  the 
city  of  Washington  and  elsewhere,  see  the  title  The  Civil  Service  in  the  chapter 
entitled  PROVISIONS  APPLICABLE  TO  THE  SEVERAL  CLASSES  OF  OFFICERS.  See  also  para- 
graph 25  ante. 


20  MILITARY    LAWS    OF    THE    UNITED    STATES. 

Reduction  to  36.  Whenever,  in  the  judgment  of  the  head  of  any 
Aug.  IB,  1876,  Department  the  duties  assigned  to  a  clerk  of  one  class  can 
be  as  well  performed  by  a  clerk  of  a  lower  class  or  by  a 
female  clerk,  it  shall  be  lawful  for  him  to  diminish  the 
number  of  clerks  of  the  higher  grade  and  increase  the  num- 
ber of  the  clerks  of  .the  lower  grade  within  the  limit  of 
the  total  appropriation  for  such  clerical  service.  Section 
3,  act  of  August  15,  1876  (19  Stat.  Z.,  169). 

preference  to  37.  In  making  any  reduction  of  force  in  any  of  the 
d!ecreangd^aiiore!  Executive  Departments,  the  head  of  such  Department 
shall  retain  those  persons  who  may  be  equally  qualified 
who  have  been  honorably  discharged  from  the  military  or 
naval  service  of  the  United  States,1  and  the  widows  and 
orphans  of  deceased  soldiers  and  sailors.  Ibid. 


SALARIES. 


Par.  Par. 


38.  Rates  of  pay. 

39.  Temporary  clerks. 

40.  Extra  compensation  prohibited. 


41.  The  same. 

42.  Contingent  funds  not  to  be  used. 


salaries  of  per-     3g.  The  annual  salaries  of  clerks  and  employees  in  the 

sons  employed  in  ..  *      J 

thM^rp!rti853ntc'  Departments,  whose  compensation  is  not  otherwise  pre- 

,^82i\7-A10j  ?2^'  scribed,  shall  be  as  follows: 

ISM,  c. j>2,  s.  i,  v'.     First.  To  clerks  of  the  fourth  class,  eighteen  hundred 

10,  p.  276;    Aug. 

is,  1856,  Res.  is,  dollars. 

v.     11.      p.     145; 

208ys26  v8!^  p      Second.  To  clerks  of  the  third  class,  sixteen  hundred 
207;S'juiVy   i?!  dollars. 

v^  16,'  PP:  230;     Third.  To  clerks  of  the  second  class,  fourteen  hundred 
Sec.  167,  K.  s.  dollars. 

Fourth.  To  clerks  of  the  first  class,  twelve  hundred  dol- 
lars. 

Fifth.  To  the  women  employed  in  duties  of  a  clerical 
character,  subordinate  to  those  assigned  to  clerks  of  the 
first  class,  including  copyists  and  counters,  or  temporarily 
employed  to  perform  the  duties  of  a  clerk,  nine  hundred 
dollars. 

Sixth.  To  messengers,  eight  hundred  and  forty  dollars. 
Seventh.  To  assistant  messengers,  seven  hundred  and 
twenty  dollars. 


1  To  entitle  an  honorably  discharged  soldier  to  retention  in  the  civil  service  in 
preference  to  a  civilian,  he  must  be  equally  qualified,  sec.  3,  act  of  August  15,  1876 
( 19  Stat,  L.,  169) ,  which  must  be  determined  by  the  head  of  the  Department.  Keim 
v.  U.  S.,  3$ Ct.  Cls.,  174. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  21 

Eighth.  To  laborers,  seven  hundred  and  twenty  dollars.1 
Ninth.  T  J  watchmen ,  seven  hundred  and  twenty  dollars. 1 

39.  Except  when  a  different  compensation  is  expressly  cl^|^nP°rary 
prescribed   by  law,  any  clerk  temporarily  employed  to  c  ^  ^  *&*> 
perform  the  same  or  similar  duties  with  those  belonging  to27|ec  168  K's 
clerks  of  either  class  is  entitled  to  the  same  salary  as  is 

allowed  to  clerks  of  that  class. 

40.  No  money  shall  be  paid  to  any  clerk  employed  in  sai^oTierks 
either  Department  at  an  annual  salary,  as  compensation  prohibited- 
for  extra  services,  unless  expressly  authorized  by  law.        97M2Yi-3jumf'i7' 

1844,  c.  102,  s.  1,  v.  5,  pp.  681,  687;  Feb.  28,  1867,  Res.  30,  s.  2,  v.  14,  p.  569,  s.  8.  v/10,  p.  209! 

Sec.  170,  B.  S. 


41.  No  allowance  or  compensation  shall  be  made  to  any^J^J" 
officer  or  clerk  by  reason  of  the  discharge  of  duties  which  Jjjjjr 
belong  to  any  other  officer  or  clerk  in  the  same  or  anyla^g  26   1842 
other  Department;  and  no  allowance  or  compensation  shall  s'sec7i764iB?s. 
be  made  for  any  extra  services  whatever  which  any  officer 

or  clerk  may  be  required  to  perform,  unless  expressly 
authorized  by  law. 

42.  No  moneys  appropriated  for  contingent,  incidental,  fu£dsntetcgenot 
or  miscellaneous  purposes  shall  be  expended  or  paid  for  empbioySiSlnt  f°f 
official  or  clerical  compensation.2  ^jrSyifc. ISTO, s. 

LEAVES  OF  ABSENCE;  SICK  LEAVES. 


3,  v.  16,  p.  250. 
Sec.  3682,  R.  S. 


43.  The   head  of    any   Department   may  grant  thirty    Leaves  of  ab- 
day s'  annual  leave  with  pay  in  any  one  year  to  each  clerk    ^avrc£015'  ^ 
or  employee:3  And  provided  further,  That  where  some 
member  of  the  immediate  family  of  a  clerk  or  employee 
is  afflicted  with  a  contagious  disease  and  requires  the  care 
and  attendance  of  such  employee,  or  where  his  or  her 
presence  in  the  Department  would  jeopardize  the  health 
of  fellow-clerks,  and  in  exceptional  and  meritorious  cases,    sick  ^aves. 

JThe  annual  acts  of  appropriation  since  that  of  June  15,  1880  (21  Stat  L.,  237), 
have  contained  provisions  fixing  the  salaries  of  laborers  and  watchmen  in  the  Execu- 
tive Departments  at  $660  and  of  charwomen  at  $240.  See  section  2,  act  of  April  17, 
1900  (31  Stat.  L.,  133);  see  also  Garlinger  v.  U.  S.,  30  Ct.  Cls.,  p.  208,  and  Gordon  v. 
U.  S.,  31  ibid.,  254. 

2  Section  4  of  the  act  of  April  17,  1900  (31  Stat.  L.,  134),  contains  the  requirement 
that  "the  appropriations  herein  made  for  the  officers,  clerks,  and  persons  employed 
in  the  public  service  shall  not  be  available  for  the  compensation  of  persons  perma- 
nently incapacitated  for  performing  such  service." 

The  act  of  July  1,  1898  (30  Stat.  L.,  597),  contained  the  requirement  that  "here- 
after no  allowance  or  compensation  for  clerks  or  secretaries  of  officials  of  the  United 
States  retired  from  active  service  shall  be  authorized." 

3  Under  the  above  provision  it  is  discretionary  with  the  heads  of  the  several  Execu- 
tive Departments  to  grant  or  refuse  leave  of  absence,  and  their  acts  can  not  be 
reviewed.     Absence  without  leave  is  absence  without  pay;  absence  with  leave  is 
subject  to  such  conditions  and  limitations  as  may  be  imposed.     Hurlbut  v.  U.  b.,  6( 
Ct.  Cls.,  166. 


22  MILITARY    LAWS    OF   THE    UNITED    STATES. 

where  a  clerk  or  employee  is  personally  ill,  and  where  to 
limit  the  annual  leave  to  thirty  days  in  any  one  calendar 
year  would  work  peculiar  hardship,  it  ma}T  be  extended, 
in  the  discretion  of  the  head  of  the  Department,  with  pay, 
not  exceeding  thirty  days  in  any  one  case  or  in  any  one 
calendar  year. 

This  section  shall  not  be  construed  to  mean  that  so  long 
as  a  clerk  or  employee  is  borne  upon  the  rolls  of  the  De- 
partment in  excess  of  the  time  herein  provided  for  or 
granted  that  he  or  she  shall  be  entitled  to  pay  during  the 
period  of  such  excessive  absence,  but  that  the  pay  shall 
stop  upon  the  expiration  of  the  granted  leave.1  Sec.  7,  act 
of  March  15,  1898  (30  Stat.  Z.,  316). 
sick  leave.  44.  Nothing  contained  in  section  seven  of  the  act  mak- 

July  7|  1898,  v.  i        •    i       •  •  i     •      *•    •    • 

so,  p.  ess.  ing  appropriations  for  legislative,  executive,  and  judicial 
expenses  of  the  Government  for  the  fiscal  year  eighteen 
hundred  and  ninety-nine,  approved  March  fifteenth,  eight- 
een hundred  and  ninety-eight,  shall  be  construed  to  pre- 
vent the  head  of  any  Executive  Department  from  granting 
thirty  days'  annual  leave  with  pay  in  any  one  year  to  a 
clerk  or  employee,  notwithstanding  such  clerk  or  employee 
may  have  had  during  such  year  not  exceeding  thirty  days' 
leave  with  pay  on  account  of  sickness  as  provided  in  said 
section  seven.  Act  of  July  7,  1898  (30  Stat.  Z.,  653). 
Sundays  and  45.  The  thirty  days'  annual  leave  of  absence  with  pay 

holidays  exclud-  .  J        J  .  ^   J 

^Peb  24  1899  *  m  any  one  ^eBT        clerks  and  employees  in  the  several 
4,  v.  so,  p.'sw.  '  'Executive  Departments  authorized  by  existing  law  shall 

be  exclusive  of  Sundays  and  legal  holidays.     Sec.  4,  act  of 

February  24,  1899  (30  Stat.  Z.,  890). 

LEGAL    HOLIDAYS. 

Par.  j   Par. 

46.  Enumeration,  pay,  etc.  |  48.  Labor  Day. 

47.  Decoration  Da. 


iceesof  ethe     ^'  ^e    empl°vees    °f    the    navy-yard,    Government 
to  Printing  Office,  Bureau  of  Printing  and  Engraving,  and 


^  °tner  Per  diem  employees  of  the  Government  on  duty 
6^1886,  v'.  23,  P:  at  Washington,  or  elsewhere  in  the  United  States,  shall 
be  allowed  the  following  holidays,  to  wit:  The  first  day  of 
January,  the  twenty-second  day  of  February,  the  fourth 
day  of  July,  the  twenty-fifth  day  of  December,  and  such 
days  as  may  be  designated  by  the  President  a,s  days  for 


1  The  word  "meritorious"  as  used  above  is  surplusage;  the  word  "exceptional" 
in  the  same  statute  raises  a  question  of  fact  upon  which  the  Attorney-General  can 
not  ad  vise.  XX  Opin.  Att.  Gen.,  716. 


MILITAEY    LAWS    OF   THE    UNITED   STATES.  23 

national  thanksgiving,  and  shall  receive  the  same  pay  as 
on  other  days.1  Joint  Res.  No.  5,  Jcmuary  6,  1885  (23 
Stat.  L.,  516). 

47.  All  per  diem  employees  of  the  Government,  on  duty  Per  diem  em- 
at  Washington  or  elsewhere  in  the  United  States,  shall  be  piyy1S  Decora? 
allowed  the  day  of  each  year  which  is  celebrated  as  Fourth*  of  jui! 


"Memorial"  or  "Decoration  Day"  and  the  fourth  of  July  v' 
of  each  year,  as  holiday,  and  shall  receive  the  same  pay  w 
as  on  other  days.     Joint  Res.  No.  6,  February  23,  1887 
(24  Stat.  Z.,  644)- 

48.  The  first  Monday  of  September  in  each  year,  being    Labor  Day  to 


the  day  celebrated  and  known  as  Labor's  Holiday,  is  hereby  day*  ^une  28J 
made  a  legal  public  holiday,  to  all  intents  and  purposes,  in  1894>  Y'  ^  p'  " 
the  same  manner  as  Christmas,  the  first  day  of  January, 
the  twenty-second  day  of  February,  the  thirtieth  day  of 
May,  and  the  fourth  day  of  July  are  now  made  by  law 
public  holidays.2     Act  of  June  28,  1894  (®#  Stat.  Z.,  96). 

ADMINISTRATION   OF   OATHS. 

49.  The  chief  clerks  of  the  several  Executive  Depart-    chief  clerks  of 

„  Executive     De- 

ments  and  of  the  various  bureaus  and  offices  thereof  in  partments,  etc., 
Washington,  District  of  Columbia,  are  hereby  authorized  oath  of  office 
and  directed,  on  application  and  without  compensation  2gAug.  29, 
therefor,  to  administer  oaths  of  office  to  employees  re- 
quired to  be  taken  on  their  appointment  or  promotion.  Act 
of  August  29,  1890  (26  Stat.  L.,  371). 

50.  No  officer,  clerk,  or  employee  of  any  Executive  De- 
partnient  who  is  also  a  notary  public  or  other  officer  au-  J*{g*®f 
thorized  to  administer  oaths  shall  charge  or  receive  any  eDJPloy^es1g90  v 
fee  or  compensation  for  administering  oaths  of  office  to  em-  26«  P-  371- 
ployees  of  such  Department  required  to  be  taken  on  ap- 
pointment or  promotion  therein.     Act  of  August  29,  1890 

(26  Stat.  L.,371.) 

51.  Any  officer  or  clerk  of  any  of  the  Departments  law-  ^^jJStered  bn 
fully  detailed   to  investigate  frauds  on,  or  attempts  to  officers,  etc.  ^^ 
defraud,  the  Government,  or  any  irregularity  or 

duct  of  any  officer  or  agent  of  the  United  States,  and  any  ^ 
officer  of  the  Army  detailed  to  conduct  an  investigation,  s-'f;J- 
and  the  recorder,  and,  if  there  be  none,  the  presiding  officer 

*In  the  act  of  January  6,  1895,  which  provides  that  "the  employees  of  the  navy- 
yard,  Government  Printing  Office,  Bureau  of  Engraving  and  Printing,  and  all  other 
per  diem  employees"  shall  be  allowed  pay  for  legal  holidays,  the  provision  '  all 
other  per  diem  employees"  is  to  be  restricted  to  employees  whose  employment  la 
similarly  permanent  or  continuous.  IV  Compt.  Dec.,  499. 

2  For  a  requirement  in  respect  to  the  exclusion  of  Sundays  and  legal  holidays  m 
the  reckoning  of  annual  leaves  of  absence,  see  section  4,  act  of  February  24,  1! 
(30  Stat.  L.,  890),  paragraph  45,  ante. 


24  MILITARY    LAWS    OF    THE    UNITED    STATES. 

of  any  military  board  appointed  for  such  purpose,  shall 
have  authority  to  administer  an  oath  to  any  witness  attend- 
ing to  testify  or  depose  in  the  course  of  such  investigation. 
Section  3,  act  of  March  0,  1901  (31  Stat.  Z.,  951). 

HOURS   OF   LABOR   IN    THE    EXECUTIVE    DEPARTMENTS. 

Hours  of  labor  52.  Hereafter  it  shall  be  the  duty  of  the  heads  of  the 
s.  17,  v.  so,  p.  3i6.'  several  Executive  Departments,  in  the  interest  of  the 
public  service,  to  require  of  all  clerks  and  other  employees, 
of  whatever  grade  or  class,  in  their  respective  Depart- 
ments, not  less  than  seven  hours  of  labor  each  day,  except 
Sundays  and  days  declared  public  holidays  by  law  or 
Executive  order:  Provided,  That  the  heads  of  the  Depart- 
ments may,  by  special  order,  stating  the  reason,  further 
extend  the  hours  of  any  clerk  or  employee  in  their 
Departments,  respectively;  but  in  case  of  an  extension 
it  shall  be  without  additional  compensation.1  Section  7, 
act  of  March  15,  1898  (30  Stat.  Z.,  316). 

Monthly  re-     53.  Hereafter  it  shall  be  the  duty  of  the  head  of  each 

ports.  .  J 

Extension    of  Executive  Department  to  require  monthly  reports  to  be 

hours  of  labor.  J 

^d.  made  to  him  as  to  the  condition  of  the  public  business  in 

the  several  bureaus  or  offices  of  his  Department  at  Wash- 
ington; and  in  each  case  where  such  reports  disclose  that 
the  public  business  is  in  arrears,  the  head  of  the  Depart- 
ment in  which  such  arrears  exist  shall  require,  as  provided 
herein,  an  extension  of  the  hours  of  service  to  such  clerks 
or  employees  as  may  be  necessary  to  bring  up  such 
arrears  of  public  business.2  .Ibid. 

CONTINGENT   FUNDS. 


Par. 

54.  Purchases,  how  made. 

55.  Compensation    of    employees   from, 

prohibited. 

56.  Expenditure  for  newspapers. 


Par. 

57.  The  same. 

58.  Law  books,  books  of  reference,  etc. 

59.  Annual  reports. 

60.  Statement  of  expenditures. 


fron? contingent     54<  ^°  Part  °^  ^e  contingent  fund  appropriated  to  any 

fu\S  26  1842  c  Department,  bureau,  or  office,  shall  be  applied  to  the  pur- 

202,  s.ig.'v.s.Vchase  of  any  articles  except  such  as  the  head  of  the  De- 

sec.8«83,B.s.  partment  shall  deem  necessary  and  proper  to  carry  on  the 

1  This  section  operates  to  repeal  section  162,  Revised  Statutes,  in  respect  to  the 
hours  of  business  in  the  several  Executive  Departments.     It  replaces  section  4  of  the 
act  of  March  3, 1883  (22  Stat.  L.,  563),  in  relation  to  the  same  subject.     This  require- 
ment has  been  held  by  the  Comptroller  of  the  Treasury  not  to  apply  to  laborers  and 
mechanics  whose  compensation  is  not  fixed  by  law  or  regulations.     IV  Compt.  Dec., 
578;  see,  also,  Hurlburt  v.  U.  S.,  30  Ct.  Cls.,  16. 

2  For  quarterly  reports  of  the  condition  of  business  in  the  several  Executive  Depart- 
ments  see  paragraph  88,  post;  see,  also,  paragraph  22,  ante.     The  above  enactment 
replaces  section  4  of  the  act  of  March  3,  1883  (22  Stat.  L.,  531 ),  and  section  5  of  the 
act  of  March  3,  1893  (27  ibid.,  675),  in  part  materia. 


MILITARY    LAWS   OF   THE    UNITED   STATES.  25 

business  of  the  Department,  bureau,  or  office,  and  shall, 
by  written  order,  direct  to  be  procured.1 

55.  No  moneys  appropriated  for  contingent,  incidental, 

or  miscellaneous  purposes  shall  be  expended  or  paid  for          12  1870 
official  or  clerical  compensation.2  ^lAAffB-M 

•*•  t  oec.ooSa,  U.S. 

56.  The  amount  expended  in  any  one  vear  for  newspa-    Expenditure 

,.  T-W  L  ii      TA  <•  n  for  newspapers. 

pers,  for  any  Department,  except  the  Department  of  State,    Aug.  26,  1342,  c. 

',.  11,1  j       re  j  ^.i_  .  .,  '  202,  s.  16,  v.  5,  p. 

including  all  the  bureaus  and  offices  connected  therewith,  526. 

See     !  *•"'    K    S 

shall  not  exceed  one  hundred  dollars.  And  all  newspapers 
purchased  with  the  public  money  for  the  use  of  either 
of  the  Departments  must  be  preserved  as  files  for  such 
Department. 

57.  No  executive  officer,  other  than  the  heads  of  De-    The  same. 
partments,  shall  apply  more  than  thirty  dollars,  annually,  3>  ^C6>1S-  349- 
out  of  the  contingent  fund  under  his  control,  to  pay  for 
newspapers,  pamphlets,  periodicals,   or  other   books  or 

prints  not  necessary  for  the  business  of  his  office. 

58.  Hereafter  law  books,  books  of  reference,  and  peri-    Law  books, 

7  books   of    refer- 

odicals  for  use  of  any  Executive  Department,  or  other  ence,  etc. 
Government  establishment  not  under  an  Executive  De-  3,  v.  so,  p.  sie.' 
partment,  at  the  seat  of  Government,  shall  not  be  -pur- 
chased or  paid  for  from  any  appropriation  made  for  con- 
tingent expenses3  or  for  any  specific  or  general  purpose 
unless  such  purchase  is  authorized  and  payment  therefor 
specifically  provided  in  the  law  granting  the  appropria- 
tion.    Section.  3,  act  of  March  15,  1898  (30  Stat.  L.,  316). 


,  Revised  Statutes,  requires  that  the  written  order  therein  mentioned 
shall  be  given  by  the  head  of  the  Department  before  the  articles  to  be  paid  for  from 
the  contingent  fund  are  procured,  and  a  subsequent  approval  is  not  sufficient.  II 
Compt.  Dec.,  1.  This  section  applies  only  to  cases  where  an  appropriation  is  made 
in  a  lump  sum  for  "contingent,  incidental,  or  miscellaneous  expenses,"  or  under 
similar  words,  and  where  Congress  has  specifically  designated  appropriations  for  enu- 
merated items  as  being  for  "  contingent,  incidental,  or  miscellaneous  expenses."  Ibid., 
42.  When  an  item  is  properly  payable  from  an  appropriation  for  contingent  expenses, 
the  discretion  of  the  officer  charged  with  the  duty  of  expending  said  fund  is  not  sub- 
ject to  review  by  the  accounting  officers  upon  any  question  as  to  the  necessity  or 
advisability  of  his  expenditures.  Ibid.,  80.  XVIII  Opin.  Att.  Gen.,  424. 

2  Section  3682,  Eevised  Statutes,  prohibits,  absolutely,  the  use  for  official  or  clerical 
compensation  of  any  money  appropriated  for  contingent,  incidental,  or  miscellaneous 
purposes.     I  Compt.  Dec.,  392;  ibid.,  410. 

3  The  words  "contingent  expenses,"  as  employed  in  acts  making  appropriations, 
mean  such  incidental,  casual,  and  unforeseen  expenses  as  are  necessary  and  appropriate 
to  the  execution  of  duties  required  by  law  in  connection  with  the  object  for  which 
the  appropriation  is  made.     IV  Compt.  Dec.,  287.     There  is  no  discretion  conferred 
upon  heads  of  Departments  to  use  such  appropriations  for  other  purposes.    Ibid.  ,  287. 

The  provisions  in  the  act  of  March  15,  1898,  that  "hereafter  law  books,  books  of 
reference,  and  periodicals  for  the  use  of  any  Executive  Department,  or  other  Govern- 
ment establishment  not  under  an  Executive  Department,  at  the  seat  of  Government, 
shall  not  be  purchased  or  paid  for  from  any  appropriation  made  for  contingent  expenses 
or  for  any  specific  or  general  purpose,  unless  such  purchase  is  authorized  and  pay- 
ment therefor  specifically  provided  in  the  law  granting  the  appropriation"  does  not 
apply  to  those  branches  of  the  public  service  located  outside  of  Washington,  nor  to 
the  Army,  which  is  not  a  part  of  the  War  Department  proper.  Ibid.,  551. 

A  newspaper  is  not  a  periodical  within  the  meaning  of  the  requirement  above  set 
forth  in  the  act  of  March  15,  1898  (30  Stat.  L.,  316).  Ibid.,  694. 


26  MILITARY    LAWS    OF   THE    UNITED    STATES. 

Annual  report     59   The  head  of  each  Department  shall  make  an  annual 

of  expenditure 

?undsntingentrePort  to  Congress,  giving  a  detailed  statement  of  the 

Aug.  26,  1842,  c.  manner  in  which  the  contingent  fund  for  his  Department, 

«7-  ..  and  for  the  bureaus  and  offices  therein,  has  been  expended, 

Sec.  1;*.{.  K.  n.  f 

giving  the  names  of  every  person  to  whom  any  portion 
thereof  has  been  paid;  and  if  for  anything  furnished,  the 
quantity  and  price;  and  if  for  any  service  rendered,  the 
nature  of  such  service,  and  the  time  employed,  and  the  par- 
ticular occasion  or  cause,  in  brief,  that  rendered  such  serv- 
ice necessary;  and  the  amount  of  all  former  appropriations 
in  each  case  on  hand,  either  in  the  Treasury  or  in  the  hands 
of  any  disbursing  officer  or  agent.  And  he  shall  require  of 
the  disbursing  officers,  acting  under  his  direction  and  au- 
thority, the  return  of  precise  and  analytical  statements 
and  receipts  of  all  the  moneys  which  may  have  been  from 
time  to  time  during  the  next  preceding  year  expended  by 
them,  and  shall  communicate  the  results  of  such  returns 
and  the  sums  total,  annually,  to  Congress. 

when  submit-  60.  Hereafter  a  detailed  statement  of  the  expenditure 
MI*.  3,  1877,  v.  for  the  preceding  year  of  all  sums  appropriated  for  con- 
tingent expenses  of  the  independent  treasury,  or  in  any 
Department  or  bureau  of  the  Government,  shall  be  pre- 
sented to  Congress  at  the  beginning  of  each  regular  session. 
Act  of  March  3,  1877  (19  Stat.  L.,  294). 

REQUISITIONS   FOR   FUNDS  —  WARRANTS  —  ADVANCES. 


Requisitions     61.  Every  requisition  for  an  advance  of  moBex*  before 

for  advances  of  ,  _. 

funds.  being  acted  on  by  the  Secretary  of  the  Treasury,  shall  be 

sent  to  the  proper  Auditor  for  action  thereon  as  required 
by  section  twelve  of  this  act.2 
warrants.  All  warrants,  when  authorized  by  law  and  signed  by  the 

11,  v.y28,V209.  S'  Secretary  of  the  Treasury,  shall  be  countersigned  by  the 
Comptroller  of  the  Treasury,  and  all  warrants  for  the  pay- 
ment of  money  shall  be  accompanied  either  by  the  Aud- 
itor's certificate,  mentioned  in  section  seven  of  this  act,3  or 
by  the  requisition  for  advance  of  money,  which  certificate 
or  requisition  shall  specify  the  particular  appropriation  to 
which  the  same  should  be  charged,  instead  of  being  speci- 
fied on  the  warrant,  as  now  provided  by  section  thirty-six 
hundred  and  seventy  -five  of  the  Revised  Statutes;  and 

1  Section  8  of  the  act  of  July  31,  1894  (28  Stat.  L.,  207),  has  no  application  to  ques- 
tions respecting  the  advance  of  funds  which,  under  this  section,  are  subject  to  the 
decision  of  the  Auditor,  with  a  review  by  the  Secretary  of  the  Treasury.     1  Compt. 
Dec.,  409. 

2  Sec.  12,  act  of  Julv  31,  1894  (28  Stat.  L.,  209) 

3  Sec.  7,  ibid.,  206." 


MILITARY    LAWS    OF    THE    UNITED    STATES. 


27 


shall  also  go  with  the  warrant  to  the  Treasurer,  who  shall 
return  the  certificate  or  requisition  to  the  proper  Auditor, 
with  the  date  and  amount  of  the  draft  issued  indorsed 
thereon.  Requisitions  for  the  payment  of  money  on  all  aud- 
ited accounts,  or  for  covering  money  into  the  Treasury,  shall 
not  hereafter  be  required.  And  requisitions  for  advances 
of  money  shall  not  be  countersigned  by  the  Comptroller  of 
the  Treasury.  Sec.  11,  act  of  July  31,  1894  (®8  Stat.  Z., 
209). 

ESTIMATES. 


Par. 

62.  Book  of  Estimates. 

63.  Statement  of  appropriations. 

64.  Date  of  submission  of  estimates. 

65.  Estimates  for  deficiencies. 

66.  Outstanding  appropriations. 

67.  Manner  of  communicating  estimates. 

68.  Printing  and  binding. 

69.  Salaries. 

70.  Report  of  claims  allowed. 


Par. 

71.  Public  works. 

72.  Additional  explanations. 

73.  Reports  of  rented  buildings. 

74.  The  same,  in  the  District  of  Columbia. 

75.  Statement  of  sales,  etc. 

76.  River  and  harbor  works. 

77.  Condition  of  business. 

78.  Report  of  employees  who  are  below  a 

a  fair  standard  of  efficiency. 


62.  All  annual  estimates  for  the  public  service  shall 
submitted  to  Congress  through  the  Secretary  of  the  Treas-  Cos"f£e  ?;  1789)  c. 
ury,  and  shall  be  included  in  the  Book  of  Estimates  pre-  Mkr.'io,i8o6,c'.M,; 
pared  under  his  direction. 


''; 


jan.'7?i846Res. 

2,  v.  9,  p.  108;  Aug.  4,  1  854,  c.  242,  s.  15,  v.  10,  p.  573;  May  18,  1865,  c.  85,  s.  4,  v.  14,  p.  49;  June  20, 
1874,  c.  328,  v.  18,  pp.  96,  109,  111;  Mar.  3,  1875,  c.  129,  v.  18,  pp.  356,  370;  Aug.  15,  1876,  C.  289.  s.  4, 
v.p.200.  Sec.  8669,  B.  S. 

63.  The  Secretary  of  the  Treasury  shall  annex  to  the    statements  to 

J  .  accompany  esti- 

annual  estimates  of  the  appropriations  required  for  the  pub-  mates.  ^  ^^  ^ 
lie  service  a  statement  of  the  appropriations  for  the  service 
of  the  year,  which  may  have  been  made  by  former  acts. 

64.  Hereafter  it  shall  be  the  duty  of  the  heads  of  t 

several  Executive    Departments,   and  of  other    officers  1901,  s.  5,  v.  si,  p'. 

authorized  or  required  to  make  estimates,  to  furnish  to  the 

Secretary  of  the  Treasury,  on  or  before  the  fifteenth  day 

of  October  of  each  year,  their  annual  estimates  for  -the 

public  service,  to  be  included  in  the  Book  of  Estimates 

prepared  by  law  under  his  direction,  and  in  case  of  failure 

to  furnish  estimates  as  herein  required  it  shall  be  the  duty 

of  the  Secretary  of  the  Treasury  to  cause  to  be  prepared 

in  the  Treasury  Department,  on  or  before  the  first  day  of 

November  of  each  year,  estimates  for  such  appropriations 

as  in  his  judgment  shall  be  requisite  in  every  such  case, 

which  estimates  shall  be  included  in  the  Book  of  Estimates 

prepared  by  law  under  his  direction  for  the  consideration 

of  Congress.     Sec.  5,  act  of  March  3,  1901  (31  Stat.  Z., 

1009). 


28  MILITARY^  LAWS    OF  THE    UNITED    STATES. 

Estimates    of     £5.  Hereafter  all  estimates  of  appropriations  and  esti- 
^ 


c. 
370. 


mates  of  deficiencies  in  appropriations  intended  for  the 

cies  to  be  here-  .  .  .  .  ,,  ,.  .  , 

after  transmit-  consideration  and  seeking  the  action  ot  any  ot  the  commit- 
through  thegslf-  tees  of  Congress  shall  be  transmitted  to  Congress  through 

retary    of    the    ,  „,  ,    . 

Treasury.    July  the  Secretary  of  the  Treasury,  and  in  no  other  manner; 

P.  254.'  '  and  the  said  Secretary  shall  first  cause  the  same  to  be 

properly  classified,  compiled,  indexed,  and  printed,  under 
the  supervision  of  the  chief  of  the  division  of  warrants, 
estimates,  and  appropriations  of  his  Department.  Sec.  2, 
act  of  July  7,  1884  (8$  8tot.  Z.,  864). 

Amountof  out-     66.  The  head  of  each  Department,  in  submitting  to  Con- 
standing  appro-  .  .  ° 

priations  to  begress  his  estimates  of  expenditures  required  mhisDepart- 

designated. 

June  2,  1858,  c.  ment  during  the  year  then  approaching,  shall  designate  not 

308.  '  '    '    '  /only  the  amount  required  to  be  appropriated  for  the  next 

'  fiscal  year,  but  also  the  amount  of  the  outstanding  appro- 

priation, if  there  be  any,  which  will  probably  be  required 

for  each  particular  item  of  expenditure. 

Mannerofcom-     67.  The  heads  of  Departments,  in  communicating  esti- 

mumcatmg  esti-  •     . 

mates.  ^  ^^^  ^  mates  of  expenditures  and  appropriations  to  Congress,  or 
202,  s.'i4,'  v.  5,  V  to  any  of  the  committees  thereof,  shall  specify,  as  nearly 

5*25;  MOT.  3,  187o, 

129,  s.  3,  v.  is,  p.  as  may  be  convenient,  the  sources  from  which  such  esti- 

sec.896o,n.s.  mates  are  derived,  and  the  calculations  upon  which  they 
are  founded,  and  shall  discriminate  between  such  estimates 
as  are  conjectural  in  their  character  and  such  as  are  framed 
upon  actual  information  and  applications  from  disbursing 
officers.  They  shall  also  give  references  to  any  law  or 
treaty  by  which  the  proposed  expenditures  are,  respec- 
tively, authorized,  specifying  the  date  of  each,  and  the 
volume  and  page  of  the  Statutes  at  Large,  or  of  the 
Revised  Statutes,  as  the  case  may  be,  and  the  section  of 
the  act  in  which  the  authority  is  to  be  found.  * 
and  68>  Tiie  head  of  eactl  ot>  t]ie  Executive  Departments, 

Mas  1872  c  anc*  eveiT  other  public  officer  who  is  authorized  to  have 
i4o,  s.  2,V.  IT,'  p.  printing  and  binding  done  at  the  Congressional  Printing 

sec.  seel,  U.S.  Office  for  the  use  of  his  Department  or  public  office,  shall 
include  in  his  annual  estimate  for  appropriations  for  the 
next  fiscal  year  such  sum  or  sums  as  may  to  him  seem 

1  The  policy  of  Congress  in  respect  to  annual  appropriations  is  contained  in  sections 
3660,  3664,  3666,  3675,  3678,  3679,  and  3690  of  the  Revised  Statutes.  A  reading  of 
their  provisions  will  show  conclusively,  we  think,  that  Congress  has  restricted  in 
every  possible  way  the  expenditures  and  expenses  and  liabilities  of  the  Government, 
so  far  as  executive  officers  are  concerned,  to  the  specific  appropriations  of  each  fiscal 
year.  Wilder  v.  U.  S.,  16  Ct.  Cls.,  528,  543.  The  estimates  must  relate  to  expendi- 
tures based  upon  the  enactments  of  Congress  and  not  to  the  payment  of  damages. 
Pitman  v,  U.  S.,  20  ibid.,  253,  256.  And  to  expenditures  for  the  public  service  during 
the  ensuing  fiscal  year.  McCallum  v.  United  States,  17  ibid.,  92;  Conn.  Mut.  Life 
Ins.  Co.  v.  U.  S.,  21  ibid.,  195,  200. 


MILITAKY    LAWS    OF    THE    UNITED   STATES.  29 

necessary  for  printing  and  binding,  to  be  executed  unde 
the  direction  of  the  Congressional  Printer. 

69.  All  estimates  for  the  compensation  of  officers  author-    Estimates  for 
ized  by  law  to  be  employed  shall  be  founded  upon  the    MM.  s,  1355,  c 

.    .  ,,    f  -.  ,  175,  s.  8,  v.  10,  p'. 

express  provisions  of  law,  and  not  upon  the  authority  of  6?o. 

,.     ^  ,.    ,     .,       ,.          !  J        '     Sec.3662,R.S. 

executive  distribution. 

70.  The  Secretary  of  the  Treasury  shall,  at  the  com-    Report   of 

claims  allowed. 

mencement  of  each  session  of  Congress,  report  the  amount    July  ?.  1884,  s. 

due  each  claimant  whose  claim  has  been  allowed  in  whole 

or  in  part,  to  the  Speaker  of  the  House  of  Representatives 

and  the  President  of  the  Senate,  who  shall  lay  the  same 

before  their  respective  houses  for  consideration.     Sec.  2, 

Act  of  July  7,  1884  (%3  Stat.  L.,  £54). 

71.  Whenever  any  estimate  submitted  to  Congress  by    Estimates  for 
the  head  of  a  Department  asks  an  appropriation  for  any  P^unei7°i844,c. 
new  specific  expenditure,  such  as  the  erection  of  a  public  693-  Mar.V3,  isss,' 


building,  or  the  construction  of  any  public  work,  requiring  GTO;  F 

1         £   *  ±U       i,     -1J-  v.  19,  p.  249. 

a  plan  before  the  building  or  work  can  be  properly  com-  sec;3663,B.s. 
pleted,  such  estimate  shall  be  accompanied  by  full  plans 
and  detailed  estimates  of  the  cost  of  the  whole  work.  All 
subsequent  estimates  for  any  such  work  shall  state  the 
original  estimated  cost,  the  aggregate  amount  theretofore 
appropriated  for  the  same,  and  the  amount  actually 
expended  thereupon,  as  well  as  the  amount  asked  for  the 
current  year  for  which  such  estimate  is  made.  And  if  the 
amount  asked  is  in  excess  of  the  original  estimate,  the  full 
reasons  for  the  excess  and  the  extent  of  the  anticipated 
excess  shall  be  also  stated. 

72.  Whenever  the  head  of  a  Department,  being  about    Additional  ex- 

.  ,~  .  .  planations  re- 

to  submit  to  Congress  the  annual  estimates  of  expenditures  quired. 
required  for  the  coining  year,  finds  that  the  usual  items  of    sec.3664,B.s. 

!A  statute  which  fixes  the  annual  salary  of  a  public  officer  at  a  designated  sum, 
without  limitation  as  to  time,  is  not  abrogated  by  subsequent  enactments  appropri- 
ating a  less  amount  for  his  services  for  a  particular  fiscal  year,  but  containing  no 
words  which  expressly  or  impliedly  repeal  it,  U.  S.  v.  Langston,  118  U.  S.,  389.  It 
is  otherwise,  however,  when  the  sum  appropriated  is  "in  full  compensation"  for 
the  salary  of  a  particular  officer,  in  which  case  the  earlier  act  is  suspended  for  the 
time  covered  by  the  appropriation.  U.  S.  v.  Fisher,  109  U.  S.,  143;  U.  S.  v,  Mitchell, 
ibid.,  146.  A  salary  that  is  established  by  statute  can  not  be  increased  nor  dimin- 
ished by  executive  officers;  It  is  not  a  subject  of  contract  between  such  officers. 
The  incumbent  of  an  office  is  entitled  to  the  salary  attached  thereto  by  law,  and,  if 
he  receives  a  less  sum  from  disbursing  officers,  he  can  claim  and  receive  the  balance. 
Dyer  v.  U.  S.,  20  Ct.  Cls.,  166,  171;  Adams  v.  U.  S.,  ibid.,  115.  Such  recovery  may 
be  had  though,  by  the  terms  of  his  appointment,  he  was  to  receive  less  and  though 
he  may  have  been  compelled  to  execute  a  receipt  in  full  therefor.  Ibid. 

It  is  not  within  the  power  of  the  head  of  an  Executive  Department  to  reduce  or 
change  the  salary  of  an  officer  which  Congress  has  specifically  prescribed;  and  an 
agreement  to  that  effect,  being  contrary  to  public  policy,  will  not  be  enforced  or  given 
effect  as  an  estoppel.  Miller  v.  U.  S.  ,  103,  Fed.  Rep.  ,  413.  But,  for  express  authority 
to  reduce  the  salaries  of  clerks,  see  section  3,  act  of  August  15,  1876  (19  Stat.  L.,  169), 
paragraph  36  ante. 


30  MILITARY    LAWS    OF   THE    UNITED    STATES. 

such  estimates  vary  materially  in  amount  from  the  appro 
priation  ordinarily  asked  for  the  object  named,  and  espe- 
cially from  the  appropriation  granted  for  the  same  objects 
for  the  preceding  year,  and  whenever  new  items  not  there- 
tofore usual  are  introduced  into  such  estimates  for  any 
year,  he  shall  accompany  the  estimates  by  minute  and  full 
explanations  of  all  such  variations  and  new  items,  showing 
the  reasons  and  grounds  upon  which  the  amounts  are 
required,  and  the  different  items  added. 

JJ con-  73.  it  shall  be  the  duty  of  the  heads  of  the  several  Exec- 
ed1  ut*ve  Departments  to  submit  to  Congress  each  year,  in  the 
etMar  3  1883  v  annual  estimates  of  appropriations,  a  statement  of  the 
22,  p. 552.  number  of  buildings  rented  by  their  respective  Depart- 

ments, the  purposes  for  which  rented,  and  the  annual  rental 
of  each.     Act  of  March  3,  1883  (00  Stat.  Z.,  55%). 
inRse  me<theui>i8      7^'  Hereafter  it  shall  be  the  duty  of  the  Secretary  of  the 
tnct  of  coium-  Treasury  to  cause  to  be  prepared  and  submitted  to  Con- 

27J"lyi83  1892>  v'  &ress  eacn  year>  iR   tne  annual   Book   of   Estimates  of 
appropriations,  a  statement  of  the  buildings  rented  within 
the  District  of  Columbia  for  the  use  of  the  Government, 
the  purposes  for  which  rented,  and  the  annual  rental  of 
each.1    Act  of  July  16,  1892  (27  Stat.  Z.,  183). 
ies     75>  ^  detailed  statement  of  the  proceeds  of  all  sales  of 
material,  condemned  stores,  supplies,  or  other  public 
83°'Feb  27  Vs":?'  Pr°Perty  °f  anJ  kind  except  materials,  stores,  or  supplies 
csec.  sAVi?4!.' so^ to  °^cers  and  soldiers  of  the  Army,  or  to  exploring  or 
surveying  expeditions  authorized  by  law  shall  be  included 
in  the  appendix  to  the  Book  of  Estimates. 

bo?  worksnd  har"  76'  Hereafter  the  Secretary  of  War  shall  annually  sub- 
30? pn484' 189?>  v' mit  estimates  in  detail  for  river  and  harbor  improvements 
required  for  the  ensuing  year  to  the  Secretary  of  the 
Treasury  to  be  included  in,  and  carried  into,  the  sum  total 
of  the  Book  of  Estimates.  Act  of  June  4,  1897  (30  Stat. 
Z.,  48). 

bucs?nedition  °f  77'  Tt  sha11  be  the  dutJ  of  the  head  of  each  Executive 
8.^r^p2'808895'DePartment  or  other  Government  establishment  in  the 
city  of  Washington  to  submit  to  the  first  regular  session 
of  the  Fifty-fourth  Congress,  and  annually  thereafter,  in 
the  annual  Book  of  Estimates,  a  statement  as  to  the  con- 
dition of  business  in  his  Department  or  other  Government 
establishment,  showing  whether  any  part  of  the  same  is 
in  arrears,  and,  if  so,  in  what  divisions  of  the  respective 

^or  statutory  provisions  in  respect  to  the  renting  of  buildings  in  the  District  of 
Columbia  see  paragraphs  93a  and  94  post.  See,  also,  the  act  of  March  3,  1887  (24 
Stat.  L. ,  509 ) . 


MILITARY    LAWS    OF    THE    UNITED    STATES.  31 

bureaus  and  offices  of  his  Department  or  other  Govern- 
ment establishment  such  arrears  exist,  the  extent  thereof, 
and  the  reasons  therefor,  and  also  a  statement  of  the  num- 
ber and  compensation  of  employees  appropriated  for  in 
one  bureau  or  office  who  have  been  detailed  in  another 
bureau  or  office  for  a  period  exceeding  one  year.  Sec.  7, 
Act  of  March  8,  1895  (28  Stat.  Z.,  808). 

78.  It  shall  be  the  duty  of  the  heads  of  the  several  Exec-  Report  of  em- 
utive  Departments  of  the  Government  to  report  to 


gress  each  year,  in  the  annual  estimates,  the  number  of  e  jSynii,'  1390,  s. 
employees  in  each  bureau  and  office  and  the  salaries  Of7>v*26ip- 
each  who  are  below  a  fair  standard  of  efficiency.1    Section 
0,  Act  of  July  11,  1890  (26  Stat.  Z., 


PROCUREMENT   OF   SUPPLIES;    CONTRACTS   AND   PURCHASES 

Par.  I  Par. 

79.  Advertising.  82.  Contracts  for  stationery. 

80-81.  Contracts   and    purchases;     Pro- 


posals. 


83-85.  Inspection  of  fuel  in  the  District 


of  Columbia. 


ADVERTISING. 


79.  That  all  advertising  required  by  existing  laws  to  be    The  same, 
done  in  the  District  of  Columbia  by  any  of  the  Depart- 21^  p.  sn^    '  ' 
ments  of  the  Government  shall  be  given  to  one  daily  and 

one  weekly  newspaper  of  each  of  the  two  principal  political 
parties  and  to  one  daily  and  one  weekly  neutral  newspaper: 
Provided,  That  the  rates  of  compensation  for  such  service 
shall  in  no  case  exceed  the  regular  commercial  rate  of  the 
newspapers  selected;  nor  shall  any  advertisement  be  paid 
for  unless  published  in  accordance  with  section  thirty-eight 
hundred  and  twenty-eight  of  the  Revised  Statutes.  Act 
of  January  21,  1881  (21  Stat.  Z.,  317). 

CONTRACTS    AND    PURCHASES;    PROPOSALS. 

80.  The  act  entitled  ''An  Act  to  amend  section  thirty- mfj?peofenact" 
seven  hundred  and  nine  of  the  Revised  Statutes  relating 

to  contracts  for  supplies2  in  the  Departments  at  Washing- 
Section  7,  of  the  act  of  March  2,  1895  (28  Stat.  L.,  808),  paragraph  77  ante, 
requires  reports  to  be  submitted  to  Congress  as  to  the  condition  of  business  in  the 
several  Executive  Departments,  of  any  arrears  that  may  exist,  with  the  reasons  there- 
for, and  a  statement  of  detailed  employees. 

2 The  word  "supplies,"  as  used  in  section  3709  of  the  Revised  Statutes,  evidently 
has  reference  to  those  things  which  the  well-known  needs  of  the  public  service  will 
from  time  to  time  require  in  its  different  branches  for  its  successful  and  efficient 
administration,  and  the  statute  was  intended  to  afford  the  Government  the  pecuniary 
benefits,  as  well  as  the  protection  against  fraud  and  favoritism,  which  open  and 
honest  competition  is  always  likely  to  secure.  It  could  not  have  been  in  the  mind 


32  MILITARY    LAWS    OF    THE    UNITED    STATES. 

April  21,  1894  ton,"  approved  January  twenty -seven,  eighteen  hundred 

Provisions  Km- and  ninety -f our,  is  hereby  so  amended  that  the  provisions 

1  lee.  3709,  K.  s.  thereof  shall  apply  only  to  advertisements  for  proposals 

for  fuel,  ice,  stationery,  and  other  miscellaneous  supplies 


of  the  lawmaking  power  to  require  that  purchases  could  only  be  made  after  adver- 
tisement of  small  articles  which  may  occasionally  be  needed,  and  where  in  many 
cases  the  cost  of  advertising  itself  would  exceed  the  value  of  the  article  purchased. 
It  can  not  be  said  that  such  cases  are  governed  by  the  emergency  provision  in  the 
statute,  for  there  may  be,  and  are,  many  instances  where  the  officer  could  not  truth- 
fully certify  that  immediate  delivery  was  necessary.  (3  Dig.  2nd  Compt.  Dec.,  p. 
288.) 

The  act  of  March  2,  1861  (sec.  3709,  R.  S.),  while  requiring  such  advertisement, 
as  the  general  rule  invests  the  officer  charged  with  the  duty  of  procuring  supplies  or 
services  with  a  discretion  to  dispense  with  advertising,  if  the  exigencies  of  the  public 
service  require  immediate  delivery  or  performance.  It  is  too  well  settled  to  admit 
of  dispute  at  this  day  that,  where  there  is  a  discretion  of  this  kind  conferred  on  an 
officer  or  board  of  officers,  and  a  contract  is  made  in  which  they  have  exercised  that 
discretion,  the  validity  of  the  contract  can  not  be  made  to  depend  on  the  degree  of 
wisdom  or  skill  which  may  have  accompanied  its  exercise.  U.  S.  v.  Speed,  8  Wall., 
77,  83;  Childs  v.  U.  S.,  4  Ct.  Cls.,  176;  Mason  v.  U.  S.,  4  Ct.  Cls.,  495;  Wentworth 
v.  U.  S.,  5  Ct.  Cls.,  302.  See,  also,  III  Compt.  Dec.,  175,  314,  470;  II  ibid.,  373,  632. 

Section  3709,  Revised  Statutes,  provides,  generally,  that  the  making  of  public 
contracts  for  supplies,  etc.,  shall  be  preceded  by  an  advertising  for  proposals  "when 
the  public  exigencies  do  not  require  the  immediate  delivery  of  the  articles  or  per- 
formance of  the  service."  Exigencies  growing  out  of  a  state  of  war,  or  hostilities 
with  Indians,  were  probably  mainly  had  in  view,  and  it  is  exigencies  of  this  class 
which  have  been  considered  in  the  adjudged  cases  in  the  Supreme  Court  and  Court 
of  Claims,  (a)  It  is  clear,  however,  that  other  exigencies  may  exist  requiring  that 
contracts  or  purchases  be  made  at  once  or  without  the  delay  incident  to  advertising 
for  proposals.  Thus  a  loss  of  stores,  structures,  etc.,  on  hand,  caused  by  an  actus  Dei 
or  vis  major,  as  fire,  storm,  freshet,  or  a  sudden  riot  or  violent  disorder;  or  a  loss  of 
supplies  occasioned  by  the  neglect  of  military  subordinates  in  charge;  or  a  failure  of  a 
contractor  to  fulfill  a  contract  for  supplies,  transportation,  or  other  service,  might  prop- 
erly be  regarded  as  constituting  an  "exigency"  under  the  statute,  if  of  such  magni- 
tude or  injurious  consequence  to  the  Army  as  to  necessitate  an  immediate  making  good 
of  the  deficiency.  (6)  The  general  rule,  however,  of  the  statute,  in  requiring  a  notice 
and  invitation  to  the  public  as  a  preliminary  to  the  awarding  of  a  contract,  is  founded 
upon  a  sound  and  well-considered  public  policy,  and  exceptions  thereto,  especially 
in  time  of  peace,  should  be  recognized  as  admissible  only  where,  if  the  rule  were 
strictly  complied  with,  the  public  interests  would  manifestly  be  most  seriously 
prejudiced,  (c) 

For  section  3709  of  the  Revised  Statutes,  of  which  the  following  paragraphs  are 
amendments,  see  paragraph  81,  post.  For  further  annotation  of  section  3709,  Revised 
Statutes,  as  amended  by  the  act  of  January  27,  1894  (28  Stat.  L.,  33),  see  paragraph 
81,  post. 

a  See  U.  S.  v.  Speed,  8  Wallace,  83;  Reeside  v.  U.  S.,  2  Ct.  Cls.,  1;  Mowry  v.  U.  S.,  ibid..  68;  Stevens  v. 
U.S.,  ibid.,  95;  Floyd  v.  U.S.,  ibid.,  429;  Crowell  v.  U.  S.,  ibid.,  501;  Baker  v.  U.  S.,  3  ibid.,  343;  Hen- 
derson v.  U.  S.,  4  ibid.,  75;  Childs  v.  U.  S.,  ibid.,  176;  Wentworth  v.  U.  S.,  5  ibid.,  302;  Wilcox  v.  U.  S., 
ibid. ,386;  Cobb  v.  U.  S.,  7  ibid.,  471,  and  9  ibid.,  291;  Thompson  v.  U.  S.,  ibid.,  187;  McKee  v.  U.  S.,  12 
ibid.,  505. 

6SeeG.  O.  10  of  1879,  §§  22-25,  pp.  14-15;  do.  72,  id.,  p.  52;  do.  40  of  1880,  p.  58;  also  McKee  v.  United 
States,  12  Ct.  Cls.,  r~  '"" 


This  description  is  rather  general,  nor  is  the  term  "the  purchasing  officer,"  by  which  the  Court  of 
Claims  explains  it,  in  Thompson  v.  United  States,  9  Ct.  Cls.,  196,  a  much  more  precise  definition. 
It  is  clear,  however,  that  a  subordinate  officer  charged  with  the  duty  of  being  the  immediate  repre- 
sentative of  the  United  States  in  a  contract  or  purchase  should  not,  in  general,  venture  to  dispense 
with  advertising,  on  the  theory  of  the  existence  of  a  public  exigency,  in  the  absence  of  instructions 
or  orders  from  a  proper  superior.  Nor,  on  the  other  hand,  will  a  superior  officer,  in  entering  into  a 
contract  for  his  command  or  branch  of  the  service,  properly  assume  that  an  ''exigency"  exists  author- 
izing him  to  dispense  with  the  statutory  forms,  when  the  period  is  time  of  peace  and  no  imperative 
necessity  exists  for  the  immediate  delivery  of  the  supplies  or  performance  of  the  service  proposed  to 
be  contracted  for.  It  is  to  be  noted  that  the  cases  both  of  Speed  and  Thompson  related  to  contracts 
entered  into  during  the  late  war.  In  the  instructive  opinions  of  the  Attorney-General  on  the  "  Fif- 
teen per  cent  contracts,"  of  April  27  and  May  3, 1877  (XV  Opins. ,  235, 253) ,  it  is  held  that  the  "  exigency  " 
contemplated  by  the  statute  can  be  one  of  time  only,  and  that  it  can  be  regarded  as  existing  only 
where  an  immediate  delivery  or  performance  is  required  by  a  public  necessity. 


MILITARY   LAWS    OF   THE   TJiaTED   STATES.  33 

to  be  purchased  at  Washington  for  the  use  of  the  Execu- 
tive Departments  and  other  Government  establishments 
therein  named;  and  no  advertisements  made  or  contracts  contracts, etc., 
awarded  or  to  be  awarded  thereon  since  January  twenty- 
seven,  eighteen  hundred  and  ninety-four,  in  accordance 
with  the  laws  in  force  prior  to  said  date,  shall  be  declared 
to  be  illegal  or  invalid  for  noncompliance  with  said  law  of 
January  twenty-seventh,  eighteen  hundred  and  ninety- 
four.  Act  of  April  21,  1894  (%8  Stat.  L.,  62). 

81.  The  advertisement  for  such  proposals  shall  be  made  Advertisements 
by  all  the  Executive  Departments,  including  the  Depart-  partments  etoDbe 
ment  of  Labor,  the  United  States  Fish  Commission,  the  orsec?rSSu  27, 
Interstate  Commerce  Commission,  the  Smithsonian  Insti- X See.V8wbfk!s. 
tution,  the  Government  Printing  Office,  the  government  of 
the  District  of  Columbia,  and  the  superintendent  of  the 
State,  War,  and  Navy  building,  except  for  paper  and  ma- 
terials for  use  of  the  Government  Printing  Office,  and 
materials  used  in  the  work  of  the  Bureau  of  Engraving  and 
Printing, which  shall  continue  to  be  advertised  for  and  pur- 
chased as  now  provided  bv  law,  on  the  same  davs  and  shall    Time  foropen- 

,  ,      ,  .  ,,  £          ,     ,  £       ing  bids  to  be  tb» 

each  designate  two  o'clock  post  meridian  of  such  days  for  same, 
the  opening  of  all  such  proposals  in  each  Department  and 
other  Government  establishment  in  the  city  of  Washington; 
and  the  Secretary  of  the  Treasury  shall  designate  the  day 
or  days  in  each  year  for  the  opening  of  such  proposals  and 
give  due  notice  thereof  to  the  other  Departments  and  Gov- 
ernment establishments.  Such  proposals  shall  be  opened 
in  the  usual  way  and  schedules  thereof  duly  prepared  and, 
together  with  the  statement  of  the  proposed  action  of  each 
Department  and  Government  establishment  thereon,  shall 
be  submitted  to  a  board,  consisting  of  one  of  the  Assistant 
Secretaries  of  the  Treasury  and  interior  Departments  and 
one  of  the  Assistant  Postmasters-General,  who  shall  be 
designated  by  the  heads  of  said  departments  and  the 
Postmaster-General,  respectively,  at  a  meeting  to  be  called 
by  the  official  of  the  Treasury  Department,  who  shall  be 
chairman  thereof,  and  said  board  shall  carefully  examine 
and  compare  all  the  proposals  so  submitted  and  recommend 
the  acceptance  or  rejection  of  any  or  all  the  proposals. 
And  if  any  or  all  of  such  proposals  shall  be  rejected,  adver- 
tisements  for  proposals  shall  again  be  invited  and  proceeded  bids, 
with  in  the  same  manner.  Sec.  1,  act  of  January  27, 1894 
(28  Stat.  Z.,  33). 
22924—08 3 


34  MILITARY    LAWS    OF   THE    UNITED    STATES. 


PURCHASES   OF   STATIONERY. 


efter  82t  ^  s^al^  not  be  lawful  f°r  anv  o*  ^e  Executive  De- 
vearited  to  on®  partmen  ts  to  make  contracts  for  stationery  or  other  sup- 
Ref  nNo38  v18i5*  pi*68  f  or  a  longer  term  than  one  year  from  the  time  the 
Pi^8°736,B.8>ontract  is  made.1 

INSPECTION    OF    FUEL. 


83<  ^  shall  not  ke  lawful  f°r  any  officer  or  person  in 
6  c^v^»  military,  or  naval  service  of  the  United  States  in 
^inspectors,  ^e  District  of  Columbia  to  purchase  anthracite  or  bitumi- 
e  TJaso*p  si?'  S'  nous  coa^  or  woo(l  f°r  tne  Puklic  service  except  on  condition 
'' 


the  same  shall,  before  delivery,  be  inspected  and 
weighed  or  measured  by  some  competent  person  to  be 
appointed  by  the  head  of  the  Department  or  chief  of  the 
branch  of  the  service  for  which  the  purchase  is  made  from 
among  the  persons  authorized  to  be  employed  in  such 
Department  or  branch  of  the  service. 

*  #  *  -x-  * 

The  person  appointed  under  this  section  shall  ascertain 
that  each  ton  of  coal  weighed  by  him  shall  consist  of  two 
thousand  two  hundred  and  forty  pounds,  and  that  each 
cord  of  wood  to  be  so  measured  shall  be  of  the  standard 
measure  of  one  hundred  and  twenty-eight  cubic  feet. 
Each  load  or  parcel  of  wood  or  coal  weighed  and  measured 
by  him  shall  be  accompanied  by  his  certificate  of  the  num- 
ber of  tons  or  pounds  of  coal  and  the  number  of  cords  or 
parts  of  cords  of  wood  in  each  load  or  parcel.2  Sec.  6,  act 
of  March  15,  1898  (30  Stat.  L.,  316). 

Pr°Per  accounting  officer  of  the  Treasury  shall 
a£countfnifieofl£  ^e  furnisnecl  with  a  copy  of   the  appointment  of  each 
cesec  2  ibid      inspector,  weigher,  and   measurer  appointed  under  the 
Sec.37i2,K.s.  preceding  section.     Sec.  #,  ibid. 
NO  payments     85.  It  shall  not  be  lawful  for  any  accounting  officer  to 

for  fuel,  etc.,  .         . 

without  certifl-pass  or  allow  to  the  credit  or  any  disbursing  officer  in  tne 

ma.  District  of  Columbia  any  money  paid  by  him  for  purchase 

*  of  anthracite  or  bituminous  coal  or  for  wood,  unless  the 

voucher  therefor  is  accompanied  by  a  certificate  of  the 

proper  inspector,  weigher,  and  measurer  that  the  quantity 

paid  for  has  been  determined  by  such  officer.     Ibid. 

1  For  statutory  requirements  in  reference  to  the  purchase,  by  the  Post-Office  Depart- 
ment, of  envelopes  for  the  use  of  the  several  Executive  Departments,  see  paragraph 
328,  post,  section  96,  act  of  January  12,  1895  (28  Stat.  L.,  624). 

2  See  also,  for  further  statutory  provisions  on  this  subject,  the  act  of  June  14,  1878 
(20  Stat.  L.,  131),  and  sections  12,  13,  14,  and  15  of  the  act  of  March  2,  1895  (28 
Stat.  L.,  813),  and  IV  Compt.  Dec.,  585. 


MILITAEY    LAWS    OF    THE    UNITED   STATES.  35 

ANNUAL  REPORTS. 


Par. 


Par. 


90.  When  to  be  furnished  to  printer. 

91.  Exclusion  of  certain  matter. 

92.  Penalty  for  failure  to  make  reports. 


86.  Time  of  making. 

87.  Eeport  of  clerks  employed. 

88.  Condition  of  business. 

89.  Inefficient  clerks. 

86.  Except  where  a  different  time  is  expressly  prescribed 
by  law,  the  various  annual  reports  required  to  be 

ted  to  Congress  by  the  heads  of  Departments  shall 
made  at  the  commencement  of  each  regular  session,  and 
shall  embrace  the  transactions  of  the  preceding  year. 

87.  The  head  of  each  Department  shall  make  an  annual    Report  of 
report  to  Congress  of  the  names  of  the  clerks  and  other  °  l^g^i&Sx 
persons  that  have  been  employed  in  his  Department  and  525! 

the  offices  thereof;  stating  the  time  that  each  clerk  or  other 
person  was  actually  employed,  and  the  sums  paid  to  each; 
also,  whether  they  have  been  usefully  employed;  whether 
the  services  of  any  of  them  can  be  dispensed  with  without 
detriment  to  the  public  service,  and  whether  the  removal 
of  any  individuals,  and  the  appointment  of  others  in  their 
stead,  is  required  for  the  better  dispatch  of  business. 

88.  Hereafter  it  shall  be  the  dutv  of  the  head  of  each  .  Report  of  con- 

dition  of  busi- 


Executive  Department,  or  other  Government  establishment 

*  Mar.  15,  1898,  s. 

at  the  seat  of  Government,  not  under  an  Executive  Depart-  7.  v-  so.  P-  316- 
ment,  to  make  at  the  expiration  of  each  quarter  of  the 
fiscal  year  a  written  report  to  the  President  as  to  the  con- 
dition of  the  public  business  in  his  Executive  Department 
or  Government  establishment,  and  whether  any  branch 
thereof  is  in  arrears.  Sec.  7,  act  of  March  15,  1898  (30 
Stat.  L.,  316). 

89.  It  shall  be  the  duty  of  the  heads  of  the  several 
Executive  Departments  of  the  Government  to  report 
Congress  each  year  in  the  annual  estimates  the  number  of  e^Jfn>^  ^uly  llt 
employees  in  each  bureau  and  office  and  the  salaries  of  each  1890»  v-  26»  P-268- 
who  are  below  a  fair  standard  of  efficiency.  *     Sec.  #,  act  of 
July  11,  1890  (26  Stat.  Z.,  268). 


90.  The  head  of  ^each  Department,  except  the  Depart- 
ment  of  Justice,  shall  furnish  to  the  Congressional  Printer         rnished 


1  For  reports  to  be  rendered  by  the  Secretary  of  War,  as  such,  see  the  chapter  enti- 
tled THE  DEPARTMENT  OF  WAR;  for  reports  in  respect  to  the  expenditures  of  contin- 
gent funds,  see  paragraphs  59  and  60,  ante.     Section  73  of  the  act  of  January  12,  1895, 
contains  the  requirement  that  "no  report,  document,  or  publication  of  any  kind  dis- 
tributed by  or  from  an  Executive  Department  or  bureau  of  the  Government  shall 
contain  any  notice  that  the  same  is  sent  with  'the  compliments'  of  an  officer  of  the 
Government,  or  with  any  special  notice  that  it  is  so  sent,  except  that  notice  tl 
has  been  sent,  with  a  request  for  an  acknowledgment  of  its  receipt,  may  be  given. 
See,  also,  the  act  of  March  3,  1893  (27  Stat  L.,  572). 


36  MILITARY   LAWS    OF   THE    UNITED   STATES. 

June  25,i864,c.  copies  of  the  documents  usually  accompanying  his  annual 
PP.'  184,  V  June  report,  on  or  before  the  first  day  of  November  in  each  year, 

22,  1870,  c.  150,  s.  ,  .  ,  ,      .  ,,        ,,. 

12,  v.  16,  p.  164.    and  a  copy  of  his  annual  report  on  or  before  the  third 

Sec.  198,  B.  8.  ]j    vr  v  U 

Monday  of  November  in  each  year. 

Reports  to  be  91.  The  heads  of  the  Executive  Departments,  before 
nfaps,  ill  us  tra- transmitting  their  annual  reports  to  Congress,  the  printing 

tions,  etc.,  to  be  .         .  °  .  .  .      .  in 

excluded.  of  which  is  chargeable  to  this  appropriation,  shall  cause 
v.*26,gp.  4ii.  'the  same  to  be  carefully  examined,  and  shall  exclude 
therefrom  all  matter,  including  engravings,  maps,  draw- 
ings, and  illustrations,  except  such  as  they  shall  certify  in 
their  letters  transmitting  such  reports  to  be  necessary  and 
to  relate  entirely  to  the  transaction  of  the  public  business. 
Act  of  August  30,  1890  (26  Stat.  L.,  4-11}. 

faiiu^to  mike     92>  Every  officer  who  neglects  or  refuses  to  make  any 
reK3yi8  isee  s  return  or  report  which  he  is  required  to  make  at  stated 
4sec  i78*o  T's  times  by  any  act  of  Congress  or  regulation  of  the  Depart- 
ment of  the  Treasury,  other  than  his  accounts,  within  the 
time  prescribed  by  such  act  or  regulation,  shall  be  fined 
not  more  than  one  thousand  dollars  and  not  less  than  one 
hundred.1 

INVENTORIES   OF   PROPERTY. 

inventories  of  92  a.  The  Secretary  of  State,  the  Secretary  of  the  Treas- 
prjufyi5,  i8?o,c.  ury,  the  Secretary  of  the  Interior,  the  Secretary  of  War, 
364- Fet>.27,i877i  the  Secretary  of  the  Navy,  the  Postmaster-General,  the 

C.  69,  V.  19,  p.  241.  .      .  ,,     .         .       ,,  ,      ,, 

sec.  197,  B.  s.  Attorney-General,  and  Commissioner  of  Agriculture  shall 
keep,  in  proper  books,  a  complete  inventory  of  all  the 
property  belonging  to  the  United  States  in  the  buildings, 
rooms,  offices,  and  grounds  occupied  by  them,  respectively, 
and  under  their  charge,  adding  thereto,  from  time  to  time, 
an  account  of  such  property  as  may  be  procured  subse- 
quently to  the  taking  of  such  inventory,  as  well  as  an 
account  of  the  sale  or  other  disposition  of  any  of  such  prop- 
erty, except  supplies  of  stationery  and  fuel  in  the  public 
offices  and  books,  pamphlets,  and  papers  in  the  Library  of 
Congress. 

1  The  following  statements  in  the  nature  of  reports  are  required  by  statute  to  be 
submitted  to  the  Secretary  of  the  Treasury,  to  be  by  him  embodied  in  the  annual 
Book  of  Estimates:  (a)  Statement  of  the  number  of  rented  buildings  in  the  District 
of  Columbia  (act  of  July  16, 1892,  27  Stat.  L.,  183;  paragraph  74,  ante);  (b)  statement 
of  proceeds  of  sales  of  old  materials,  condemned  stores,  etc. ,  sec.  3672,  Revised  Stat- 
utes, paragraph  75,  ante;  (c)  statement  of  the  condition  of  business  in  the  several 
Executive  Departments  and  of  arrears  thereof,  sec.  7,  act  of  March  2,  1895  (28  ibid., 
808) ;  paragraph  77,  ante;  (d)  statement  of  the  number  of  employees  who  are  below  a 
fair  standard  of  efficiency,  sec.  2,  act  of  July  11,  1890  (26  ibid.,  268);  paragraph  78, 
ante). 

The  heads  of  the  several  Executive  Departments  are  also  required  to  cause  monthly 
reports  of  the  public  business  to  be  made  and  submitted  to  them,  showing  the  condi- 
tion of  the  public  business  in  their  respective  Departments.  Section  174,  Revised 
Statutes,  and  section  7,  act  of  March  15,  1898  (30  Stat.  L.,  216) ,  paragraphs  22  and  53, 


MILITARY    LAWS    OF   THE    UNITED   STATES. 


THE    OFFICIAL    REGISTER. 

93.  To  enable  the  officer  charged  with  the  duty  of  pre-  The  official 
paring  the  Official  Register  of  the  United  States  to  pub-  RJan.tei2,i895,8. 
lish  the  same,  the  Secretary  of  the  Senate,  the  Clerk  of  43'v/28'p^ 
the  House  of  Representatives,  the  head  of  each  Executive 
Department  of  the  Government,  and  the  chief  of  each  and 
every  bureau,  office,  commission,  or  institution  not  em- 
braced in  an  Executive  Department,  in  connection  with 
which  salaries  are  paid  from  the  Treasury  of  the  United 
States,  shall,  on  the  first  day  of  July  in  each  year  in  which 
a  new  Congress  is  to  assemble,  cause  to  be  filed  with  the 
Secretary  of  the  Interior  a  full  and  complete  list  of  all 
officers,  agents,  clerks,  and  other  employees  of  said  Depart- 
ment, bureau,  office,  commission,  or  institution  connected 
with  the  legislative,  executive,  or  judicial  service  of  the 
Government,  or  paid  from  the  United  States  Treasury, 
including  military  and  naval  officers  of  the  United  States, 
cadets,  and  midshipmen. 

Said  lists  shall  exhibit  the  salary,  compensation,  and 
emoluments  allowed  to  each  of  said  officers,  agents,  clerks, 
and  other  employees,  the  State  or  country  in  which  he 
was  born,  the  State  or  Territory  and  Congressional  dis- 
trict and  county  of  which  he  is  a  resident  and  from  which 
he  was  appointed  to  office,  and  where  employed. 

A  list  of  the  names,  force,  and  condition  of  all  ships  and 
vessels  belonging  to  the  United  States,  and  when  and 
where  built,  shall  also  be  filed  with  the  Secretary  of  the 
Interior  by  the  heads  of  the  Departments  having  super- 
vision of  such  ships  and  vessels,  for  incorporation  in  the 
Official  Register.  Sec.  43,  act  of  January  12,  1895  (28 
Stat.  Z.,  601). 

MISCELLANEOUS    REQUIREMENTS. 


Par. 

93a.  Restriction  on  renting  buildings  in 
the  District  of  Columbia. 

94.  The  same. 

95.  Recording  clocks  prohibited. 

96.  Remains  of  deceased  employees. 

97.  Draping  public  buildings  in  mourn- 

ing  prohibited. 

98.  Closing  Departments  for  death  of  ex- 

officers  prohibited. 


Par. 


100. 
101. 

102. 


Official  postage  stamps  for  use  of  De- 
partments. 

Penalty  envelopes. 

Telegraph  connecting  the  Capitol 
with  the  Executive  Departments. 

The  same. 


93a.  Hereafter  no  contract  shall  be  made  for  the  rent  of 
any  building,  or  part  of  any  building,  in  Washington,  not  9^ 
now  in  use  by  the  Government,  to  be  used  for  the  purposes  "$$$* 
of  the  Government,  until  an  appropriation  therefor  shall  *or'  eta 


38  MILITARY    LAWS    OF    THE    UNITED    STATES. 

vJi8ne  ?i'41874'have  been  made  in  terms  by  Congress.1     Act  of  June  £2, 

1874(18  Stat.  L.,  144). 

Renting  other     94.  Where  buildings  are  rented  for  public  use  in  the 

stSctionn^     *  District  of   Columbia,    the   Executive   Departments   are 

22,  p.  241.          authorized,  whenever  it  shall  be  advantageous  to  the  pub- 

lic interest,  to  rent  others  in  their  stead:  Provided.  That 

no  increase  in  the  number  of  buildings  now  in  use,  nor  in 

the  amounts  paid  for  rents,  shall  result  therefrom.     Act  of 

August  5,  1882  (22  Stat.  Z.,  QJtf). 

Recording     95    NO  money  appropriated  by  this  act  shall    be  used 

clocks      prohib-  J  «* 

it(Feb  24  1899  v  ^  or  exPense  °f  repairing  recording  clocks  used  for  record- 
so,  p.  846.'  mg  time  of  clerks  or  other  employees  in  any  of  the  Exec- 
utive Departments  at  Washington,  nor  shall  there  there- 
after be  used  in  any  of  the  Executive  Departments  at 
Washington  any  such  recording  clocks.  1  Act  of  February 
24,  1899  (30  Stat.  L 


closing  De-     98.  Hereafter  the  Executive  Departments  of  the  Gov- 

partments  for 

ernment  shall  not  be  closed  as  a  mark  to  the  memory  or 


Transportation     96.  Hereafter    the    heads    of    Departments   shall    not 

of  remains  of  de-         .  ,.,  .  ..  ..,     . 

ceased  em  ploy-  authorize  any  expenditure  in  connection  with  transporta- 

ees  not  author-    .  ,  ,  ,  .  , 

ized.  tion  of  remains  of  deceased  employees,  except  when  other- 

30,  p.  86.  '         '  wise  specifically  provided  by  law.    Act  of  June  7,  1897,  (30 

Stat.  Z.,  86). 
Draping   pub-     97.  Hereafter  no  building  owned,  or  used  for  public 

lie  buildings   in  ,    '    ,  ,    o  ,     , 

mourning   pro-  purposes,  by  the  Government  of  the  United  States,  shall 
sec.  3,  Mar.  3,  be  draped  in  mourning  and  no  part  of  the  public  fund  shall 

1893   v  27  D  715 

be  used  for  such  purposes.     Sec.  3,  act  of  March  3,  1893 
(27  Stat.  Z.,  715). 
98.  Hereafter  t 
ernment  shall  not 
sec.  4,  Mar.  3,  any  deceased  ex-official  of  the  United  States.     Sec.  h  act 

15>  of  March  3,  1893  (27  Stat.  Z.,  716). 

gtOfficmifpostagee  99.  The  Secretaries,  respectively,  of  the  Departments 
partmentai  use.  of  State,  of  the  Treasury,  War,  Navy,  and  of  the  Interior, 
1883,  v.  22,  p.  563.  '  and  the  Attorney-General,  are  authorized  to  make  requisi- 
tions upon  the  Postmaster-General  for  the  necessary 
amount  of  official  postage  stamps  for  the  use  of  their  De- 
partments, not  exceeding  the  amount  stated  in  the  estimates 
submitted  to  Congress;  and  upon  presentation  of  proper 
vouchers  therefor  at  the  Treasury  ,  the  amount  thereof  shall 
be  credited  to  the  appropriation  for  the  service  of  the  Post- 
Office  Department  for  the  same  fiscal  year.2  Sec.  #,  act  of 
March  3,  1883  (92  Stat.  Z.,  563). 

opSinctoe  loa  And  it  sha11  be  the  duty  of  .the  respective  Depart- 
flcil?s  wSmunf-  ments  to  inclose  to  Senators,  Representatives,  and  Dele- 
^'  ibid  gates  in  Congress,  in  all  official  communications  requiring 


act  of  July  7,  1898  (30  Stat.  L.,  652),  contained  a  similar  requirement. 
2  This  enactment  replaces  section  198,  Revised  Statutes,  in  part  materia. 


MILITARY    LAWS    OF   THE    UNITED    STATES.  39 

answers,  or  to  be  forwarded  to  others,  penalty  envelopes 
addressed  as  far  as  practicable,  for  forwarding  or  answer- 
ing such  official  correspondence.1  Sec.  #,  act  of  March  3, 
1883  (M  Stat.  Z.,  663). 

TELEGRAPH   CONNECTING   THE    CAPITOL    WITH   THE    EXECUTIVE 
DEPARTMENTS. 

101.  The  lines  of  telegraph,  connecting  the  Capitol  with    supervision  of 

-r^  .     \TT      ,  .  ,     -,          i       Government  tel- 

the  various  Departments  in  Washington,  constructed  under  egraph. 
and  by  virtue  of  the  act  of  Congress  approved  March  third,  is,  p.  k' 
eighteen  hundred  and  seventy-three,  entitled  uAn  act 
making  appropriations  for  sundry  civil  expenses  of  the 
Government  for  the  fiscal  year  ending  June  thirtieth, 
eighteen  hundred  and  seventy-four,  and  for  other  pur- 
poses," be,  and  the  same  are  hereby,  placed  under  the 
supervision  of  the  officer  in  charge  of  the  public  buildings 
and  grounds;  and  that  the  said  officer  be  authorized  and 
empowered  to  make  rules  and  regulations  for  the  working 
of  said  lines.  And  the  Secretary  or  head  of  each  Execu-  operatora. 
tive  Department,  and  the  Congressional  Printer,  are  hereby 
authorized  to  detail  one  person  from  their  present  force  of 
employees  to  operate  the  instruments  in  said  Departments 
and  Printing  Office,  and  each  House  of  Congress  may  pro- 
vide for  the  employment  of  an  operator  in  their  respective 
wings  of  the  Capitol,  at  a  compensation  not  exceeding  one 
hundred  dollars  per  month,  during  the  sessions  of  Con- 
gress. Act  of  February  4,  1874  (18  Stat.  L.,  14). 

102.  Said  lines  of  telegraph  shall  be  for  the  use  only  of  rUse  ^J^e- 
Senators,  Members  of  Congress,  Judges  of  the  United  18Mar207>  1874>  v* 
States  courts,  and  officers  of  Congress  and  of  the  Execu- 
tive Departments,  and  solely  on  public  business.     Act  of 

March  7,  1874  (IS  Stat.  Z.,20). 

DESTRUCTION,  FORGERY,  ETC.,  OF  PUBLIC  RECORDS. 


103.  Every  person  who  willfully  destroys- or 

to  destroy,  or,  with  intent  to  steal  or  destroy,  takes  and  ord^   2g   ig53 
carries  away  any  record,  paper,  or  proceeding  of  a  court  c jji,  s.  4,  v.  10,  p. 
of  justice,  filed  or  deposited  with  any  clerk  or  officer  of    sec.6408,R.s. 
such  court,  or  any  paper,  or  document,  or  record  filed  or 
deposited  in  any  public  office,  or  with  any  judicial  or  pub- 
lic officer,  shall,  without  reference  to  the  value  of  the  rec- 
ord, paper,  document,  or  proceeding  so  taken,  pay  a  fine 
of  not  more  than  two  thousand  dollars,  or  suffer  imprison- 
ment, at  hard  labor,  not  more  than  three  years,  or  both. 

1  For  statutory  requirements  in  respect  to  the  free  transmission  of  official  mail  mat- 
ter, see  the  chapter  entitled  THE  POST-OFFICE  DEPARTMENT. 


40  MILITARY    LAWS    OF   THE    UNITED   STATES. 

Destroying rec-     104.  Every  officer,  having  the  custody  of  any  record. 

ords  by  officer  in  J  *  -J  .  f. 

charge^  document,  paper,  or  proceeding  specified  in  section  fifty- 

81,8. 5.V.  ib,  p.  no.'  f our  hundred  and  three,  who  fraudulently  takes  away,  or 
*  withdraws,  or  destroys  any  such  record,  document,  paper, 
or  proceeding  filed  in  his  office  or  deposited  with  him  or 
in  his  custody,  shall  pay  a  fine  of  not  more  than  two  thou- 
sand dollars,  or  suffer  imprisonment  at  hard  labor  not 
more  than  three  years,  or  both;  and  shall,  moreover,  for- 
feit his  office  and  be  forever  afterward  disqualified  from 
holding  any  office  under  the  Government  of  the  United 
States. 
Forging,    etc.      105.  Every  person  who  falsely  makes,  alters,  forges,  or 

bid,  public   rec-  J    J  . J 

ord.etc.  counterfeits  any  bid,  proposal,  guarantee,   official  bond, 

24,  sfi,v!  14,  p.'iS  public  record,  affidavit,  or  other  writing,  for  the  purpose 
rence,  is  siatch.,  of  defrauding  the  United  States,  or  utters  or  publishes  as 
siec.  5418,  B.S.  true  any  such  false,  forged,  altered,  or  counterfeited  bid, 
proposal,  guarantee,  official  bond,  public  record,  affidavit, 
or  other  writing,  for  such  purpose,  knowing  the  same  to 
be  false,  forged,  altered,  or  counterfeited,  or  transmits  to  or 
presents  at  the  office  of  any  officer  of  the  United  States 
any  such  false,  forged,  altered,  or  counterfeited  bid,  pro- 
posal, guarantee,  official  bond,  public  record,  affidavit,  or 
other  writing,  knowing  the  same  to  be  false,  forged, 
altered,  or  counterfeited,  for  such  purpose,  shall  be  im- 
prisoned at  hard  labor  for  a  period  not  more  than  ten 
years,  or  be  fined  not  more  than  one  thousand  dollars,  or 
be  punished  by  both  such  fine  and  imprisonment. 

DISPOSITION   OF   USELESS   PAPERS. 

Disposition  of     106.  Whenever  there  shall  be  in  any  one  of  the  Execu- 
February  IB,  tive  Departments  of  the  Government  an  accumulation  of 

1889,  v.  26,  p.  672. 

files  of  papers,  which  are  not  needed  or  useful  in  the  trans- 
action of  the  current  business  of  such  Department  and 
have  no  permanent  value  or  historical  interest,  it  shall  be 

Report  to  con-  the  duty  of  the  head  of  such  Department  to  submit  to  Con- 
gress. Examina- 
tion by  commit-  gress  a  report  of   that  fact,   accompanied  by  a  concise 

statement  of  the  condition  and  character  of  such  papers. 
And  upon  the  submission  of  such  report,  it  shall  be  the 
duty  of  the  presiding  officer  of  the  Senate  to  appoint  two 
Senators,  and  of  the  Speaker  of  the  House  of  Representa- 
tives to  appoint  two  Representatives,  and  the  Senators 
and  Representatives  so  appointed  shall  constitute  a  joint 
committee,  to  which  shall  be  referred  such  report,  with 
the  accompanying  statement  of  the  condition  and  character 


MILITARY    LAWS    OF    THE    UNITED   STATES.  41 

of  such  papers,  and  such  joint  committee  shall  meet  and 
examine  such  report  and  statement  and  the  papers  therein 
described,  and  submit  to  the  Senate  and  House,  respec-  ReP°rt- 
tively,  a  report  of  such  examination  and  their  recommenda- 
tion. And  if  they  report  that  such  files  of  papers  or  any 
part  thereof  are  not  needed  or  useful  in  the  transaction 
of  the  current  business  of  such  Department,  and  have  no 
permanent  value  or  historical  interest,  then  it  shall  be  the 
duty  of  such  head  of  the  Department  to  sell  as  waste  paper,  saie,etc. 
or  otherwise  dispose  of  such  files  of  papers  upon  the  best 
obtainable  terms  after  due  publication  of  notice  inviting 
proposals  therefor,  and  receive  and  pay  the  proceeds  thereof 
into  the  Treasury  of  the  United  States,  and  make  report 
thereof  to  Congress.  Act  of  February  16,  1889  (25  Stat. 
Z.,  678). 

107.  The  act  entitled  u  An  act  to  authorize  and  provide 

for  the  disposition  of  useless  papers  in  the  Executive  De-  v- 28.  P> 
partments,"  approved  February  sixteenth,  eighteen  hun- 
dred and  eighty-nine,  is  hereby  amended  so  as  to  include 
in  its  provisions  any  accumulation  of  files  of  papers  of  a 
like  character  therein  described  now  or  hereafter  in  the 
various  public  buildings  under  the  control  of  the  several 
Executive  Departments  of  the  Government.  Act:  of 
March  0,  1896  (28  Stat.  Z.,  910). 

108.  All  books,  papers,  and  other  matters  relating  to  the 
office  or  accounts  of  disbursing  officers  of  the  Executive  f^ 
Departments,  and  commissions,  boards,  and  establishments  29Fpb55o' 1807>  v* 
of  the  Government  in  the  District  of  Columbia  shall  at  all 

times  be  subject  to  inspection  and  examination  by  the 
Comptroller  of  the  Treasury  and  the  Auditor  of  the  Treas- 
ury authorized  to  settle  such  accounts,  or  by  the  duly 
authorized  agents  of  either  of  said  officials.  Act  of  Feb- 
ruary 19,  1897  (29  Stat.  L.,  550). 

DOCUMENTS    FOR    DEPARTMENTAL    LIBRARIES. 

109.  The  libraries  of  the  eight  Executive  Departments,  JJgg"  of  doc' 
of  the  United  States  Military  Academy,  and  United  States  gs^%18^ '.*' 
Naval  Academy  are  hereby  constituted  designated  deposito- 
ries of  Government  publications,  and  the  superintendent 

of  documents  shall  supply  one  copy  of  said  publications  in 
the  same  form  as  supplied  to  other  depositories  to  each  of 
said  libraries.  Sec.  98,  act  of  January  12,  1895  (28  Stat. 
L.,694). 


42 


MILITAEY    LAWS    OF    THE    UNITED    STATES 


PROSECUTION    OF    CLAIMS. 


110.  Subpoenas  to  witnesses. 

111,  112.  Witnesses'  fees;  testimony. 

113.  Professional    assistance,     how    ob- 

tained. 

114.  Evidence  to  be  furnished  by  Depart- 

ments. 


115.  Employment  of  attorneys  and  coun- 

sel. 

116.  Persons   formerly   in    Departments 

not  to  prosecute  claims. 


Subpcenas 
witnesses. 


110.  Any  head  of  a  Department  or  Bureau  in  which  a 
w  Feb!°H'i87i,  c.  claim  against  the  United  States  is  properly  pending  may 
4i2.8'  '  apply  to  any  judge  or  clerk  of  any  court  of  the  United 

'States,  in  any  State,  District,  or  Territory,  to  issue  a 
subpoena  for  a  witness  being  within  the  jurisdiction  of  such 
court,  to  appear  at  a  time  and  place  in  the  subpoena  stated, 
before  any  officer  authorized  to  take  depositions  to  be  used 
in  the  courts  of  the  United  States,  there  to  give  full  and 
true  answers  to  such  written  interrogatories  and  cross- 
interrogatories  as  may  be  submitted  with  the  application, 
or  to  be  orally  examined  and  cross-examined  upon  the  sub- 
ject of  such  claim. 

witnesses'      Hi.  Witnesses  subpoenaed  pursuant  to  the  preceding 
^Feb^  14,  i87i,  c.  section   shall  be  allowed   the   same   compensation   as   is 
41|'ec  186  B  s  a^owe(^  witnesses  in  the  courts  of  the  United  States. 
compelling      H2.  If  any  witness,  after  being*  duly  served  with  such 

testimony.  J  J 

^Feb.^14,  mi,  c.  subpoena,   neglects   or  refuses  to  appear,  or,  appearing, 
41L  a  refuses  to  testify,  the  judge  of  the  district  in  which  the 

S^C«    1  Mi.     Ji.    H.  ^ 

subpoena  issued  may  proceed,  upon  proper  process,  to 
enforce  obedience  to  the  subpoena,  or  to  punish  the  diso- 
bedience, in  like  manner  as  any  court  of  the  United  States 
may  do  in  case  of  process  of  subpoena  ad  testificandum 
issued  by  such  court. 
Professional  113.  Whenever  any  head  of  a  Department  or  Bureau 

assistance  ;   how  T  ,  i  •         • 

obFein  14'  1871  h&ving  made  application  pursuant  to  section  one  hundred 
5i,  s.  3,  v.  16,'  p'.  and  eighty-four,  for  a  subpoena  to  procure  the  attendance 
s'ec.  187,  K.  s.  of  a  witness  to  be  examined,  is  of  opinion  that  the  interests 
of  the  United  States  require  the  attendance  of  counsel  at 
the  examination,  or  require  legal  investigation  of  any 
claim  pending  in  his  Department  or  Bureau,  he  shall  give 
notice  thereof  to  the  Attorney-  General,  and  of  all  facts 
necessary  to  enable  the  Attorney-General  to  furnish 
proper  professional  service  in  attending  such  examination, 
or  making  such  investigation,  and  it  shall  be  the  duty  of 
the  Attorney-General  to  provide  for  such  service. 
funSsheendCby°thI  114-  In  a11  suits  brought  against  the  United  States  in  the 
ng  IS  Court  of  Claims  founded  upon  any  contract,  agreement, 


P 


c?aim?  °  u  r  *  °  f 


or  transaction  with  any  Department,  or  any  Bureau,  officer, 


MILITARY    LAWS    OF    THE    UNITED   STATES.  43 

or  atrent  of  a  Department,  or  where  the  matter  or  thinsr  on    June26,i868,c. 

.  .fe,      .  ,    .       f    ,  -,   ,•         ,  ,  ,     ,      f  .        71,  8.  6,  V,  15,  p.  76. 

which  the  claim  is  based  has  been  passed  upon  and  decided    Sec.  iss,  fi.  s. 

by  any  Department,  Bureau,  or  officer  authorized  to  adjust 

it,  the  Attorney-General  shall  transmit  to  such  Depart- 

ment, Bureau,  or  officer,  a  printed  copy  of  the  petition 

filed  by  the  claimant,  with  a  request  that  the  Department, 

Bureau,  or  officer,  shall  furnish  to  the  Attorney-General 

all  facts,  circumstances,  and  evidence  touching  the  claim 

in  the  possession  or  knowledge  of  the  Department,  Bureau, 

or  officer.     Such    Department,   Bureau,  or  officer  shall, 

without  delay,  and  within  a  reasonable  time,  furnish  the 

Attorney-General  with  a  full  statement,  in  writing,  of  all 

such  facts,  information,  and  proofs.     The  statement  shall 

contain  a  reference  to  or  description  of  all  such  official 

documents  or  papers,  if  any,  as  may  furnish  proof  of  facts 

referred  to  in  it,  or  may  be  necessary  and  proper  for  the 

defense  of  the  United  States  against  the  claim,  mentioning 

the  Department,  office,  or  place  where  the  same  is  kept  or 

may  be  procured.     If  the  claim  has  been  passed  upon  and 

decided  by  the  Department,  Bureau,  or  officer,  the  state- 

ment shall  succinctly  state  the  reasons  and  principles  upon 

which  such  decision  was  based.     In  all  cases  where  such 

decision  was  founded  upon  any  act  of  Congress,  or  upon 

any  section  or  clause  of  such  act,  the  same  shall  be  cited 

specifically;   and  if   any  previous  interpretation  or  con- 

struction has  been  given  to  such  act,  section,  or  clause  by 

the  Department,  Bureau,  or  officer,  the  same  shall  be  set 

forth  succinctly  in  the  statement,  and  a  copy  of  the  opinion 

filed,  if  any,  shall  be  annexed  to  it.     Where  any  decision 

in  the  case  has  been  based  upon  any  regulation  of  a  Depart- 

ment, or  where  such  regulation  has,  in  the  opinion  of  the 

Department,  Bureau,  or  officer  transmitting  such  state- 

ment, any  bearing  upon  the  claim  in  suit,  the  same  shall 

be  distinctly  quoted  at  length  in  the  statement.     But  where 

more  than  one  case,  or  a  class  of  cases,  is  pending,  the 

defense  to  which  rests  upon  the  same  facts,  circumstances, 

and  proofs,  the  Department,  Bureau,  or  officer  shall  only 

be  required  to  certify  and  transmit  one  statement  of  the 

same,  and  such  statement  shall  be  held  to  apply  to  all  such 

cases,  as  if  made  out,  certified,  and  transmitted  in  each 

case  respectively.1 

115.  No  head  of  a  Department  shall  employ  attorneys  or 
counsel  at  the  expense  of  the  United  States;  but  when  in  counsel. 


the  title  The  Court  of  Claims  in  the  chapter  entitled  THE  DEPARTMENT  OF 
JUSTICE;  see,  also,  the  chapter  entitled  THE  DEPARTMENT  OF  THE  TREASURY  L 

MENT. 


44  MILITARY    LAWS    OF   THE    UNITED   STATES. 

I5ousneifv18i76°'c'  neec*  °^  counsel  or  advice,  shall  call  upon  the  Department 
16s     189  R  V  °^  *^us^ce'  the  officers  of  which  shall  attend  to  the  same.1 
Person's  for-      116.  It  shall  not  be  lawful  for  any  person  appointed  after 
partments  not  to  the  first  day  of  June,  one  thousand  eight  hundred  and 
°    M  seventy-two,  as  an  officer,  clerk,  or  employee  in  any  of  the 


i'  p.'  Departments,  to  act  as  counsel,  attorney,  or  agent  for 
190,  R.  s.  prosecuting  any  claim  against  the  United  States  which  was 
pending  in  either  of  said  Departments  while  he  was  such 
officer,  clerk,  or  employee,  nor  in  any  manner,  nor  by  any 
means,  to  aid  in  the  prosecution  of  any  such  claim,  within 
two  years  next  after  he  shall  have  ceased  to  be  such  officer, 
clerk  or  employee.2 

1  See  paragraph  343,  post,  and  paragraph  113,  ante. 

'See  XVIII  Opin.  Att.  Gen.,  125,  136;  XIX  ibid.,  328;  XX  ibid.,  657. 


III. 


THE  DEPARTMENT  OF  WAR. 


Par. 

117, 118.  The  War  Department. 

119-121.  Performance  of  duties  in  the 
absence  or  illness  of  the  Sec- 
retary of  War  or  head  of  a 
bureau.  The  same,  during 
absence  of  a  chief  of  bureau. 

122-128.  Duties  of  the  Secretary  of  War. 


Par. 

129-133.  Keporte. 

134-136.  Clerical    force   of    the    Depart 

ment. 

137.  Claims. 

138-139.  The  War  Department  building. 
140, 141.  Sale  of  maps,  charts,  etc. 


THE    WAR    DEPARTMENT. 


Par. 


117.  The  Secretary  of  War. 


Par. 


118.  The  Assistant  Secretary  of  War. 


117.  There  shall  be  at  the  seat  of  Government  an  Execu- 


tive  Department  to  be  known  as  the  Department  of  War,  ment  of  war. 
and  a  Secretary  of  War,  who  shall  be  the  head  thereof.1 

118.  There  shall  be  in  the  Department  of  War  an  Assist-    Assistant^  sec- 
ant Secretary  of   War,   who  shall  be  appointed   by  the  beappo^inted.  ^ 
President,   by  and  with  the  advice   and   consent  of    the  20,  p.  17.' 
Senate,  and  shall  be  entitled  to  a  salary  of  four  thousand    salary. 
five  hundred  dollars  a  year,  payable  monthly,  and  who 
shall  perform  such  duties  in  the  Department  of  War  as    Duties. 
shall  be  prescribed  by  the  Secretary  or  may  be  required 
by  law.2     Act  March  5,  1890  (26  Stat.  Z.,  17). 

1  The  Department  of  War  and  the  office  of  Secretary  of  War  were  created  by  the 
act  of  August  7,  1789  (1  Stat.  L.,  49)  .  The  Secretary  of  War  succeeded  to  the  office 
and  functions  of  the  Secretary  at  War,  whose  powers  and  duties  were  denned  in  an 


as  imposed  duties  upon  the  Secretary  of  War  in  connection  therewith  was  repealed 
(1  Stat.  L.,  553).  For  statutory  provisions  respecting  a  temporary  vacancy  in  the 
office  of  Secretary  of  War  see  paragraphs  7  to  14,  ante. 

2  The  act  of  August  5,  1882.  authorizing  the  appointment  of  an  Assistant  Secretary 
of  War  was  repealed  by  the  act  of  July  7,  1884  (23  Stat.  L.,  331),  the  power  conferred 
by  the  act  of  August  5,  1882,  never  having  been  exercised.  In  the  case  of  Ryan iv. 
U.  S.,  136  U.  S.,  18,  80,  it  was  held  that  the  authority  vested  in  the  Secretary  of  War 
could  in  his  absence  be  exercised  by  the  officer  who  under  the  law  became  for  the 
time  acting  Secretary  of  War. 


46 


MILITARY    LAWS    OF    THE    UNITED    STATES. 


PERFORMANCE    OF   DUTIES    IN   ABSENCE    OR   ILLNESS   OF    SECRETARY   OF 

WAR. 


Par. 

119.  General  Commanding    the    Army, 

etc.,  may  be  designated. 

120.  Chief  clerk  may  sign  requisitions, 

etc.,  during  illness  or  absence  of 
Secretary. 


Par. 

121.  Absence  of  head  of  bureau. 


commanding  H9.  The  President  may  authorize  and  direct  the  Corn- 
Army,.  etc.,  may  manding  General  of  the  Army  or  the  chief  of  any  military 
presidegnTto  per-  bureau  of  the  War  Department  to  perform  the  duties  of 

form    duties    of  .    .  ,.  . 

secretary   of  the  Secretary  of  War  under  the  provisions  or  section  one 
lug.  5,  1882,  v.  hundred  and  seventy-nine  of   the   Revised  Statutes,   and 

22  D  238 

section  twelve  hundred  and  twenty-two  of   the  Revised 
Statutes  shall  not  be  held  or  taken  to  apply  to  the  officer 
so  designated  by  reason  of  his  temporarily  performing  such 
duties.     Act  of  August  5,  188%  (00  Stat.  Z.,  838). 
secretary  of      120.  When,  from  illness  or  other  cause,  the  Secretary  of 

Warmayauthor-  .  ••,•*,*  ,1       TIT        TA  ,     i 

ize  chief  clerk  to  War  is  temporarily  absent  trom  the  War  Department,  he 

tions,  etc.,  in  his  may  authorize  the  chief  clerk  of  the  Department  to  sign 

Mar.  4,  1874,  v.  requisitions  upon  the   Treasury   Department,  and    other 

papers   requiring   the    signature   of   said   Secretary;   the 

same,  when  signed  by  the  chief  clerk  during  such  tempo- 

rary absence,  to  be  of  the  same  force  and  effect  as  if  signed 

by  the  Secretary  of  War  himself.  l     Act  of  March  ,£,  1874 

(18  Stat.  Z.,  19). 

as      ^1.  During  the  absence  of  the  Quartermaster-General, 
e^  °f  anv  mili^ary  bureau  of  the  War  Depart- 

19&?ii82,B.s.  ment,  the  President  is  authorized  to  empower  some  offi- 
cer of  the  department  or  corps  whose  chief  is  absent  to 
take  charge  thereof,  and  to  perform  the  duties  of  Quar- 
termaster-General, or  chief  of  department  or  corps,  as  the 
case  may  be,  during  such  absence.2  Act  of  February  *25, 
1877  (19  Stat.  Z., 


chF!b°f25Ui877Uv  or  tne 


1  For  the  general  duties  of  chief  clerks  see  paragraphs  21  and  22,  ante. 

2  This  section  contains  the  substance  of  section  5  of  the  act  of  July  4,  1836  (5  Stat. 
L.,  117),  which  was  passed  in  order  to  enable  Q.  M.  Gen.  Thos.  8.  Jesup  to  exer- 
cise command  of  the  troops  engaged  in  the  prosecution  of  the  Florida  war.     Gen- 
eral Jesup  served  under  this  assignment  from  May  19,  1836,  to  July  7,  1838,  when 
he  resumed  the  performance  of  his  duties  as  Quartermaster-General  in  the  War 
Department. 


MILITARY    LAWS    OF   THE    UNITED   STATES. 


DUTIES   OF   THE    SECRETARY    OF   WAR. 


Par. 


122.  Management  of  military  affairs. 

123.  Custody  of  records. 

124.  Collection  of  flags,  etc. 

125.  Designation  and  purchase  of   sup- 

plies. 


Par. 


126.  Transportation  of  troops. 

127.  Construction  and  operation  of  tele- 

graph lines. 

128.  Administration  of  oaths  in  investi- 

gations. 


122.  The  Secretary  of  War  shall  perform  such  duties  as    Management 
shall  from  time  to  time  be  enjoined  on  or  intrusted  to  him  fairs.1  l 

by  the  President  relative  to  military  commissions,  the  inili-  ?,  s.ui%!'i,  P,49.' 
tary  forces,  the  warlike  stores  of  the  United  States,  or  to 
other  matters  respecting*  military  affairs;  and  he  shall  con- 
duct the  business  of  the  Department  in  such  manner  as  the 
President  shall  direct.3     (See  sees.  3660-3665,  3669,  R.  8.) 

123.  The  Secretary  of  War  shall  have  the  custody  and depUasn mental 
charge  of  all  the  books,  records,  papers,  furniture,  fixtures,  records  and  prop- 
arid  other  property  appertaining  to  the  Department.  7  ^u|'4\  }7P9'50 

'Sec.'217,'lLS.' 

3  The  Secretary  of  War  is  the  regular  constitutional  organ  of  the  President  for  the 
administration  of  the  military  establishment  of  the  nation;  and  rules  and  orders 
publicly  promulgated  through  him  must  be  received  as  the  acts  of  the  Executive 
and,  as  such,  be  binding  upon  all  within  the  sphere  of  his  legal  and  constitutional 
authority.  Sucn  regulations  can  not  be  questioned  or  defied  because  they  may  be 
thought  unwise  or  mistaken.  The  right  of  so  considering  and  treating  the  authority 
of  the  Executive,  vested  as  it  is  with  the  command  of  the  military  and  naval  forces, 
"  could  not  be  intrusted  to  officers  of  any  grade  inferior  to  the  Commander  in  Chief; 
its  consequence,  if  tolerated,  would  be  a  complete  disorganization  of  both  the  Army 
and  Navy.  U.  S.  v.  Eliason,  16  Pet.,  291,  302;  Wilcox  v.  Jackson,  13  Pet.,  498,  513; 
Wolsey  v.  Chapman,  101  U.  S.,  755;  Runkler.  U.  S.,  122  U.  S.,  543,  557;  IT.  S.  v.  Adams, 
7  Wall.,  463.  The  Secretary  of  War  is  not  required  to  perform  duties  in  the  field. 
He  does  not  compose  any  part  of  the  Army,  and  has  no  service  to  perform  that  may 
not  be  done  at  the  seat  of  government.  I  Opin.  Att.  Gen.,  457;  U.  S.  v.  Burns,  12 
Wall.,  246;  see  also  note  2  to  par.  5,  and  the  title  Bridges  over  the  navigable  waters  of 
the  United  States,  in  the  chapter  entitled  THE  CORPS  OF  ENGINEERS. 

Duties  imposed  by  statute. — In  addition  to  his  duties  as  the  constitutional  organ  of 
the  President  for  the  administration  of  the  military  establishment,  the  Secretary  of 
War  is,  by  other  statutes,  charged  with  the  supervision  of  the  administration  of  the 
several  bureaus  or  offices  of  the  War  Department,  their  estimates,  contracts,  expend- 
itures, reports,  and  returns  being  under  his  sole  direction  and  control.  He  has  also 
been  charged,  from  time  to  time,  with  the  execution  of  laws  relating  to  national 
cemeteries,  the  Soldiers'  Home,  the  National  Home  for  Disabled  Volunteer  Soldiers, 
the  military  prison,  the  detail  of  officers  to  colleges,  the  distribution  of  relief  to 
sufferers  by  fire,  flood,  or  by  the  failure  of  crops,  due  to  drought  or  other  causes,  the 
construction  and  operation  of  canals,  roads,  and  lines  of  telegraph,  the  location  and 
construction  of  bridges  over  the  navigable  waters  of  the  United  States,  of  rai'roads 
through  the  public  lands,  the  protection  of  settlers  and  emigrants,  the  establishment 
of  harbor  lines,  the  adjustment  of  claims,  the  establishment  and  maintenance  of 
national  military  parks,  and  the  location,  marking,  and  preservation  ot  lines  of  battle 
on  the  battlefields  of  the  civil  war.  Since  the  act  of  June  28, 1864,  all  statutes  author- 
izing the  construction  of  works  of  river  and  harbor  improvement  have  contained  the 
provision  that  the  sums  appropriated  shall  be  expended  under  his  direction.  The 
Military  Academy  and  the  schools  of  application  at  Willets  Point,  Fortress  Monroe, 
and  at  Forte  Leavenwerth  and  Eiley  are  also  carried  on  under  the  immediate  super- 
vision of  the  Secretary  of  War.  By  the  act  of  April  10,  1878,  the  Secretary  of  War 
is  authorized  to  prescribe  rules  and  regulations  to  be  observed  in  the  preparation, 
submission,  and  opening  of  bids  for  contracts  under  the  War  Department.  See  also 
pars.  5  and  6  and  notes  thereunder  for  general  provisions  respecting  the  powers  and 
duties  of  the  heads  of  the  several  Executive  Departments. 


48  MILITARY   LAWS    OF   THE   UNITED   STATES. 

collecting     124.  The  Secretary  of  War  shall  from  time  to  time  cause 

Apr.  is,  1814,  to  be  collected  and  transmitted  to  him,  at  the  seat  of  gov- 

m  ' 8' lf  v' 3>  p'  ernment,  all  such  flags,  standards,  and  colors  as  are  taken 

Sec  218  K.  S. 

'  by  the  Army  from  the  enemies  of  the  United  States, 
purchase  and      125.  The  Secretary  of  War  shall  from  time  to  time  define 

transportation  of  .-1,11.1  -n  .1  /•  T 

supplies.  and  prescribe  the  kinds  as  well  as  the  amount  of  supplies 

Mar   3  1813  c 

48,  s.  5,  V.  2,'  p!  to  be  purchased  by  the  Subsistence  and  Quartermaster 
s'ec.  219,  R.  s.  departments  of  the  Army,  and  the  duties  and  powers 
thereof  respecting  such  purchases;  and  shall  prescribe 
general  regulations  for  the  transportation  of  the  articles  of 
supply  from  the  places  of  purchase  to  the  several  armies, 
garrisons,  posts,  and  recruiting  places,  for  the  safe-keeping 
of  such  articles,  and  for  the  distribution  of  an  adequate 
and  timely  supply  of  the  same  to  the  regimental  quarter- 
masters, and  to  such  other  officers  as  may  by  virtue  of  such 
regulations  be  intrusted  with  the  same;  and  shall  fix  and 
make  reasonable  allowances  for  the  store  rent  and  storage 
necessary  for  the  safe-keeping  of  all  military  stores  and 
supplies. 

ofTtrrro8^re?ction      *^§  ^e  transportation  of  troops,  munitions  of  war, 

i5J<sn'431v'1i?'p  equipments,  military  property,  and  stores,  throughout  the 

^ec  220  R  s  United  States,  shall  be  under  the  immediate  control  and 

supervision  of  the  Secretary  of  War  and  such  agents  as  he 

may  appoint. 

of°newr lines °of  *2^'  That  the  construction  of  new  lines  of  telegraph 
tejun^'i878'v  snaU  ^e  under  the  supervision  and  direction  of  the  several 
20,  p.  219.  military  commanders,  subject  to  the  approval  of  the  Sec- 

retary of  War.1  Act  of  June  W,  1878  (20  Stat.  Z.,  219). 
128-  Tne  Secretary  of  War  is  authorized  to  detail  one 
c  or  more  °f  the  employees  of  the  War  Department  for 
49ser  225  R.  s  ^e  purpose  of  administering  the  oaths  required  by  law  in 
the  settlement  of  officers'  accounts  for  clothing,  camp  and 
garrison  equipage,  quartermaster's  stores,  and  ordnance, 
which  oaths  shall  be  administered  without  expense  to  the 
parties  taking  them. 

*The  act  ot  October  1,  1890,  provides  that  "the  civilian  duties  now  performed  by 
the  Signal  Corps  of  the  Army  shall  hereafter  devolve  upon  a  bureau,  which,  on  or 
after  July  first,  eighteen  hundred  and  ninety-one,  shall  be  established  in  the  Depart- 
ment of  Agriculture,  and  the  Signal  Corps  of  the  Army  shall  remain  a  part  of  the 
military  establishment,  under  the  direction  of  the  Secretary  of  War,  and  all  esti- 
mates for  its  support  shall  be  included  with  other  estimates  for  the  support  of  the 
military  establishment."  Vol.  26,  Stat.  L.,  ch.  1266,  p.  653.  This  statute  operates 
to  repeal  so  much  of  sections  221,  222,  and  223  of  the  Revised  Statutes  as  imposed 
duties  upon  the  Secretary  of  War  and  the  Chief  Signal  Officer  in  connection  with  the 
observation  and  report  of  storms,  leaving  under  their  direction  such  duties  in  con- 
nection with  the  construction  and  repair  of  military  telegraph  lines  as  were  imposed 
by  the  acts  of  March  3,  1875,  18  Stat.  L.,  p.  388,  and  "June  20,  1878,  20  Stat.  L., 
p.  219.  See  chapter  entitled  THE  SIGNAL  DEPARTMENT,  post, 


MILITARY    LAWS    OF    THE    UNITED    STATES. 


49 


REPORTS. 


Far. 

129.  Unexpended  balances. 

130.  Expenditures    for   contingencies   of 

the  Army. 


Par. 

131.  Proposals  for  public  works. 

132.  Examination  of  rivers  and  harbors. 

133.  Returns  of  the  militia. 


129.  The  Secretary  of  War  shall  make  an  annual  report    Report  of  un- 

,*  ,    .    .  j.   ,,  ...         expended     b»l- 

to  Congress  containing  a  statement  of  the  appropriations  ancea. 
of  the  preceding  fiscal  year  for  the  Department  of  War,  52, s^v.'s,  P. 567- 
showing  the  amount  appropriated  under  each  specific  head  n?*'s.  2,  v.  is,  p! 
of  appropriation,  the  amount  expended  under  each  head,    Sec.  228,  B.  s. 
and  the  balance  which,  on  the  thirtieth  day  of  June  pre- 
ceding such  report,  remained  unexpended.     Such  reports 
shall  be  accompanied  by  estimates  of  the  probable  demands 
which  may  remain  on  each  appropriation. 

130.  The  Secretary  of  War  shall  lay  before  Congress,  at    Annual  state- 

J  J    ,  mentofexpendi- 

the  commencement  of  each  regular  session,  a  statement  of  tu.re  °|  appropri- 

*  .  ation  for  contin- 

the  expenditure  of  the  moneys  appropriated 


229,  B.  s. 


8ec*  23"'  B*  s* 


eof 


the  contingent  expenses   of  the  military  establishment.  28.  s-  5,  V.  2,  'p. 
Act  of  March  2,  1895  (28  Stat.  Z.,  787). 

131.  Whenever  the  Secretary  of  War  invites  proposals 
for  any  works,  or  for  any  materials  or  labor  for  any 
work,  he  shall  report  to  Congress,  at  its  next  session,  all 
bids  therefor,  with  the  names  of  the  bidders. 

132.  The  Secretary  of  War  shall  cause  to  be  prepared  and 
submitted  to  Congress,  in  connection  with  the  reports  of     p 
examinations  and  surveys  of  rivers  and  harbors  hereafter  RgSulJ02^ 
made  by  order  of  Congress,  full  statements  of  all  existing 

facts  tending  to  show  to  what  extent  the  general  commerce 
of  the  country  will  be  promoted  by  the  several  works  of 
improvements  contemplated  by  such  examinations  and  sur- 
veys, to  the  end  that  public  moneys  shall  not  be  applied 
excepting  where  such  improvements  shall  tend  to  subserve 
the  general  commercial  and  navigation  interests  of  the 
United  States. 

133.  The  Secretary  of  War  shall  lay  before  Congress,  on    Returns  of  the 
or  before  the  first  Monday  in  February  of  each  year,  an  msic.a282,  B.  s. 
abstract  of  the  returns  of  the  adjutants-general  of  the  sev- 

eral States  of  the  militia  thereof.2 

JFor  other  reports,  required  by  statute  to  be  rendered  by  heads  of  Executive 
Departments,  see  paragraphs  59,  60,  73  to  78,  ante;  for  reports  required  to  be  ren- 
dered by  the  Secretary  of  War,  see  the  chapters  relating  to  the  several  staff  depart- 
ments. 

2  See  chapter  entitled  THE  MILITIA.  For  statute  requiring  a  report  of  the  names, 
compensation,  etc.,  of  civil  engineers  employed  on  works  of  river  and  harbor  improve- 
ment, to  be  rendered  to  Congress  annually  by  the  Secretary  of  War,  see  the  chap- 
ter entitled  THE  ENGINEER  DEPARTMENT. 

22924—08  -  4 


50  MILITARY    LAWS    OF    THE    UNITED    STATES. 

CLERICAL    FORCE    OF   THE    WAR    DEPARTMENT. 


Par. 


134.  Chief  clerk;  duties. 

135.  Clerical  force  of  the  Department. 


Par. 

136.  Restriction  details. 


chief  clerk,  Feb.      134.  There  shall  be  in  the  said  Department  an  inferior 

27,  1877,  v.  19,  p.  .  ,  .        .        ,        ~,  , 

241.  officer,  to  be  appointed  by  said  principal  officer,  to  be 

employed  therein  as  he  shall  deem  proper,  and  to  be 
called  the  chief  clerk  in  the  Department  of  War,  and 
who,  whenever  the  said  principal  officer  shall  be  removed 
from  office  by  the  President  of  the  United  States,  or  in 
any  other  case  of  vacancy,  shall,  during  such  vacancy, 
have  the  charge  and  custody  of  all  records,  books,  and 
papers  appertaining  to  the  said  Department. l  Act  of  Feb- 
ruary 27,  1877  (19  Stat.  Z.,  241). 
subordinate  135.  There  shall  be  in  the  Department  of  War:2 

°  Mark's,  1853,  v.     One  chief  clerk  of  the  Department,  at  a  salary  of  two 
sec.  215,  K.  s.  thousand  five   hundred  dollars  a  year.     One  disbursing 
clerk.3 


1For  the  powers  and  duties  of  chief  clerks,  see  paragraphs  21  to  23,  ante;  for 
requirement  authorizing  the  chief  clerk  of  the  War  Department  to  sign  requisitions 
and  other  papers  in  the  temporary  absence  of  the  Secretary,  see  paragraph  120,  ante. 

2  The  strength  and  composition  of  the  clerical  force  in  the  War  Department  and  its 
several  bureaus  and  offices  is  now  fixec1  and  established  in  the  annual  acts  of  appro- 
priation. 

The  following  clerical  force  in  the  Secretary's  office  is  authorized  by  the  act  of 
March  3,  1901  (31  Stat.,  988):  One  " chief  clerk,  including  five  hundred  dollars  as 
assistant  in  military  park  and  insular  affairs,  three  thousand  dollars;  clerk  to  the 
chief  clerk,  two  thousand  one  hundred  dollars;  clerk  to  the  Secretary,  two  thousand 
two  hundred  and  fifty  dollars;  clerk  to  the  Assistant  Secretary,  two  thousand  one 
hundred  dollars;  stenographer,  one  thousand  eight  hundred  dollars;  disbursing  clerk, 
two  thousand  dollars;  lour  chiefs  of  division,  at  two  thousand  dollars  each;  superin- 
tendent of  buildings,  outside  of  State,  War,  and  Navy  Department  building,  in  addi- 
tion to  compensation  as  chief  of  division,  five  hundred  dollars;  appointment  clerk, 
two  thousand  dollars;  librarian,  one  thousand  eight  hundred  dollars;  four  clerks  of 
class  four;  five  clerks  of  class  three;  ten  clerks  of  class  two;  eleven  clerks  of  class  one; 
four  clerks,  atone  thousand  dollars  each;  carpenter,  one  thousand  dollars;  foreman 
of  laborers,  one  thousand  dollars;  two  carpenters,  at  nine  hundred  dollars  each;  four 
messengers;  seven  assistant  messengers;  eight  laborers;  hostler,  six  hundred  dollars; 
two  hostlers,  and  one  watchman,  at  five  hundred  and  forty  dollars  each;  in  all,  one 
hundred  and  four  thousand  one  hundred  and  fifty  dollars." 

Temporary  clerical  force.— The  act  of  March  3,  1901  (31  Stat.  L.,  988),  makes  the 
following  provision:  "For  continuing  the  employment  of  such  additional  temporary 
force  of  clerks,  messengers,  laborers,  and  other  assistants,  rendered  necessary  because 
of  increased  work  incident  to  the  war  with  Spain,  as  in  the  judgment  of  the  Secre- 
tary of  War  may  be  proper  and  necessary  to  the  prompt,  efficient,  and  accurate  dis- 
patch of  official  business  in  the  War  Department  and  its  bureaus,  to  be  allotted  by 
the  Secretary  of  War  to  such  bureaus  and  officec,  as  the  exigencies  of  the  needs  of 
the  service  may  demand;  six  hundred  thousand  dollars."  The  same  enactment  also 
contains  the  following  restriction  upon  the  employment  of  the  temporary  services 
therein  authorized:  " Persons  in  the  classified  service  of  the  Government  shall  not 
be  eligible  to  appointment  under  this  appropriation  or  other  appropriations  for  addi- 
tional employees  because  of  increased  work  incident  to  the  war  with  Spain  or  to  be 
transferred  from  any  position  in  the  classified  service  to  positions  paid  under  this  or 
said  other  appropriations." 

3  The  following  offices,  created  by  section  215,  Revised  Statutes,  have   ceased  to 
exist:  One  superintendent  of  the  War  Department  building,  at  $250  per  year  (see 


MILITARY    LAWS    OF    THE    UNITED    STATES.  51 

In  the  office  of  the  Adjutant-General:  One  chief  clerk, 
at  a  salary  of  two  thousand  dollars  a  year.1 

In  the  office  of  the  Quartermaster-General:  One  chief 
clerk,  at  a  salary  of  two  thousand  dollars  a  year.2 

In  the  office  of  the  Pay  master-General:  One  chief  clerk, 
at  a  salary  of  two  thousand  dollars  a  year.3 

In  the  office  of  the  Commissary-General :  One  chief  clerk, 
at  a  salary  of  two  thousand  dollars  a  year.4 

In  the  office  of  the  Surgeon-General:  One  chief  clerk,  at 
a  salary  of  two  thousand  dollars  a  year.5 

section  6  of  the  act  of  August  5,  1882,  22  Stat.  L.,  256,  paragraph  82,  post);  one 
superintendent  of  building  in  the  Quartermaster-General's  Office,  (a)  at  $200  per  year; 
one  superintendent  of  building  in  the  Paymaster-General's  Office,  (a)  at  $250  per  year; 
one  superintendent  of  building  in  the  office  of  the  Commissary-General  of  Subsist- 
ence, (a)  at  $250  year. 

ADJUTANT-GENERAL'S  OFFICE:  The  authorized  clerical  force  in  the  office  of  the 
Adjutant-General  is  as  follows:  One  "  chief  clerk,  two  thousand  dollars;  clerk  to  the 
Adjutant-General,  one  thousand  eight  hundred  dollars;  two  chiefs  of  division,  at 
two  thousand  dollars  each;  twelve  clerks  of  class  four;  fourteen  clerks  of  class  three; 
thirteen  clerks  of  class  two;  fifty-eight  clerks  of  class  one;  seven  clerks,  at  one  thou- 
sand dollars  each;  four  messengers;  eighteen  assistant  messengers;  and  three  watch- 
men; in  all,  one  hundred  and  sixty-five  thousand  and  eighty  dollars."  Act  of  March 
3,  1901  (31  Stat,  L.,989). 

2  QUARTERMASTER-GENERAL'S  OFFICE:  The  following  is  the  authorized  clerical  force 
in  the  office  of  the  Quartermaster-General:  One  " chief  clerk,  two  thousand  dollars; 
eleven  clerks  of  class  four;  nine  clerks  of  class  three;  twenty-three  clerks  of  class 
two;  thirty-nine  clerks  of  class  one;  eight  clerks,  at  one  thousand  dollars  each;  six 
skilled  typewriters,  at  one  thousand  dollars  each;  female  messenger,  four  hundred 
and  eighty  dollars;  four  messengers;  nine  assistant  messengers;  two  laborers;  civil 
engineer,  one  thousand  eight  hundred  dollars;  assistant  civil  engineer,  one  thousand 
two  hundred  dollars;  draftsman,  one  thousand  eight  hundred  dollars;  assistant 
draftsman,  one  thousand  six  hundred  dollars;  assistant  draftsman,  one  thousand  four 
hundred  dollars;  assistant  draftsman,  one  thousand  four  hundred  dollars;  experienced 
builder  and  mechanic,  two  thousand  five  hundred  dollars;  in  all,  one  hundred  and 
fifty-two  thousand  five  hundred  and  forty  dollars."  Ibid. 

3 PAYMASTER-GENERAL'S  OFFICE:  The  following  is  the  authorized  clerical  force  in 
the  office  of  the  Paymaster-General:  One  "chief  clerk,  two  thousand  dollars;  five 
clerks  of  class  four;  five  clerks  of  class  three;  seven  clerks  of  class  two;  two  clerks  of 
class  one;  one  assistant  messenger;  four  laborers;  in  all,  thirty-four  thousand  five 
hundred  and  sixty  dollars."  Ibid. 

4 COMMISSARY-GENERAL'S  OFFICE:  The  following  is  the  authorized  clerical  force  in 
the  office  of  the  Commissary-General  of  Subsistence:  One  "chief  clerk,  two  thousand 
dollars;  two  clerks  of  class  four;  four  clerks  of  class  three;  five  clerks  of  class  two; 
eleven  clerks  of  class  one;  nine  clerks,  at  one  thousand  dollars  each;  two  assistant 
messengers;  two  laborers;  in  all,  forty-three  thousand  nine  hundred  and  sixty  dollars. 

5  SURGEON-GENERAL'S  OFFICE:  The  following  is  the  authorized  clerical  force  in  the 
office  of  the  Surgeon-General :  One  ' '  chief  clerk,  two  thousand  dollars;  fourteen  clerks 
of  class  four;  eleven  clerks  of  class  three;  twenty-six  clerks  of  class  two;  twenty-nine 
clerks  of  class  one;  five  clerks,  at  one  thousand  dollars  each;  anatomist,  one  thousand 
six  hundred  dollars;  engineer,  one  thousand  four  hundred  dollars;  assistant  engineer, 
for  night  duty,  nine  hundred  dollars;  two  firemen;  skilled  mechanic,  one  thousand 
dollars;  twelve  assistant  messengers;  three  watchmen;  superintendent  of  building 

aSection  3  of  the  act  of  April  17,  1900  (31  Stat.  L.,  1009),  and  section  3  of  the  act  of  March  3, 1901 
(Ibid.),  contained  the  requirement  that  "the  term  of  temporary  service  of  such  additional  clerks  a 
other  employees  rendered  necessary  because  of  increased  work  incident  to  the  war  witn  BI 
under  the  act  of  June  thirteenth,  eighteen  hundred  and  ninety-eight,  providing  for  war  expenditures 
and  for  other  purposes,  appointed  in  the  various  departments  of  the  Government,  shall  be  e; 
for  the  term  of  one  year  from  June  thirtieth,  nineteen  hundred,  without  compliance  with  the  c 
tions  prescribed  by  the  act  entitled  'An  act  to  regulate  and  improve  the  civil  service,  approveu  jnu 
uary  sixteenth,  eighteen  hundred  and  eighty-three,  provided  they  are  otherwise  competent. 


52  MILITAKY    LAWS    OF   THE    UNITED   STATES. 

In  the  office  of  the  Chief  of  Engineers:  One  chief  clerk, 
at  a  salary  of  two  thousand  dollars  a  year. 1 

In  the  office  of  the  Chief  of  Ordnance:  One  chief  clerk, 
at  a  salary  of  two  thousand  dollars  a  year.2 

In  the  office  of  the  Judge- Advocate-General:  One  chief 

clerk,  at  a  salary  of  two  thousand  dollars  a  year.8 

de^81tsriction  on      136.  Hereafter  it  shall  be  unlawful  to  allow  or  pay  to 

v.Ji8?p.  85.'  18?4'  any  °t  the  persons  designated  in.  this  act  any  additional 

compensation   from  any  source  whatever,   or  to  retain, 

detail,  or  employ  in  any  branch  of  the  War  Department  in 

the  city  of  Washington  any  persons  other  than  those  herein 

(Army  Medical  Museum  and  Library),  two  hundred  and  fifty  dollars;  five  laborers; 
chemist,  two  thousand  and  eighty-eight  dollars;  principal  assistant  librarian,  two 
thousand  and  eight}' -eight  dollars;  pathologist,  one  thousand  eight  hundred  dollars; 
microscopist,  one  thousand  eight  hundred  dollars;  assistant  librarian,  one  thousand 
eight  hundred  dollars;  in  all,  one  hundred  and  fifty-one  thousand  two  hundred  and 
sixty-six  dollars. "  Ibid. 

1  ENGINEER  OFFICE:  The  following  is  the  authorized  clerical  force  in  the  office  of 
the  Chief  of  Engineers:  One  "chief  clerk,  two  thousand  dollars;  five  clerks  of  class 
four;  four  clerks  of  class  three;  four  clerks  of  class  two;  four  clerks  of  class  one;  one 
clerk,  one  thousand  dollars;  one  assistant  messenger,  and  two  laborers;  in  all,  thirty 
thousand  eight  hundred  and  forty  dollars. 

"And  the  services  of  skilled  draftsmen,  civil  engineers,  and  such  other  services  as 
the  Secretary  of  War  may  deem  necessary  may  be  employed  in  the  office  of  the 
Chief  of  Engineers  to  carry  into  effect  the  various  appropriations  for  rivers  and  har- 
bors, fortifications,  and  surveys  to  be  paid  from  such  appropriations:  Provided,  That 
the  expenditures  on  this  account  for  the  fiscal  year  ending  June  thirtieth,  nineteen 
hundred  and  one,  shall  not  exceed  seventy-two  thousand  dollars;  and  that  the  Sec- 
retary of  War  shall  each  year,  in  the  annual  estimates,  report  to  Congress  the  number 
of  persons  so  employed  and  the  amount  paid  to  each."  Act  of  March  3,  1901  (31 
Stat.  L.,  990). 

2  ORDNANCE  OFFICE:  The  following  is  the  authorized  clerical  force  in  the  office  of 
the  Chief  of  Ordnance:  One  "chief  clerk,  two  thousand  dollars;  two  clerks  of  class 
four;  two  clerks  of  class  three;  two  clerks  of  class  two;  twenty  clerks  of  class  one; 
three  clerks,  at  one  thousand  dollars  each;  two  messengers;  one  assistant  messenger; 
one  laborer;  in  all,  forty-one  thousand  six  hundred  and  sixty  dollars."     Ibid. 

3  JUDGE- ADVOCATE-GENERAL'S  OFFICE:  The  following  is  the  authorized  clerical  force 
in  the  Judge- Advocate-General's  Office:  One  "chief  clerk,  two  thousand  dollars;  one 
clerk  of  class  four;  two  clerks  of  class  three;  one  clerk  of  class  two;  three  clerks  of 
class  one;  one  clerk,  one  thousand  dollars;  one  copyist;  one  messenger,  and  one 
assistant  messenger;  in  all,  fifteen  thousand  four  hundred  and  sixty  dollars."     Ibid. 

SIGNAL  OFFICE:  "  Forchief  clerk,  two  thousand  dollars;  oneclerk  of  class  four;  one 
clerk  of  class  one;  one  messenger;  one  laborer;  in  all,  six  thousand  five  hundred  dol- 
lars." Ibid. 

OFFICE  OF  THE  INSPECTOR-GENERAL:  "  For  one  clerk  of  class  four;  two  clerks  of  class 
three;  three  clerks  of  class  two;  two  clerks  of  class  one;  one  messenger,  and  one 
assistant  messenger;  in  all,  thirteen  thousand  one  hundred  and  sixty  dollars." 
Ibid. 

KECORD  AND  PENSION  OFFICE:  "For  three  chiefs  of  division,  at  two  thousand  dol- 
lars each;  one  agent,  two  thousand  dollars;  twenty-four  clerks  of  class  four;  forty-five 
clerks  of  class  three;  ninety-five  clerks  of  class  two;  one  hundred  and  eighty-seven 
clerks  of  class  one;  fifty-five  clerks,  at  one  thousand  dollars  each;  engineer,  one  thou- 
sand four  hundred  dollars;  assistant  engineer,  nine  hundred  dollars;  two  firemen; 
skilled  mechanic,  one  thousand  dollars;  five  messengers;  thirty-five  assistant  mes- 
sengers; messenger  boy,  three  hundred  and  sixty  dollars;  five  watchmen;  superin- 
tendent of  building,  two  hundred  and  fifty  dollars;  and  seventeen  laborers;  in  all, 
five  hundred  and  eighty-five  thousand  one  hundred  and  seventy  dollars;  and  all 
employees  provided  for  by  this  paragraph  for  the  Record  and  Pension  Office  of  the 
War  Department  shall  be  exclusively  engaged  on  the  work  of  this  office  for  the  fiscal 
year  nineteen  hundred  and  one."  Ibid. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  58 

authorized,1  except  in  the  Signal  Offices  and  the  Engineer 
Corps,  and  except  such  commissioned  officers  as  the  Sec- 
retary of  War  may,  from  time  to  time,  assign  to  special 
duties.  Act  of  June  00,  187  4  (18  Stat.  Z.,  85). 

CLAIMS  FOR  LOSS  AND  INJURY  TO  PROPERTY  DURING  WAR  WITH   SPAIN. 


137.  For  investigation  of  just  claims  against  the  United  ^ 
States  for  private  property  taken  and  used  in  the  military  taj  6  190a 
service  within  the  limits  of  the  United  States  during  the  v-  31>  P-  632- 
war  with  Spain,  ten  thousand  dollars,  or  so  much  thereof 
as  maybe  necessary;  and  the  Secretary  of  War  is  hereby 
authorized  and  directed  to  cause  to  be  investigated  all  such 
claims  and  to  ascertain  the  loss  and  injury,  if  any,  that  may 
have  been  sustained  by  such  claimants,  and  he  shall  report 
to  Congress  for  its  consideration  what  amount  or  amounts 
he  finds  to  be  equitably  due  from  the  United  States  to  such 
claimants:  Provided,  That  all  claims  not  presented  to  the 
Secretary  of  War  under  this  provision  prior  to  the  first  day 
of  January,  nineteen  hundred  and  one,  shall  not  be  consid- 
ered by  him  and  shall  be  forever  barred.2  Act  of  June  6, 
1900  (31  Stat.  L.,  632). 


THE    WAR    DEPARTMENT   BUILDING. 


138.  The  fourth  story  and  attic  of  the  South  wing  of  the  J^^f  of 
State,  War,  and  Navy  building,  except  such  portion  as  wf^*S5dfo5?d 
now  within  the  Library  of  the  State  Department,  are  as-  18||c'v622Apg256! 
signed  to  the  War  Department  for  such  uses  of  the  Depart- 
ment as  in  the  judgment  of  the  Secretary  of  WaCr  they  may 
be  best  fitted,  and  the  sum  of  one  thousand  dollars,  or  so 
much  thereof  as  may  be  necessary,  is  hereby  appropriated, 
out  of  any  money  not  otherwise  appropriated,  to  be  ex 
pended  under  the  direction  of  the  Secretary  of  State  to 
enable  the  Department  to  remove  from  said  fourth  story 
and  attic  the  records,  documents,  and  papers  now  stored 
there,  and  to  rearrange  them  in  other  rooms  in  said  De- 
partment.   That  the  partition  wall  separating  the  corridors 
of  the  first,  second,  third,  and  fourth  stories  of  the  East 
wing  from  the  said  stories  of  the  South  wing  of  the  State, 

lrThe  clause  of  the  above  enactment  authorizing  details  in  the  city  of  Washington 
may  be  regarded  as  superseded  by  section  4  of  the  act  of  August  5,  1882  (22 Stat.  L., 
219) ;  the  clerks  and  messengers  at  the  headquarters  of  the  Army,  authorized  to  be 
em  ployed  by  the  act  of  March  15, 1898  (30  Stat.  L.,  318),  and  subsequent  acts  of  appro- 
priation, are  not  included  in  the  above  restriction,  their  employment  in  the  city  of 
Washington  being  expressly  authorized  by  Congress. 

2  See  the  title  Prosecution  of  Claims  in  the  chapter  entitled  PROVISIONS  APPLICABLE 
TO  THE  SEVERAL  EXECUTIVE  DEPARTMENTS. 


54  MILITAKY   LAWS    OF  THE   UNITED   STATES. 

War,  and  Navy  building  shall  be  removed  so  as  to  afford 
easy  access  from  one  wing  to  the  other  on  the  aforemen- 
tioned floors  of  said  building:  Provided,  That  a  joint  se- 
lect committee  of  three  members  of  the  House  of  Repre- 
sentatives and  three  Senators,  to  be  appointed  respectively 
by  the  Speaker  of  the  House  and  the  President  of  the 
Senate,  upon  the  passage  of  this  act,  shall,  on  or  before 
the  completion  of  the  North  wing  of  the  State,  War,  and 
Navy  building,  make  examination  of  said  building  and  set 
apart  such  portions  thereof  for  the  use  and  occupancy  of 
the  State,  War,  and  Navy  Departments  respectively  as  in 
their  judgment  the  best  interests  of  the  public  service  and 
the  needs  of  said  Departments  respectively  may  require 
and  upon  filing  an  agreed  statement  of  such  partition  by 
said  joint  select  committee  in  triplicate  with  the  respec- 
tive Secretaries  of  such  Departments  the  building  shall  be 
occupied  as  therein  provided  as  soon  thereafter  as  practi- 
cable.1 Sec.  6,  act  of  August  5,  1882  (22  Stat.  Z.,  256). 
ofDeEngfi°n^Ceef  139<  The  President  is  hereby  authorized  and  directed 
SentSSautehOT-to  designate  from  the  Engineer  Corps  of  the  Army  or  the 
izcommission  to  ^avv'  an  °fficer  we^  qualified  for  the  purpose,  who  shall 
SJSneeJ.upervi~ke  detailed  to  act  as  superintendent  of  the  completed  por- 
22Mp*r553 ;  1883>v-tions  of  the  State,  War,  and  Navy  Department  building, 
under  direction  of  the  Secretaries  of  State,  War,  and  Navy, 
who  are  hereby  constituted  a  commission  for  the  purposes 
of  the  care  and  supervision  of  said  building,  as  hereinafter 
specified.  Said  officer  shall  have  charge  of  said  building, 
and  all  the  engines,  machinery,  steam  and  water  supply, 
heating,  lighting,  and  ventilating  apparatus,  elevators,  and 
all  other  fixtures  in  said  building,  and  all  necessary  repairs 
and  alterations  thereof,  as  well  as  the  direction  and  control 
of  such  force  of  engineers,  watchmen,  laborers,  and  others 
engaged  about  the  building  or  the  apparatus  under  his 
supervision;  of  the  cleaning  of  the  corridors  and  water 
closets;  of  the  approaches,  side- walks,  lawns,  court-yards, 
and  areas  of  the  building,  and  of  all  rooms  in  the  sub- 
basement  which  contain  the  boilers  and  other  machinery, 
or  so  much  of  said  rooms  as  may  be  indispensable  to  the 
proper  performance  of  his  duties  as  herein  provided.  Act 
of  March  3,  1883  (22  Stat.  Z.,  553). 

SALE   OF   MAPS,   CHARTS,   ETC. 

surplus  charts     140.  Any  surplus  charts  of  the  northwestern  lakes  may 

may  be  sold.  J        .  r 

Mar.  3, 1869,  c.  be  sold  to  navigators  upon  such  terms  as  the  Secretary  of 

122,  s.  1,  v.  15,  pp.  XTT  &  * 

301, 303.  War  may  prescribe. 

Sec.  226)  B.  S. 


MILITARY    LAWS    OF   THE   UNITED    STATES.  55 

141.  The  Chief  Signal  Officer  may  cause  to  be  sold  any    surplus  maps 

,  ,"     ,.  ,,  ,,       0.          i/^m         ^i  and  publications 

surplus  maps  or  publications  01  tne  oig'nal  Umce,  the  money  of  signal  office 

, .     T    .  •    ,     ,     j.         .  may  be  sold. 

received  theretor  to  be  applied  toward  defraying  the  ex-    Mar.  3,  ISTS,  c. 

T  .  ,       »  *,  227,  v.  17,  p.  510 

penses  of  the  signal  service;  and  an  account  of  the  same  (527). 
shall  be  rendered  in  each  annual  report  of  the  Chief  of  the 
Signal  Service.1 

1  DISPOSITION   OF   USELESS   PAPERS. 

For  statutes  regulating  the  disposition  of  useless  papers,  etc.,  in  the  several  Execu- 
tive Departments,  see  the  acts  of  February  16, 1889  (25  Stat.  L.,  672),  and  March  2, 1895 
(28  Stat.  L.,  933). 


CHAPTER 


PROVISIONS    APPLICABLE     TO    SEVERAL     CLASSES    OF 

OFFICERS. 


Pars. 

142-145.  The  civil  service. 

146-154.  The  civil-service  law. 

155-162.  Oaths  of  office. 


Pars. 

163-170.  Salaries;  double  salaries. 

171-179.  Criminal  offenses. 

180-182.  Miscellaneous  provisions. 


THE    CIVIL    SERVICE. 


Par. 


145.  Preference   to    discharged    soldiers 
and  sailors  in  reductions. 


Par. 

142.  President  to  regulate  admissions. 

143.  Preference  to  persons  disabled  in 

military  service. 

144.  Recommendation  of   same  to  em- 

ployment. . 

President     to      142.  The  President  is  authorized  to  prescribe  such  regu- 

regulate   admis-,      .  ,.  .  .,  .    ,       .,         .    .,  . 

sions  to  the  civil  lations  for  the  admission  of  persons  into  the  civil  service 

8eMare'3, 1871,  c.  of  the  United  States  as  may  best  promote  the  efficiency 

514! s'  P' thereof,  and   ascertain  the  fitness  of  each  candidate  in 

'  respect  to  age,  health,  character,  knowledge,  and  ability 

for  the  branch  of  the  service  into  which  he  seeks  to  enter; 

and  for  this  purpose  he  may  employ  suitable  persons  to 

conduct  such  inquiries,  and  may  prescribe  their  duties, 

and  establish  regulations  for  the  conduct  of  persons  who 

may  receive  appointments  in  the  civil  service.1 

preference  of     143.  Persons  honorably  discharged  from  the  military  or 

persons  disabled  •;    ..      ,  .,.,  i,« 

fn   military  or  naval  service  by  reason  of  disability  resulting  from  wounds 

naval  service.  ..  .  i  •        i       -i «  <•    -i  i     1 1    i 

Mar.  3,  1865,  or  sickness  incurred  in  the  line  of  duty  shall  be  preferred 

Res.  No.  27,  s.  1,  ,  .    .  .    ...       _  .11,1  /.  i 

v.  is,  p.  571.        for  appointments  to  civil  offices,  provided  they  are  found 
*  to  possess  the  business  capacity  necessary  for  the  proper 
discharge  of  the  duties  of  such  offices.2 


Sec. 


1  See  the  title  The  Civil  Service  Law,  post.     Neither  section  1753,  Revised  Statutes, 
nor  the  civil  service  act  of  January  16,  1883  (22  Stat,  L.,  403),  puts  any  restrictions 
upon  the  power  of  removal  from  appointive  offices  except  for  refusal  to  contribute  to 
political  funds  or  neglect  to  render  political  service;   hence  Presidential  Rule  II, 
relating  to  the  civil  service  and  providing  (as  amended  July  27,  1897),  that  no 
removal  shall  be  made  without  giving  the  accused  notice  and  an  opportunity  to  make 
defense,  has  no  such  authority  at  law  as  confers  upon  the  holder  of  an  office  a  vested 
right  thereto,  with  the  right  to  invoke  the  equitable  power  of  the  courts  to  restrain 
his  removal  therefrom  in  violation  of  such  rule.     Page  et  al.  v.  Moffett,  85  Fed.  Rep., 
38.     See,  also,  as  to  the  equitable  jurisdiction  of  the  Federal  courts,  In  re  Sawyer, 
124  U.  S.,  200,  and  World's  Columbian  Exp.  v.  U.  S.,  18  U.  S.  App.,  159,  6  Circ.  Ct. 
App.,  71,  56  Fed.  Rep.,  667;  Butler  v.  White,  83  ibid.,  578;  Carr  v.  Gordon,  82 
ibid.,  373. 

2  Joint  resolution  of  March  3, 1865  (sec.  1754,  Rev.  Stat.),  considered  in  connection 
with  the  act  of  March  3,  1871,  does  not  exempt  honorably  discharged  soldiers  and 

56 


MILITAEY    LAWS    OF   THE    UKITED   STATES. 


57 


144.  In  grateful  recognition  of  the  services,  saciifices,  .  Recommend* 
and  sufferings  of  persons  honorably  discharged  from  themento/sucifper" 


military  and  naval  service  of  the  country,  by  reason  of    Mar.  3,  1395, 
wounds,  disease,  or  the  expiration  of  terms  of  enlistment,  v.  13,  p.  571.' 

.,     .    ~  ,        ,  '     Sec.  1755,  B.S. 

it  is  respectfully  recommended  to  bankers,  merchants, 
manufacturers,  mechanics,  farmers,  and  persons  engaged 
in  industrial  pursuits,  to  give  them  the  preference  for 
appointments  to  remunerative  situations  and  employments. 

145.  In  making  any  reduction  of  force  in  any  of  the    Preference  in 
Executive  Departments,   the   head   of   such   Department    Aug.  15,'  ISTC, 
shall  retain  those  persons  who  may  be  equally  qualified  who 
have  been  honorably  discharged  from  the  military  or  naval 
service  of  the  United  States,  and  the  widows  and  orphans 
of  deceased  soldiers  and  sailors.     Act  of  August  15 s  1876 
(19  Stat.  Z.,  169). 

THE    CIVIL-SERVICE    LAW.1 


Par. 

151.  Persons    using    intoxicating  liquor 

barred. 

152.  Members  of  family,  restriction. 

153.  Recommendations   by  members  of 

Congress  prohibited. 

154.  Certificate  of  residence. 


Par. 

146.  Appointment  of  commissioners. 

147.  Duties;  examination?. 

148.  Chief  examiner. 

149.  Frauds  in  examination. 

150.  Examinations  for  appointment  and 

promotion. 


146.  That  the  President  is  authorized  to  appoint,  by  and  0 
with  the  advice  and  consent  of  the  Senate,  three  persons,  eijaiu  16)1883)V> 
not  more  than  two  of  whom  shall  be  adherents  of  the  same  **>  p- 403- 

sailors  from  liability  to  examination  for  admission  to  the  civil  service,  but  entitles 
them  to  a  preference  for  appointment  as  against  other  persons  of  equal  qualifications 
for  the  place.  XVII  Opin.  Att.  Gen.,  194.  See,  also,  19  ibid.,  318. 

Section  1754,  Revised  Statutes,  provides  that  "persons  honorably  discharged  from 
the  military  or  naval  service  '  *  *  shall  be  preferred  for  appointment  to  civil 
offices,  provided  they  are  found  to  possess  the  business  capacity  necessary  for  the  dis- 
charge of  the  duties  of  such  offices,"  and  if  the  duties  assigned  to  any  clerk  of  one 
class  can  be  as  well  performed  by  a  clerk  of  a  lower  class,  or  by  a  female  clerk,  it 
shall  be  lawful  for  him  to  diminish  the  number  of  the  clerks  of  the  higher  grade  and 
increase  the  number  of  the  lower  grade.  Section  3,  act  of  August  15,  1876  (19  Stat. 
L.,  169),  provides  that  "in  making  any  reduction  of  force  in  any  Executive  Depart- 
ment the  head  of  such  Department  shall  retain  those  persons  who  may  be  equally 
qualified  who  have  been  honorably  discharged  from  the  military  or  naval  service  of 
the  United  States:"  Held,  that  to  entitle  an  ex-soldier  to  retention  in  the  service 
under  these  statutes,  in  preference  to  a  civilian,  he  must  be  "equally  qualified,"  that 
qualification  must  be  determined  by  the  head  of  the  Department,  and  that  a  court 
could  not  enter  an  Executive  Department,  examine  the  acts  of  its  head,  inquire  into 
the  exercise  of  his  discretion,  and  investigate  as  to  the  causes  of  its  exercise.  Keim 
v.  U.  S.,  33  Ct.  Cls.,  174. 

'The  civil  service  law,  act  of  January  16,  1883  (22  Stat.  L.,  403),  was  intended  to 
provide  a  body  of  civil  officers  selected  solely  for  competency  and  fitness,  protect 
them  against  accountability  to  any  political  party,  and  prevent  their  discharge,  pro- 
motion, or  degradation  for  giving  or  withholding  political  contributions;  but  it  di 
not  deprive  the  appointing  power  of  any  existing  rights  to  remove  or  change  in  rank 
for  other  reasons.  Carr  v.  Gordon,  82  Fed.  Rep.,  373.  The  act  of  January  16,  1883, 
is  within  the  legitimate  scope  of  the  general  powers  conferred  by  Art.  I,  sec.  8,  clause 
18,  of  the  Constitution.  Butler  v.  White,  83  Fed.  Rep.,  578;  Berry  v.  White,  ibid.; 
Ruckman  v.  White,  ibid. 


58  MILITABY   LAWS   OF   THE   UNITED   STATES. 

party,  as  Civil  Service  Commissioners,  and  said  three  com- 
missioners shall  constitute  the  United  States  Civil  Service 
Commission.  Said  commissioners  shall  hold  no  other 
official  place  under  the  United  States. 

***** 
Duties  of  com-     147.  That  it  shall  be  the  duty  of  said  commissioners: 

missioners.  . 

F^rst.  To  aid  the  President,  as  he  may  request,  in  pre- 
Ruies.  paring  suitable  rules  for  carrying  this  act  into  effect,1  and 

when  said  rules  shall  have  been  promulgated  it  shall  be 
the  duty  of  all  officers  of  the  United  States  in  the  Depart- 
ments and  offices  to  which  any  such  rules  may  relate  to 
aid,  in  all  proper  ways,  in  carrying  said  rules,  and  any 
modifications  thereof,  into  effect. 

Second.  And,  among  other  things,  said  rules  shall  pro- 
vide and  declare,  as  nearly  as  the  conditions  of  good  admin- 
istration will  warrant,  as  follows: 

First,  f or  open,  competitive  examinations  for  testing  the 
fitness  of  applicants  for  the  public  service  now  classified 
or  to  be  classified 2  hereunder.  Such  examinations  shall 
be  practical  in  their  character,  and  so  far  as  may  be  shall 
relate  to  those  matters  which  will  fairly  test  the  relative 
capacity  and  fitness  of  the  persons  examined  to  discharge 
the  duties  of  the  service  into  which  they  seek  to  be 
appointed. 

Vacancies,how     Second,  that  all  the  offices,  places,  and  employments  so 
arranged  or  to  be  arranged  in  classes  shall  be  filled  by 
selections  according  to  grade  from  among  those  graded 
-  highest  as  the  results  of  such  competitive  examinations. 

Third,  appointments  to  the  public  service  aforesaid  in 
the  Departments  at  Washington  shall  be  appointed  among 
the  several  States  and  Territories  and  the  District  of  Col- 
umbia upon  the  basis  of  population  as  ascertained  at  the 
forepxami^atioQS  ^as^  Prece(ling  census.  Every  application  for  an  examina- 
tion shall  contain,  among  other  things,  a  statement,  under 
oath,  setting  forth  his  or  her  actual  bona  fide  residence  at 

1  See  Appendix,  p.  1096. 

2 The  term  "classified  service"  indicates  the  parts  of  the  service  within  the  pro- 
visions of  the  civil-service  law  and  rules  requiring  appointments  therein  to  be  made 
upon  examination  and  certification  by  the  commission,  unless  especially  excepted 
from  competition;  the  term  "unclassified  service"  indicates  the  parts  of  the  service 
which  are  not  within  those  provisions,  and,  therefore,  in  which  appointments  may 
be  made  without  examination  and  certification  by  the  commission.  Sec.  2,  Manual 
for  Examinations  for  the  Classified  Civil  Service. 

A  vacancy  in  the  classified  service  may  be  filled  either  by  original  appointment 
upon  examination  and  certification  by  the  commission,  as  explained,  or  by  transfer 
or  promotion  from  certain  other  positions  in  the  classified  service,  or  by  reinstate- 
ment. 


MILITARY    LAWS    OF   THE    UNITED    STATES.  59 

the  time  of  making  the  application,  as  well  as  how  long  he 
or  she  has  been  a  resident  of  such  place. 

Fourth,  that  there  shall  be  a  period  of  probation  before    Probation. 
any  absolute  appointment  or  employment  aforesaid. 

Fifth,  that  no  person  in  the  public  service  is  for  that    Political  con- 

,  ..         .  tributions  and 

reason  under  any  obligations  to  contribute  to  any  political 
fund,  or  to  render  any  political  service,  and  that  he  will  not 
be  removed  or  otherwise  prejudiced  for  refusing  to  do  so. 

Sixth,  that  no  person  in  said  service  has  any  right  to  use 
his  official  authority  or  influence  to  coerce  the  political 
action  of  any  person  or  body. 

Seventh,  there  shall  be  noncompetitive  examinations  in 

tive  examina- 

all  proper  cases  before  the  commission,  when  competent  turns, 
persons  do  not  compete,  after  notice  has  been  given  of  the 
existence  of  the  vacancy,  under  such  rules  as  may  be  pre- 
scribed by  the  commissioners  as  to  the  manner  of  giving 
notice. 

Eighth,  that  notice  shall  be  given  in  writing  by  the  aP- chan  Vs^n  serV 
pointing  power  to  said  commission  of  the  persons  selected ice- 
for  appointment  or  employment  from  among  those  who 
have  been  examined,  of  the  place  of  residence  of  such  per- 
sons, of  the  rejection  of  any  such  persons  after  probation, 
of  transfers,  resignations,  and  removals,  and  of  the  date 
thereof,  and  a  record  of  the  same  shall  be  kept  by  said 
commission. 

And  any  necessary  exceptions  from  said  eight  f  undamen-  rufe*ceptions  to 
tal  provisions  of  the  rules  shall  be  set  forth  in  connection 
with  such  rules,  and  the  reasons  therefor  shall  be  stated  in 
the  annual  reports  of  the  commission. 

Third.  Said  commission  shall,  subject  to  the  rules  that    Regulations 

,  ,  .  ..  for   exaiaina- 

may  be  made  by  the  President,  make  regulations  for,  and  tions. 
have  control  of,  such  examinations,  and,  through  its  mem- 
bers or  the  examiners,  it  shall  supervise  and  preserve  the    mnutesof  pro- 
records  of  the  same;  and  said  commission  shall  keep  min- 
utes of  its  own  proceedings. 

Fourth.  Said  commission  may  make  investigations  con-  investigations. 
cerning  the  facts,  and  may  report  upon  all  matters  touching 
the  enforcement  and  effects  of  said  rules  and  regulations, 
and  concerning  the  action  of  any  examiner  or  board  of 
examiners  hereinafter  provided  for,  and  its  own  subordi- 
nates, and  those  in  the  public  service,  in  respect  to  the 
execution  of  this  act. 

Fifth.  Said  commission  shall  make  an  annual  report  to    Annual  report. 
the  President  for  transmission  to  Congress,  showing  its  own 


60  MILITARY   LAWS    OF   THE    UNITED    STATES. 

action,  the  rules  and  regulations  and  the  exceptions  thereto 
in  force,  the  practical  effects  thereof,  and  any  suggestions 
it  may  approve  for  the  more  effectual  accomplishment  of 
the  purposes  of  this  act.  Sec.  #,  act  of  January  16,  1883 

(m  Stat.  L.,  403). 

ine?ief  exam  ^'  ^a^  commission  is  authorized  to  employ  a  chief 
sec.  3,  ibid.  examiner,  a  part  of  whose  duty  it  shall  be,  under  its  direc- 
tion, to  act  with  the  examining  boards,  so  far  as  practi- 
cable, whether  at  Washington  or  elsewhere,  and  to  secure 
accuracy,  uniformity,  and  justice  in  all  their  proceedings, 
which  shall  be  at  all  times  open  to  him.  The  chief  exam- 
iner shall  be  entitled  to  receive  a  salary  at  the  rate  of  three 
thousand  dollars  a  year,  and  he  shall  be  paid  his  necessary 
traveling  expenses  incurred  in  the  discharge  of  his  duty. 
secretary.  The  commission  shall  have  a  secretary,  to  be  appointed  by 
the  President,  who  shall  receive  a  salary  of  one  thousand 
six  hundred  dollars  per  annum.  It  may,  when  necessary, 
emP^ov  a  stenographer  and  a  messenger,  who  shall  be 
paid,  when  employed,  the  former  at  the  rate  of  one  thou- 
sand six  hundred  dollars  a  year,  and  the  latter  at  the  rate 
of  six  hundred  dollars  a  year.  The  commission  shall,  at 
Washington,  and  in  one  or  more  places  in  each  State  and 
Territory  where  examinations  are  to  take  place,  designate 
and  select  a  suitable  number  of  persons,  not  less  than  three, 
in  the  official  service  of  the  United  States,  residing  in  said 
State  or  Territory,  after  consulting  the  head  of  the  depart- 
ment or  office  in  which  such  persons  serve,  to  be  members 
°f  ex  °^  ^oar^s  °^  examiners,  and  may  at  any  time  substitute 
any  other  person  in  said  service  living  in  such  State  or 
Territory  in  the  place  of  any  one  so  selected.  Such  boards 
of  examiners  shall  be  so  located  as  to  make  it  reasonably 
convenient  and  inexpensive  for  applicants  to  attend  before 
them;  and  where  there  are  persons  to  be  examined  in  any 
State  or  Territory,  examinations  shall  be  held  therein  at 

iicDofficeref  pub"  ^eas^  twice  in  each  year.  It  shall  be  the  duty  of  the  col- 
lector, postmaster,  and  other  officers  of  the  United  States, 
at  any  place  outside  of  the  District  of  Columbia  where 
examinations  are  directed  by  the  President  or  by  said 
board  to  be  held,  to  allow  the  reasonable  use  of  the  public 
buildings  for  holding  such  examinations,  and  in  all  proper 
ways  to  facilitate  the  same.  Sec.  3,  ibid. 

^9.  Any  said  commissioner,  examiner,  copyist,  or  mes- 
senger, or  any  person  in  the  public  service  who  shall  will- 
fully and  corruptly,  by  himself  or  in  cooperation  with  one 


MILITARY    LAWS    OF    THE    UNITED   STATES.  61 

or  more  other  persons,  defeat,  deceive,  or  obstruct  any  per- 
son in  respect  of  his  or  her  right  of  examination  according 
to  any  such  rules  or  regulations,  or  who  shall  willfully,  cor- 
ruptly, and  falsely  mark,  grade,  estimate,  or  report  upon 
the  examination  or  proper  standing  of  any  person  examined 
hereunder,  or  aid  in  so  doing,  or  who  shall  willfully  and 
corruptly  make  any  false  representations  concerning  the 
same  or  concerning  the  person  examined,  or  who  shall  will- 
fully and  corruptly  furnish  to  any  person  any  special  or 
secret  information  for  the  purpose  of  either  improving  or 
injuring  the  prospects  or  chances  of  any  person  so  ex- 
amined, or  to  be  examined,  being  appoined,  employed,  or 
promoted,  shall  for  each  such  offense  be  deemed  guilty  of 
a  misdemeanor,  and  upon  conviction  thereof,  shall  be 
punished  by  a  fine  of  not  less  than  one  hundred  dollars, 
nor  more  than  one  thousand  dollars,  or  by  imprisonment 
not  less  than  ten  days,  nor  more  than  one  year,  or  by  both 
such  fine  and  imprisonment.  Sec.  5,  ibid. 

-X-  #  #  *  * 

150.  After  the  expiration  of  six  months  from  the  pas-    ^^J^10*1 
sage  of  this  act  no  officer  or  clerk  shall  be  appointed,  pomtment  and 
and  no  person  shall  be  employed  to  enter  or  be  promoted    Sec-  7>  iud- 
in  either  of  the  said  classes  now  existing,  or  that  may  be 
arranged  hereunder  pursuant  to  said  rules,  until  he  has 

passed  an  examination,  or  is  shown  to  be  specialty  exempted 

from  such  examination  in  conformity  herewith.     But  noth- 

ing herein  contained  shall  be  construed  to  take  from  those 

honorably  discharged  from  the  military  or  naval  service 

any  preference  conferred  by  the  seventeen  hundred  and    preference 

fifty-fourth  section  of  the  Revised  Statutes1  nor  to  take  csS?i  754,  K.S. 

from  the  President  any  authority  not  inconsistent  with 

this  act  conferred  by  the  seventeen  hundred  and  fifty-third 

section2  of  said  statutes;  nor  shall  any  officer  not  in  the 

executive  branch  of  the  Government,  or  any  person  merely 

employed  as  a  laborer  or  workman,  be  required  to  be  classi- 

fied hereunder;  nor,  unless  by  direction  of  the  Senate, 

shall  any  person  who  has  been  nominated  for  confirmation 

by  the  Senate  be  required  to  be  classified  or  to  pass  an 

examination.     Sec.  7,  ibid. 

151.  No  person  habitually  using  intoxicating  beverages  inpte0r^fcsa 

to  excess  shall  be  appointed  to,  or  retained  in,  any  office,  ^^appj^ 
appointment,  or  employment  to  which  the  provisions  of  m|J*-g  ibid 
this  act  are  applicable.     Sec.  8,  ibid. 


^aragraph  143  ,  ante.  2  Paragraph  142,  ante. 


62  MILITAEY    LAWS    OF   THE    UNITED    STATES. 

Members  of  a     152.  Whenever  there  are  already  two  or  more  members 

sec.  9,  md.      of  a  family  in  the  public  service  in  the  grades  covered  by 

this  act,  no  other  member  of  such  family  shall  be  eligible 

to  appointment  to  any  of  said  grades.1     Sec.  9,  'ibid. 

Recommenda-      153.  No  recommendation  of  any  person  who  shall  apply 

tion  by  members  _  .   .  ,  .  . 

of  congress.        tor  omce  or  place  under  the  provisions  or  this  act  which 

Sec.  10,  ibid.  .        L  .  0  •»«•        i  •  A«       TT  ? 

may  be  given  by  any  Senator  or  Member  of  the  House  of 
Representatives,  except  as  to  the  character  or  residence 
of  the  applicant,  shall  be  received  or  considered  by  any 
person  concerned  in  making  any  examination  or  appoint- 
ment under  this  act.  Sec.  10,  ibid. 
Applications  154.  Hereafter  every  application  for  examination  before 

for  examination    .,-..,  ~         .        ,  .      . 

to  be  accompa-the  Civil  Service  Commission  for  appointment  in  the  de- 
cate  of  residence,  partmental  service  in  the  District  of  Columbia  shall  be 

July  11, 1890,  v.  r 

26,  p.  236.  accompanied  by  a  certificate  of  an  officer,  with  his  official 
seal  attached,  of  the  county  and  State  of  which  the  appli- 
cant claims  to  be  a  citizen,  that  such  applicant  was.  at  the 
time  of  making  such  application,  an  actual  and  bona  fide 
resident  of  said  county,  and  had  been  such  resident  for  a 
Preceding  sec-  period  of  not  less  than  six  months  next  preceding:  but  this 

tion  not  to  apply  r         .    .  ; P' 

to  promo  tion,  provision  shall  not  apply  to  persons  who  may  be  in  the  serv- 
ice and  seek  promotion  or  appointment  in  other  branches 
of  the  Government.  Act  of  July  11,  1890  (26  Stat.  Z., 

OATHS   OF    OFFICE. 


Par. 

155-156.  Official  oaths. 

157.  Removal  of  disabilities. 

158.  Oath  of  Office. 


Par. 


159-160.  Who  may  administer. 

161.  The  same,  chief  clerks. 

162.  Custody  of  oaths. 


official  oaths.  155.  Section  seventeen  hundred  and  fifty-six  of  the  Re- 
2,  -7. 23,  p.  22. '  vised  Statutes  is  hereby,  repealed;  and  hereafter  the  oath 
to  be  taken  by  any  person  elected  or  appointed  to  any  office 
of  honor  or  profit  -either  in  the  civil,  military,  or  naval 
service,  except  the  President  of  the  United  States,  shall  be 
as  prescribed  in  section  seventeen  hundred  and  fifty-seven 2 
of  the  Revised  Statutes.  But  this  repeal  shall  not  affect 
the  oaths  prescribed  by  existing  statutes  in  relation  to  the 
performance  of  duties  in  special  or  particular  subordinate 
offices  and  employments.  Sec.  2,  act  of  May  13,  1884  (®3 
Stat.  Z.,#£). 

existing0  rights!     156.  The  provisions  of  this  act  shall  in  no  manner  affect 
eicibid.,  s.  3.        any  right?  duty,  claim,  obligation,  or  penalty  now  existing 

1  Whether  there  are  already  two  or  more  members  of  a  family  in  the  public  service, 
as  provided  in  section  9,  is  a  question  of  fact  to  be  determined  by  the  Civil  Service 
Commission.     XVII  Opin.  Att.  Gen.,  554. 

2  Paragraph  158,  post. 


MILITARY    LAWS    OF    THE    UNITED   STATES.  63 

or  already  incurred;  and  all  and  every  such  right,  duty, 
claim,  obligation,  and  penalty  shall  be  heard,  tried,  and 
determined,  and  effect  shall  be  given  thereto,  in  the  same 
manner  as  if  this  act  had  not  been  passed.  Sec.  3,  ibid. 

157.  The  disability  imposed  by  section  three  of  the  four-          0-™1  of 


teenth  amendment  to  the  Constitution  of  the  United  States    June  ?• 
heretofore  incurred  is  hereby  removed.     Act  of  June  6, 


1898  (30  Stat.  L., 

158.  Whenever  any  person  is  elected  or  ap-    Jjf h£f  °ffice- 
pointed  to  any  office  of  honor  or  trust  under  the  Govern-  ^  vJfc  >86*: 
ment  of   the  United   States,     *     *     *     he  shall, 

entering  upon  the  duties  of  his  office,  take  and  subscribe 
in  lieu  of  that  oath  the  following  oath:1  "I,  A.  B.,  do 
solemnly  swear  (or  affirm)  that  I  will  support  and  defend 
the  Constitution  of  the  United  States  against  all  enemies, 
foreign  and  domestic;  that  I  will  bear  true  faith  and  alle- 
giance to  the  same;  that  I  take  this  obligation  freely, 
without  any  mental  reservation  or  purpose  of  evasion ;  and 
that  I  will  well  and.  faithfully  discharge  the  duties  of  the 
office2  on  which  1  am  about  to  enter.  So  help  me  God." 
Act  of  June  6,  1898  (30  Stat.  Z.,  43$). 

159.  The  oath  of  office  required  by  the  preceding  section 

may  be  taken  before  any  officer  who  is  authorized  either  by  64A^g26V18i21>  £ 
the  laws  of  the  United  States,  or  by  the  local  municipal  32|ec  2  May  13 
law,  to  administer  oaths,  in  the  State,  Territory,  or  dis-  18|tc.vi 768,^.1.' 
trict  where  such  oath  may  be  administered.3 

1  The  disabilities  to  hold  office  under  the  United  States  imposed  under  the  author- 
ity conferred  by  section  3  of  the  fourteenth  amendment  to  the  Constitution,  and 
which  were  embodied  in  section  1218  of  the  Revised  Statutes,  as  modified  by  the  acts 
of  May  13,  1884  (23  Stat.  L.,  21),  and  March  31,  1896  (29  Stat  L.,  84),  were,  by  the 
act  of  June  6,  1898,  finally  and  entirely  removed. 

2  For  definition  of  office  see  U.  S.  v.  Germaine,  99  U.  S.,  508,  and  Mouat  v.  U.  S., 
124  U.  S.,  303.     See,  also,  note  1  to  paragraph  4,  ante.     Clerks  appointed  by  the  head 
of  an  Executive  Department  are  officers,  and  are  required  by  the  Constitution  to  take 
the  oath  of  office.     1  Compt.  Dec.,  4.     An  employee  whose  compensation  is  fixed  by 
the  head  of  an  Executive  Department  is  not  required  to  take  a  new  oath  of  office 
when  his  compensation  is  increased.     Ibid.,  267.     When  by  law  a  change  is  made  in 
the  compensation  of  an  office,  and  in  the  manner  in  which  such  compensation  shall 
be  ascertained,  the  incumbent  thereof  is  entitled  from  the  date  of  the  act  to  the  com- 
pensation so  fixed  and  is  not  required  to  take  a  new  oath  of  office.     Ibid.,  313. 

Under  the  act  of  February  14,  1889  (25  Stat.  L.,  670),  S.  was  appointed  from  civil 
life  to  the  position  of  major  of  engineers  in  the  Army,  and  thereupon  was  placed  on 
the  retired  list  of  the  Army  as  of  that  grade;  advised,  that  he  must  i^ke  the  oath 
required  by  section  1756  of  the  Revised  Statutes,  and  that  this  act  would  be  in  law  a 
legal  acceptance  of  the  office,  and,  as  such,  a  sufficient  formal  acceptance.  XIX 
Opin.  Att.  Gen.,  283. 

Section  1757,  Revised  Statutes,  and  the  act  of  May  13,  1884  (23  Stat.  L.,  22),  which 
require  generally  that  an  officer  shall  take  the  oath  of  office  prescribed  "before  enter- 
ing upon  the  duties  of  his  office"  are  directory  only  (U.  S.  v.  Eaton,  169  U.  S.,  331), 
and  a  deputy  clerk  of  a  United  States  court  whose  acceptance  of  office  on  the  same 
day  he  was  appointed  was  evidenced  by  his  entrance  upon  duty,  and  who  subse- 
quently took  the  oath,  is  entitled  to  compensation  from  that  day.  4  Compt.  Dec., 
496. 

8  See  paragraph  158,  ante. 


64  MILITARY    LAWS    OF   THE    UNITED   STATES. 


160t  *n  a^  cases  *n  ^ich  under  the  laws  of  the  United 
m!ept  i6Cis5o  c  States  oaths  or  acknowledgments  may  now  be  taken  or 
ju'i/299'  185445?  made  before  any  justice  of  the  peace  of  any  State  or  Terri- 
3il:  juneJB1!^'  t°rv?  ol*  *n  ^e  District  of  Columbia,  they  may  hereafter  be 
P  3i86-s'AugV'  15'  a^so  taken  or  made  by  or  before  any  notary  public  duly 
p%6o6C'  304>  v-  19'  appointed  in  any  State,  district,  or  Territory,  or  any  of  the 
Sec-1778'B-s-  commissioners  of  the  circuit  courts,  and  when  certified 
under  the  hand  and  official  seal  of  such  notary  or  commis- 
sioner, shall  have  the  same  force  and  effect  as  if  taken  or 
made  by  or  before  such  justice  of  the  peace. 

Exeh(te?i?eerki>ef     161.  The  chief  clerks  of  the  several  Executive  Depart- 
partments   etc.,  ments  and  of  the  various  bureaus  and  offices  thereof  in 

to  administer 

oath    of    office  Washington,  District  of  Columbia,  are  hereby  authorized 
2gAug^29,  ISM,  v.  and  directed,  on  application   and  without  compensation 
therefor,  to  administer  oaths  of  office  to  employees  required 
to  be  taken  on  their  appointment  or  promotion.     Act  of 
^V  August  29,  1890  (26  Stat.  L.,  371).     United  States  com- 
missi°ners  and  all  clerks  of  United  States  courts  are  author. 
19Ma8i896,  a.  ized  to  administer  oaths.1     Act  of  May  28,  1896  (29  Stat. 
' 


of     162.  The  oath  of  office  taken  by  any  person  pursuant  to 
j^  the  requirements  of  section  seventeen  hundred  and  fifty - 
sec.  i75§,R.s.  six,2  or  of  section  seventeen  hundred  and  fifty-seven,  shall 
be  delivered  in  by  him  to  be  preserved  among  the  files  of 
the  House  of  Congress,  Department,  or  court  to  which  the 
office  in  respect  to  which  the  oath  is  made  may  appertain. 

SALARIES — DOUBLE   SALARIES. 

Par.  Par. 


163.  No  payments  to  recess  appointees. 

164.  Recess  appointments. 

165.  No  payment  to  officers  holding  over. 

166.  Double  salaries. 


167.  Holding  two  offices. 

168.  Compensation  for  extra  service. 

169.  Extra  allowances. 

170.  Pay  of  officers  in  arrears. 

163.  No  money  shall  be  paid  from  the  Treasury  to  any 
f°Feb.  9, 1863,  c.Person  acting  or  assuming  to  act  as  an  officer,  civil,  mili- 
25^8.  2,  v.  12,  p-tary,  or  naval,  as  salary,  in  any  office  when  the  office  is  not 
sec.  1760,  R.  s.  aut;horize(j  by  some  previously  existing  law,  unless  such 
office  is  subsequently  sanctioned  by  law.3 

1  See  III.  Comp.,  Dec.,  65. 

2  Repealed  by  the  act  of  May  13,  1884  (23  Stat.  L.,  22). 

3 An  officer  who  is  authorized  to  receive  compensation  "while  necessarily 
employed"  only  must  produce  satisfactory  evidence  of  his  employment,  and  the 
necessity  therefor,  during  the  period  for  which  he  claims  compensation.  IV  Compt. 
Dec.,  424. 


MILITARY    LAWS    OF   THE    UNITED    STATES.  65 

164.  No  money  shall  be  paid  from  the  Treasury,  as  salary,    N,° .  salaries  to 

•    4.    J    j       •         .LI,  /!i_      c.        J '  certain  appoint- 

to  any  person  appointed  during  tne  recess  or  the  Senate  e?s  todfi11. vacan- 

to  fill  a  vacancy  in  any  existing  office,  if  the  vacancy  ex-  ce|?e°f  ^ei™te- 
isted  while  the  Senate  was  in  session  and  was  by  law  re-  ^ 8-  2>  y- 12-'  P- 
quired  to  be  filled  by  and  with  the  advice  and  consent  of   Sec- 1761> K-  *• 
the  Senate,  until  such  appointee  has  been  confirmed  by  the 
Senate. 

165.  No  money  shall  be  paid  or  received  from  theTreas-    Salaries  toom- 

J       t  r  .  cers    imProperly 

ury,  or  paid  or  received  from  or  retained  out  of  any  public    MJr^iS?  c 
moneys  or  funds  of  the  United  States,  whether  in  theTreas-  JjjJ- s-  9-'v- 14'  P- 
ury  or  not,  to  or  by  or  for  the  benefit  of  any  person  ap-   Sec- 1762' K- s- 
pointed  to  or  authorized  to  act  in  or  holding  or  exercising 
the  duties  or  functions  of  any  o'ffice  contrary  to  sections  *-,., 

seventeen  hundred  and  sixt}^  seven  to  seventeen  hundred 
and  seventy,  inclusive;  nor  shall  any  claim,  account, 
voucher,  order,  certificate,  warrant,  or  other  instrument 
providing  for  or  relating  to  such  payment,  receipt,  or  reten- 
tion be  presented,  passed,  allowed,  approved,  certified,  or 
paid  by  any  officer,  or  by  any  person  exercising  the  func- 
tions or  performing  the  duties  of  any  office  or  place  of  trust 
under  the  United  States,  for  or  in  respect  to  such  office  or 
the  exercising  or  performing  the  functions  or  duties  thereof. 
Every  person  who  violates  any  of  the  provisions  of  this 
section  shall  be  deemed  guilty  of  a  high  misdemeanor,  and 
shall  be  imprisoned  not  more  than  ten  years,  or  fined  not 
more  than  ten  thousand  dollars,  or  both. 

166.  No  person  who  holds  an  office  the  salary  attached  ne^16  sala" 
to  which  amounts  to  the  sum  of  two  thousand  five  hundred  ig^ioVioo.8' 
dollars   shall   receive   compensation  for  discharging  the    Sec*17  3'B-S> 
duties  of  any  other  office,  unless  expressly  authorized  by 

law. 

167.  No  person  who  holds  an  office  the  salary  or 
compensation  attached  to  which  amounts  to  the  sum 

two  thousand  five  hundred  dollars  shall  be  appointed  to  or  jjj60^ 

hold  any  other  office  to  which  compensation  is  attached 

unless  specially  heretofore  or  hereafter  specially  authorized 

thereto  by  law;  but  this  shall  not  apply  to  retired  officers  ex*|£tret°fficera 

of  the  Army  or  Navy  whenever  they  may  be  elected  to 

public  office  or  whenever  the  President  shall  appoint  them 

to  office,  by  and  with  the  advice  and  consent  of  the  Senate.1 

Sec,  0,  act  of  July  31,  1894  (#*  Stat.  Z.,  $06). 

1  The  traditions  and  usages  of  the  United  States  recognize  the  policy  and  propriety 
of  employing,  when  necessary,  the  same  person  at  the  same  time  in  two  distinct 
capacities.  Not  to  mention  other  familiar  cases,  there  are  the  prominent  examples 
of  the  diplomatic  mission  of  MT,  Jay  to  England,  under  President  Washington,  while 

22924—08 5 


66  MILITARY    LAWS    OF   THE    UNITED    STATES. 

Extra  services,      168.  No  allowance  or  compensation  shall  be  made  to  any 

no  compensation  -,11  tf^ij.i  ?  j    <•  i_  •    i. 

for  except  espe-  officer  or  clerk,  by  reason  of  the  discharge  of  duties  which 

cially  authorized  '     J       „  ,      .    .      ,,     '  ,, 

by  law.  belong-  to  any  other  officer  or  clerk  in  the  same  or  any  other 

A  lit?     26     1842 

c. 202, s. i2,V. 5, pi  Department;  and  no  allowance  or  compensation  shall  be 
Sec.  1764.  K.S.  made  for  &ny  extra  services  whatever,  which  any  officer  or 
clerk  may  be  required  to  perform,  unless  expressly  author- 
ized by  law.1 

he  was  still  Chief  Justice  of  the  United  States;  of  the  mission  of  Mr.  Gallatin  to 
London  and  St.  Petersburg,  to  negotiate  a  peace,  while  Secretary  of  the  Treasury 
under  President  Madison;  and  of  Mr.  Justice  Nelson,  sitting  as  *a  member  of  the 
commission  which  concluded  the  treaty  of  Washington,  under  President  Grant.  On 
the  other  hand,  it  is  the  undoubted  aim  of  general  legislation  respecting  salaries  to 
gauge  the  work  so  as  to  give  full  employment  to  the  capacities  of  the  man  likely  to 
be  appointed  to  do  it,  and  to  measure  the  pay  according  to  the  work.  In  construing 
statutes  restraining  the  Executive  from  giving  dual  or  extra  compensation,  courts 
have  aimed  to  carry  out  the  legislative  intent  by  giving  them  sufficient  flexibility 
not  to  injure  the  public  service  and  sufficient  rigidity  to  prevent  Executive  abuse. 
Landram  v.  U.  S.,  16  Ct.  Cls.,  74,  82.  The  great  object  has  been  to  establish  by 
law  the  compensation  for  public  services,  whether  in  offices  or  agencies,  where  the 
nature  and  character  of  the  duties  to  be  performed  were  sufficiently  known  and 
definite  to  enable  Congress  to  form  an  estimate  of  its  value  and  not  leave  it  to  the 
discretion  of  the  head  of  an  Executive  Department.  *  *  *  These  sections  "can 
by  no  fair  interpretation  be  held  to  embrace  an  employment  which  has  no  affinity  or 
connection,  either  in  its  character  or  by  law  or  usage,  with  the  line  of  his  official 
duty,  and  where  the  service  to  be  performed  is  of  a  different  character  and  for  a  dif- 
ferent place  and  the  amount  of  compensation  is  regulated  by  law.  *  *  The  just 
and  fair  inference  from  these  acts  of  Congress  taken  together  is  that  no  discretion 
is  left  to  the  head  of  a  Department  to  allow  an  officer,  who  has  a  fixed  compensation, 
any  credit  beyond  his  salary,  unless  the  service  he  has  performed  is  required  by 
existing  laws  and  the  remuneration  for  them  is  fixed  by  law."  Converse  v.  U.  S., 
21  How.,  463,  470,  473;  U.  S.  v.  Brindle,  110  U.  S.,  688,  694;  U.  S.  r.  Shoemaker,  7 
Wall.,  338;  Meigs  v.  U.  S.,  19  Ct.  Cls.,  497;  XV  Opin.  Att.  Gen.,  608;  1  Compt.  Dec., 
286;  2  ibid.,  33;  Crosthwaite  v.  U.  S.,  30  Ct.  Cls.,  300. 

A  question  having  arisen  as  to  the  payment  of  a  per  diem  to  the  members  and  cer- 
tain employees  of  the  Bering  Sea  Tribunal  of  Arbitration,  it  was  held:  As  to  Justice 
Harlan  and  Senator  Morgan,  that  the  terms  of  section  1763  of  the  Revised  Statutes, 
as  amended  by  the  act  of  July  31,  1894  (28  Stat.  L.,  205),  did  not  apply,  as  they  had 
been  appointed  to  separate  and  distinct  offices  not  incompatible  with  the  offices  of 
justice  of  the  Supreme  Court,  Senator  of  the  United  States,  and  retired  judge.  Pay- 
ments to  them  were  therefore  allowed.  U.  S.  v.  Saunders,  120  U.  S.,  126.  As  to 
Senator  Morgan,  it  was  held  that  membership  of  a  tribunal  of  arbitration  did  not  con- 
stitute the  holding  of  office  under  the  authority  of  the  United  States  under  Article  I, 
section  6,  of  the  Constitution,  and  that  Senator  Morgan  was  not  thereby  prohibited 
from  sitting  thereon.  The  payment  of  per  diem  allowances  to  clerks  and  other 
regular  employees  of  the  United  States,  who  had  been  detailed  from  the  several 
Executive  Departments  to  assist  the  tribunal  in  its  labors,  was  held  to  be  unauthor- 
ized under  section  1765  of  the  Revised  Statutes.  Held,  under  this  section,  that  a 
major  and  paymaster  in  the  Army,  detailed  as  disbursing  officer  of  the  Bering  Sea 
Tribunal  of  Arbitration  at  Paris,  could  not  receive  any  other  allowances  or  emolu- 
ments than  those  specified  in  this  section  as  allowable  to  officers  of  the  Army. 
Compt.  Dec.,  1893-94,  275. 

A  compensation  for  extra  services,  where  no  certain  allowance  is  fixed  by  law,  can 
not  be  paid  by  the  head  of  a  Department  to  any  officer  of  the  Government  who  has, 
by  law,  a  certain  compensation  in  the  office  he  holds.  X  Opin.  Att.  Gen.,  31.  The 
various  provisions  of  law  forbidding  extra  allowance  or  additional  pay  for  extra 
service  imply  extra-service  pay  or  allowance  in  the  same  office,  not  distinct  service 
in  distinct  offices.  VIII  Opin.  Att.  Gen.,  325.  Where  the  service  is  one  required 
by  law,  but  not  of  any  particular  official,  and  compensation  therefor  is  fixed  by  com- 
petent authority,  and  is  appropriated,  any  officer  who,  under  due  authorization, 
performs  the  service  is  entitled  to  the  compensation.  XV  Opin.  Att.  Gen. ,  608.  See 
also  Converse,  admr.,  r.  U.  g.,  21  How.,  463;  U.  S.  v.  Shoemaker,  7  Wall.,  338;  Stans- 
bury  v.  U.  S.,  8  Wall.,  33;  XIX  Opin.  Att.  Gen.,  121.  But  see  for  exception,  section  7, 
act  of  June  3,  1896  (29  Stat.  L.,  235) . 

*Stansbury  v.  U.  S.,  8  Wall.,  33. 


MILITARY    LAWS    OF   THE    UNITED    STATES.  67 

169.  No  officer  l  in  any  branch  of  the  public  service,  or    Extra  ai low- 
any  other  person  whose  salary,2  pay,2  or  emoluments 2  are  "MM,  3, 1339,  c. 
fixed  by  law  or  .regulations,  shall  receive  any  additional  AuJ.3^,'5^34?! 
pay,  extra  allowance,  or  compensation,  in  any  form  what-sio! s' 

ever,  for  the  disbursement  of  public  money,  or  for  any 
other  service  or  duty  whatever,  unless  the  same  is  author- 
ized by  law  and  the  appropriation  therefor  explicitly 
states  that  it  is  for  such  additional  pay,  extra  allowance, 
or  compensation.3 

170.  No  money  shall  be  paid  to  any  person  for  his  com-    Officer  in  ar- 
pensation  who  is  in  arrears  *  to  the  United  States,  until  he    Jan.  25,  i828,c. 

2,    v.    4,    p.    246 

has  accounted  for  and  paid  into  the  Treasury  all  sums  for  May  20',  1836,  c'. 
which  he  may  be  liable.     In  all  eases  where  the  pav  or    Sec.  i766,B.s. 
salary  of  any  person  is  withheld  in  pursuance  of  this  sec- 
tion, the  accounting  officers  of  the  Treasury,  if  required  to 
do  so  by  the  party,  his  agent  or  attorney,  shall  report  forth- 
with to  the  Solicitor  of  the  Treasury  the  balance  due,  and 
the  Solicitor  shall,  within  sixty  days  thereafter,  order  suit 
to  be  commenced  against  such  delinquent  and  his  sureties.5 

CRIMINAL   OFFENSES. 

Par. 


177.  Requesting    political    contributions 

prohibited. 

178.  Consideration    for   obtaining  office 

prohibited. 

179.  Contributions  for  presents  prohib- 

ited. 


Par. 

171.  Failure  to  make  returns. 

172.  Political  assessments. 

173.  Soliciting  contributions. 

174.  The  same,  change  of  rank  or  com- 

pensation. 

175.  Political  contributions  forbidden. 

176.  Penalty. 

171.  Every  officer  who  neglects  or  refuses  to  make  any   Failure  to  make 

.  .    .     .        ,e  .r  returns  or    re- 

return  or  report  which  he  is  required  to  make  at  stated  ports. 

1  An  officer  is  one  who  is  invested  with  an  office,  and  an  office  is  authority,  granted 
by  law,  to  exercise  a  function  of  Government.  An  employee  is  one  who  is  employed 
under  a  contract  to  perform  personal  service.  An  office  is  distinguished  from  a  pub- 
lic employment  by  the  fact  that  in  the  one  case  the  authority  to  perform  a  public 
service  is  derived  from  the  law,  wThile  in  the  other  it  is  derived  from  a  contract. 
IV  Compt.  Dec.,  696. 

'^Salary  is  fixed  when  it  is  at  a  stipulated  rate  for  a  definite  period  of  time;  pay  or 
emolument  is  fixed  when  the  amount  is  agreed  upon  and  the  service  is  defined. 
Hedrick  v.  U.  S.,  16  Ct.  Cls.,  88. 

3  Bee  note  to  paragraph  167  supra.     The  provisions  of  section  1765,  Revised  Statutes, 
which  prohibit  the  payment  of  additional  compensation,  apply  to  two  classes  of  per- 
sons only,  viz,  officers  in  the  public  service  and  employees  whose  compensation  is 
fixed  by  law  or  regulations.     IV  Compt.  Dec.  696.     See,  also,  ibid.,  424. 

4  The  phrase  "who  is  in  arrears  to  the  United  States,"  contained  in  the  act  of 
January  25,  1828  (sec.  1766,  Revised  Statutes),  applies  only  to  persons  who,  having 
had  previous  transactions  of  a  pecuniary  nature  with  the  Government,  are  found, 
upon  the  settlement  of  those  transactions,  to  be  in  arrears.     Ill  Opin.  Att.  Gen.,  52. 
Where  an  officer  of  the  Army  assigned  his  pay  accounts  in  payment  of  certain  indebt- 
edness, which  accounts  the  Paymaster-General  declined  to  pay,  for  the  reason  that, 
on  the  maturity  thereof,  the  officer  was  in  arrears  to  the  United  States;  held  that 
the  refusal  of  the  Paymaster-General  was  in  accordance  with  section  1766  of  the 
Revised  Statutes.     XVII  Opin.  Att.  Gen.,  30. 

5 See,  as  to  effect  on  sureties,  XX  ibid.,  447.  This  section  does  not  apply  to  orig- 
inal vacancies.  XVIII  ibid.,  28;  see,  also,  XVII  ibid.,  476. 


68  MILITARY    LAWS    OF   THE    UNITED    STATES. 

July  is,  1866,  c.  times  by  any  act  of  Congress  or  regulation  of  the  Depart- 
m.9'  P'  ment  of  the  Treasury,  other  than  his  accounts,  within  the 

Sec.  1780  K.  S. 

'  time  prescribed  by  such  act  or  regulation,  shall  be  fined 
not  more  than  one  thousand  dollars  and  not  less  than  one 
hundred. 

Apolitical  assess-  tf%  ^o  Senator,  or  Representative,  or  Territorial  Dele- 
ii  ^Vp'S3' S'  &ate  °f  tne  Congress,  or  Senator,  Representative,  or  Dele- 
gate elect,  or  any  officer  or  employee  of  either  of  said 
Houses,  and  no  executive,  judicial,  military,  or  naval  officer 
of  the  United  States,  and  no  clerk  or  employee  of  any 
Department,  branch,  or  bureau  of  the  executive,  judicial,  or 
military  or  naval  service  of  the  United  States,  shall,  directly 
or  indirectly,  solicit  or  receive,  or  be  in  any  manner  con- 
cerned in  soliciting  or  receiving,  any  assessment,  subscrip- 
tion, or  contribution  for  any  political  purpose  whatever 
from  any  officer,  clerk,  or  employee  of  the  United  States, 
or  any  Department,  branch,  or  bureau  thereof,  or  Irom 
any  person  receiving  any  salary  or  compensation  from 
moneys  derived  from  the  Treasury  of  the  United  States. 
Sec.  11,  act  of  January  16,  18,83  (22  Stat.  L.,  IfiS). 
soliciting  con-  173.  No  person  shall,  in  any  room  or  building  occupied 

tributionsforpo-  '  J 

forbfddenurposes  *n  discharge  of  official  duties  by  any  officer  or  em- 
sec.  12,  ibid,  ployee  of  the  United  States  mentioned  in  this  act,  or  in 
any  navy -yard,  fort,  or  arsenal,  solicit  in  any  manner  what- 
ever, or  receive  any  contribution  of  money  or  any  other 
thing  of  value  for  any  political  purpose  whatever.  8ec. 
12,  ibid. 

oi?o^gensaSon     *^*  ^°  °^cer  or  employee  of  the  United  States  men- 
sec.  13,  and.    tioned  in  this  act  shall  discharge,  or  promote,  or  degrade, 
or  in  any  manner  change  the  official  rank  or  compensation 
of  any  other  officer  or  employee,  or  promise  or  threaten  so 
to  do,  for  giving  or  withholding  or  neglecting  to  make 
any  contribution  of  money  or  other  valuable  thing  for 
any  political  purpose.1     Sec.  13,  ibid. 
Political  con  tri-     175.  No  officer,  clerk,  or  other  person  in  the  service  of 

butions     forbid- 
den, the  United  States  shall,   directly  or  indirectly,  give  or 

Sec.  14,  ibid.  "  ,       B 

hand  over  to  any  other  officer,  clerk,  or  person   in  the 

1  The  rules  promulgated  by  the  President  on  November  2,  1896,  providing  for  cer- 
tain classifications  and  exceptions,  and  regulating  promotions  in  the  civil  service,  do 
not  regulate  removals  from  office,  except  for  political  or  religious  opinions  or  affilia- 
tions. Carr  v.  Gordon,  82  Fed.  Rep.,  373. 

The  civil-service  law  does  not  prohibit  removal  or  discharge,  except  for  giving, 
withholding,  or  neglecting  to  make  contributions  of  money  for  political  purposes. 
Morgan  r.  Nunn,  84  Fed.  Rep., 551. 

The  power  of  removal  is  a  purely  executive  power  which  is  not  intrusted  to  the 
judicial  branch  of  the  Government.  Keim  v.  U.  S.,  33  Ct.  Cls.,  174. 


MILITABr    LAWS    OF   THE    UNITED    STATES.  69 

service  of  the  United  States,  or  to  any  Senator  or  Mem- 
ber of  the  House  of  Representatives,  or  Territorial  Dele- 
gate, any  money  or  other  valuable  thyig  on  account  of  or 
to  be  applied  to  the  promotion  of  any  political  object 
whatever.  Sec.  H,  ibid. 

176.  Any  person  who  shall  be  pfuiltv  of  violating  anv   Penalty  for  vio- 

.    .  £    ,,       £  £  .  '  ,.  ,     ,,    ,  J,  lation  of  preced- 

provision  of  the  four  foregoing  sections  shall  be  deemed  ing  sections. 

.,,,.,  J  *u  n  •   x-  j>      Sec.  15,  ibid. 

guilty  of  a  misdemeanor,  and  shall,  on  conviction  thereof, 
be  punished  by  a  fine  not  exceeding  five  thousand  dol- 
lars, or  by  imprisonment  for  a  term  not  exceeding  three 
years,  or  by  such  fine  and  imprisonment  both,  in  the  dis- 
cretion of  the  court.  Sec.  15,  ibid. 

177.  All  executive  officers  or  employees  of  the  United  et^equcontritm' 
States  not  appointed  by  the  President,  with  the  advice  ofOE 

and  consent  of  the  Senate,  are  prohibited  from  requesting, 
giving  to,  or  receiving  from,  any  other  officer  or  employee 
of  the  Government,  any  money  or  property  or  other  thing 
of  value  for  political  purposes;  and  any  such  officer  or 
employee,  who  shall  offend  against  the  provisions  of  this 
section  shall  be  at  once  discharged  from  the  service  of 
the  United  States;  and  he  shall  also  be  deemed  guilty  of  a 
misdemeanor,  and  on  conviction  thereof  shall  be  fined  in 
a  sum  not  exceeding  five  hundred  dollars.  Sec.  6,  act  of 
August  15,  1876  (19  Stat.  L.,  169}. 

178.  Every  member  of  Congress  or  any  officer  or  agent 
of  the  Government  who,  directly  or  indirectly,  takes,  re- 
ceives,  or  agrees  to  receive,  any  money,  property,  or  other 
valuable  consideration  whatever,  from  any  person  for  pro- 
curing,  or  aiding  to  procure,  any  contract,  office,  or  place, 
from  the  Government  or  any  Department  thereof,  or  from 
any  officer  of  the  United  States,  for  any  person  whatever, 
or  for  giving  any  such  contract,  office,  or  place,  to  any  per- 
son whomsoever,  and  every  person  who,  direct!}7  or  indi- 
rectly, offers  or  agrees  to  give,  or  gives,  or  bestows  any 
money,  property,  or  other  valuable  consideration  what- 
ever, for  the  procuring  or  aiding  to  procure  any  such  con- 
tract, office,  or  place,  and  every  member  of  Congress  who, 
directly  or  indirectly,  takes,  receives,  or  agrees  to  receive 
any  money,  property,  or  other  valuable  consideration  what- 
ever after  his  election  as  such  member,  for  his  attention  to, 
services,  action,  vote,  or  decision  on  any  question,  matter, 
cause  or  proceeding  which  may  then  be  pending,  or  may 
by  law  or  under  the  Constitution  be  brought  before  him  in 
his  official  capacity,  or  in  his  place  as  such  member  of  Con- 


70 


MILITAEY    LAWS    OF    THE    UNITED    STATES. 


gress,  shall  be  deemed  guilty  of  a  misdemeanor,  and  shall 
be  imprisoned  not  more  than  two  years  and  fined  not  more 
than  ten  thousand  dollars.  And  any  such  contract  or 
agreement  may,  at  the  option  of  the  President,  be  declared 
absolutely  null  and  void;  and  any  member  of  Congress  or 
officer  convicted  of  a  violation  of  this  section,  shall,  more- 
over, be  disqualified  from  holding  any  office  of  honor,  profit, 
or  trust  under  the  Government  of  the  United  States.1 

179-  No  officer,  clerk,  or  employee  in  the  United  States 
sup?r?ora  etc'' to  Government  employ  shall  at  any  time  solicit  contributions 
iiFvbi6'  1863* c  ^ rom  other  officers,  clerks,  or  emplo3^ees  in  the  Government 
Sec.i784,B.s.  service  for  a  gift  or  present  to  those  in  a  superior  official 
position;  nor  shall  any  such  officials  or  clerical  superiors 
receive  any  gift  or  present  offered  or  presented  to  them 
as  a  contribution  from  persons  in  Government  employ  re- 
ceiving a  less  salary  than  themselves;  nor  shall  any  officer 
or  clerk  make  any  donation  as  a  gift  or  present  to  any  offi- 
cial superior.     Every  person  who  violates  this  section  shall 
be  summarily  dismissed  from  the  Government  employ.2 


MISCELLANEOUS   PROVISIONS. 


Par. 

180.  Removal  of  office  on  account  of  sick- 

ness, report. 

181.  Restriction  on  payments  for  news- 

papers. 


Par. 


182.  Preservation  of  Statutes  at  Large. 


Removal     of      180.  Whenever  any  public  office  is  removed  by  reason 
Apr.  21, 1806,  c.  of  sickness  which  may  prevail  in  the  town  or  city  where  it 

41,  s.  6,  v.  2,  p.  397.  J    J  J 

Sec.  1776,  B.S.  is  located,  a  particular  account  of  the  cost  of  such  removal 

shall  be  laid  before  Congress. 

up^plyments      181.  No  executive  officer,  other  than  the  heads  of  De- 

for  n  wspapers,  partments,  shall  apply  more  than  thirty  dollars,  annually, 

82?sa3,'v.'5^9349'. ou^  °^  the  contingent  fund  under  his  control,  co  pay  for 

sec.  1779,  k.s.  newspapers,  pamphlets,  periodicals,  or  other  books  or  prints 

not  necessary  for  the  business  of  his  office. 

1  Sections  1781  and  1782  of  the  Revised  Statutes  make  it  illegal  for  an  officer  of  the 
United  States  to  have  that  sort  of  connection  with  a  Government  contract  which  an 
agent,  attorney,  or  solicitor  assumes  when  he  procures,  or  aids  in  procuring,  such 
contract  for  another,  or  when  he  prosecutes  for  another  any  claim  against  the  Gov- 
ernment founded  thereon.    XIV  Opin.  Att.  Gen. ,  483.     But  there  is  in  the  statutes  no 
general  provision  whereby  officers  of  the  executive  branch  of  the  Government  are 
forbidden  to  contract  directly  with  the  Government  as  principals,  in  matters  sepa- 
rate from  their  offices  and  in  no  way  connected  with  the  performance  of  their  official 
duties;  nor  are  those  officers  forbidden  to  be  connected  with  such  contracts,  after 
they  are  procured,  by  acquiring  an  interest  therein.     Ibid. 

2  This  section  was  held  to  be  constitutional  by  the  Supreme  Court  in  Ex  parte 
Curtis,  106  U.  S.,  371. 


MILITARY    LAWS    OF   THE    UNITED    STATES.  7l 

182.  The  various  officers  of  the  United  States  to  whom     Preservation  of 

'  copies  of  Statutes 

in  virtue  of  their  offices  and  for  the  uses  thereof,  copies  of  at^arge. 
the  United  States  Statutes  at  Large,  published  by  Little,  ' 

Brown  and  Company,  have  been  or  may  be  distributed  at 
the  public  expense,  by  authority  of  law,  shall  preserve  such 
copies,  and  deliver  them  to  their  successors  respectively  as 
a  part  of  the  property  appertaining  to  the  office.  A  printed 
copy  of  this  section  shall  be  inserted  in  each  volume  of  the 
Statutes  distributed  to  any  such  officers. 


CHAPTER 


THE    DEPARTMENT    OF    THE    TREASURY— THE 
ACCOUNTING  OFFICERS. 


Par. 

183.  The  Treasury  Department. 

184-189.  Accounts. 

190-193.  The  Accounting  Officers;  the 
Comptroller  of  the  Treasury. 

194-214.  The  Auditors  of  the  Treasury. 

215-218.  Accounts  of  line  officers,  etc. 

219, 220.  Claims;  reports  of  claims  al- 
lowed. 

221,  222.  Claims  of  officers  and  enlisted 
men  for  property  lost  or  de- 
stroyed. 

223-230.  Reimbursement  of  States  for 
expenses  incurred  in  war  with 
Spain. 

231, 232.  Compromise  of  claims. 

233.  Set-off. 

234.  Assignment  of  claims. 
235-244.  Prosecution  of  claims. 
245-247.  Debts  due  by  or  to  the  United 

States. 


Par. 

248,  249.  Discharge  of  poor  debtors. 

250.  Suits  to  recover  balances  due  the 
United  States. 

251-264.  Distress  warrants. 

265-270.  Estimates. 

271-275.  Appropriations. 

276-278.  Permanent  annual  appropria- 
tions. 

279-282.  Application  of  balances. 

283-290.  The  public  moneys;  the  Treas- 
urer; assistant  treasurers,  and 
depositories. 

291-295.  Disbursing  agents. 

296-298.  Transfer  of  funds  by  Secretary 
of  the  Treasury. 

299-304.  Deposit  of  public  money. 

305-308.  Tender. 

309-312.  Outstanding  checks. 


183.  There  shall  be  at  the  seat  of  Government  an  Execu- 
Department  to  be  known  as  the  Department  of  the 


The  Depart- 
ment of  the 
Treasury. 

Sept.  2,  1789,  c. 

12sec1'2V38'&f'Treasury>  an(l  a  Secretary  of  the  Treasury,  who  shall  be 
the  head  thereof. 


ACCOUNTS. 

!    Par. 


|  188.  Report  of  delinquent  officers. 
189.  Annual  report  of  receipts  and  ex- 
penditures. 


Par. 

184.  The  fiscal  year. 

185.  Rendition  of  accounts  monthly. 

186.  Separate  accounts  required. 

187.  Transmission  of  accounts  to  Wash- 

ington. 

184-  Tne  fiscal  year  of  the  Treasury  of  the  United  States 
*n  a^  matters  of  accounts,  receipts,  expenditures,  estimates, 
636:  SMayVi872'  and  appropriations,  except  accounts  of  the  Secretary  of 
c'  GiVar1  LISTS'  ^e  Senate  for  compensation  and  traveling  expenses  of  Sen- 
c^226,s.i,v.i7,p.  ators,1  shall  commence  on  the  first  day  of  July  in  each  year; 
see.  227,  B.  s.  and  aj}  accounts  of  receipts  and  expenditures  required  by 
law  to  be  published  annually  shall  be  prepared  and  pub- 
lished for  the  fiscal  year  as  thus  established.     The  fiscal 

1For  other  statutory  provisions  in  relation  to  accounts,  see  the  titles  "  The  Comp- 
troller of  the  Treasury"  and  "  The  Auditors  of  the  Treasury"  in  the  chapter  entitled 
THE  TREASURY  DEPARTMENT,  and  the  title  '  '  Disbursing  Officers  '  '  in  the  chapter  entitled 
THE  STAFF  DEPARTMENTS. 

72 


men0t?f?hlfiscli 
yelug  26  1842  c 


MILITARY    LAWS    OF    THE    UNITED   STATES.  73 

year  for  the  adjustment  of  the  accounts  of  the  Secretary 
of  the  Senate  for  compensation  and  traveling  expenses  of 
Senators  *  shall  extend  to  and  include  the  third  day  of  July. l 

185.  Every  officer  or  agent  of  the  United  States  who 
receives  public  money  which  he  is  not  authorized  to  retain ly> 
as  salary,  pay,  or  emolument,  shall  render  his  accounts 
monthly.     Such  accounts,  with  the  vouchers  necessary  tof^ 
the  correct  and  prompt  settlement  thereof,  shall  be  sent  by 

mail  or  otherwise  to  the  Bureau  to  which  they  pertain  im3* ;69Fvbi92p' 
within  ten  days  after  the  expiration  of  each  successive  24|ec  12  actjuly 
month,  and  after  examination  there  shall  be  passed  to  the  ^ 1894>  v-  28>  p- 
proper  accounting  officer  of  the  Treasury  for  settlement.    Sec>  3622» B* s- 
Disbursing  officers  of  the  Navy  shall,  however,  render  their 
accounts  and  vouchers  direct  to  the  proper  accounting  offi- 
cer of  the  Treasury.    In  case  of  the  nonreceipt  at  the  Treas- 
ury or  proper  Bureau  of  any  accounts  within  a  reasonable 
and  proper  time  thereafter,  the  officer  whose  accounts  are 
in  default  shall  be  required  to  furnish  satisfactory  evidence 
of  having  complied  with  the  provisions  of  this  section. 
Nothing  herein  contained  shall,  however,  be  construed  to 
restrain  the  heads  of  any  of  the  Departments  from  requir- 
ing such  other  returns  or  reports  from  the  officer  or  agent, 
subject  to  the  control  of  such  heads  of  Departments,  as 
the  public  interest  may  require. 

186.  All  officers,  agents,  or  other  persons  receiving  public 
moneys,  shall  render  distinct  accounts  of  the  application 

thereof  according  to  the  appropriation  under  which  the  Sec- 3623' B- s- 
same  may  have  been  advanced  to  them. 

187.  All  monthly  accounts  shall  be  mailed  or  other  wise  of 
sent  to  the  proper  officer  at  Washington  within  ten  days 
after  the  end  of  the  month  to  which  they  relate,  and  quar- 
terly  and  other  accounts  within  twenty  days  after  the  pe-  31>  P-  91°- 
riod  to  which  they  relate,  and  shall  be  transmitted  to  and 
received  by  the  Auditors  within  sixty  days  of  their  actual 
receipt  at  the  proper  office  in  Washington  in  the  case  of 
monthly,  and  sixty  days  in  the  case  of  quarterly  and  other 
accounts.     Should  there  be  any  delinquency  in  this  regard  di^lp^e  ™eaqy_ 
at  the  time  of  the  receipt  by  the  Auditor  of  a  requisition 

for  an  advance  of  money,  he  shall  disapprove  the  requisi- 
tion, which  he  may  also  do  for  other  reasons  arising  out  of 
the  condition  of  the  officer's  accounts  for  whom  the  ad- 
vance is  requested;  but  the  Secretary  of  the  Treasury  may 

*For  other  statutory  provisions  in  relation  to  accounts,  see  the  titles  "  The  Comp- 
troller of  the  Treasury"  and  "The  Auditors  of  the  Treasury"  in  the  chapter  entitled 
THE  TREASURY  DEPARTMENT,  and  the  title  "Disbursing  Officers"  in  the  chapter  entitled 
THE  STAFF  DEPARTMENTS. 


74  MILITARY   LAWS    OF   THE    UNITED   STATES. 

overrule  the  Auditor's  decision  as  to  the  sufficiency  of  these 
£SSary     of  latter  reasons :  Provided,  That  the  Secretary  of  the  Treasury 
t^esJribeSU7uiess^a^Prescr^esu^^eru^es  an(^  regulations,  and  may  make 
accountsitkm  °f  orders  in  particular  cases,  relaxing  the  requirement  of  mail- 
ing or  otherwise  sending  accounts,  as  aforesaid,  within  ten 
or  twenty  days,  or  waiving  delinquency,  in  such  cases  only 
in  which  there  is,  or  is  likely  to  be,  a  manifest  physical 
difficulty  in  complying  with  the  same,  it  being  the  purpose 
of  this  provision  to  require  the  prompt  rendition  of  accounts 
without  regard  to  the  mere  convenience  of  the  officers,  and 
to  forbid  the  advance  of   money  to  those  delinquent  in 
m?ttYngn8ac-  render  ing  them:  Provided  further,  That  should  there  be  a 
counts.  delay  by  the  administrative  Departments  beyond  the  afore- 

said twenty  or  sixty  days  in  transmitting  accounts,  an  order 
of  the  President  [or,  in  the  event  of  the  absence  from  the 
seat  of  Government  or  sickness  of  the  President,  an  order 
of  the  Secretary  of  the  Treasury]  in  the  particular  case 
shall  be  necessary  to  authorize  the  advance  of  money  re- 
quested: And  provided  further,  That  this  section  shall  not 
apply  to  accounts  of  the  postal  revenue  and  expenditures 
therefrom,  which  shall  be  rendered  as  now  required  by  law.1 
Sec.  1%,  act  of  July  31, 189 Jf,  (28  Stat.  L. ,  209);  act  of  March 
0,  1901  (31  ibid.,  910). 

TrSr^to  re*  188«  The  Secretary  of  the  Treasury  shall,  on  the  first 
officerselinquent  Monday  of  January  in  each  year,  make  report  to  Congress 
!8%,Cv429fpfi79!  °f  such  officers  and  administrative  departments  and  offices 
of  the  Government  as  were,  respectively,  at  any  time  dur- 
ing the  last  preceding  fiscal  year  delinquent  in  rendering 
or  transmitting  accounts  to  the  proper  offices  in  Washing- 
ton and  the  cause  therefor,  and  in  each  case  indicating 
whether  the  delinquency  was  waived,  together  with  such 
officers,  including  postmasters  and  officers  of  the  Post- 
Office  Department,  as  were  found  upon  final  settlement  of 
their  accounts  to  have  been  indebted  to  the  Government, 
with  the  amount  of  such  indebtedness  in  each  case,  and 
who,  at  the  date  of  making  report,  had  failed  to  pay  the 
same  into  the  Treasury  of  the  United  States.2  Sec.  4-)  act 
of  May  28,  1896  (29  Stat.  Z.,  179). 

of  rece?ptseand      189.  It  shall  be  the  duty  of  the  Secretary  of  the  Treas- 

exj5y  si/iSi,  s.  ury  annually  to  lay  before  Congress,  on  the  first  day  of 

the  regular  session  thereof,  an  accurate,  combined  state- 

1  Amended  by  the  insertion  of  the  clause  in  brackets  by  section  4  of  the  act  of 
March  2,  1895.  (28  Stat.  L.,  817.) 

2 Section  8  of  the  act  of  July  31,  1894,  provides  "that  the  balances  that  maybe  cer- 
tified from  time  to  time  by  the  auditors  in  the  settlement  of  public  accounts  shall  be 
final  and  conclusive  upon  the  Executive  Departments  of  the  Government,  except  that 


MILITARY    LAWS    OF   THE    UNITED   STATES. 


75 


ment  of  the  receipts  and  expenditures  during-  the  last  pre- 
ceding fiscal  year  of  all  public  moneys,  including  those 
of  the  Post-Office  Department,  designating  the  amount  of 
the  receipts,  whenever  practicable,  by  ports,  districts,  and 
States,  and  the  expenditures,  by  each  separate  head  of 
appropriation.  Sec.  15,  act  of  July  31,  189 J^  (28  Stat. 
L.,%10). 

THE    ACCOUNTING    OFFICERS. 


THE  COMPTROLLER  OF  THE  TREASURY. 


Par. 


190.  The  Comptroller  of  the  Treasury. 

191.  To  prescribe  forms  of  accounts. 


Par. 

192.  Decisions  to  be  final. 

193.  May  direct  settlement  of  particular 

accounts. 


190.  The  offices  of  Commissioner  of  Customs,  Deputy  The  comptroi- 
Commissioner  of  Customs,  Second  Comptroller,  Deputy  ury? 
Second  Comptroller,  and  Deputy  First  Comptroller  of  i894,Cv.28,p.205.' 
the  Treasury  are  abolished,  and  the  First  Comptroller  of 
the  Treasury  shall  hereafter  be  known  as  Comptroller 
of  the  Treasury.  He  shall  perform  the  same  duties  and 
have  the  same  powers  and  responsibilities  (except  as  modi- 
fied by  this  act)  as  those  now  performed  by  or  appertain- 
ing to  the  First  and  Second  Comptrollers  of  the  Treasury 
and  the  Commissioner  of  Customs;  and  all  provisions  of 
law  not  inconsistent  with  this  act,  in  any  way  relating  to 
them  or  either  of  them,  shall  hereafter  be  construed  and 
held  as  relating  to  the  Comptroller  of  the  Treasury.  His 
salary  shall  be  five  thousand  five  hundred  dollars  per  an- 
num. There  shall  also  be  an  Assistant  Comptroller  of  the 
Treasury,  to  be  appointed  by  the  President,  with  the  ad- 
vice and  consent  of  the  Senate,  who  shall  receive  a  salary 

any  person  whose  accounts  may  have  been  settled,  the  head  of  a  Department,  or  of 
the  board,  commission,  or  establishment,  not  under  the  jurisdiction  of  an  Executive 
Department,  or  the  Comptroller  of  the  Treasury  may,  within  a  year,  obtain  a  revision 
of  the  account  by  the  Comptroller  of  the  Treasury,  whose  decision  upon  such  revision 
shall  be  final  and  conclusive  upon  the  executive  branch  of  the  Government:  Pro- 
vided, That  the  Secretary  of  the  Treasury  may,  when  in  his  judgment  the  interests 
of  the  Government  require  it,  suspend  payment  and  direct  the  reexamination  of  any 
account."  Sec.  8,  act  of  July  31,  1894  (28  Stat.  L.,  207). 

Section  "260  of  the  Revised  Statutes  requires  that  the  Secretary  of  the  Treasury 
shall  lay  before  Congress  at  the  commencement  of  each  regular  session,  accompany- 
ing his  annual  statement  of  the  public  expenditure,  the  reports  which  may  be  made 
to  him  by  the  Auditors  charged  with  the  examination  of  the  accounts  of  the  Depart- 
ment of  War  and  the  Department  of  the  Navy,  respectively,  showing  the  application 
of  the  money  appropriated  for  those  Departments  for  the>  preceding  year. 

This  enactment  replaces  section  12,  act  of  July  31, 1894,  in  pari  materia. 

Under  authority  conferred  by  this  section  and  by  the  act  of  December  20, 1899  (31 
Stat.  L.,  1),  the  Secretary  of  the  Treasury  has  relaxed  the  requirements  of  paragraph 
627  of  the  Army  Regulations  by  extending  the  time  of  mailing  to  the  20th  day  of 
each  month.  See  the  title  Accounting  in  the  chapter  entitled  THE  STAFF  DEPART- 
MENTS; see,  also,  G.  O.  211,  A.  G.  O.,  of  1899,  and  G.  0. 42,  A.  G.  0.,  of  1900. 


MILITARY    LAWS    OF    THE    UNITED    STATES. 


present 
etc. 
Sec.  5,  ibid. 


of  five  thousand  dollars  per  annum,1  and  a  chief  clerk  in 
the  office  of  the  Comptroller  of  the  Treasury,  who  shall 
receive  a  salary  of  two  thousand  five  hundred  dollars  per 
annum.  Sec.  4,  act  of  July  31,  1894  (®$  Stat.  L.,  205}. 

191.  The  Comptroller  of  the  Treasury  shall,  under  the 
direction  of  the  Secretary  of  the  Treasury,  prescribe  the 
forms  of  keeping  and  rendering  all  public  accounts,  except 
those  relating  to  the  postal  revenues  and  expenditures 
therefrom. 2     Sec.  5,  ibid. 

192.  Disbursing  officers,  or  the  head  of  any  Executive 
Department,  or  other  establishment  not  under  any  of  the 
Executive  Departments,  may  apply  for  and  the  Comptroller 
of  the  Treasury  shall  render  his  decision  upon  any  question 
involving  a  payment  to  be  made  by  them  or  under  them, 
which  decision,  when  rendered,  shall  govern  the  Auditor 
and  the  Comptroller  of  the  Treasu^  in  passing  upon  the 
account  containing  said  disbursement.      Sec.  #,  ibid. 

193.  The  Comptroller  of  the  Treasury,  in  any  case  where, 
opinion,  the  interests  of  the  Government  require  it, 

r  J28lyp.3206 1894>  sna11  direct  any  of  the  auditors  forthwith    to  audit  and 
lee!  27VB.  s.  settle    any   particular    account  which    such    auditor   is 
authorized  to  audit  and  settle.     Sec.  6\  ibid. 


ern  accounts. 
Sec.  8,  ibid. 


Comptroller 
may  direct  settle- 
ment of  particu-  jn 
lar  accounts. 


THE    AUDITORS   OF   THE   TREASURY. 


Par. 

194.  The  Auditors,  general  duties. 
195,196.  Auditor  for    the  War    Depart- 
ment, duties. 

197.  Recovery  of  debts. 

198.  Certificates  of  balances;  revision. 

199.  Reexamination  of  accounts. 

200.  Certificate  of  differences  on  revision. 

201.  Settlements  of    accounting  officers 

conclusive. 

202.  Examination  of  claims. 

203.  Revision  of  decisions  by  Comptroller. 

204.  To  preserve  accounts. 

205.  Transcripts  as  evidence. 


Par. 

206.  Settled  claims  not  to  be  reopened. 

207.  Rules  by  Secretary  of  Treasury. 

208.  Rules  by  heads  of  Departments. 

209.  Requisitions,  warrants,  advances. 

210.  Division  of  Bookkeeping  and  War- 

rants. 

211.  Offices  of  Comptroller  and  Auditors 

not  new. 

212.  Transfer  of  duties. 

213.  Date  of  operation  of  new  system. 

214.  Books    and    papers    in    District  of 

Columbia  to  be  accessible  to  ac- 
counting officers. 


Auditors    of 
the  Treasury. 


1894,  v.  2 


194.  The  Auditors  of  the  Treasury  shall  hereafter  be 
y206.'  designated  as  follows:  The  First  Auditor  as  Auditor  for 


*By  instructions  of  the  Comptroller  of  the  Treasury,  issued  under  the  authority  con- 
ferred by  section  4,  act  of  July  31,  1894  (28  Stat.  L.,  205),  it  was  ordered  that  all 
questions  arising  in  the  Departments  of  War,  Navy,  and  the  Interior  should  be 
decided  by  the  Assistant  Comptroller.  Order  of  Comptroller  of  January  19,  1898,  IV 
Compt.  Dec.,  726. 

2  So  much  of  section  248,  Revised  Statutes,  as  authorizes  the  Secretary  of  the 
Treasury  to  prescribe  the  forms  of  keeping  and  rendering  all  public  accounts,  except 
those  relating  to  the  postal  revenue  and  expenditures  therefrom,  is,  by  section  5  of 
the  act  of  July  31, 1894,  vested  in  the  Comptroller  of  the  Treasury.  28  Stat.  L.,  206. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  77 

the  Treasury  Department;  the  Second  Auditor  as  Auditor 
for  the  War  Department;  the  Third  Auditor  as  Audi- 
tor for  the  Interior  Department;  the  Fourth  Auditor  as 
Auditor  for  the  Navy  Department;  the  Fifth  Auditor 
as  Auditor  for  the  State  and  other  Departments;  the 
Sixth  Auditor  as  Auditor  of  the  Post-Office  Department. 
The  designations  of  the  deputy  auditors  and  other  subordi- 
nates shall  correspond  with  those  of  the  Auditors.  And  Duties- 
each  deputy  auditor,  in  addition  to  the  duties  now  required 
to  be  performed  by  him,  shall  sign,  in  the  name  of  the 
Auditor,  such  letters  and  papers  as  the  Auditor  may 
direct.  Sec.  3,  act  of  July  31,  189 Jf.  (28  Stat.  Z.,  206}. 

195.  Accounts  shall  be  examined  by  the  Auditors  as  fol-  WarudiD°eP al- 
lows:   *     *     *     Second.  The  Auditor  for  the  War  Depart-  m<g*-  7  {Md 
ment  shall  receive  and  examine  all  accounts  of  salaries  and 
incidental  expenses  of  the  office  of  the  Secretary  of  War 
and  all  bureaus  and  offices  under  his  direction,  all  accounts1 
relating  to  the  military  establishment,  armories  and  arse- 
nals, national  cemeteries,  fortifications,  public  buildings 
and  grounds  under  the  Chief  of  Engineers,  rivers  and  har- 
bors, the  Military  Academy,   and  to  all   other   business 
within  the  jurisdiction  of  the  Department  of  War,  and 

1  Under  the  provisions  of  the  act  of  July  31,  1894,  the  Comptroller  of  the  Treasury 
is  authorized  to  render  decisions,  in  advance  of  the  settlement  of  accounts,  only  upon 
the  request  of  a  disbursing  officer  or  the  head  of  an  Executive  Department,  as  pro- 
vided in  section  8  of  said  act.  1  Compt.  Dec.,  87. 

Under  section  8  of  the  act  of  July  31,  1894,  the  Comptroller  of  the  Treasury  is 
authorized  to  render  decisions,  on  the  application  of  a  disbursing  officer  or  the  head 
of  an  Executive  Department,  only  upon  questions  involved  in  payments  to  be  made 
by  them  or  under  them,  and  until  the  head  of  a  Department  having  control  of  an 
appropriation  determines  to  apply  it  to  a  particular  purpose  there  is  no  question 
which  can  be  properly  submitted  for  the  Comptroller's  decision.  Ibid.,  89.  Ibid., 
31,  139.  The  Comptroller  is  not  authorized  to  render  a  decision  at  the  request  of 
the  Secretary  of  the  Treasury  when  the  question  involved  concerns  the  use  of  an 
appropriation  under  the  control  of  the  Secretary  of  War.  Ibid.,  317. 

When  an  expense  has  not  yet  been  incurred,  and  a  decision  of  the  Comptroller  is 
desired  for  the  guidance  of  a  Department,  the  request  therefor  should  be  presented 
by  the  head  of  the  Department  having  control  of  the  appropriation,  and  not  by  the 
disbursing  officer.  Ibid.,  500. 

Under  section  8  of  this  statute,  authorizing  an  application  by  the  head  of  an 
Executive  Department  to  the  Comptroller  of  the  Treasury  for  the  revision  of  an 
account  settled  by  an  Auditor,  the  Comptroller  has  no  jurisdiction  to  entertain  such 
an  application  when  made  by  the  head  of  a  bureau  of  a  Department.  Ibid.,  199. 
Nor  can  such  a  decision  be  rendered  upon  the  application  of  an  Auditor.  Ibid.,  78; 
4  ibid.,  653,  727. 

Bequests  for  the  decision  of  the  Comptroller  under  section  8  of  the  act  of  July  31, 
1894,  must  be  made  by  the  disbursing  officer  himself,  and  not  by  an  attorney  author- 
ized to  represent  him  in  the  settlement  of  his  account.  Ibid.,  502.  The  Comptroller 
is  authorized  to  render  a  decision  upon  the  request  of  a  disbursing  officer  only  when 
the  question  submitted  is  one  involved  in  a  payment  which  he  has  been  directed,  by 
general  or  special  order,  to  make.  Ibid.,  500. 

Under  the  act  of  July  31,  1894,  the  Auditors  of  the  Treasury  are  not  authorized  to 
render  decisions  in  advance  of  the  settlement  of  accounts,  such  authority  being,  by 
section  8  of  said  act,  granted  only  to  the  Comptroller  of  the  Treasury.  Compt. 
Dec.,  94. 


78  MILITARY    LAWS    OF    THE    UNITED    STATES. 

certify  the  balances  arising  thereon  to  the   Division   of 
Bookkeeping  and  Warrants,  and  send  forthwith  a  copy  of 
each  certificate  to  the  Secretary  of  War.1     Sec.  7,  ibid. 
Auditors  to  re-      196.  The  Auditors,  under  the  direction  of  the  Comptroller 

cover  debts. 

sec.  4,  ibid,  of  the  Treasury,  shall  superintend  the  recovery  of  all 
debts  finally  certified  by  them,  respectively,  to  be  due  to 
the  United  States.  Sec.  h  ibid. 

Duties  of  Audi-  197.  The  Auditors  charged  with  the  examination  of  the 
Navy0  Depart-  accounts  of  the  Departments  of  War  and  of  the  Navy 

Mar.'  3,  isiv,  c.  shall  keep  all  accounts  of  the  receipts  and  expenditures  of 
so?88'  P'  the  public  money  in  regard  to  those  Departments,  and  of 

k '  all  debts  due  to  the  United  States  on  moneys  advanced 
relative  to  those  Departments;  shall  receive  from  the 
Comptroller  the  accounts  which  shall  have  been  finally 
adjusted,  and  shall  preserve  such  accounts,  with  their 
vouchers  and  certificates,  and  record  all  requisitions 
drawn  by  the  Secretaries  of  those  Departments,  the  exam- 
ination of  the  accounts  of  which  has  been  assigned  to  them. 
They  shall  annually,  on  the  first  Monday  in  November, 
severally  report  to  the  Secretary  of  the  Treasury  the  appli- 
cation of  the  money  appropriated  for  the  Department  of 
War  and  the  Department  of  the  Navy,  and  they  shall  make 
such  reports  on  the  business  assigned  to  them  as  the  Sec- 
retaries of  those  Departments  may  deem  necessary  and 
require. 

certified  bai-  198.  The  balances  which  may  from  time  to  time  be  cer- 
onExecutiveDe- tified  by  the  Auditors  to  the  Division  of  Bookkeeping  and 

partments,  etc.  A 

sec.  s,  ma.  Warrants,  or  to  the  Postmaster-Greneral,  upon  the  settle- 
ments of  public  accounts,  shall  be  final  and  conclusive  upon 

Revision.  the  Executive  branch  of  the  Government,  except  that  any 
person  whose  accounts  may  have  been  settled,  the  head 
of  the  Executive  Department,  or  of  the  board,  commission, 
or  establishment  not  under  the  jurisdiction  of  an  Execu- 
tive Department,  to  which  the  account  pertains,  or  the 
Comptroller  of  the  Treasury,  may,  within  a  year,  obtain 
a  revision  of  the  said  account  by  the  Comptroller  of  the 
Treasury,  whose  decision  upon  such  revision  shall  be  final 

lrThe  act  of  July  16, 1892,  contained  the  following  requirement:  "Hereafter  nothing 
in  section  two  hundred  and  seventy-seven  of  the  Revised  Statutes  shall  be  so  con- 
strued as  to  prevent  the  Second  Auditor  of  the  Treasury  from  disallowing  claims  for 
arrears  of  pay  and  bounty  in  cases  where  it  appears  from  the  records  and  files  of  his 
office  that  payment  in  full  has  already  been  made  to  the  soldier  himself,  or  to  his 
widow  or  legal  heirs:  Provided,  That  if  any  person  whose  claim  may  be  disallowed 
be  dissatisfied  with  the  action  of  the  Auditor,  he  may,  within  six  months,  appeal  to 
the  Second  Comptroller;  otherwise  the  Auditor's  action  shall  be  deemed  final  and 
conclusive  and'  be  subject  to  revision  only  by  Congress  or  the  proper  courts."  (27 
Stat.  L.,  194. )  See  4  Compt.  Dec.,  471. 


MILITAEY    LAWS    OF    THE    UNITED   STATES.  79 

and  conclusive  upon  the  Executive  Branch  of  the  Govern- 
ment.1 

199.  The  Secretary  of  the  Treasury  may,  when  in  his  .Reexamina- 
judgment  the  interests  of  the  Government  require  it,  sus- 
pend payment  and  direct  the  reexamination  of  any  account. 

*  *  *  Sections  one  hundred  and  ninety-one  and  two 
hundred  and  seventy  of  the  Revised  Statutes  are  repealed. 
Sec.  8,  ibid. 

200.  Upon  a  certificate  by  the  Comptroller  of  the  Treas-    certificate  of 

'   .        ,  ,        *  .    .          A.      differences  on  re- 

ury  of  any  differences  ascertained  by  mm  upon  revision,  the  vision. 
Auditor  who  shall  have  audited  the  account  shall  state  an 
account  of  such  differences  and  certify  it  to  the  division 
of  bookkeeping  and  warrants,  except  that  balances  found 
and  accounts  stated  as  aforesaid  by  the  Auditor  for  the  Post- 
Office  Department  for  postal  revenues  and  expenditures 
therefrom  shall  be  certified  to  the  Postmaster -General. 
Sec.  8,  ibid. 

201.  Any  person  accepting  pavment  under  a  settlement   Accepting  pay- 

,  •    "  .    .  ment    on  Audi- 

bv  an  auditor  shall  be  thereby  precluded  trom  obtaining1  a  tor's  settlement 

J  .  1.1  conclusive. 

revision  of  such  settlement  as  to  any  items  upon  which  pay- 
ment is  accepted;  but  nothing  in  this  act  shall  prevent  an 
Auditor  from  suspending  items  in  an  account  in  order  to  !ecP8n£T' 

1This  paragraph  expressly  repeals  section  1  of  the  act  of  March  30,  1868  (sec.  191, 
Rev.  Stat. ) .  The  clause  ' '  shall  be  conclusive  upon  the  Executive  Departments  of 
the  Government,"  which  formed  a  part  of  the  repealed  section,  was  enacted  to  settle 
a  long-pending  dispute  between  the  accounting  officers  and  the  heads  of  departments 
as  to  their  respective  powers  over  claims  and  accounts,  and  has  been  interpreted  to 
relate  ' '  only  to  matters  of  accounting  in  the  Treasury  Department,  and  of  ascertain- 
ing the  balance  in  each  particular  account  which  shall  be  drawn  from  the  Treas- 
ury. *  *  It  makes  conclusive  upon  the  executive  branch  of  the  Government 
only  the  '  balances '  stated  by  the  accounting  officers  and  their  '  decision  thereon ' 
for  the  purpose  of  determining  for  what  amounts,  if  any,  warrants  may  be  drawn 
on  the  Treasury.  *  *  *  It  does  not  make  such  decisions  conclusive  upon  the 
head  of  a  department  in  the  exercise  of  his  discretion  as  to  orders  to  be  issued  to 
his  subordinates  in  such  connections  as  the  one  now  under  consideration. ' '  Billings  v. 
U.  S.,  23  Ct,  Cls.,  166;  McKee  v.  United  States,  12  ibid.,  504.  It  was  held  in  the  case 
of  Surgeon  Billings  (23  Ct.  Cls.,  166)  that  the  War  Department  had  authority  to 
send  a  surgeon  to  the  International  Medical  Congress  at  London  at  the  expense  of 
the  Government,  that  being  a  military  service  which  a  surgeon  could  be  required  to 
render.  In  the  case  of  Paymaster  Smith  (24  Ct.  Cls.,  209)  it  was  held  that  the 
employment  of  experts  before  a  court-martial  was  within  the  legal  and  proper  dis- 
cretion of  the  Secretary  of  War.  In  the  case  of  the  United  States  v.  Jones  (18  How., 
92,  95)  the  court  held  "that  the  Secretary  of  the  Navy  represents  the  President  and 
exercises  his  power  on  the  subjects  confided  to  his  Department.  He  is  responsible 
to  the  people  and  to  the  law  for  any  abuse  of  the  powers  intrusted  to  him.  His  acts 
and  decisions  on  subjects  submitted  to  his  jurisdiction  and  control  by  the  Constitu- 
tion and  laws  do  not  require  the  approval  of  any  officer  of  any  other  department  to 
make  them  valid  and  conclusive.  The  accounting  officers  of  the  Treasury  have  not 
the  burden  cast  upon  them  of  reviewing  the  judgments,  correcting  the  supposed  mis- 
takes, or  annulling  the  orders  of  the  heads  of  departments."  See,  also,  U.  8. .v. 
Mi-Daniel,  7 Pet.,  1, 14;  U.  S.  v.  Eliason,  16 Pet,,  291;  Brownv.  U.S.,  113 U.  S.,568,  571; 
Edwards  v.  Darby,  12  Wheat.,  206;  U.  S.  v.  Pugh,  99  U.  S.,  265;  Parkhurst  v.  U.  S., 
29  Ct.  Cls.,  399.  . 

When  the  Government  is  estopped  from  further  controverting  a  question  adpdi- 
cated  by  a  court  of  competent  jurisdiction  it  is  the  duty  of  the  accounting  officers 


80  MILITARY    LAWS    OF   THE   UNITED   STATES. 

obtain  further  evidence  or  explanations  necessary  to  their 
settlement.  When  suspended  items  are  finally  settled,  a 
revision  may  be  had  as  in  the  case  of  the  original  settle- 
ment. Action  upon  any  account  or  business  shall  not  be 
delayed  awaiting  applications  for  revision:  Provided, 
That  the  Secretary  of  the  Treasury  shall  make  regula- 
tions fixing  the  time  which  shall  expire  before  a  warrant 
is  issued  in  payment  of  an  account  certified  as  provided 
in  sections  seven  and  eight  of  this  act.  Sec.  8,  ibid. 
Examination  202.  In  the  case  of  claims  presented  to  an  Auditor  which 

of  certain  claims.  •  ... 

sec.i4,*trf.      have  not  had  an  administrative  examination,  the  Auditor 
shall  cause  them  to  be  examined  by  two  of  bis  subordinates 
independently  of  each  other.     Sec.  11+,  ibid. 
be     203>  -^11  decisions  by  Auditors  making  an  original  con- 
struction  or  modifying  an  existing  construction  of  statutes 

sec.  s,  ibid.  shall  be  forthwith  reported  to  the  Comptroller  of  the  Treas- 
ury, and  items  in  any  account  affected  by  such  decisions 
shall  be  suspended  and  payment  thereof  withheld  until  the 
Comptroller  of  the  Treasury  shall  approve,  disapprove, 
or  modify  such  decisions  and  certify  his  actions  to  the 
Auditor.  All  decisions  made  by  the  Comptroller  of  the 

to  follow  the  decision  in  subsequent  settlements  of  the  parties'  accounts.  The  legis- 
lation of  Congress  and  the  decisions  of  the  Supreme  Court  unmistakably  indicate 
that  judgments  of  this  court,  not  appealed  from,  are  obligatory  upon  the  Govern- 
ment as  upon  the  claimant,  and  are  intended  to  be  guides  and  precedents  for  the 
Executive  Departments.  Meigs  v.  U.  S.,  20  Ct.  Cls.,  181;  U.  S.  v.  O'Grady,  22 
Wall.,  641;  Wis.  Cent.  R.  R.  Co.  v.  U.  S.,  164  U.  S.,  190.  • 

Under  section  8  of  the  act  of  July  31, 1894,  an  appeal  will  not  lie  to  the  Comptroller 
of  the  Treasury  except  from  the  final  certificate  of  an  auditor.  A  suspension  of  action 
upon  a  case  by  an  auditor  is  not  a  final  decision  of  such  officer.  Ibid. ,  381.  An  appeal 
to  the  Comptroller  from  the  action  of  an  auditor  will  not  lie  until  the  auditor  has  taken 
final  action  in  the  case.  A  suspension  for  further  evidence  is  not  a  final  decision  upon 
which  an  appeal  can  be  based.  I  Compt.  Dec.,  448,  500. 

In  a  case  where  the  Auditor  for  the  War  Department  disallowed  the  claim  of  a 
soldier  for  pay  and  allowances  upon  the  ground  of  desertion,  and,  subsequent  to  said 
settlement,  the  Secretary  of  War  has  removed  the  charge  of  desertion  and  issued  a 
discharge  certificate  under  the  act  of  March  2,  1889:  Held,  That  the  application  for 
pay  and  allowances  upon  said  amendment  of  record  is  a  new  claim,  coming  within 
the  jurisdiction  of  the  Auditor  for  the  War  Department,  and  is  not  to  be  regarded  as 
an  appeal  under  section  8,  act  of  July  31, 1894,  or  an  application  for  a  rehearing.  Ill 
Compt.  Dec.,  144;  IV  ibid.,  303,  332,  471,  622,  723. 

Under  the  act  of  July  31, 1894,  an  auditor  has  no  jurisdiction  to  review  his  own  final 
action  in  the  settlement  of  an  account,  but  such  settlement  can  be  reopened  only  on 
a  revision  thereof  by  the  Comptroller  of  the  Treasury  within  a  year,  as  provided  in 
section  8  of  said  act.  I  Compt.  Dec.,  27.  See,  also,  ibid.,  pp.  31,  78,  87,  139,  199, 
317,  381,  448,  500,  502;  II  ibid.,  pp.  4,  401,  510. 

Where  an  auditor  disallows  certain  items  in  an  account  which  have  been  allowed 
claimant  by  a  paymaster,  it  amounts  to  a  formal  settlement  of  the  account  of  such 
claimant,  from  which  an  appeal  may  be  taken  under  section  8  of  the  act  of  July  31, 
1894.  II  Compt.  Dec.,  4.  Under  section  8  of  the  act  of  July  31,  1894,  appeals  from 
disallowances  by  the  auditors  must  be  taken  within  a  year  from  the  date  of  the  settle- 
ment. If  taken  after  the  expiration  of  a  year,  the  Comptroller  is  without  jurisdiction 
to  entertain  the  appeal.  Ibid.,  510. 

For  a  prohibition  of  the  payment,  by  deduction  from  balance  found  due,  of  attor- 
neys' fees  in  certain  cases,  see  paragraph  222,  post. 


MILITARY    LAWS    OF    THE    U1S1TED    STATES.  81 

Treasury  under  this  act  shall  be  forthwith  transmitted  to 
the  Auditor  or  Auditors  whose  duties  are  affected  thereby. 
Sec.  8,  ibid. 

204.  The  auditors  shall,  under  the  direction  of  the  Comp-   Auditors  to  pre- 

j.  , ,       m  F   serve  accounts. 

troller  of  the  Ireasury,  preserve  with  their  vouchers  and    sec.8,t&td. 
certificates  all  accounts  which  have  been  finally  adjusted. 
Sec.  8,  ibid. 

205.  The  transcripts  from  the  books  and  proceedings  of    certification  of 
the  Department  of  the  Treasury,  and  the  copies  of  bonds,  etc!* 
contracts,  and  other  papers,  provided  for  in  section  eight    Beo.i7.AM. 
hundred  and  eighty -six  of  the  Revised  Statutes,1  shall  here-  i895,Cv.28  p.8092 
after  be  certified  by  the  Secretary  or  an  Assistant  Secre- 
tary of  the  Treasury  under  the  seal  of  the  Department. 

Sec.  17,  ibid. ,  as  amended  by  sec.  10,  act  of  March  #,  1895 
(28  Stat.  L.,809). 

206.  Nothing  in  this  act  shall  be  construed  to  authorize    settled  claims 

,,  ,.  j  „  ,    .  not  reopened. 

the  reexarnmation  and  payment  of  any  claim  or  account    sec.23,iwd. 

which  has  heretofore  been  disajlowed  or  settled.2     Sec.  %3, 

ibid. 

207.  It  shall  be  the  duty  of  the  Secretary  of  the  Treas-    secretary  of 

,  .    ,  -.  ,    . .  .        Treasury     to 

ury  to  make  appropriate  rules  and  regulations  for  carrying  make  rules  for 

•    •  £  xi_  •  J  £  *"••  new  methods  of 

out  tne  provisions  or  this  act,  and  tor  transferring  or  pre- accounting,  etc. 

V     ,  •  A    •    •  Sec.22,i6id. 

serving  books,  papers,  or  other  property  appertaining  to 
any  office  or  branch  of  business  affected  by  it.  Sec.  2%, 
ibid. 

1  Paragraph  1820,  post. 

2  The  accounting  officers  have  no  jurisdiction  to  reopen  settlements  made  by  their 
predecessors,  because  a  subsequent  decision  of  the  courts  has  so  changed  the  con- 
struction of  the  law  under  which  the  settlements  were  made  as  to  warrant  a  different 
result  in  the  settlements.     2  Compt.  Dec.,  401. 

Settled  accounts  in  the  Treasury  Department,  where  the  United  States  have  acted 
on  the  settlement  and  paid  the  balance  therein  found  due,  can  not  be  opened  or  set 
aside  years  afterwards  merely  because  some  of  the  prescribed  steps  in  the  accounting 
which  it  was  the  duty  of  a  head  of  a  department  to  see  had  been  taken  had  in  fact 
been  omitted,  or  on  account  of  technical  irregularities  when  the  remedy  of  the  party 
against  the  United  States  is  barred  by  the  statute  of  limitation  and  the  remedies  of 
the  United  States  are  intact,  owing  to  its  not  being  subject  to  an  act  of  limitation. 
U.  S.  v.  Johnston,  124  U.  S.,  236,  1  Compt.  Dec.,  192. 

The  act  of  July  31,  1894,  does  not  take  from  the  accounting  officers  the  right  to 
reopen  accounts 'which  have  been  settled,  either  by  themselves  or  their  predecessors, 
for  the  purpose  of  correcting  mistakes  of  fact  arising  from  errors  of  calculation,  or 
upon  the  production  of  newly  discovered  material  evidence,  or  for  fraud  or  collusion. 
4  Compt.  Dec. ,  303.  But  see  1  ibid. ,  27;  2  ibid.,  210.  The  Comptroller  has  the  exclu- 
sive right  to  reopen  an  account  which  has  been  revised  by  himself  or  his  predeces- 
sors. 4  ibid.,  303.  Before  the  expiration  of  a  year  the  right  of  revision  by  the 
Comptroller  is  exclusive,  and  an  Auditor  can  not  reopen  an  account  within  that 
period.  After  the  expiration  of  a  year  from  the  date  of  settlement,  an  Auditor  has 
the  exclusive  right  to  reopen  an  account  settled  by  himself  or  his  predecessors.  Ibid. 

Under  section  8  of  the  act  of  July  31,  1894,  the  Comptroller  of  the  Treasury  is 
authorized  to  revise,  upon  his  own  motion,  all  items  embraced  in  an  account,  includ- 
ing items  upon  which  payment  has  been  accepted;  and,  in  particular  instances,  where 
justice  requires  it,  such  authority  may  be  exercised  in  favor  of  a  claimant.  4  Compt. 
Dec.,  623. 

22924-08 6 


82  MILITARY    LAWS    OF    THE    UNITED    STATES. 

Rules,  etc.,  by     208.  It  shall  also  be  the  duty  of  the  heads  of  the  several 

heads  of  depart-  T>k  ,      f     ,  „ 

ments,  etc.  E/xecutive  Departments  and  ot  the  proper  othcers  or  other 
Government  establishments,  not  within  the  jurisdiction  of 
any  Executive  Department,  to  make  appropriate  rules  and 
regulations  to  secure  a  proper  administrative  examination 
of  all  accounts  sent  to  them,  as  required  by  section  twelve 
of  this  act,  before  the  transmission  to  the  Auditors,  and 
for  the  execution  of  other  requirements  of  this  act  in  so 
far  as  the  same  relate  to  the  several  departments  or  estab- 
lishments. Sec.  2%,  ibid. 

REQUISITIONS   FOR   FUNDS. 

Requisitions  209.  Every  requisition  for  an  advance  of  money1  before 
funds.  being  acted  on  by  the  Secretary  of 0  the  Treasury,  shall  be 

sent  to  the  proper  Auditor  for  action  thereon  as  required 
by  section  twelve  of  this  act. 

warrants.  All  warrants,  when  authorized  by  law  and  signed  by  the 

Secretary  of  the  Treasury;  shall  be  countersigned  by  the 
Comptroller  of  the  Treasury,  and  all  warrants  for  the  pay- 
ment of  money  shall  be  accompanied  either  by  the  Audi- 
tor's certificate,  mentioned  in  section  seven  of  this  act,  or  by 
the  requisition  for  advance  of  money,  which  certificate  or 
requisition  shall  specify  the  particular  appropriation  to 
which  the  same  should  be  charged,  instead  of  being  speci- 
fied on  the  warrant,  as  now  provided  by  section  thirty-six 
hundred  and  seventy -five  of  the  Revised  Statutes;  and 
shall  also  go  with  the  warrant  to  the  Treasurer,  who  shall 
return  the  certificate  or  requisition  to  the  proper  Auditor, 
with  the  date  and  amount  of  the  draft  issued  indorsed 
thereon.  Requisitions  for  the  payment  of  money  on  all 
audited  accounts,  or  for  covering  money  into  the  Treasury, 
shall  not  hereafter  be  required.  And  requisitions  for 
advances  of  money  shall  not  be  countersigned  by  the  Comp- 
troller of  the  Treasury.  Sec.  11,  ibid. 

DIVISION    OF   BOOKKEEPING    AND    WARRANTS. 

The    Division     210.  The  Division  of  Warrants,  Estimates,  and  Appro- 

of  -Bookkeeping 

and  warrants,  priations  in  the  office  of  the  Secretary  of  the  Treasury  is 
hereby  recognized  and  established  as  the  Division  of  Book- 
keeping and  Warrants.  It  shall  be  under  the  direction  of 

1  Section  8  of  the  act  of  July  31, 1894,  has  no  application  to  the  questions  respecting 
the  advance  of  funds  which,  under  this  section,  are  subject  to  the  decision  of  the 
Auditor,  with  a  review  by  the  Secretary  of  the  Treasury.  1  Compt.  Dec.,  409. 


MILITARY    LAWS    OF   THE    UNITED    STATES.  83 

the  Secretary  of  the  Treasury  as  heretofore.  Upon  the 
books  of  this  division  shall  be  kept  all  accounts  of  receipts 
and  expenditures  of  public  money  except  those  relating  to 
the  postal  revenues  and  expenditures  therefrom;  and  sec- 
tions three  hundred  and  thirteen  and  so  much  of  sections 
two  hundred  and  eighty -three  and  thirty-six  hundred  and 
eighty-five  of  the  Revised  Statutes  as  require  those  accounts 
to  be  kept  by  certain  Auditors  and  the  Register  of  the 
Treasury  are  repealed.  The  duties  of  the  Register  of  the 
Treasury  shall  be  such  as  are  now  required  of  him  in  con- 
nection with  the  public  debt  and  such  further  duties  as 
may  be  prescribed  by  the  Secretary  of  the  Treasury.  Sec. 
10,  ibid. 

MISCELLANEOUS    PROVISIONS. 

211.  This  act,1  so  far  as  it  relates  to  the  First  Comptroller 
of  the  Treasury  and  the  several  Auditors  and  Deputy 
Auditors  of  the  Treasury,  shall  be  held  and  construed  to 
operate  merely   as    changing  their  designations   and   as 
adding  to  and  modifying  their  duties  and  powers,  and  not 
as  creating  new  officers.     Sec.  9,  ibid. 

212.  All  laws  not  inconsistent  with  this  act,1  relating  to  tie7ta0nf^ $£' 
the  Auditors  of  the  Treasury  in  connection  with  any  mat-    sec.9,iwa. 
ter  shall  be  understood  in  each  case  to  relate  to  the  Audi- 
tor to  whom  this  act  assigns  the  business  of  the  Executive 
Departments  or  other  establishments  concerned  in  that 

matter.     Sec.  9,  ibid. 

213.  The  provisions  of  sections  three  to  twentv-three    New  account- 

^  ing   system  in 

inclusive  of  this  act l  shall  be  in  force  on  and  after  the  first  force  October  i, 
day  of  October,  eighteen  hundred  and  ninety -four.2     Sec.    sec.  24,  md. 
24,  ibid. 

1  Act  of  July  31,  1894  (28  Stat.  L.,  206). 

2  The  act  of  July  31,  1894,  also  contained  the  requirement  that  "all  accounts  stated 
by  the  Auditors  before  the  1st  day  of  October,  1894,  and  then  pending  for  settle- 
ment in  the  offices  of  the  First  or  Second  Comptroller,  or  the  Commissioner  of  Cus- 
toms, shall  be  revised  by  the  Comptroller  of  the  Treasury  in  the  manner  provided  by 
existing  law,  and  the  balances  arising  thereon  shall  be  certified  to  the  Division  of 
Bookkeeping  and  Warrants."      Sec.  21,  act  of  July  31,  1894,  28  Stat.  L.,  206. 

For  section  3  of  the  act  of  July  31, 1894,  see  paragraph  194;  for  section  4  of  the  same 
statute  see  paragraph  196;  for  section  5  see  paragraph  195;  for  section  6  see  paragraph 
193;  for  section  7  see  paragraph  195;  for  section  8  see  paragraphs  199,  200,  201,  203, 
204,  and  for  section  9  see*  paragraphs  211  and  212;  for  section  10  see  paragraph  210; 
for  section  11  see  paragraph  209;  for  section  12  see  paragraphs  185  and  187;  for  section 
14  see  paragraph  202;  for  section  17  see  paragraph  205;  for  section  22  see  paragraphs 
207  and  208;  for  section  23  see  paragraph  206.  Section  13  relates  to  the  accounts  of 
certain  subordinate  officers  of  the  Department  of  Justice;  section  15  to  an  annual 
report  of  expenditures  to  be  rendered  to  Congress  by  the  Secretary  of  the  Treasury; 
sections  16,  18,  and  19  amend  sections  307,  2639,  and  3743  of  the  Revised  Statutes; 
section  20  relates  to  the  duties  of  collectors  of  customs. 


84  MILITARY    LAWS    OF    THE    UNITED    STATES. 

214<  AH  books,  papers,  and  other  matters  relating  to  the 


tfSierbnd°AS-  accounts  °f  officers  of  the  Government  in  the  District  ol 


Columbia  shall  at  all  times  be  subject  to  inspection  and  ex- 
s.  5,  v.  so,  p.  316.  animation  by  the  Comptroller  of  the  Treasury  and  the 
Auditor  of  the  Treasury  authorized  to  settle  such  accounts, 
or  by  the  duly  authorized  agents  of  either  of  said  officials.  * 
Sec.  5,  act  of  March  15,  1898  (30  Stat.  Z.,  316). 

ACCOUNTS   OF   LINE    OFFICERS    AND    PAYMASTERS. 
Par. 

215.  Settlement  of  accounts  of  line  offi- 

cers. 

216.  Same  of    paymasters    for    advance 

bounties. 


Par. 


217.  Overpayments  by  paymasters. 

218.  Return  of  discharge  certificates. 


215«  The  Auditor  of  the  Treasury  for  the  War  Depart- 
ent  shall  audit  and  settle  the  accounts  of  line  officers  of 
Res.  NO.  22,v.i5fhe  Army,  to  the  extent)  of  the  pay  due  them  for  their 
Sec.  278,  B.  s.  servjces  as  sucn)  notwithstanding  the  inability  of  any  such 
line  officer  to  account  for  property  intrusted  to  his  pos- 
session, or  to  make  his  monthly  reports  or  returns,  if  such 
Auditor  shall  be  satisfied  by  the  affidavit  of  the  officer  or 
otherwise  that  the  inability  was  caused  by  the  officer's 
having  been  a  prisoner  in  the  hands  of  the  enemy,  or  by 
any  accident  or  casualty  of  war.2 
settlement  of     216.  Any  moneys  paid  by  a  paymaster  in  the  Army  to 

advance  boun-  ^  ^       r  •*        L     •*  * 

ties  paid  by  pay-  an  enlisted  man  as  an  advance  bounty  shall  be  allowed  in 

masters. 

78Msar63v18i23'  c-  the  settlement  of  the  accounts  of  the  paymaster,  notwith- 
74|ec  aso  B  s  s^an(^mR  the  discharge  of  such  enlisted  man  before  serving 

the  time  required  by  law  to  entitle  him  to  payment  of  such 

moneys. 
settlement  of     217.  The  proper  accounting  officers  are  authorized,  in  the 

overpayments  by 

paSai6ili868  c  settlement  of  the  accounts  of  the  paymasters  of  the  Army, 
29sv'  ^sF'  B2'  s  ^°  a^ow  sucn  credits  for  overpayments  made  in  good  faith 
on  public  account,  since  the  fourteenth  day  of  April,  eight- 
een hundred  and  sixty-one,  and  before  the  sixteenth  day 
of  March,  eighteen  hundred  and  sixty-eight,  as  shall  appear 
to  them,  by  such  vouchers  and  testimony  as  they  shall 
require,  to  be  just.3 

1This  enactment  replaces  a  similar  provision  in  the  act  of  February  19,  1897  (29 
Stat.  L.,  550). 

2  The  duties  of  the  Second  Auditor  of  the  Treasury  were  *  by  section  7  of  the  act  of 
July  31,  1894  (28  Stat.  L.,  206),  devolved  on  the  Auditor  of  the  Treasury  for  the  War 
Department. 

3  The  first  section  of  the  act  of  June  23,  1870  (16  Stat.  L.,  166),  authorizing  the 
accounting  officers  of  the  Treasury,  in  settling  the  accounts  of  disbursing  officers  of 
the  War  and  Navy  Departments  during  the  rebellion,  to  allow,  under  certain  circum- 
stances, such  credits  for  overpayments,  loss  of  funds,  vouchers,  and  property,  as  they 
may  deem  just  and  reasonable,  have  no  application  to  the  case  of  a  disbursing  officer 
who  failed  to  account  for  money  received,  and  who  never  presented  any  claim  for  a 
credit  for  overpayment,  or  loss  of  funds,  vouchers,  or  property.     U.  S.  v.  Wade,  75 
Fed.  Kep,.  261, 


MILITARY    LAWS    OF   THE    U KITED   STATES.  85 

218.  In  all  cases  where  it  has  become  necessary  for  any  h Evidence  of 
officer  or  enlisted  man  of  the  Army  to  file  his  evidence  of  charge  to  be  re- 

.     J  turned  to  officers 

honorable  discharge  from  the  military  service  of  the  United  J^d  enlisted 
States,  to  secure  the  settlement  of  his  accounts,  the  account-  N^a£24'V87i6Res' 
ing  officer  with  whom  it  has  been  filed  shall,  upon  applica-  37|ec  2g2  R'  g 
tion  by  said  officer  or  enlisted  man,  deliver  to  him  such 
evidence  of  honorable  discharge;   but  his  accounts  shall 
first  be  duly  settled,  and  the  fact,  date,  and  amount  of 
such  settlement  shall  be  clearly  written  across  the  face  of 
such  evidence  of  honorable  discharge,  and  attested  by  the 
signature  of  the  accounting  officer  before  it  is  delivered. 

CLAIMS. 

219.  All  claims  and  demands  whatever  by  the  Unitedb/^ttlce1|iFst^ 
States  or  against  them,  and  all  accounts  whatever  in  which  the^reaSiry  °f 
the  United  States  are  concerned,  either  as  debtors  or  cred-    Sec*  286> B* s* 
itors,  shall  be  settled  and  adjusted  in  the  Department  of 

the  Treasury.1 

220.  The  Secretary  of  the  Treasury  shall,  at  the  com-  Cla?m8paiiowedf 
rnencementof  each  session  of  Congress,  report  the  amount  2  ^Jg7^1^1  s> 
due  each  claimant  whose  claim  has  .been  allowed  in  whole 

or  in  part  to  the  Speaker  of  the  House  of  Representatives 
and  the  presiding  officer  of  the  Senate,  who  shall  lay  the 
same  before  their  respective  Houses  for  consideration. 
Sec.  2,  act  of  July  7,  1884.  (®3  Stat.  Z., 


1  Sections  300  A  and  300  B  of  the  Revised  Statutes  authorized  certain  claims  of 
loyal  citizens,  for  property  furnished  to  the  armies  of  the  United  States  during  the 
war  of  the  rebellion  to  be  prosecuted  before  the  Quartermaster-General  and  the 
Commissary-General  of  Subsistence.  By  section  2  of  the  act  of  June  16,  1874  (18 
Stat.  L.,  75),  this  jurisdiction  was  extended,  but  was  finally  withdrawn  by  the  opera- 
tion of  the  acts  of  March  3,  1883  (chapters  93  and  116;  22  Stat.  L.,  457  and  485). 

The  act  of  March  3, 1849  (9  Stat,  L.,  414;  sees.  3482-3487,  R.  S.),  provided  for  the 
reimbursement  of  officers  and  men  for  horses  and  other  private  property  lost  in  the 
military  service.  Several  limitations  upon  the  filing  of  claims  under  this  act  have 
been  enacted  by  Congress;  but  the  general  limitation  will  be  found  in  section  2  of 
the  act  of  January  9,  1883  (22  Stat.  L.,  401),  which  contains  the  requirement  that 
"all  claims  arising  under  the  act  approved  March  3,  1849,  and  all  acts  amendatory 
thereof,  which  shall  not  be  filed  in  the  proper  department  within  one  year  after  the 
passage  of  this  act  shall  be  forever  barred  and  shall  not  be  received,  considered,  or 
audited  by  any  department  of  the  Government."  Section  2  of  the  act  of  August  13, 
1888  (25  Stat.  L.,  437) ,  suspended  the  limitation  as  to  the  presentation  of  claims  for 
losses  of  horses  during  the  war  of  the  rebellion  for  three  years.  The  act  of  March  3, 
1849,  therefore  became  inoperative  in  respect  to  general  claims  on  August  13,  1889, 
and  as  to  claims  for  horses,  etc.,  lost  during  the  rebellion,  on  August  13,  1891. 

In  the  performance  of  the  duty  imposed  by  this  statute  the  Secretary  of  the 
Treasury  is  not  subject  to  the  control  of  the  courts  of  the  United  States,  and  the  duty 
not  being  ministerial  in  character  a  writ  of  mandamus  will  not  lie  to  compel  the  allow- 
ance of  a  claim  presented  under  the  statute.  Kendall  v.  Stockton,  12  Pet.,  524; 
Decatur  v.  Paulding,  14  Pet.,  497,  515;  U.  S.  v.  Guthrie,  17  How.,  284,  304;  Brashear 
v.  Mason,  6  How.,  92,  102.  Such  action  on  the  part  of  the  courts  would  also  be  m 
the  nature  of  entertaining  a  suit  against  the  United  States,  which  is  not  within  their 
jurisdiction.  U.  S.  v.  Guthrie,  17  How.,  284,  305. 

Where  a  claim  within  the  scope  of  his  official  authority  was  submitted  to  the  Sec- 
retary of  the  Treasury,  and  by  him  decided  adversely,  it  is  incompetent  for  his  ofiicial 
successor  to  set  the  same  aside  or  reopen  it  unless  there  has  been  a  mistake  in  a  matter 


86  MILITARY   LAWS    OF   THE   UNITED    STATES. 

CLAIMS    OF    OFFICERS    AND     ENLISTED    MEN     FOR     PROPERTY     LOST    AND 

DESTROYED. 

Accounting     221.  The  proper  accounting  officers  of  the  Treasury  are 

officers  to  settle,  r   .  r  ,          _    ,.          & ,  .         .•  J     . 

claims  of  officers  hereby  authorized  and  directed  to  examine  into,  ascertain, 

and  men  in  mili-        s    ,    .  ••_  i  /.  ,  i 

tary  service  for  and  determine  me  value  or  me  private  property  belonging 
destroyed.0  *  to  officers  and  enlisted  men  in  the  military  service  of  the 

United  States  which  has  been,  or  may  hereafter  be,  lost 

or  destroyed  in  the  military  service,  under  the  following 

circumstances: 

dSction^wS     First-  When  such  loss  or  destruction  was  without  fault 
neg?§enceult  °r°r  neg%ence  on  the  part  of  the  claimant.1 
by^derSonpur?-     Second.  Where  the  private  property  so  lost  or  destroyed 
seaworthy  ves-was  shipped  on  board  an  unsea worthy  vessel  by  order  of 

any  officer  authorized  to  give  such  order  or  direct  such 

shipment.2 

of  fact  or  materiax  testimony  discovered  and  produced.  VOpin.  Att.  Gen.,  664.  A 
head  of  a  department  of  the  Government  has  no  right  to  review  the  acts  of  his  pred- 
ecessors, except  to  correct  an  error  of  calculation.  He  can  not  recall  a  credit  given 
or  allowance  made.  Such  action  is  for  the  judiciary.  U.  S.  v.  Bank  of  Metropolis, 
15  Pet.,  377. 

The  accounting  officers  of  the  Treasury  have  no  jurisdiction  to  settle  claims  for 
unliquidated  damages  arising  from  the  torts  of  the  agents  of  the  Government.  II 
Compt.  Dec.,  174,  487;  McKee  v.  U.  S.,  12  Ct.  Cls.,  556;  Dennis  v.  U.  S.,  20  ibid,  II; 
XIV  Opin.  Att.  Gen.,  24.  Nor  have  the  accounting  officers  such  jurisdiction  over  a 
claim  for  unliquidated  damages  not  arising  from  the  tortious  act  of  an  officer  of  the 
Government.  II  Compt.  Dec.,  487;  I  ibid,  261;  II  ibid,  174. 

1  Clause  first  stands  alone  as  an  independent  basis  for  a  claim,  and  was  intended  *o 
reach  cases  not  covered  by  the  other  two  clauses.  This  clause  is  broader  in  its  scope 
than  the  two  succeeding  clauses,  but  absence  of  fault  or  negligence  must  be  proven 
if  the  claim  is  made  under  it.  Broad  as  this  clause  is,  it  does  not  cover  every  case  of 
loss  an  officer  or  soldier  might  sustain  in  his  "  reasonable,  useful,  and  necessary" 
property  while  he  was  in  the  military  service.  II  Compt.  Dec. ,  644,  647. 

Stating  the  proposition  in  other  words,  it  does  not  make  the  United  States  the 
absolute  insurer,  against  all  accidents  and  contingencies,  of  the  reasonable,  useful, 
and  necessary  property  of  officers  and  soldiers.  To  entitle  a  person  to  reimbursement 
under  this  clause  the  loss  or  destruction  must  be  without  fault  or  negligence,  directly 
or  indirectly,  near  or  remote,  of  the  owner,  and  must  have  been  caused  by,  or  resulted 
from,  some  exigency  or  necessity  of  the  military  service.  It  must  reasonably  be 
attributable  to  the  fact  that  it  was  held  in  the  military  service,  whereby  the  owner 
was  deprived,  in  some  degree,  of  the  control  over  it  which  he  would  have  in  civil 
life,  and  where  it  would  be  subjected  to  dangers  not  ordinarily  incident  to  its  use  in 
civil  life.  Under  all  conditions  of  a  use  of  such  personal  property  as  is  covered  by 
the  law  it  is  subject  to  deterioration  and  loss;  but  in  the  military  service  the  dangers 
are  greater  and  peculiar  because  of  the  environments  of  that  service.  It  was  to  pro- 
vide against  personal  loss  resulting  from  these  special  and  peculiar  dangers  that  this 
law  was  enacted.  Any  other  view  of  the  law  would  make  the  United  States  the 
insurer  of  all  personal  property  necessarily  used  in  its  service  by  officers  and  soldiers. 
This  can  not  have  been  the  intent  of  Congress.  If  it  be  held  that  absence  of  fault 
or  negligence  is  the  only  condition  precedent  to  reimbursement  an  officer  would  be 
entitled  to  payment  for  a  horse  dying  from  old  age,  or  a  uniform,  side  arms,  or 
household  furniture  worn  out  in  use.  Ill  Compt.  Dec.,  637. 

2 The  true  construction  of  clause  second  is  that  the  claimant  is  entitled  to  reim- 
bursement without  being  required  to  show,  affirmatively,  that  he  was  not  guilty  of 
negligence,  "where  the  private  property  was  shipped  on  board  an  unseaworthy 
vessel  by  order  of  any  officer  authorized  to  give  such  order  or  direct  such  shipment." 
The  leading  idea  in  this  clause  is  that  the  loss  would  be  attributable  to  the  unsea- 
worthiness of  the  vessel,  and  that  the  soldier  sustaining  the  loss  would  have  no 


MILITARY    LAWS    OF    THE    UNITED    STATES.  87 

Third.  Where  it  appears  that  the  loss  or  destruction  of   when  lost  in 

,1  j,    ,,          ,    .  .  saving   property 

the  private  property  of  the  claimant  was  in  consequence of  CtoneS  states. 
of  his  having  given  his  attention  to  the  saving  of  the  prop- 
erty belonging  to  the  United  States  which  was  in  danger 
at  the  same  time  and  under  similar  circumstances.  And 
the  amount  of  such  loss  so  ascertained  and  determined 
shall  be  paid  out  of  any  money  in  the  Treasury  not  other- 
wise appropriated,  and  shall  be  in  full  for  all  such  loss  or 
damage:  Provided,  That  any  claim  which  shall  be  pre-  Mar.  3,  isas,  v. 
sented  and  acted  on  under  authority  of  this  act  shall  be 23>  P<  m' 
held  as  finally  determined,  and  shall  never  thereafter  be 
reopened  or  considered :  And  provided  further,  That  this 
act  shall  not  apply  to  losses  sustained  in  time  of  war  or 
hostilities  with  Indians:  And  provided  further,  That  the 
liability  of  the  Government  under  this  act  shall  be  limited 
to  such  articles  of  personal  property  as  the  Secretary  of 
War,  in  his  discretion,  shall  decide  to  be  reasonable,  use- 
ful, necessary,  and  proper  for  such  officer  or  soldier  while 

option  as  to  the  shipment  on  said  vessel  and  no  responsibility  for  a  loss  under  such 
circumstances.     II  Compt.  Dec.,  647. 

To  entitle  a  person  to  recover  under  the  first  clause  of  the  act  the  following  facts, 
among  others,  must  be  established: 


for  him 

alone,  as  it  were,  personal  to  him  in  the  performance  of  his  duty." 

2.  The  property  must  be  such  as  the  Secretary  of  War  shall  decide  to  be  reason- 
able, to  be  useful,  and  to  be  necessary  for  such  officer  or  soldier  while  in  quarters, 
engaged  in  the  public  service  in  the  line  of  duty. 

3.  The  loss  must  have  been  without  fault  or  negligence,  in  any  degree,  of  the 
claimant. 

4.  The  loss  must  have  been  caused  by  some  exigency  or  necessity  of  the  military 
service,  such  as  would  naturally  be  attributable  to  and  would  flow  from  such  service. 
To  establish  a  case  under  this  act  the  property  must  have  been  lost  or  destroyed  in 
the  military  service;  not  merely  while  it  was  in  use  in  that  service,  but  because  it 
was  in  that  service.     Being  in  that  service  must  have  been  the  proximate  cause  of 
the  loss. 

5.  The  loss  must  not  have  been  caused  by  the  natural  wear  and  tear,  or  deteriora- 
tion, of  the  articles  in  ordinary  use  in  the  service.     Inherent  defects  in  articles,  on 
account  of  which  they  are  unable  to  stand  the  ordinary  strain  of  the  service,  will 
prevent  recovery. 

6.  Payment  must  be  limited  to  the  commercial  value  of  the  articles  at  the  time  of 
their  loss,  and  not  exceed  the  value  of  such  articles  as  it  was  necessary  for  the  officer 
or  soldier  to  have  in  the  service.     Unusually  expensive  articles  can  not  be  considered 
necessary.     The  purchase  price  of  an  article  is  more  likely  to  be  a  fair  measure  of  its 
value  than  the  estimate  placed  upon  it  after  the  purchaser  obtains  possession  of  it. 
The  purchase  price  should  not  be  exceeded  without  good  cause  shown. 

7.  Proof  of  absence  of  fault  or  negligence  must  state  all  the  circumstances,  and  be 
sufficiently  elaborate  to  enable  the  accounting  officers  to  reach  their  own  conclusions. 
Mere  opinions  or  conclusions  of  witnesses,  without  full  statement  of  facts  upon  which 
they  are  based,  are  of  little  value. 

8.  Any  want  of  proper  care  either  in  the  claimant  or  his  servant,  or  the  incompe- 
tency  of  the  servant,  will  prevent  recovery. 

9.  It  is  the  duty  of  owners  to  care  for  their  property;  any  voluntary  relaxation  of 
that  care  by  intrusting  it  to  others,  is  negligence  within  the  meaning  of  the  law. 

Although  under  clause  second  the  claimant  is  not  required  to  show  affirmatively 
that  he  was  not  guilty  of  fault  or  negligence,  this  will  not  be  understood  as  preclud- 
ing the  Government  from  showing  that  he  was  so  guilty,  and,  if  so  found,  he  will 
not  be  entitled  to  recover. 


88  MILITARY    LAWS    OF    THE    UNITED    STATES. 

in  quarters,  engaged  in  the  public  service,  in  the  line  of 
claims  to  be  duty :  And  provided  further.  That  all  claims  now  existing 

presented  in  two         ^  2  f 

years.  shall  be  presented  within  two  years  and  not  alter  trom  the 

passage  of  this  act;  and  all  such  claims  hereafter  arising 
be  presented  within  two  years  from  the  occurrence  of  the 
loss  or  destruction.1     Act  of  March  3,  1885  (23  Stat.  L., 
350). 
NO  deductions     222.  In  the  settlement  of  claims  of  officers,  soldiers,  sail- 

for  attorneys' 

fees.  ors,  and  marines,  or  their  representatives,  and  all  other 

June  6,  1900,  v.          '  '  •       -    j-    ,-  * 

si,  p.  637.  claims  for  pay  and  allowances  within  the  ]urisdiction  of 

the  Auditor  for  the  War  Department  or  the  Auditor  for 
the  Navy  Department,  presented  and  filed  hereafter  in 
which  it  is  the  present  practice  to  make  deductions  of 
attorneys'  fees  from  the  amount  found  due,  no  deductions 
of  fees  for  attorneys  or  agents  shall  hereafter  be  made, 
but  the  draft,  check,  or  warrant  for  the  full  amount  found 
due  shall  be  delivered  to  the  payee  in  person  or  sent  tc 
his  bona  fide  post-office  address  (residence  or  place  of  busi- 
ness). Act  of  June  6,  1900  (31  Stat.  L.,  637). 

REIMBURSEMENT  OF  STATES  AND  TERRITORIES  FOR  EXPENSES  INCURRED 
IN  RAISING  AND  EQUIPPING  VOLUNTEERS  DURING  THE  WAR  WITH 
SPAIN. 


Par. 

223,  224.  Reimbursement  of  States. 

225.  Rates  of  pay. 

226.  Transportation  to  State  rendezvous. 

227.  Subsistence. 


Par. 


228.  Expenses. 

229.  Transportation  of  troops. 

230.  Limitation. 


Reimburse-     223.  The  Secretary  of  the  Treasury  is  hereby,  directed, 

ment  of   States,  f  ,  . 

etc.,  July  g,  1898.  out  of  any  money  in  the  Treasury  not  otherwise  appro- 
priated, to  pay  to  the  governor  of  any  State  or  Ter- 
ritory, or  to  his  duly  authorized  agents,  the  reasonable 
costs,  charges,  and  expenses  that  have  been  incurred  by 

1  Under  clause  third  the  claimant  must  show  that  he  was  not  guilty  of  fault  or  neg- 
ligence other  than  of  neglecting  his  own  property  in  his  efforts  to  save  that  of  the 
Government.  Ill  Compt.  Dec.,  636;  see,  also,  II  ibid.,  644;  III  ibid.,  636,  659;  XIX 
Opin.  Att.  Gen.,  693;  G.  O.  35,  A.  G.  O.,  1896;  G.  O.  39,  A.  G.  0.,  1897;  Circular  1, 
A.  G.  O.,  1897. 

Paragraph  807,  Army  Regulations  of  1901,  contains  the  following  requirement: 
' '  For  private  property  of  officers  or  enlisted  men  lost  or  destroyed  in  the  military 
service,  without  fault  or  negligence  on  the  part  of  the  claimant,  '  where  the  private 
property  so  lost  or  destroyed  was  shipped  on  board  an  unseaworthy  vessel  by  order 
of  any  officer  authorized  to  give  such  order  or  direct  such  shipment,'  or  'where  it 
appears  that  the  loss  or  destruction  of  the  private  property  of  the  claimant  was  in 
consequence  of  his  having  given  his  attention  to  the  saving  of  the  property  belong- 
ing to  the  United  States  which  was  in  danger  at  the  same  time  arid  under  similar  cir- 
cumstances,' compensation  may  be  made  under  the  provisions  of  the  act  of  Congress 
approved  March  3,  1885.  Proceedings  of  a  board  of  survey  will,  if  possible,  accom- 
pany each  application  under  this  act,  showing  fully  the  circumstances  attending  the 
loss  *  *  *  ." 


MILITARY    LAWS    OF    THE    UNITED    STATES.  89 

him  in  aiding  the  United  States  to  raise  the  Volunteer 
Army  in  the  existing  war  with  Spain,  by  subsisting,  cloth- 
ing, supplying,  equipping,  paying,  and  transporting  men 
of  his  State  or  Territory  who  were  afterwards  accepted 
into  the  Volunteer  Army  of  the  United  States:  Provided, 
That  the  transportation  paid  for  shall  be  only  the  trans- 
portation of  such  men  from  the  place  of  their  enrollment 
for  service  in  the  Volunteer  Army  of  the  United  States 
to  the  place  of  their  acceptance  into  the  same  by  the  United 
States  mustering  officer,  and  that  the  names  of  the  men 
transported  shall  appear  on  the  muster  rolls  of  the  Volun- 
teer Army  of  the  United  States:  And  provided  further, 
That  such  claims  shall  be  settled  upon  proper  vouchers  to 
be  filed  and  passed  upon  by  the  proper  accounting  officers 
of  the  Treasury :  And  provided  further,  That,  in  cases 
where  the  money  to  pay  said  costs,  charges,  and  expenses 
has  been,  or  may  hereafter,  be  borrowed  by  the  governors 
or  their  respective  States  or  Territories,  and  interest  is 
paid,  or  may  hereafter  be  paid,  on  the  same,  by  the  gov- 
ernors or  their  States  or  Territories,  from  the  time  it  was 
or  may  be  so  borrowed  to  the  time  of  its  refunduient  by 
the  United  States,  or  thereafter,  such  interest  shall  not  be 
refunded  by  the  United  States;  nor  shall  any  interest  be 
paid  the  governors  or  their  States  or  Territories  on  the 
amounts  paid  out  by  them,  nor  any  other  amount  refunded 
or  paid  than  is  in  this  act  expressly  mentioned.1  Act  of 
July  8,  1898  (30  Stat.  Z.,  730.) 

224.  That  the  act  entitled  "An  act  to  reimburse  the  Thesame^  ^ 
governors  of  States  and  Territories  for  expenses  incurred30. p-1356- 
by  them  in  aiding  the  United  States  to  raise  and  organize 
and  supply  and  equip  the  Volunteer  Army  of  the  United 
States  in  the  existing  war  with  Spain,"  approved  July 
eighth,  eighteen  hundred  and  ninety -eight,  be  so  amended 
that  the  Secretary  of  the  Treasury  shall  be,  and  is  hereby, 
authorized  to  allow,  in  the  settlement  of  the  claims  of  the 
governors  of  States  and  Territories  for  reimbursement 
under  the  provisions  of  the  said  act,  expenses  incurred  after 
as  well  as  before  July  eighth,  eighteen  hundred  and  ninety  - 

1  All  claims  for  expenses  incurred  by  any  State  or  Territory  in  aiding  the  United 
States  to  raise  the  Volunteer  Army  in  the  existing  war  with  Spain  by  subsisting, 
clothing,  supplying,  equipping,  paying,  and  transporting  men  of  such  State  or  terri- 
tory who  were  afterwards  accepted  into  the  Volunteer  Army  of  the  United  States 
should  be  forwarded  to  the  Secretary  of  the  Treasury  for  audit  and  settlement  by 
the  accounting  officers  of  the  Treasury,  in  accordance  with  the  terms  of  the  above- 
quoted  act.  G.  O.,  97,  A.  G.  0.,  1898. 

The    act  of  March  3,   1899   (30  Stat.  L.,   1356),  paragraph  230,  post,  contains  i 
requirement  that  claims  under  this  statute  must  be  presented  on  or  before  Jai 
1,  1902,  or  be  forever  barred. 


90  MILITARY    LAWS    OF    THE    UNITED    STATES. 

eight:  Provided,  That  no  reimbursement  shall  be  made 
for  service  of  members  of  the  National  Guard,  or  organized 
militia,  or  naval  reserves  of  any  State  or  Territor}^  who 
were  not  accepted  into  the  Volunteer  Army  of  the  United 
States,  and  no  reimbursement  shall  be  allowed  for  pay- 
ments made  to  any  person  in  excess  of  the  pay  and  allow- 
ances authorized  by  the  laws  of  the  State  or  Territory 
for  the  grade  in  which  he  was  accepted  into  the  Volunteer 
Army  of  the  United  States.  That  the  compensation 
allowed  by  the  laws  of  the  States  and  Territories  to  officers 
and  men  of  the  National  Guard,  or  militia,  or  naval  re- 
serves of  said  States  and  Territories  shall  be  allowed  to 
the  States  and  Territories,  or  the  governors  of  the  States 
and  Territories,  as  pay  for  such  officers  and  men  of  said 
National  Guard,  or  militia,  or  naval  reserves  as  appeared 
and  remained  at  the  place  of  muster,  arid  who  were  after- 
wards received  into  the  service  of  the  United  States  for 
the  period  between  the  -date  of  assembly  at  the  rendezvous 
and  the  date  they  were  mustered  into  the  United  States 
service.  Act  of  March  3,  1899  (30  Stat.  Z.,  1356.} 
fbaidesofpay'  225<  In  aH  States  and  Territories  where  no  laws  exist 
for  the  payment  of  the  officers  and  men  of  the  National 
Guard,  or  militia,  or  naval  reserves,  there  shall  be  allowed 
to  said  States  and  Territories,  or  the  governors  of  said 
States  and  Territories,  for  the  officers  the  same  pay  as 
allowed  officers  in  the  Regular  Army  holding  the  same 
rank,  and  for  the  men,  one  dollar  per  day,  for  such  officers 
and  men  as  appeared  and  remained  at  the  place  of  muster 
and  were  afterwards  received  into  the  service  of  the  United 
States  for  the  period  between  the  date  of  assembly  at  the 
rendezvous  and  the  date  they  were  mustered  into  the  serv- 
ice of  the  United  States :  Provided  further,  That  for  all 
officers  and  men  of  the  National  Guard,  or  militia,  or  naval 
reserves  of  the  States  and  Territories,  who  appeared  at 
the  rendezvous  for  muster,  and  were  rejected  by  the  med- 
ical examiner  or  mustering  officer,  pay  shall  be  allowed 
for  the  same  to  the  States  and  Territories  or  the  governors 
of  States  and  Territories,  at  the  several  rates  as  fixed  as 
aforesaid  from  the  date  of  assembly  to  the  date  of  their 
rejection:  Provided  further,  That  where  States  and  Ter- 
ritories have  not  paid  amounts  to  the  officers  and  men  or 
any  part  thereof  the  pay  allowed  them  by  this  Act,  the 
same  shall  be  paid  by  the  States  and  Territories  direct  to 
the  officers  and  men,  and  no  money  allowed  by  this  Act 
for  officers  and  men  shall  be  covered  into  the  treasury  of 
the  State  or  Territory.  Ibid. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  91 

226.  Under  the  appropriation  made  by  said  Act  the  Sec-    Transportation 
retary  of  the  Treasury  is  hereby  authorized  to  reimburse  vous!ate 

the  governor  of  any  State  or  Territory  for  reasonable 
expenses  incurred  by  him  for  the  actual  transportation  of 
the  members  of  organized  militia,  or  National  Guard,  or 
naval  reserves  of  his  State  from  the  place  of  company, 
battalion,  or  regimental  rendezvous  to  the  State  rendez- 
vous, or  place  designated  for  examination  and  acceptance 
of  the  members  of  such  organization  into  the  Volunteer 
Army  of  the  United  States,  and  the  actual  transportation 
from  such  State  rendezvous,  or  such  place  designated  for 
examination  and  acceptance,  to  their  respective  company, 
battalion,  or  regimental  rendezvous  of  such  men  as  were 
rejected  by  the  medical  examiner  or  mustering  officer: 
Provided,  That  no  reimbursement  shall  be  made  for  the 
transportation  of  any  man  who  did  not  present  himself  for 
enrollment  in  the  Volunteer  Army  of  the  United  States  as 
provided  by  law:  And  provided  further,  That  the  pro- 
visions of  this  section  shall  apply  also  to  payments  made 
by  the  governor  of  any  State  or  Territory  for  the  actual 
transportation  of  individual  volunteers  who  presented 
themselves  for  enrollment  in  the  Volunteer  Army  of  the 
United  States  and  who  were  rejected  by  the  medical  exam- 
iner or  mustering  officer.  Sec.  2,  ibid. 

227.  Nothing  in  said  Act  of  July  eighth,  eighteen  hun- 
dred  and  ninety-eight,  shall  be  so  construed  as  to  prohibit 
the  reimbursement  of  the  governor  of  any  State  or  Terri- 
tory for  reasonable  expenses  incurred  for  the  subsistence 
of  the  members  of  any  organization  of  the  organized  militia 
or  National  Guard,  or  naval  reserves  of  his  State  or  Ter- 
ritory after  having  been  called  out  by  the  governor  on  or 
after  April  twenty-fifth,  eighteen  hundred  and  ninety- 
eight:  Provided,  That  such  organizations  shall  afterwards 
have  been  accepted  into  the  Volunteer  Army  of  the  United 
States.     Sec.  3,  ibid. 

228.  The  expenses  incurred  by  the  governors  of  States 

in  carrying  out  the  provisions  of  this  Act  shall  be  paid  to  sec.  4,  mu. 
them,  notwithstanding  any  unsettled  accounts,  claims,  or 
indebtedness  of  the  United  States  against  their  States,  and 
without  prejudice  to  such  unsettled  accounts:  Provided, 
That  when  such  unsettled  account  is  caused  by  a  default 
in  payment  of  principal  or  interest  on  any  bonds  or  stock 
issued  or  guaranteed  by  any  State,  the  ownership  of  which 
is  vested  in  the  United  States,  the  Secretary  of  the  Treas- 
ury be,  and  he  is  hereby,  authorized  and  directed  to  insti- 
tute any  act  or  proceeding  which  he  may  consider  advisable 


92  MILITARY    LAWS    OF   THE   UNITED    STATES. 

against  such  State  or  its  representatives  to  secure  the  pay- 
ment of  the  principal  and  interest  of  said  bonds  or  stocks: 
And  provided  further,  That  where  the  governor  of  any 
State  or  Territory,  or  any  officer  of  the  Array  detailed  as 
mustering  officer  of  volunteers,  or  any  commander  of  a 
company  or  companies,  or  troop  or  troops,  or  batterj7  or 
battalion,  or  regiment,  or  brigade,  has  purchased  or  author- 
ized the  purchase  of  supplies  or  equipments,  or  incurred 
any  necessary  expense  for  the  comfort  of  the  men  in  camp 
or  rendezvous,  and  said  supplies  were  used  and  equipments 
were  subsequently  taken  into  the  United  States  service  by 
said  volunteers,  and  no  receipts  given  to  such  military  offi- 
cer, the  certificate  to  that  effect  of  the  governor  of  the  State 
or  Territory  to  which  the  volunteers  belonged,  shall  be 
held  sufficient  to  authorize  the  settlement  and  payment  of 
such  account  on  investigation,  if  the  Treasury  Department 
shall  be  satisfied  of  the  fact  of  such  purchase  of  such  equip- 
ment and  supplies,  or  that  such  necessary  expenses  were 
incurred  and  such  use  of  such  supplies,  or  such  taking  of 
such  equipments  into  the  United  States  service,  and  the 
voucher  or  vouchers  of  said  officers  be  produced  by  said 
governor.  Sec.  4i 


Transporta-     229.  That  the  Secretary  of  the  Treasury  be,  and  is  herebv, 

tiou    of    troops.         ,1.1,  <.  •  "    ,i        m 

sec.  5,  ibid,  authorized  to  pay,  out  or  any  money  in  tne  1  reasury  not 
otherwise  appropriated,  the  just  and  proper  account  or 
claim  of  any  railroad,  transportation  company,  or  person 
for  transportation  of  men  or  troops  from  place  of  en- 
rollment to  point  of  rendezvous,  furnished  at  the  request 
of  the  Quartermaster-General  of  the  Army  or  his  agents, 
or  at  the  request  of  any  United  States  mustering  officer  or 
other  officer  authorized  by  the  Secretary  of  War  to  enroll, 
muster,  or  mobilize  volunteers  for  the  war  with  Spain; 
and  also  to  pay  such  just  and  proper  accounts  as  may  be 
presented  for  transportation  back  from  point  of  rendez- 
vous to  place  of  enrollment  of  men  who  volunteered  and 
were  rejected  by  the  medical  examiner  or  mustering  officer: 
Provided,  That  the  amount  allowed  and  paid  for  such  trans- 
portation shall  not  be  in  excess  of  the  rates  charged  for 
transporting  troops  of  the  United  States  under  like  cir- 
cumstances. 

All  claims  under  the  provision  of  this  Act  must  be  filed 

in  the  office  of  the  Auditor  for  the  War  Department,  and 

must  be  supported  by  proper  vouchers  or  other  conclusive 

evidence  of  interest.     Sec.  5,  ibid. 

Limitation  on     230.  All  claims  for  reimbursement  under  this  Act  or  the 

sec.  IB,  ma.     Act  of  July  eighth,  eighteen  hundred  and  ninety  -eight, 


MILITARY    LAWS    OF   THE    UNITED    STATES.  93 

shall  be  presented  in  itemized  form  to  the  Treasury  De- 
partment on  or  before  January  first,  nineteen  hundred  and 
two,  or  be  forever  barred. l  Sec.  6,  ibid. 

COMPROMISE    OF   CLAIMS   AND    PURCHASE    ON    EXECUTION. 

231.  Upon  a  report  by  a  district  attorney,  or  any  special    compromise  of 
attorney  or  agent  having  charge  of  any  claim  in  favor  of  Cl5£r!'3,  ises,  c. 
the  United  States,  showing  in  detail  the  condition  of  such  74o.s' 10' v' 12'  p' 
claim,  and  the  terms  upon  which  the  same  may  be  com-  e  Biatch.Gmge' 
promised,  and  recommending  that  it  be  compromised  upon 

the  terms  so  offered,  and  upon  the  recommendation  of  the 
Solicitor  of  the  Treasury,  the  Secretary  of  the  Treasury 
is  authorized  to  compromise  such  claim  accordingly.  But 
the  provisions  of  this  section  shall  not  apply  to  any  claim 
arising  under  the  postal  laws.2 

232.  At  every  sale,  on  execution,   at  the  suit  of   the    Purchase  on 
United  States,  of  lands  or  tenements  of  a  debtor,  the  e*May  26?is24,  c. 
United  States  may,  by  such  agent  as  the  Solicitor  of  the    sec.347o',R.s.' 
Treasury  shall  appoint,  become  the  purchaser  thereof;  but 

in  no  case  shall  the  agent  bid  in  behalf  of  the  United  States 
a  greater  amount  than  that  of  the  judgment  for  which 
such  estate  may  be  exposed  to  sale,  and  the  costs.  When- 
ever such  purchase  is  made,  the  marshal  of  the  district  in 
which  the  sale  is  held  shall  make  all  needful  conveyances, 
assignments,  or  transfers  to  the  United  States. 

SET-OFF. 

233.  When  any  final  judgment  recovered  against  the  Amountofdebt 

TT    -A.     ^  cij.  »   -        -11  TII         ;  due   United 

United  btates  or  other  claim  duly  allowed  by  legal  author-  states  to  be  witn- 
ity,  shall  be  presented  to  th'e  Secretary  of  the  Treasury  for  tary  of  Treasury 
payment,  and  the  plaintiff  or  claimant  therein  shall  bements,  etc.,  of 

j    i  j     i   .       . ,        TT    •       -in  debtor  against 

indebted  to  the  United  States  in  any  manner,  whether  as  united  states. 
principal  or  surety,  it  shall  be  the  duty  of  the  Secretary  toi8?5,  v.  is,  p.  431! 
withhold  payment  of  an  amount  of  such  judgment  or  claim 
equal  to  the  debt  thus  due  to  the  United  States;  and  if 
such  plaintiff  or  claimant  assents  to  such  set-off,  and  dis- 
charges his  judgment  or  an  amount  thereof  equal  to  said 
debt  or  claim,  the  Secretary  shall  execute  a  discharge  of 

1  For  statute  conferring  authority  upon  the  Secretary  of  War  to  investigate  claims 
for  loss  of,  or  injury  to,  property  during  the  war  with  Spain,  see  the  Act  of  June  6, 
1900  (31  Stat.  L.,  632),  par,  137,  ante. 

2  Compromise  of  claims. — Claims  against  the  United  States  which  are  disputed  by 
the  officers  authorized  to  adjust  such  accounts  may  be  compromised,  and  if  the 
claimant  voluntarily  enters  into  such  a  compromise  and  accepts  a  smaller  sum  than 
the  claim  and  executes  a  discharge  in  full  for  the  whole  claim,  he  is  bound  by  the 
adjustment  and  can  not  sue  for  what  he  lian  voluntarily  relinquished.     Sweeny  v. 
U.  S.',  17  Wall.,  75,  77;  Mason  v.  U.  S.,  ibid,  67. 


94  MILITARY    LAWS    OF   THE    UNITED    STATES. 

the  debt  due  from  the  plaintiff  to  the  United  States.  But 
if  such  plaintiff,  or  claimant,  denies  his  indebtedness  to  the 
United  States,  or  refuses  to  consent  to  the  set-off,  then  the 
Secretary  shall  withhold  payment  of  such  further  amount 
of  such  judgment,  or  claim,  as  in  his  opinion  will  be  suffi- 
cient to  cover  all  legal  charges  and  costs  in  prosecuting 
the  debt  of  the  United  States  to  final  judgment.  And  if 
such  debt  is  not  already  in  suit,  it  shall  be  the  duty  of  the 
Secretary  to  cause  legal  proceedings  to  be  immediately 
commenced  to  enforce  the  same,  and  to  cause  the  same  to 
be  prosecuted  to  final  judgment  with  all  reasonable  dis- 
patch.  And  if  in  such  action  judgment  shall  be  rendered 
against  the  United  States,  or  the  amount  recovered  for 
debt  and  costs  shall  be  less  than  the  amounts  so  withheld 
as  before  provided,  the  balance  shall  then  be  paid  over  to 
interest.  such  plaintiff  by  such  Secretary,  with  six  per  cent  interest 
thereon  for  the  time  it  has  been  withheld  from  the  plaintiff.1 
Act  of  March  3,  1875  (18  Stat.  L.,  481). 

ASSIGNMENTS    OF    CLAIMS,    POWERS    OF    ATTORNEY. 


234.  All  transfers  and  assignments  made  of  any  claim 
UIFeb.'2e6tci853  c  uPon  the  United  States,  or  of  any  part  or  share  thereof, 
iTO^JuiyjJo1?^'  O1   mterest  therein,  whether  absolute  or  conditional,  and 
cs6e6c.V84977P,'  ill's.  whatever  may  be  the  consideration  therefor,  and  all  powers 
of  attorney,  orders,  or  other  authorities  for  receiving  pay- 
ment of  any  such  claim,  or  of  any  part  or  share  thereof, 
shall  be  absolutely  null  and  void,  unless  they  are  freely 
made  and  executed  in  the  presence  of  at  least  two  attest- 
ing witnesses,  after  the  allowance  of  such  a  claim,  the 
ascertainment  of   the  amount  due,  and  the  issuing  of  a 
warrant  for  the  payment  thereof.     Such  transfers,  assign- 

1  Set-off.  —  When  a  person  is  both  debtor  and  creditor  of  the  United  States,  in  any 
form,  the  officers  of  the  Treasury  Department  in  settling  the  accounts  not  only  have 
the  power,  but  are  required,  in  the  proper  discharge  of  their  duties,  to  set  off  the  one 
indebtedness  against  the  other,  and  to  allow  and  certify  for  payment  only  the  bal- 
ance found  due  on  one  side  or  the  other.  *  *  *  The  right  of  set-off  in  such  cases 
exists  independently  of  these  enactments  (sec.  1766,  Rev.  Stat..  and  the  act  of  March 
3,  1875;  1  Sup.  to  Rev.  Stat.,  185),  and  is  founded  upon  what  is  now  section  236  of  the 
Revised  Statutes.  Taggart  v.  U.  S.,  17  Ct.  Cls.,  322,  327;  McKnight's  Case,  13  ibid., 
292;  Bonnafon's  Case,  14  ibid.,  489;  Howes  v.  U.  S.,  24  ibid.,  170;  Reeside  r.  Walker, 
11  How.,  272,  290.  The  power  in  the  matter  of  set-offs  conferred  upon  the  Secretary 
of  the  Treasury  by  the  act  of  March  3,  1875  (18  Stat.  L.,  481),  is  exclusive,  and  can 
not  be  exercised  by  the  courts.  U.  S.  v.  Griswold,  30  Fed.  Rep.,  604. 

Settled  accounts  in  the  Treasury  Department,  where  the  United  States  have  acted 
on  the  settlement  and  paid  the  balance  therein  found  due,  can  not  be  opened  or  set 
aside  years  afterwards  merely  because  some  of  the  prescribed  steps  in  the  accounting 
which  it  was  the  duty  of  a  head  of  a  Department  to  see  had  been  taken  had  in  fact 
been  omitted,  or  on  account  of  technical  irregularities  when  the  remedy  of  the  party 
against  the  United  States  is  barred  by  the  statute  of  limitation  and  the  remedies  of 
the  United  States  are  intact,  owing  to  its  not  being  subject  to  an  act  of  limitation. 
U.  S.  v.  Johnston,  124  U.  S.,  236,  1  Compt.  Dec.,  192. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  95 

ments,  and  powers  of  attorney,  must  recite  the  warrant 
for  payment,  and  must  be  acknowledged  by  the  person 
making1  them,  before  an  officer  having  authority  to  take 
acknowledgments  of  deeds,  and  shall  be  certified  by  the 
officer;  and  it  must  appear  by  the  certificate  that  the 
officer,  at  the  time  of  the  acknowledgment,  read  and  fully 
explained  the  transfer,  assignment,  or  warrant  of  attorney 
to  the  person  acknowledging  the  same. 1 

1  The  mischiefs  which  this  statute  were  intended  to  prevent  were  mainly  two:  (1) 
The  danger  that  the  rights  of  the  Government  might  be  embarrassed  by  having  to 
deal  with  several  persons  instead  of  one,  and  by  the  introduction  of  a  party  who  was 
a  stranger  to  the  original  transaction;  (2)  that,  by  a  transfer  of  such  claim  against 
the  Government  to  one  or  more  persons  not  originally  interested  in  it,  the  way  might 
be  conveniently  opened  to  such  improper  influences  in  prosecuting  the  claim  before 
the  Departments,  the  courts,  or  the  Congress  as  desperate  cases,  when  the  reward  is 
contingent  on  success,  so  often  suggest.  In  Spofford  v.  Kirk  (97  U.  S.,  490)  the 
Supreme  Court  had  said  that  the  greater  of  the  two  evils  was  the  possible  combina- 
tion of  interests  and  influences  in  the  prosecution  of  claims  which  might  have  no 
real  foundation.  Goodman  v.  Niblack,  102  U.  S.,  560;  Bailey  v.  U.  S.,  109  U.  S.,  438; 
Milliken  v.  Barrow,  65  Fed.  Rep.,  888,  892. 

The  provisions  of  section  3477  of  the  Revised  Statutes,  prohibiting  and  making 
void  transfers  of  any  claim  against  the  United  States  before  the  allowance  of  such 
claim,  apply  only  to  claims  existing  at  the  time  of  the  transfer,  in  the  form  of  a  right 
to  demand  money  from  the  United  States,  and  not  to  cases  where,  at  the  very  incep- 
tion of  the  transaction  out  of  which  a  claim  against  the  United  States  may  arise,  one 
party  assigns  to  another  the  contingent  profits  he  hopes  to  make,  but  which  do  not 
then  exist,  and  can  only  be  secured  by  the  loan  of  the  assignee's  money  to  the  assignor. 
Milliken  v.  Barrow,  65  Fed.  Rep.,  888. 

The  word  "claim"  as  used  in  section  3477,  Revised  Statutes,  which  provides  that 
"all  transfers  and  assignments  made  of  any  claim  upon  the  United  States  * 
shall  be  absolutely  null  and  void"  unless  made  as  prescribed  therein,  comprehends 
all  demands  against  the  United  States  for  the  payment  of  money  whether  liquidated 
or  unliquidated;  and  an  assignment  of  a  judgment  against  the  United  States,  made 
before  the  issuing  of  a  warrant  for  the  payment  thereof,  is  within  the  meaning  of  the 
statute  and  void.  IV  Cpmpt.  Dec.,  196;  I  ibid. ,  276.  The  provisions  of  section  3477, 
Revised  Statutes,  touching  transfers  and  assignments  of  claims  against  the  United 
States,  and  powers  of  attorney,  etc.,  for  receiving  payment  thereof,  do  not  apply  to 
undisputed  claims  or  any  claim  about  which  no  question  is  made  as  to  its  validity  or 
extent.  XVII  Opin.  Att.  Gen.,  545;  XXI  ibid.,  75;  XX  ibid.,  578. 

The  provision  of  the  Revised  Statutes  (section  3477),  making  void  transfers  and 
assignments  of  claims  against  the  United  States,  relates  to  voluntary  assignments,  and 
does  not  extend  to  transfers  by  operation  of  law,  or  interfere  with  the  equitable  doc- 
trine of  subrogation.  Amer.  Tob.  Co.  v.  U.  S.,  32  Ct.  Cls.,  207;  II  Comp.  Dec.,  49. 
While  section  3477  of  the  Revised  Statutes  declares  null  and  void  all  powers  of  attor- 
ney given  prior  to  the  settlement  of  a  claim  and  the  issuing  of  a  warrant  in  payment, 

"  powers  of  attor- 
making  them, 
the  courts  the 

accounting  officers  are  required,  notwithstanding  the  provisions  of  section  3477  of 
the  Revised  Statutes,  to  credit  disbursing  officers  with  payments  actually  made  by 
them  under  powers  of  attorney,  provided  it  is  shown  that,  at  the  time  of  such  pay- 
ment, such  powers  are  undisputed  and  have  not  been  revoked,  either  by  the  volun- 
tary action  of  the  principal  or  by  his  death.  Ibid.,  142.  Payments  may  be  made 
to  a  corporation  under  a  contract  entered  into  by  an  attorney  duly  authorized  to  act 
for  the  corporation  in  the  making  of  such  contract.  II  Compt.  Dec.,  30;  ibid.,  295. 
See  also  decision  of  Secretary  of  War  of  November  7, 1895,  in  Circular  13,  A.  G.  O., 
1895. 

The  assignment  of  a  quartermaster's  voucher,  unless  made  "after  the  allowance  of 
such  a  claim"  and  in  conformity  with  all  the  other  requirements  of  section  3477  of 
the  Revised  Statutes,  is  "absolutely  null  and  void."  The  exigencies  of  the  war  and 
of  the  Government  service  immediately  after  the  war,  which  atone  time  were  relied 
upon  to  support  the  practice  of  paying  the  assignees  of  such  vouchers,  can  not  be 
made  available  in  deciding  cases  now  arising.  3  Dig.  2nd  Compt.  Dec.,  par.  156. 


96 


MILITARY    LAWS    OF    THE    UNITED    STATES. 


PROSECUTION    OF    CLAIMS. 


Par. 

235.  Oath  of  claimant  or  attorney. 

236.  Administration  of  oath. 

237.  Claims  of  disloyal  persons. 

238.  Limitation  on  prosecution. 

239.  Penalty  for  false  claims. 


Par. 

240.  Suits  for  recovery  of  penalty. 

241.  Duty  of  district  attorney. 

242.  Rights  of  person  bringing  suit. 

243.  Limitation  of  suits. 

244.  Rules  respecting  attorneys. 


Oath  by  per-      235.  Any  person  prosecuting  claims,  either  as  attorney 

sons  prosecuting  *.....  ,      »  £   ^     r\ 

claims.  or  on  his  own  account,  before  any  or  the  Departments  or 

205,  s.  i,  v.  12, V  bureaus  of  the  United  States,  shall  be  required  to  take  the 
Sec.  8478,  R.  s.  oath  of  allegiance,  and  to  support  the  Constitution  of  the 

United  States,  as  required  of  persons  in  the  civil  service.1 

(See  sees.  1756,  1757,  E.  8.) 
who  may  ad-     236.  The  oath  provided  for  in  the  preceding-  section  may 

minister  the,  .  IT" 

oath.  be  taken  before  any  justice  of  the  peace,  notary  public,  or 

205,  s.  2,  V.  12,' p!  other  person  who  is  legally  authorized  to  administer  an  oath 

sec.  3479,  B.  s.  in  the  State  or  district  where  the  same  may  be  administered. 

claims  of  dis-    .237.  It  shall  be  unlawful  for  any  officer  to  pay  any  account, 

Mar.  2,  1867,  claim,  or  demand  against  the  United  States  which  accrued 

Res  46    v    14   p 

57i.'  '  or  existed  prior  to  the  thirteenth  day  of  April,  eighteen 

Sec.  3480,  R.S.  J  fe 

hundred  and  sixty-one,  in  favor  of  any  person  who  pro- 
moted, encouraged,  or  in  any  manner  sustained  the  late 
rebellion,  or  in  favor  of  any  person  who  during  such  re- 
bellion was  not  known  to  be  opposed  thereto,  and  distinctly 
in  favor  of  its  suppression;  and  no  pardon  heretofore 
granted,  or  hereafter  to  be  granted,  shall  authorize  the 
payment  of  such  account,  claim,  or  demand,  until  this  sec- 
tion is  modified  or  repealed.  But  this  section  shall  not  be 
construed  to  prohibit  the  payment  of  claims  founded  upon 
contracts  made  by  any  of  the  Departments,  where  such 
claims  were  assigned  or  contracted  to  be  assigned  prior  to 
the  first  day  of  April,  eighteen  hundred  and  sixty -one,  to 
the  creditors  of  such  contractors,  loyal  citizens  of  loyal 
States,  in  payment  of  debts  incurred  prior  to  the  first  day 
of  March,  eighteen  hundred  and  sixty-one.2 
claims  for  coi-  238.  No  claims  against  the  United  States,  for  collecting, 

lecting  etc.  vol- 
unteers to  be  pre-  drilling,  or  organizing  volunteers  for  the  war  of  the  rebel- 

sented   prior    to,.  ,' 

June  so,  1874.      lion,  shall  be  audited  or  paid  unless  presented  before  the 

1 A  retired  officer  of  the  Army  can  not  act  as  an  attorney  for  claimants  in  suits 
brought  against  the  United  States  in  the  Court  of  Claims.  Tyler  v.  U.  S.,  18  Ct.  Cls., 
25;  In  re  Winthrop  31,  ibid.  35;  but  see  People  v.  Duane,  121  N.  Y.  Rep.,  373. 

2  By  the  act  of  March  3, 1877,  chapter  105,  volume  19,  page  362,  provision  was  made 
for  the  payment  of  the  amounts  due  to  mail  contractors  for  mail  service  performed 
in  the  States  recently  in  rebellion,  and  before  said  States  respectively  engaged  in 
war  against  the  United  States;  and  the  provisions  of  this  section  of  the  Revised 
Statutes  were  declared  to  be  not  applicable  to  the  payments  therein  authorized. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  9f 

thirtieth  day  of  June,  eighteen  hundred  and  seventy-four.    Mar.  3,  1373,  <-. 
No  claims  for  horses  lost  prior  to  the  first  day  of  January,  loo! 8' lf  v' 
eighteen  hundred  and  seventy-two,  shall  be  audited  or  paid    '**' 3489'  R'S* 
unless  presented  before  the  thirtieth  day  of  June,  eighteen 
hundred  and  seventy-four. 

239.  Any  person  not  in  the  military  or  naval  forces  of    Penalty   for 
the  United  States,  or  in  the  militia  called  into  or  actually?! a im^agafm* 
employed  in  the  service  of  the  United  States,  who  shall  do    Mar.  2,  im,  c. 
or  commit  any  of  the  acts  prohibited  by  any  of  the  pro-  698. *' 
visions   of    section   fifty-four  hundred  and    thirty-eight, 

Title  "CRIMES,"  shall  forfeit  and  pay  to  the  United  States 
the  sum  of  two  thousand  dollars,  and,  in  addition,  double 
the  amount  of  damages  which  the  United  States  may  have 
sustained  by  reason  of  the  doing  or  committing  such  act, 
together  with  the  costs  of  suit;  and  such  forfeiture  and 
damages  shall  be  sued  for  in  the  same  suit. 

240.  The  several  district  courts  of  the  United  States,  the    suits  for  recov- 
supreme  court  of  the  District  of  Columbia,  the  several  dis-    Mar.  2,  ises,  c. 
trict  courts  of  the  Territories  of  the  United  States,  within  ess.8' 

.  •        •     i  •       •  i   i  •       •          i  Sec.  ,  **H «,  K.  S. 

whose  junsdictional  limits  the  person  doing  or  committing 
such  act  shall  be  found,  shall,  wheresoever  such  act  may 
have  been  done  or  committed,  have  full  power  and  juris- 
diction to  hear,  try,  and  determine  such  suit.  Such  suit 
may  be  brought  and  carried  on  by  any  person,  as  well  for 
himself  as  for  the  United  States;  the  same  shall  be  at  the 
sole  cost  and  charge  of  such  person,  and  shall  be  in  the 
name  of  the  United  States,  but  shall  not  be  withdrawn  or 
discontinued  without  the  consent,  in  writing,  of  the  judge 
of  the  court  and  the  district  attorney,  first  filed  in  the  case, 
setting  forth  their  reasons  for  such  consent. 

241.  It  shall  be  the  dutv  of  the  several  district  attorneys    Duty  or  dis- 

.  .  .  trict  attorney  as 

or  the  United  States  for  the  respective  districts,  for  the  to  such  eases. 

M&r  2   18G3  c 

District  of  Columbia,  and  for  the  several  Territories,  to  bee?,  s.  5,  V.  12,' p! 
diligent  in  inquiring  into  any  violation  of  the  provisions  Sec.3492,B.s. 
of  section  thirty-four  hundred  and  ninety  bj^  persons  liable 
to  such  suit,  and  found  within  their  respective  districts  or 
Territories,  and  to  cause  them  to  be  proceeded  against  in 
due  form  of  law  for  the  recovery  of  such  forfeiture  and 
damages.  And  such  person  may  be  arrested  and  held  to 
bail  in  such  sum  as  the  district  judge  may  order,  not  exceed- 
ing the  sum  of  two  thousand  dollars,  and  twice  the  amount 
of  the  damages  sworn  to  in  the  affidavit  of  the  person 
bringing  the  suit. 

242.  The  person  bringing  said  suit  and  prosecuting  it  ^°  ^J 
final  judgment  shall  be  entitled  to  receive   one-half  the  such  suits. 

22924—08 7 


98  MILITAEY    LAWS    OF    THE    UNITED    STATES. 

Mar.  2, 1863,  c.  amount  of  such  forfeiture,  as  well  as  one-half  the  amount 
698. "  '  s  °f  ^ne  damages  he  shall  recover  and  collect;  and  the  other 
half  thereof  shall  belong  to  and  be  paid  over  to  the  United 
States;  and  such  person  shall  be  entitled  to  receive  to  his 
own  use  all  costs  the  court  may  award  against  the  defend- 
ant, to  be  allowed  and  taxed  according  to  any  provision  of 
law  or  rule  of  court  in  force,  or  that  shall  be  in  force  in 
suits  between  private  parties  in  said  court:  Provided,  That 
such  person  shall  be  liable  for  all  costs  incurred  by  himself 
in  the  case,  and  shall  have  no  claim  therefor  on  the  United 
States. 

^Limitation  of     243.  Every  such  suit  shall  be  commenced  within  six  years 
gee.  j >ibid      from  the  commission  of  the  act,  and  not  afterward. 

i^GC.  »>-§•"  t,  K.  N. 

Rules  respect      244.  The  Secretary  of  the  Treasury  may  prescribe  rules 

ing     attorneys,         *.••.«•  •         -i  •.•  p 

etc..  to  be  pre-  and  regulations  governing  the  recognition  of  agents,  attor- 

scribed    by    the  ,. &         ,    .  *  ,      .'          ,  . 

secretary  of  the  neys,  or  other  persons  representing  claimants  before  his 
July  7/1884,  v.  Department,  and  may  require  of  such  persons,  agents  and 
attorneys,  before  being  recognized  as  representatives  of 
claimants,  that  they  shall  show  that  they  are  of  good  char- 
acter and  in  good  repute,  possessed  of  the  necessary  qual- 
ifications to  enable  them  to  render  such  claimants  valuable 
service,  and  otherwise  competent  to  advise  and  assist  such 
claimants  in  the  presentation  of  their  cases.  And  such 
Secretary  may  after  due  notice  and  opportunity  for  hear- 
ing suspend,  and  disbar  from  further  practice  before  his 
Department  any  such  person,  agent,  or  attorney  shown  to 
be  incompetent,  disreputable,  or  who  refuses  to  comply 
with  the  said  rules  and  regulations,  or  who  shall  with 
intent  to  defraud,  in  any  manner  willfully  and  knowingly 
deceive,  mislead,  or  threaten  any  claimant  or  prospective 
claimant,  by  work,  circular,  letter,  or  by  advertisement. 
Act  of  July  7,  1884  ($3  Stat.  Z., 


DEBTS    DUE    BY    OR   TO   THE    UNITED    STATES. 


Par.  Par. 


245.  Priority   of   debts  due   the   United 
States  established. 


246.  Liability  of  executors,  etc. 

247.  Priority  of  sureties. 


priority   of     245.  Whenever  anv  person  indebted  to  the  United  States 

debts  due  the .. 

united   states  is  insolvent,  or  whenever  the  estate  of  anv  deceased  debtor, 

established.  .111.1 

Mar.  3, 1797,  c.  in  the  hands  ot  the  executors  or  administrators,  is  insuffi- 

Mar.2j799,c.22,'cient  to  pay  all  the  debts  due  from  the  deceased,  the  debts 

sec.  3466,  K.  s.  due  to  the  United  States  shall  be  first  satisfied;  and  the 

priority  hereby  established  shall  extend  as  well  to  cases  in 

which  a  debtor,  not  having  sufficient  property  to  pay  all 

his  debts,  makes  a  voluntary  assignment  thereof,  or  in 


MILITARY    LAWS    OF    THE    UNITED    STATES.  99 

which  the  estate  and  effects  of  an  absconding,  concealed, 
or  absent  debtor  are  attached  by  process  of  law,  as  to  cases 
in  which  an  act  of  bankruptcy  is  committed.1 

246.  Every  executor,  administrator,  or  assignee,  or  other    Liability  of  ex- 

i  j    i  j_  j        i       xi  ecutors,  etc. 

person,  who  pays  any  debt  due  by  the  person  or  estate  from    Mar.  2,  1799,  c. 
whom  or  for  which  he  acts,  before  he  satisfies  and  pays  the  6?6.8' ' 
debts  due  to  the  United  States  from  such  person  or  estate,  Pet.,  182-  Brent 

,     „  ,  i  i       •      i  •  i  /.       f- Bank  of  Wash- 

shall  become  answerable  in  his  own  person  and  estate  torington,  10  Pet., 

the  debts  so  due  to  the  United  States,  or  for  so  much  seV.  3407,  R.S. 
thereof  as  may  remain  due  and  unpaid.    (See  sec.  5101,  R.  S. ) 

247.  Whenever  the  principal  in  any  bond  given  to  the    Priority  of 
United  States  is  insolvent,  or  whenever,  such  principal  22Mar-  2,  ijw,  c. 
being  deceased,  his  estate  and  effects  which  come  to  the676.s' 

,    ,  .  ,       .     .    ,  .  .         Sec.  3468,  R.  S. 

hands  of  his  executor,  administrator,  or  assignee,  are  in- 
sufficient for  the  payment  of  his  debts,  and,  in  either  of 
such  cases,  any  surety  on  the  bond,  or  the  executor,  ad- 
ministrator, or  assignee  of  such  suret}7  pays  to  the  United 
States  the  money  due  upon  such  bond,  such  surety,  his 
executor,  administrator,  or  assignee,  shall  have  the  like 
priority  for  the  recovery  and  receipt  of  the  moneys  out  of 
the  estate  and  effects  of  such  insolvent  or  deceased  prin- 
cipal as  is  secured  to  the  United  States;  and  may  bring 
and  maintain  a  suit  upon  the  bond,  in  law  or  equity,  in  his 
own  name,  for  the  recovery  of  all  moneys  paid  thereon.2 


Par. 


DISCHARGE    OF    POOR    DEBTORS. 


Par. 


248.  Discharge  by  Secretary  of  Treasury.      249.  Discharge  by  President. 

248.  Any  person  imprisoned  upon  execution  issuing  from    Discharge    of 

J  r  poor   debtor   by 

any  court  of  the  United   States,  for  a  debt  due  to  the  |^retary  of  the 
United  States,  which  he  is  unable  to  pay,  may,  at  any  time  4gJune6, 1798,  c. 
after  commitment,  make  application  in  writing,  to  the  Sec-  PP.  5*61^2- B  g' 
retary  of  the  Treasury,  stating  the  circumstances  of  his 
case,  and  his  inability  to  discharge  the  debt;  and  there- 
upon the  Secretary  may  make,  or  require  to  be  made,  an 
examination  and  inquiry  into  the  circumstances  of  the 

1  U.  S.  v.  Fisher,  2  Cr.,  358;  U.  S.  v.  Hooe,  3  Cr.,  73;  Harrison  v.  Slerry,  5Cr.,  289; 
Prince  v.  Bartlett,  8  Cr.,  431;  U.  S.  r.  Bryan,  9  Cr.,  374;  Thelusson  v.  Smith,  2  Wh., 
396;  U.  S.  v.  Rowland,  4  Wh.,  108;  Conard  v.  Insurance  Company,  1  Pet.,  386;  Hun- 
ter v.  U.  S.,  5  Pet,  173;  U.  S.  v.  State  Bank,  6  Pet,  29;  U.  S.  v.  Hack,  8  Pet,  271; 
Brent  i-.  Bank  of  Washington,  10  Pet,  596;  Beaston  r.  Farmers'  Bank,  12  Pet.,  102; 
U.  S.  v.  Herron,  20  Wall.,  251;  Bayne  etal.,  Trustees,  v.  U.  S.,  93  U.  S.,  642. 

2  The  priority  given  in  this  section  to  sureties  does  not  apply  to  sureties  on  a  recog- 
nizance in  a  criminal  case.     U.  S.  v.  Rydor,  110  U.  S.,  729;  U.  S.  r.  Fisher,  2Cr.,  358; 
U.  S.  r.  Hooe,  3  Cr.,  73;  Prince  r.  Bartlett,  8  Cr.,  431;  U.  S.  v.  Bryan,  9  Cr.,  374; 
Thelusson  r.  Smith,  2  Wh.,  396;  U.  S.  r.  Rowland,  4  Wh.,  108;  Conard  r.  Insurance 
Company,  1  Pet.,  439;  Hunter  r.  U.  S.,  5  Pet  ,  173;  Child  v.  Shoemaker,  1  Wash., 
494;  U.  S.  v.  King,  Wall.  C.  C.,  12;  Johns  v.  Brodhag,  1  Cr.  C.  C.,  235. 


100  MILITARY    LAWS    OF    THE    UNITED    STATES. 

debtor,  by  the  oath  of  the  debtor,  which  the  Secretary,  or 
any  other  person  by  him  specially  appointed,  is  authorized 
to  administer,  or  otherwise,  as  the  Secretary  shall  deem 
necessary  and  expedient,  to  ascertain  the  truth;  and  upon 
proof  made  to  his  satisfaction,  that  the  debtor  is  unable 
to  pay  the  debt  for  which  he  is  imprisoned,  and  that  he  has 
not  concealed  or  made  any  conveyance  of  his  estate,  in 
trust,  for  himself,  or  with  an  intent  to  defraud  the  United 
States,  or  to  deprive  them  of  their  legal  priority,  the  Sec- 
retary is  authorized  to  receive  from  such  debtor  any  deed, 
assignment,  or  conveyance  of  his  real  or  personal  estate, 
or  any  collateral  security,  to  the  use  of  the  United  States. 
Upon  a  compliance  by  the  debtor  with  such  terms  and  con- 
ditions as  the  Secretary  m&y  judge  reasonable  and  proper, 
the  Secretary  must  issue  his  order,  under  his  hand,  to  the 
keeper  of  the  prison,  directing  him  to  discharge  the  debtor 
from  his  imprisonment  under  such  execution.  The  debtor 
shall  not  be  liable  to  be  imprisoned  again  for  the  debt; 
but  the  judgment  shall  remain  in  force,  and  may  be  satis- 
fied out  of  any  estate  which  may  then,  or  at  any  time  after- 
ward, belong  to  the  debtor.  The  benefit  of  this  section 
shall  not  be  extended  to  any  person  imprisoned  for  any 
fine,  forfeiture,  or  penalty,  incurred  by  a  breach  of  any 
law  of  the  United  States,  or  for  moneys  had  and  received 
by  any  officer,  agent,  or  other  person,  for  their  use;  nor 
shall  its  provisions  extend  to  any  claim  arising  under  the 
postal  laws.1 
th?preSdgent  by  ^^'  Whenever  any  person  is  imprisoned  upon  execution 


18399C  *or  a  ^e^  ^ue  *°  ^e  United  States,  which  he  is  unable  to 
sec.  3472,  K.  s.  pay,  and  his  case  is  such  as  does  not  authorize  his  dis- 
charge by  the  Secretary  of  the  Treasury,  under  the  preced- 
ing section,  he  may  make  application  to  the  President, 
who,  upon  proof  made  to  his  satisfaction  that  the  debtor 
is  unable  to  pay  the  debt,  and  upon  a  compliance  by  the 
debtor  with  such  terms  and  conditions  as  the  President 
shall  deem  proper,  may  order  the  discharge  of  such  debtor 
from  his  imprisonment.  The  debtor  shall  not  be  liable  to 
be  imprisoned  again  for  the  same  debt;  but  the  judgment 
shall  remain  in  force,  and  may  be  satisfied  out  of  any 
estate  which  may  then,  or  at  any  time  afterward,  belong- 
to  the  debtor.2 


1  The  discharge  of  a  debtor  in  accordance  with  the  provisions  of  this  section  doe* 
not  operate  to  discharge  his  sureties  from  liability.  1  Paine,  525.  See  also  U.  S.  v. 
Stansbury,  1  Pet.,  573;  U.  S.  v.  Ringgold,  5  Pet,  150;  Hunter?'.  U.  S.,  5  Pet,,  173; 
U.  S.  v.  Sturges,  1  Paine,  525. 

2 See  U.  S.  v.  Ringgold,  8  Pet.,  150. 


MILITARY    LAWS    OF   THE    UNITED    STATES.  101 

SUITS   TO   RECOVER   BALANCES    DUE    THE    UNITED    STATES. 

250.  Whenever  any  person  accountable  for  public  money  suits  to  recover 
neglects  or  refuses  to  pay  into  the  Treasury  the  sum  or  SSpent officers. 
balance  reported  to  be  due  to  the  United  States  upon  the2o"s.i,Vi,P.5i2; 
adjustment  of  his  account,  the  [Auditors  under  the  direc-  sen,' 

S<* 

tion  of  the]  Comptroller  of  the  Treasury  shall  institute  suit 
for  the  recovery  of  the  same,  adding-  to  the  sum  stated  to 
be  due  on  such  account  the  commissions  of  the  delinquent, 
which  shall  be  forfeited  in  every  instance  where  suit  is 
commenced  and  judgment  obtained  thereon,  and  an  inter- 
est of  six  per  centum  from  the  time  of  receiving  the  money 
until  it  shall  be  'repaid  into  the  Treasury.1  Section  4,  act 
of  July  31,  1894  (28  Stat.  Z.,  806). 

DISTRESS    WARRANTS. 

I'ar.  Par. 

251.  Distress  warrant.  i  258.  Disposal  of  surplus. 


252.  Contents  of  warrant. 

253.  Execution  against  officer. 

254.  Same  against  surety. 

255.  Levy  to  be  a  lien. 

256.  Sale  of  lands. 

257.  Conveyance  of  lands. 


259.  Penalty  for  failure  to  account. 

260.  Extent  of  application  of  warrant. 

261.  Postponement,  when  allowed. 

262.  Injunction  to  stay  warrant. 

263.  Procedure  on  warrant. 

264.  Eights  of  United  States  reserved. 


251.  Whenever  any  collector  of  the  revenue,  receiver  of  ^Distress  war- 
public  monev,  or  other  officer,  who  has  received  the  pub-    May  15, 1820,  c. 

J  107,  s.  2,  v.  3,  p. 

lie  money  before  it  is  paid  into  the  Treasury  of  the  United  592;  May29,i83o, 

J  J  .      c.  153,  s.  1,  v.  4,  p. 

btates,  tails  to  render  his  account  or  pay  over  the  same  in4i4;  Feb.  27,1877, 

^   J  s.  19,  p.  249;  July 

the  manner  or  within  the  time  required  by  law,  it  shall  pest™,  v.  28,  p. 

the  duty  of  the  proper  Auditor  to  cause  to  be  stated  the   sec.  8626,  B.  s. 

account  of  such  officer,  exhibiting  truly  the  amount  due  to 

the  United  States,  and  to  certify  the  same  to  the  Solicitor 

of  the  Treasury,  who  shall  issue  a  warrant  of  distress 

against  the  delinquent  officer  and  his  sureties  directed  to 

the  marshal  of  the  district  in  which  such  officer  and  his 

sureties  reside.     Where  the  officer  and  his  sureties  reside 

in  different  districts,  or  where  they  or  either  of  them  reside 

in  a  district  other  than  that  in  which  the  estate  of  either 

may  be,  which  it  is  intended  to  take  and  sell,  then  such 

warrant  shall  be  directed  to  the  marshals  of  such  districts, 

respectively. 

252.  The  warrant  of  distress  shall  specify  the  amount  J^ontents  of 
with  which  such  delinquent  is  chargeable  and  the  sums,  if  sec.  3626,  B.  s. 
any,  which  have  been  paid. 

'See  also  the  titles  "  The  Comptroller  of  the  Treasury"  and  "  The  Auditors  of  tte 
Treasury"  in  the  chapter  entitled  THE  TREASURY  DEPARTMENT,  paragraphs  134-1  b&, 
supra.  See  also  section  4,  act  of  July  31,  1894  (28  Stat.  L.,  206),  and  U.  8.  r,  Verdier, 
164  U.  S.,  213,  219. 


102  MILITARY    LAWS    OF   THE    UNITED   STATES. 

Execution     253.  The  marshal  authorized  to  execute  anv  warrant  of 

against  officer.  . 

May  is,  1820,  c.  distress  shall,  by  himself  or  by  his  deputy,  proceed  to  levy 
593!  "^  'and  collect  the  sum  remaining  due,  by  distress  and  sale  of 
*  the  goods  and  chattels  of  such  delinquent  officer,  having 
given  ten  days'  previous  notice  of  such  intended  sale,  by 
affixing  an  advertisement  of  the  articles  to  be  sold  at  two 
or  more  public  places  in  the  town  and  count}7  where  the 
goods  or  chattels  were  taken,  or  in  the  town  or  county 
where  the  owner  of  such  goods  or  chattels  may  reside.  If 
the  goods  and  chattels  be  not  sufficient  to  satisfy  the  war- 
rant, the  same  may  be  levied  upon  the  person  of  such  offi- 
cer, who  may  be  committed  to  prison,  there  to  remain 
until  discharged  by  due  course  of  law. 

Execution  254.  If  the  delinquent  officer  absconds,  or  if  goods  and 
agMayi5Ui82o,c.  chattels  belonging  to  him  can  not  be  found  sufficient  to 
ID?,  s.  2,  v.  3,  p.  saj. jsf  ^ne  warrant  the  marshal  or  his  deputy  shall  proceed, 

v  -  •    ^Ift^tt    UK 

'  notwithstanding  the  commitment  of  the  delinquent  officer, 
to  levy  and  collect  the  sum  which  remains  due  by  such 
delinquent,  by  the  distress  and  sale  of  the  goods  and  chat- 
tels of  his  sureties;  having  given  ten  days' previous  notice 
of  such  intended  sale,  by  affixing  an  advertisement  of  the 
articles  to  be  sold  at  two  or  more  public  places  in  the  town 
or  county  where  the  goods  or  chattels  were  taken,  or  in 
the  town  or  county  where  the  owner  resides. 

neifvy  to  be  H     ^^'  ^^e  amount  due  ^7  any  delinquent  officer  is  de- 
May  15, 1820,  c.  clared  to  be  a  lien  upon  the  lands,  tenements,  and  heredit- 

107,  s.  2,  v.  3,  p. 

5»3.  aments  of  such  officer  and  his  sureties,  from  the  date  of  a 

Sec.  :><•'_:>.  K.  s.  i  •  i 

levy  in  pursuance  of  the  warrant  of  distress  issued  against 
him  or  them,  and  a  record  thereof  made  in  the  office  of  the 
clerk  of  the  district  court  of  the  proper  district,  until  the 
same  is  discharged  according  to  law. 
sale  of  lands.       256.  For  want  of  goods  and  chattels  of  a  delinquent  offi- 

May  15, 1820,  c.  ,  .  . 

107,  s.  2,  v.  3,  p.  cer  or  his  sureties,  sufficient  to  satisfy  any  warrant  ot 

593 

'  sec.  3630,  K.  s.  distress  issued  pursuant  to  the  foregoing  provisions,  the 

lands,  tenements,  and  hereditaments  of  such  officer  and  his 

sureties,  or  so  much  thereof  as  may  be  recessary  for  that 

purpose,  after  being  advertised  for  at  least  three  weeks  in 

not  less  than  three  public  places  in  the  county,  or  district 

where  such  real  estate  is  situate,  before  the  time  of  sale, 

shall  be  sold  by  the  marshal  of  such  district  or  his  deputy. 

conveyance  <.f     257.  For  all  lands,  tenements,  or  hereditaments  sold  in 

ibid.  pursuance  of  the  preceding  section,  the  conveyance  of  the 

KPI*    *lft^l1    It    K 

marshal  or  his  deputy,  executed  in  due  form  of  law,  shall 
give  a  valid  title  against  all  persons  claiming  under  such 
delinquent  officer  or  his  sureties. 


MILITARY    LAWS    OF   THE    UNITED   STATES.  103 

258.  All  moneys  which  may  remain  of  the  proceeds  of    Disposal  of  sur- 
sales,  after  satisfying  the  warrant  of  distress,  and  paying  P  /fed. 

the  reasonable  costs  and  charges  of  the  sale,  shall  be  re- 
turned to  such  delinquent  officer  or  surety,  as  the  case 
may  be. 

259.  Whenever  any  officer  employed  in  the  civil,  military,    Penal  ty  for  faii- 

,  .          *,!/>(  j  •   i  ?i  ,  ,  .    ure    of   disburs- 

or  naval  service  or  tne  (jrovernment,  to  disburse  the  public  ins  officer  to  ac- 
money  appropriated  for  those  branches  of  the  public  serv-  May'  15,1820,  c. 

V  1  £•      M       A  1     •  107'    S'    3>V-    3'    P- 

ice,  respectively,  fails  to  render  his  accounts,  or  to  pay  over,  594-,  May  29,1330, 
in  the  manner  and  in  the  times  required  by  law,  or  by  the  P*  414;  July  '31! 
regulations  of  the  Department  to  which  he  is  accountable,  206.' 

...,.,  '     Sec.  3638,  B.  S. 

any  sum  or  money  remaining  in  ms  hands,  it  shall  be  the 
duty  of  the  proper  Auditor,  as  the  case  may  be,  who  shall 
be  charged  with  the  revision  of  the  accounts  of  such  officer, 
to  cause  to  be  stated  and  certified  the  account  of  such 
delinquent  officer  to  the  Solicitor  of  the  Treasury,  who  is 
hereby  authorized  and  required  immediately  to  proceed 
against  such  delinquent  officer,  in  the  manner  directed  in 
the  six  preceding  sections. 

260.  All  the  provisions  relating  to  the  issuing  of  a  war-    Extent  of  ap- 

-    ,  .    ,  .  ,    ,  .  m  r/j?  ,  ,     plication  of  dis- 

rant  of  distress  against  a  delinquent  officer  shall  extend  to  tress  warrants. 

m          <•  ,  T     ^  T     •  ,  i   t  i     -•  •  i  May  is.  1820,  c. 

every  officer  or  the  Government  charged  with  the  disburse-  107,  s.  3,  v.  3,  p. 

merit  of  the  public  money,  and  to  their  sureties,  in  the  same    s'ec. 


manner  and  to  the  same  extent  as  if  they  were  herein 
described  and  enumerated. 

261.  With  the  approval  of  the  Secretary  of  the  Treasury,    Postponement 
the  institution  of  proceedings  by  a  warrant  of  distress  may  for  nPonaccomi? 
be  postponed,  for  a  reasonable  time,  in  cases  where,  in  his  iowedW 

,  ,.      .     .  .,,  .     .  ,       May  15,  1820,  c. 

opinion,  the  public  interest  will  sustain  no  injury  by  such  107,  s.  3,  v.  3,  p. 
postponement.  s'ec.  36S5,R.s. 

262.  Any  person  who  considers  himself  aggrieved  bv  any    injunction  to 

/  V\  .  r  .          stay     distress 

warrant  of  distress  issued  under  the  foregoing  provisions  warrant. 

may  prefer  a  bill  of  complaint  to  any  district  judge  of  the  107,  ss.4,5,v.3|p! 

United  States,  setting  forth  therein  the  nature  and  extent    s'ec.3636,B.s. 

of  the  injury  of  which  he  complains;  and  thereupon  the 

judge  may  grant  an  injunction  to  stay  proceedings  on  such 

warrant  altogether,  or  for  so  much  thereof  as  the  nature  of 

the  case  requires.     But  no  injunction  shall  issue  till  the 

party  applying  for  it  gives  bond,  with  sufficient  security, 

in  a  sum  to  be  prescribed  by  the  judge,  for  the  performance 

of  such  judgment  as  may  be  awarded  against  him;  nor 

shall  the  issuing  of  such  injunction  in  any  manner  impair 

the  lien  produced  by  the  issuing  of  the  warrant.    And  the 

same  proceedings  shall  be  had  on  such  injunction  as  in 

other  cases,  except  that  no  answer  shall  be  necessary  on 


104 


MILITARY    LAWS    OF   THE    UNITED    STATES. 


the  part  of  the  United  States,  and  if,  upon  dissolving  the 
injunction,  it  appears  to  the  satisfaction  of  the  judge  that 
the  application  for  the  injunction  was  merely  for  delay,  the 
judge  may  add  to  the  lawful  interest  assessed  on  all  sums 
found  due  against  the  complainant  such  damages  as,  with 
such  lawful  interest,  shall  not  exceed  the  rate  of  ten  per 
centum  a  year.  Such  injunction  may  be  granted  or  dis- 
solved by  the  district  judge  either  in  or  out  of  court. 
Proceedings  on  263.  When  the  district  judge  refuses  to  grant  an  iniunc- 

distress  warrant  i 

in  circuit  court,  tion  to  stay  proceedings  on  a  distress  warrant,  as  aforesaid, 

May  15,  1820,  c.  .  J  *  .     .   &  ....  , 

107,  ss.  4,  6,  v.  3,  or  dissolves  such  injunction  alter  it  is  granted,  any  person 
1869,  c.  22,  s.  2,  who  considers  himself  aggrieved  by  the  decision  in  the 
sec.  3637,R.  s.  premises  may  lay  before  the  circuit  justice,  or  circuit  judge 
of -the  circuit  within  which  such  district  lies,  a  copy  of  the 
proceeding  had  before  the  district  judge;  and  thereupon 
the  circuit  justice  or  circuit  judge  may  grant  an  injunction, 
or  permit  an  appeal,  as  the  case  may  be,  if,  in  his  opinion, 
the  equity  of  the  case  requires  it.     The  same  proceedings, 
subject  to  the  same  conditions,  shall  be  had  upon  such 
injunction  in  the  circuit  court  as  are  prescribed  in  the  dis- 
trict court. 
Rights     of     264.  Nothing  contained  in  the  provisions  of  this  title 

United  States  re- 
served, relating  to  distress  warrants  shall  be  construed  to  take 

May  15,1820,  c.  "  . 

107,  s.  9,  v.  3,  p.  away  or  impair  any  right  or  remedy  which  the  United  States 
sec.  seas, B.S.  might  have,  by  law,  for  the  recovery  of  taxes,  debts,  or 
demands. 

ESTIMATES.1 


Par. 


265.  When  to  be  furnished. 
266-267.  To  be  submitted  through  Secre- 
tary of  the  Treasury. 
268.  Statement  of  prior  appropriations. 


Par. 

269.  Report  of  persons  employed  in  pub- 

lic buildings. 

270.  Report  of  rented  buildings. 


Estimates,     265.  It  shall  be  the  duty  of  the  heads  of  the  several 

when  to  be  fur-  -.-,.»->.  i       <»        i  /Y> 

nished.  Executive  Departments,  and  of  other  officers  authorized 

Mar.  3,  1875,  s. 

3,  v.  is,  p.  370.  or  required  to  make  estimates,  to  furnish  to  the  Secretary 
of  the  Treasury,  on  or  before  the  tirst  day  of  October  of 
each  year,  their  annual  estimates  for  the  public  service,  to 
be  included  in  the  Book  of  Estimates  prepared  by  law  under 
his  direction;  and  the  Secretary  of  the  Treasury  shall  sub- 
mit, as  a  part  of  the  appendix  to  the  Book  of  Estimates, 
such  extracts  from  the  annual  reports  of  the  several  heads 


1  For  provisions  of  law  in  respect  to  the  preparation  and  submission  of  estimates  by 
the  several  Executive  Departments,  see  the  title  "Estimates,"  in  the  chapter  entitled 
THE  EXECUTIVE  DEPARTMENTS. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  105 

of  Departments  and  Bureaus  as  relate  to  estimates  for 
appropriations,  and  the  necessities  therefor.  Sec.  3,  <n-t 
of  March  3,  1875  (18  Stat.  Z.,  370). 

266.  Hereafter  all  estimates  of  appropriations  and  esti-    Estimates  to 

.,,,,...  ...  be  submitted 

mates  or  deficiencies  in  appropriations  intended  tor  the  through  secre- 

.  n  -i  ,  •  ,1  ,.  ,.  <,    .,  tary  of  the  Treas- 

consideration  and  seeking  the  action  ot  any  of  the  com-  ury. 
mittees   of   Congress   shall   be   transmitted   to   Congress  2,  v.  23,  p.  254.' 
through  the  Secretary  of  the  Treasury,  and  in  no  other 
manner;  and  the  said  Secretary  shall  first  cause  the  same 
to  be  properly  classified,  compiled,  indexed,  and  printed, 
under   the  supervision  of  the  chief  of  the  Division  of 
Warrants,  Estimates,  and  Appropriations  of  his  Depart- 
ment.    Sec.  #,  act  of  July  7,  1884  (&?  Stat.  Z.,  254). 

267.  All  annual  estimates  for  the  public  service  shall    The  same. 

SIM*     *{fUi*l    It    S 

be  submitted  to  Congress  through  the  Secretary  of  the 
Treasury,  and  shall  be  included  in  the  Book  of  Estimates 
prepared  under  his  direction. 

268.  The  Secretary  of  the  Treasury  shall  annex  to  the    statement  of 

.  ^  .  prior  appropria- 

annual  estimates  of  the  appropriations  required  for  thetions. 

S^c.  3070,  K.S» 

public  service  a  statement  ot  the  appropriations  for 
the  service  of  the  year  which  may  have  been  made  by 
former  acts. 

269.  Hereafter   the    Secretary   of    the   Treasurv   shall    Repairs  to  pub- 

.    J  .        „  „   -_.     . "  lie  buildings,  etc. 

annually  report  to  Congress  in  the  Book  ot  Estimates  a    Aug.  so,  1890, 

statement  of  the  expenditure  of  the  "appropriation  for 

repairs  and  preservation  of  public  buildings  "  which  shall 

show  the  amount  expended  on  each  public  building  and 

the  number  of  persons  employed  and  paid  salaries  from 

such  appropriation.1     Act  of  August  30,  1890  (26  Stat.  Z., 

371). 

270.  Hereafter  it  shall  be  the  duty  of  the  Secretary  of    Report     of 

J  .        j          buildings  rented 

the   1  reasury  to  cause  to  be  prepared  and  submitted  to  in  the  District  of 

J  Columbia. 

Congress  each  year,  in  the  annual  Book  of  Estimates  ot    July  ie,  i»92, 

^  v.  27,  p.  183. 

Appropriations,  a  statement  of  the  buildings  rented  in  the 
District  of  Columbia  for  the  use  of  the  Government,  the 
purposes  for  which  rented,  and  the  annual  rental  for  each.2 
Act  of  July  16,  1892  (27  Stat.  Z.,  183). 

1  The  act  of  March  3,  1887  (24  Stat.  L.,  509),  requires  the  Secretary  of  the  Treasury 
to  report,  annually,  the  number,  etc.,  of  persons  employed  in  the  care  of  public 
buildings  outside  the  District  of  Columbia. 

2  For  the  requirements  of  law  in  respect  to  the  renting  of  buildings  in  the  District 
of  Columbia,  see  paragraphs  93a  and  94,  ante. 


106 


MILITARY    LAWS    OF   THE    UNITED    STATES. 


APPROPRIATIONS. 


Par. 

271.  Application. 

272.  Expenditures  not  to  exceed  appro- 

priations. 

273.  Expenditures   of  commissions  and 

inquiries. 


Par. 

274.  Restriction  on  contingent  appropria- 

tions. 

275.  Total  amount  of  appropriations,  how 

determined. 


Application 
of  moneys  appro 


271.  All  sums  appropriated  for  the  various  branches  of 
prMard3  1809  c  expenditure  in  the  public  service  shall  be  applied  solely  to 
?eb  i2Vi868Pc^f;  ^ne  objects  for  which  they  are  respectively  made,  and  for 

s.  2,  V.  15,  p.  36.     nrk  rkthar«  ! 
Sec.3678,R.S.  n  FS' 

NO     expendi-      272.  No  Department  of  the  Government  shall  expend,  in 

tures        beyond  «% "      i  •  ,.  • 

appropriations,   any  one  iiscal  year,  any  sum  in  excess  01  appropriations 

1  An  appropriation  by  Congress  of  a  given  sum  of  money  for  a  named  purpose  is  not 
the  designation  of  a  specific  fund  for  that  purpose,  but  simply  a  legal  authority  to 
apply  so  much  of  any  money  in  the  Treasury  to  the  indicated  object.  Every  appro- 
priation for  the  payment  of  a  particular  demand,  or  a  class  of  demands,  necessarily 
involves  and  includes  the  recognition  by  Congress  of  the  legality  and  justice  of  each 
demand  and  is  equivalent  to  an  express  mandate  to  the  Treasury  officers  to  pay  it. 
This  recognition  is  not  affected  by  any  previous  adverse  action  of  Congress,  for  the 
last  expression  by  that  body  supersedes  all  such  previous  action.  Hukill  v.  IL  S., 
16  Ct.  Cls.,  562,  585.  When  an  appropriation  has  been  made  by  Congress  for  a 
general  purpose,  contemplating  a  multitude  of  acts  to  be  done  by  the  Department, 
its  agency  is  general  within  those  limits.  Leavitt  v.  U.  S.,  34  F.  R.,  623.  When  an 
alleged  liability  of  the  Government  rests  wholly  upon  an  appropriation,  they  must 
stand  or  fall  together,  so  that  when  the  latter  is  exhausted  the  former  comes  to  an 
end.  Shipman  v.  U.  S.,  18  Ct.  Cls.,  138. 

The  disposition  of  public  money  is  in  the  discretion  of  Congress,  and  its  reasons  for 
passing  an  act  of  appropriation  and  the  consideration  thereof  can  not  be  inquired  into 
nor  its  will  thwarted  by  any  executive  officers  or  by  the  courts.  Mumford  v.  U.  S., 
31  Ct.  Cls.,  210,  215;  Jordan  v.  U.  S.,  19;  Ibid.,  108;  113,  U.  S.,  418.  In  view  of  the 
requirements  of  this  section  a  disbursing  officer  is  not  authorized  to  use  public  moneys 
advanced  to  him  from  one  appropriation  in  the  payment  of  liabilities  arising  under 
another  appropriation.  IV  Comp.  Dec.,  569. 

Administrative  discretion  in  expenditures. — Ordinarily,  where  discretionary  power  is 
lodged  in  a  judicial  officer,  his  decision  is  not  re  viewable  save  by  the  court  of  which 
he  is  a  member,  and  then  only  when  there  has  been  a  clear  abuse  of  the  discretion 
committed  to  him.  Far  more  cogent  reasons  exist  why  this  rule  should  be  applied  to 
administrative  officers,  who  are  empowered  to  use  their  discretion  as  to  the  manner 
in  which  public  moneys  shall  be  expended,  for  great  embarrassment  and  confusion 
might  result  if  officers  in  one  Executive  Department  could  sit  in  judgment  upon  the 
decisions  of  the  officers  of  another  Executive  Department  in  cases  involving  the  exer- 
cise of  judgment  and  discretion.  Ill  Comp.  Dec.,  21.  Wherever  the  exercise  of 
discretion  by  the  War  Department  in  disbursing  moneys  appropriated  for  the  support 
of  the  Army  is  permitted  by  a  statute,  the  manner  in  which  such  discretion  has  been 
exercised  is  a  matter  of  administration  with  which  the  accounting  officers  have  no 
concern.  It  is  the  province  of  the  military  authorities  to  determine  the  needs  of  a 
given  military  depot  or  post  and  the  quantity  of  a  specified  article  to  be  allotted  to 
said  depot  or  post,  while  it  is  the  province  of  the  accounting  officers  to  determine 
whether  or  not  Congress  has  made  an  appropriation  covering  a  specific  expenditure, 
or  whether  or  not  such  expenditure  was  made  in  conformity  with  law.  Ibid.,  21. 
The  degree  of  wisdom  displayed  in  the  exercise  of  the  discretion  given  an  officer  of 
the  Army,  under  the  authority  of  the  Secretary  of  War,  is  not  a  subject  for  review  by 
the  accounting  officers.  If  the  officer  is  responsible  for  his  action  in  the  premises  to 
anyone,  it  is  to  the  source  from  which  he  derived  his  authority.  Ibid.,  22. 

The  evidence  required  by  the  War  Department  from  the  disbursing  officers  and 
agents  of  the  Army  for  administrative  purposes  is  a  matter  peculiarly  within  the 
jurisdiction  of  the  Secretary  of  War.  Ibid.,  497. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  107 

made  by  Congress  for  that  fiscal  year,  or  involve  the  Gov-    July  12, 1370,  c- 
ernment  in  any  contract  for  the  future  payment  of  money  251!  *'  ' v' 16>p' 

.  t  •    4.-  i  Sec.  3679, R.S. 

in  excess  o±  such  appropriations. 

273.  No  accounting  or  disbursing  officer  of  the  Govern-    Expenses     of 

•     *« --   11  i  i  commissions  and 

ment  snail  allow  or  pay  any  account  or  charge  whatever,  inquiries. 

-.  .  ,      -,        .,,    £  .  Aug. 26, 1842, c. 

growing  out  or,  or  in  any  way  connected  with,  any  commis-  202,  s.  25,  v.  5,  p. 
sion  or  inquiry,  except  courts-martial  or  courts  of  inquiry    s'ec.368i,R.s. 
in  the  military  or  naval  service  of  the  United  States,  until 
special  appropriations  shall  have  been  made  by  law  to  pay 
such  accounts  and  charges.     This  section,  however,  shall 
not  extend  to  the  contingent  fund  connected  with  the  for- 
eign intercourse  of  the  Government,  placed  at  the  disposal 
of  the  President. 

274.  No  moneys  appropriated  for  contingent,  incidental 
or  miscellaneous  purposes  shall  be  expended  or  paid 
official  or  clerical  compensation.2 

275.  Hereafter  the  total  amount  appropriated  in 
various  paragraphs  of  an  appropriation  act  shall 

1  The  legal  liability  of  the  Government  does  not  generally  depend  upon  appropria- 
tions. The  constitutional  provision,  in  Article  I,  section  9,  that  "no  money  shall  be 
drawn  from  the  Treasury  but  in  consequence  of  appropriations  made  by  law,"  is  a 
mere  limitation  and  restriction  upon  the  executive  officers  of  the  Treasury  Depart- 
ment, and  doe*  not  prevent  Congress,  the  law-making  power,  from  involving  the 
Government  in  contracts  to  pay  money  to  any  extent.  When  such  contracts  are 
made,  the  parties  who  acquire  rights  to  compensation  thereunder  must  wait  until  an 
appropriation  is  made  before  they  can  receive  their  money,  but  the  right  on  their 
part  and  the  obligation  on  the  part  of  the  United  States  remain  unchanged.  Failing 
to  obtain  direct  appropriations  for  their  benefit,  public  creditors  may  sue  in  this  court 
and  thus  obtain  payment  out  of  any  money  appropriated  for  the  payment  and  satis- 
faction of  private  claims.  Mitchell  r.  U.  S.,  18  Ct.  Cls.,  281,  286.  The  excepting 
clause  in  section  3732,  Revised  Statutes  (a)  in  relation  to  contracts  for  and  purchases 
of  clothing,  subsistence,  forage,  fuel,  quarters,  etc.,  operates  to  withdraw  such  con- 
tracts and  purchases  from  the  prohibition  contained  in  this  paragraph  in  relation  to 
expenditures  in  excess  of  the  appropriations  for  a  particular  fiscal  year,  and  such 
purchases  may  be  made,  provided  the  necessities  of  the  current  fiscal  year  be  not 
exceeded. 

A  deficiency  appropriation  is  one  made  to  pay  a  liability  legally  created,  for  the 
payment  of  which  an  appropriation  previously  made  is  insufficient;  it  supplements 
the  original  appropriation,  partakes  of  its  nature,  and  is  subject  to  the  same  limita- 
tions which  attach  by  law  to  the  use  of  the  original  appropriation.  IV  Comp. 
Dec.,  61. 

2 The  Revised  Statutes  (section  3682)  forbid  money  appropriated  for  contingent, 
incidental,  or  miscellaneous  purposes  being  used  for  official  or  clerical  compensation. 
The  adjectives  "contingent,"  "incidental,"  and  "miscellaneous"  have  a  technical 
and  well-understood  meaning;  and,  where  a  specific  appropriation  is  made  for  specific 
objects,  such  as  clerks,  messengers,  light,  fuel,  no  disbursement  can  be  made  there- 
for from  the  appropriation  for  "miscellaneous  expenses."  22 Ct.  Cls., 269.  See, also, 
for  other  statutory  provisions  respecting  the  disbursement  of  contingent  funds,  para- 
graphs 42  and  54  to  60  ante. 

The  words  "contingent  expenses"  as  employed  in  acts  making  appropriations, 
means  such  incidental,  casual,  and  unforeseen  expenses  as  are  necessary  and  appro- 
priate to  the  execution  of  duties  required  by  law  in  connection  with  the  object  for 
which  the  appropriation  was  made.  IV  Comp.  Dec.,  287.  There  is  no  discretion 
conferred  upon  the  heads  of  departments  to  use  such  appropriations  for  other  pur- 
poses. Ibid. 

a  See  the  chapter  entitled  CONTRACTS  AND  PURCHASES. 


108  MILITARY    LAWS    OF   THE    UNITED    STATES. 

niinec1  by  the  correct  footing  up  of  the  specific  sums  or 
rates  appropriated  in  each  paragraph  contained  therein 
unless  otherwise  expressly  provided.  Act  of  May  £8, 1896 
(29  Stat.  Z.,  140,  148). 


Permanent  a{>-     276.  There  are  appropriated,  out  of  any  moneys  in  the 

propriations.  .  -IP" 

sec.3689,  R.S.  Treasury  not  otherwise  appropriated,  for  the  purposes 
hereinafter  specified,  such  sums  as  may  be  necessary  for 
the  same  respectively;  and  such  appropriations  shall  be 
deemed  permanent  annual  appropriations. 

UNDER   THE   WAR   DEPARTMENT. 

Bounty  to  soldiers: 

July  28,  isee,  c.  For  payment  of  bounty  to  soldiers,  or  their  widows  or 
322':  Apr. 22, 1872^  legal  heirs,  under  the  twelfth,  thirteenth,  fourteenth,  fif- 
teenth, and  sixteenth  sections  of  "An  act  making  appro- 
priations for  sundry  civil  expenses  of  the  Government  for 
the  year  ending  June  thirty,  eighteen  hundred  and  sixty- 
seven,  and  for  other  purposes."' 

i2ALr'  i  V8^1!?'  Payment  to  certain  military  organizations  in  Kansas : 

PP.  64i,  642.  To  pay  to  the  members  of  the  military  organizations 

known  as  the  Westport  Police  Guards,  Hickman's  Mills 
Company,  and  Companies  A,  B,  C,  D,  and  E  of  the  Kan- 
sas City  Station  Guards,  under  private  act  of  April  twelve, 
eighteen  hundred  and  seventy-one,  chapter  twelve,  the  pay 
and  allowances  of  volunteers  in  the  service  of  the  United 
States. 

Traveling  expenses  of  California  and  Nevada  volun- 
teers: 

Marv2, 1867,  <>.      To  pay  for  the  traveling  expenses  of  such  California  and 

48?!'  'Nevada  volunteers  as  were  discharged  in  New  Mexico, 

Arizona,  or  Utah,  and  at  points  distant  from  the  place  or 

places  of  enlistment,  such  proportionate  sum,  according  to 


1  Permanent  appropriations  are  those  made  for  an  unlimited  period.     Indefinite 
appropriations  are  those  in  which  no  amount  is  named.     XIII  Opin.  Att.  Gen.,  289. 
A  "permanent  specific  appropriation"  is   one  which  requires  the  money  payable 
by  virtue  of  it  to  be  applied  to  an  object  specifically  pointed  out  by  law,  and  which 
may  be  so  applied  at  any  time  in  the  future,  and  not  merely  for  the  service  of  the 
current  fiscal  year.     It  exists  when  the  act  of  Congress  which  made  it  points  out 
the  purpose  to  which  it  applies,  and  shows  that  it  was  intended  to  be  used  in  the 
future,  without  limit  as  to  time.     If  the  object  to  which  it  is  to  be  applied  has  no 
reference  to,  or  connection  with,  the  service  of  any  particular  year,  the  appropriation 
may  be  considered  as  permanent,  where  such  intention  is  apparent  in  the  act  making 
it.     If  it  be  for  the  discharge  of  an  existing  obligation  having  no  connection  with 
the  service  of  the  current  year,  and  not  in  part  discharge  of  a  continuous  service,  it 
may  reasonably  be  supposed  that  Congress  intended  the  liability  to  be  paid  without 
reference  to  time.     2  Lawrence,  Compt.  Dec. ,  2d  ed. ,  246;  III  Compt.  Dec. ,  623,  625. 

2  By  the  act  of  March  3,  1875  (18  Stat.  L.,  343),  the  clause  of  the  above  section 
making  a  permanent  appropriation  for  the  National  Home  for  Disabled  Volunteer 
Soldiers  was  repealed. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  109 

the  distance  traveled,  as  has  been  paid  to  the  troops  of 
other  States  similarly  situated. 

Allowance  for  reduction  of  wages  under  eight-hour 

law: 

Of  such  sum  as  may  be  required  in  the  settlement  of  all  Mayi8,i872,c. 
accounts  for  the  services  of  laborers,  workmen,  and  mechan-  134'.  8' 
ics  employed  by  or  on  behalf  of  the  Government,  between 
the  twent}r-fifth  day  of  June,  eighteen  hundred  and  sixty- 
eight,  the  date  of  the  act  constituting  eight  hours  a  day's 
work  for  all  such  laborers,  workmen,  and  mechanics,  and 
the  nineteenth  day  of  May,  eighteen  hundred  and  sixty- 
nine.  the  date  of  the  proclamation  of  the  President  con- 
cerning such  pay,  to  settle  and  pay  for  the  same  without 
reduction  on  account  of  reduction  of  hours  of  labor  by 
said  act.  when  it  shall  be  made  to  appear  that  such  was 
the  sole  cause  of  the  reduction  of  wages.  (See  sec.  3738.) 

277.  The  sum  of  one  million  dollars  is  herebv  annually    Annual  appro- 

.,-,.,  .  !  /,  •      ,1       m  priation  for  arms 

appropriated,  to  he  paid  out  or  anv  money  in  the  Lreasurv  and  equipments. 

.  .    ,     j     £         ,y  £  .,.    -       Apr.  23,  1808,  c. 

not  otherwise  appropriated,  tor  the  purpose  ot  providing1  55,s.i,v.2,  p.  490; 

,  ^  Apr.  29,  1816,  c. 

arms,   ordnance  stores,   quartermaster  stores,   and  camp  135,  s.  i,  v.  3,  p. 

£  ,,  .,.,.      .          .     ,        „    I  yn  A.  320;  Mar.  3,  1875, 

equipage  for  issue  to  the  militia.      Act  of  June  6.  1900  c.i33,s.s,\.is,p. 

T  455;  Feb.  12,  1887, 

(31  Stat.  L..  662).  v.  24,  p.  401. 

^pf*   irri    K  v 

278.  No  tolls  or  operating  charges  whatsoever  shall  be    Toils  notVbe 

i       .     i  n  !  111  levied  or  collect- 

levied  or  collected  upon  anv  vessel  or  vessels,  dredges,  or  ed  on  canals,  etc. 

...  "         ,  -11     Sec-  4>  July  6- 

other  passing  water  cratt  through  any  canal  or  other  work  ISM,  v.  23,  p.  147. 

for  the  improvement  of  navigation  belonging  to  the  United 

States;  and  for  the  purpose  of  preserving  and  continuing 

the  use  and  navigation  of  said  canals,  rivers,  and  other 

public  works  without  interruption,  the  Secretary  of  War, 

upon  the  application  of  the  chief  engineer  in   charge  of 

said  works,  is  hereby  authorized  to  draw  his  warrant  or 

requisition  from  time  to  time  upon  the  Secretary  of  the 

Treasury  to  pay  the  actual  expenses  of  operating  and  keep-  acIt>ula'1m|xts  ,,Ss 

ing  said  works  in   repair,  which  warrants  or  requisition  s  of  operatton  mid 

shall  be  paid  by  the.  Secretary  of  the  Treasury,  out  of  any  ized- 

money  in  the  Treasury  not  otherwise  appropriated:  Pro- 

vided,  however,  That  an  itemized  statement  of  said  ex- 

penses shall  accompany  the  annual  report  of  the  Chief  of 

Engineers.      Sec.  4,  act  of  July  5,  1884  (23  Stat.  Z., 


1  By  the  act  of  April  23,  1808  (2  Stat.  L.,  490,  sec.  1661,  R.  S.  ),  a  permanent  appropri- 
ation of  $200,000  was  authorized  for  arming  and  equipping  the  militia.  This  appro- 
priation was  increased  to  $400,000  by  the  act  of  February  12,  1887  (24  Stat,  L.,  401  ). 
By  the  act  of  August  18,  1894  (28  Stat.  L.,  372),  it  was  provided  that  the  appropria- 
tion should  not  lapse  as  to  any  unexpended  portion  in  any  fiscal  year,  but  that  such 
unexpended  portion  should  constitute  a  fund  to  be  applied  to  the  purpose  contem- 
plated by  the  statute.  By  the  act  of  June  6,  1900  (31  Stat.  L.,  662),  the  annual 
appropriation  was  increased  to  $1,000,000. 


110  MILITARY    LAWS    OF    THE    UNITED    STATES. 


APPLICATION    OF   BALANCES. 

Par.  Par. 

279.  To  be  covered  into  the  Treasury  at     281,282.  Disposition  of  balances  after  two 

the  end  of  fiscal  year.  years. 

280.  Appropriations  for  public  buildings 

exempt  from  being  covered  in. 

batancesatofUa°f     ^®'  ^^   balances  of   appropriations   contained   in  the 
propriations.       annual  appropriation  bills  and  made  specifically  for  the  serv- 

July  12,  1870,  c.  .  .     .  ^  J 

251,  s.  5,  v.  16,  p.  ice  or  any  fiscal  year,  and  remaining  unexpended  at  the 
'sec.  3690,  R.  s.  expiration  of  such  fiscal  year,  shall  only  be  applied  to  the 
payment  of  expenses  properly  incurred  during  that  year, 
or  to  the  fulfillment  of  contracts  properly  made  within  that 
year;  and  balances  not  needed  for  such  purposes  shall  be 
carried  to  the  surplus  fund.  This  section,  however,  shall 
not  apply  to  appropriations  known  as  permanent  or  indefi- 
nite appropriations.1 

Exemption  in      280.  All  moneys  heretofore  appropriated  for  the  con- 
respect  to  public  i  i  •      T     •  i  T  •• 
buildings.          struction  of  public  buildings  and  now  remaining  to  the 

v.  is,  p.  275.  '  credit  of  the  same  on  the  books  of  the  Treasury  Depart- 
ment, or  which  may  hereafter  be  appropriated  for  such 
buildings,  shall  remain  available  until  the  completion  of 
the  work  for  which  they  are,  or  may  be,  appropriated. 
And  upon  the  final  completion  of  said  buildings,  and  the 
payment  of  all  outstanding  liabilities  therefor,  the  balance 

aThe  use  of  every  fiscal-year  appropriation  is  limited  by  section  3690  of  the  Revised 
Statutes  and  by  its  own  terms  to  the  payment  of  expenses  properly  incurred  during 
the  fiscal  year  for  which  it  is  made,  or  to  -the  fulfillment  of  contracts  properly  made 
within  that  year;  and  balances  not  needed  for  such  purposes  must  be  carried  to  the 
surplus  fund  and  covered  into  the  Treasury  in  conformity  with  the  provisions  of 
section  5  of  the  act  of  June  20,  1874.  (18  Stat.  L.,  110) ;  3  Dig.,  2d  Compt,  Dec.,  par. 
96.  The  use  of  any  part  of  an  appropriation  made  for  one  fiscal  year  for  the  payment 
of  any  liability  incurred  during  a  succeeding  fiscal  year  is  prohibited  by  section  MO?}) 
as  well  as  by  section  3690  of  the  Revised  Statutes.  Ibid.,  par.  99. 

An  appropriation  is  properly  chargeable  with  all  the  expenses  necessary  to  accom- 
plish the  object  for  which  it  is  made,  unless  particular  items  of  expense  are  specific- 
ally provided  for  by  some  other  appropriation.  IV  Compt.  Dec.  24,  I  ibid.,  472,  517; 
II  ibid.,  74;  III  ibid.,  623.  There  is  no  authority  under  an  act  of  appropriation,  made 
specifically  for  the  service  of  a  particular  fiscal  year,  to  enter  into  a  contract  for  sup- 
plies, etc. ,  for  the  service  of  a  subsequent  fiscal  year,  and  therefore,  as  to  that  appro- 
priation, such  a  contract  is  not  "properly  made  within  that  year,"  within  the  meaning 
of  section  3690,  Revised  Statutes.  IV  ibid.,  553.  AVhile'it  is  a  rule  that  a  specific 
appropriation  excludes  the  use,  for  the  same  objects,  of  a  general  appropriation,  yet 
when  there  are  two  appropriations  both  applicable  to  the  same  object  they  are  to  be 
treated  as  cumulative,  and  either  or  both  can  be  used  in  the  discretion  of  the  head  of 
the  Department.  Ibid.,  121.  See,  also,  I  ibid.,  533.  The  balance  of  an  appropri- 
ation which  has  been  treated  as  not  limited  to  a  fiscal  year  will,  upon  the  accomplish- 
ment of  the  object  for  which  it  was  made,  be  covered  into  the  Treasury,  in  analogy 
to  the  practice  required  by  law  (a)  in  the  case  of  balances  of  appropriations  for  the 
construction  of  public  buildings.  I  Compt.  Dec.,  487. 

An  appropriation  found  in  an  annual  appropriation  act  and  made  specifically  for 
the  service  of  a  certain  fiscal  year  is  not  available  thereafter  except  in  payment  of 
expenses  properly  incurred,  or  in  the  fulfillment  of  contracts  properly  made  within 
the  year  as  provided  in  section  3690  of  the  Revised  Statutes.  I  Compt.  Dec.,  170. 

a  Act  of  June  23,  1874  (18  Stat.  L.,  275). 


MILITARY    LAWS    OF    THE    UNITED    STATES.  Ill 

or  balances  remaining  shall  be  immediately  covered  into 
the  Treasury.  Act  of  June  $3,  187 %  (18  Stat.  Z.,  975). 

281.  All  balances  of  appropriations  which  shall  have  re-    Disposal  of  bai- 
mained  on  the  books  of  the  Treasury,  without  being  drawn  yeare.  af 
against  in  the  settlement  of  accounts,  for  two  years  from    June2o,i874,c. 
the  date  of  the  last  appropriation  made  by  law,  shall  be3see?869?',ius. 
reported  by  the  Secretary  of  the  Treasury  to  the  Auditor 

of  the  Treasury,  whose  duty  it  is  to  settle  accounts  there- 
under, and  the  Auditor  shall  examine  the  books  of  his 
office,  and  certify  to  the  Secretary  whether  such  balances 
will  be  required  in  the  settlement  of  any  accounts  pending 
in  his  office;  and  if  it  appears  that  such  balances  will  not  be 
required  for  this  purpose,  then  the  Secretary  may  include 
such  balances  in  his  surplus-fund  warrant,  whether  the 
head  of  the  proper  Department  shall  have  certified  that  it 
may  be  carried  into  the  general  Treasury  or  not.  But  no 
appropriation  for  the  payment  of  the  interest  or  principal 
of  the  public  debt,  or  to  which  a  longer  duration  is  given 
by  law,  shall  be  thus  treated. 

282.  From  and  after  the  first  dav  of  July,  eighteen  hun-    The  same. 

,        ,  ,  ,  ,        ,,        "   ,  ,,  j!A          ±u        June  20, 1874,s. 

dred  and  seventy-four,  and  of  each  year  thereafter,  the  5,  v.  is,  p.  85. 
Secretary  of  the  Treasury  shall  cause  all  unexpended  bal- 
ances of  appropriations  which  have  remained  upon  the 
books  of  the  Treasury  for  two  fiscal  years  to  be  carried  to 
the  surplus  fund  and  covered  into  the  Treasury:  Provided, 
That  this  provision  shall  not  apply  to  permanent  specific 
appropriations,  appropriations  for  rivers  and  harbors, 
light-houses,  fortifications,  public  buildings,  or  the  pay 
of  the  Nav}r  and  Marine  Corps;  but  the  appropriations 
named  in  this  proviso  shall  continue  available  until  other- 
wise ordered  by  Congress.  Sec.  5,  Act  of  June  W,  1784 
(18  Stat.  Z.,  85). 

THE   PUBLIC    MONEYS. 
THE     TREASURY,     SUBTREA8URIES,     AND     DEPOSITORIES. 

THE    TREASURER. 

Par.  Par. 

283.  The  Treasurer,  appointment.  286.  Assistant  treasurers. 

287,  288.  Certain  mints  to  be  depositories. 

289,  290.  Designated  depositories. 


284.  Duties. 

285.  The  Treasury  of  the  United  States. 

283.  There  shall  be  in  the  Department  of  the  Treasury  a 
Treasurer  of  the  United  States,  who  shall  be  appointed  J|:  j^  Jj ^ 
by  the  President,  by  and  with  the  advice  and  consent  of  £• 
the  Senate,  and  shall  be  entitled  to  a  salary  of  six  thou- 18{ 
sand  dollars  a  year. 


112  MILITARY    LAWS    OF    THE    UNITED    STATES. 

Duties  of  the      284.  The  Treasurer  shall  receive  and  keep  the  moneys  of 

sept.  2, 1789,  c.  the  United  States,  and  disburse  the  same  upon  warrants 

drawn  by  the  Secretary  of  the  Treasury,  countersigned  by 

sec.  n,  act  of  the  Comptroller,  and  not  otherwise.     He  shall  take  receipts 

July  31, 1894,  vol.  .  ,.  ,      ,  .  •     ,      />  n 

28,  p.  210.  for  all  moneys  paid  by  him,  and  shall  give  receipts  for  all 

'moneys  received  by  him;  and  all  receipts  for  moneys 
received  by  him  shall  be  indorsed  upon  warrants  signed 
by  the  Secretary  of  the  Treasury,  without  which  warrant, 
so  signed,  no  acknowledgment  for  mone}r  received  into 
the  public  Treasury  shall  be  valid.  He  shall  render  his 
accounts  to  the  [Auditor  for  the  Treasury  Department] 
quarterly,  or  oftener  if  required,  and  shall  transmit  a  copy 
thereof,  when  settled,  to  the  Secretary  of  the  Treasury*. 
He  shall  at  all  times  submit  to  the  Secretary  of  the  Treasury 
and  the  Comptroller,  or  either  of  them,  the  inspection  of 
the  moneys  in  his  hands.1 

ofTthe  JnSn-eci  285'  ^e  rooms  provided  in  the  Treasury  building  at  the 
states.  6  1846  c  seat  of  government  for  the  use  of  the  Treasurer  of  the 
9o,s.i.v.9,p.59.  United  States,  his  assistants,  and  clerks,  and  occupied  by 

Cooke  et  al.  v.  " 

u^s.,  91  u.  s.,  them,  and  the  fireproof  vaults  and  safes  erected  therein 
sec. 3591, K.S.  fOr  the  keeping  of  the  public  moneys  in  the  possession  and 
under  the  immediate  control  of  the  Treasurer,  and  such 
other  apartments  as  are  provided  as  places  of  deposit  of 
the  public  money,  shall  bo  the  Treasury  of  the  United 
States. 

ASSISTANT   TREASURKKS. 

Appointment       286.  There  shall  be  assistant  treasurers  of  the  United 

etc.,  of  assistant    ^  .  .  . 

treasurers.  btates,  appointed  from  time  to  time  by  the  President,  by 
90,  s.  5,  v!  9,  p.  60;  and  with  the  advice  and  consent  of  the  Senate,  to  serve 

Apr.  7,1868,0.28, 

s.  14,  v.  14,  p.  26:  tor  the  term  or  tour  vears,  as  follows: 

June  15,  1870,  c.  J 

12,  s.  i,  v.  16,  p.*     One  at  .Boston. 

152;  Feb.  12, 1873, 

c.  131,  s.  65, v.  17,      One  at  New  York. 

p.   435;    Mar.    3,  . 

i873,c.229,s.5,v.      One  at  Philadelphia. 
Sec.3595,R.s.      One  at  Baltimore. 

One  at  New  Orleans. 

One  at  Saint  Louis. 

One  at  San  Francisco. 

One  at  Cincinnati. 

One  at  Chicago. 
certain  mints      287.  The  mints  at  Carson  City,  and  at  Denver,  and  the 

and  assay  offices  . 

to  ^be  deposito-  assay  office  at  Boise  City,  shall  be  places  of  deposit  for  sqch 
Apr.  21, 1862,  c.  public  moneys  as  the  Secretary  of  the  Treasury  may  direct. 

383;  Mar.  3,  1863.'  c.  96,  s.  5,  v.  12,  p.  770;  Feb.  18,  1869,  c.  33,  s.  4,  v.  15, 
p.  271;  Feb.  12,  1873,  c.  131,  ss.  65,  66,  v.  17,  p.  435.     W.  :{.>9-2,  B.  S. 


1  So  much  of  this  section  as  required  the  Register  of  the  Treasury  to  record  war- 
rants was  repealed  by  section  11  of  the  act  of  July  31,  1894,      (28  ttyt.  L.,  209.) 


MILITARY    LAWS    OF   THE    UNITED   STATES. 


113 


288.  The  superintendent  of  the  mint  at  Carson  City,  and 
the  superintendent  of  the  assay-office  at  Boise*  City,  shall 
be  assistant  treasurers  of  the  United  States,  and  shall  re- 
spectively have  the  custody  and  care  of  all  public  moneys 
deposited  therein,  and  shall  perform  all  the  duties  required 
of  them  in  reference  to  the  receipt,  safe-keeping,  transfer, 
and  disbursement  of  all  such  moneys,  as  provided  by  law. 


Superintendents 
of  mint  at  Carson 
and  assay  office  at 
Boise  City  to  be 
assistant  treasur- 
ers. 

Mar.  3,  1863,  c. 
96,  s.  5,  v.  12,  p. 
770;  Apr.  21, 1862, 
c.  50,  s.  5,  v.  12,  p. 
383;  Mar.  3, 1871, 
c.  113,s.  I,v.l6,p. 
485;  Feb.  18, 1869, 
c.  33,  s.  4,  v.  15,  p. 
S. 


271;  Feb.  12,  1873,  c.  131,  ss.  65,  66,  v.  17,  p.  435.    Sec.  3594  B. 


DESIGNATED    DEPOSITORIES. 

289.  All  national  banking  associations,  designated  for    National  banks 
that  purpose  by  the  Secretary  of  the  Treasury,  shall  be  &SMar °f,  1901%. 

.,       .  j,          IT  •     ,        I  31,  p.  1448. 

depositaries  of  public  money,  except  receipts  from  cus-  Sec.  5153,  B.  s. 
toms,  under  such  regulations  as  may  be  prescribed  by  the 
Secretary,  but  receipts  derived  from  duties  on  imports  in 
Alaska,  the  Hawaiian  Islands,  and  other  islands  under  the 
jurisdiction  of  the  United  States  may  be  deposited  in  such 
depositaries  subject  to  such  regulations;  and  such  deposi- 
taries may  also  be  employed  as  financial  agents  of  the  Gov- 
ernment; and  they  shall  perform  all  such  reasonable  duties 
as  depositaries  of  public  moneys  and  financial  agents  of 
the  Government  as  may  be  required  of  them.  The  Secre- 
tary of  the  Treasury  shall  require  the  associations  thus 
designated  to  give  satisfactory  security,  by  the  deposit  of 
United  States  bonds  and  otherwise,  for  the  safe-keeping 
and  prompt  payment  of  public  money  deposited  with  them, 
and  for  the  faithful  performance  of  their  duties  as  finan- 
cial agents  of  the  Government.  And  every  association  so 
designated  as  receiver  or  depositary  of  the  public  money 
shall  take  and  receive  at  par  all  of  the  national  currency 
bills,  \)y  whatever  association  issued,  which  have  been 
paid  into  the  Government  for  internal  revenue  or  for  loans 
or  stocks.  Act  of  March  3,  1901  (31  Stat.  Z.,  1448). 

290.  In  places     *     *     *     where  there  is   no  treasurer 
or  assistant  treasurer,  the  Secretary  of  the  Treasury  may, 
when  he  deems  it  essential  to  the  public  interest,  specially 
authorize  in  writing  the  deposit  of  such  public  money  in 
any  public  depository,  or,  in  writing,  authorize  the  same 
to  be  kept  in  any  other  manner,  and  under  such  rules  and 
regulations  as  he  may  deem  most  safe  and  effectual  to 
facilitate  the  payments  to  public  creditors. 

The  Secretary  of  the  Treasury  is  hereby  authorized  to 
designate  one  or  more  banks  or  bankers  in  the  Philippine  31,  p.  ess. 
Islands  and  in  the  islands  of  Cuba  and  Porto  Rico  in  which 
public  moneys  may  be  deposited :  Provided,  That  the  banks 
22924—08 8 


Depositories. 
Sec.  3620,  R.  S. 


The  same. 
June  6, 1900,  v 


114  MILITARY    LAWS    OF    THE    UNITED    STATES. 

or  bankers  thus  designated  shall  give  satisfactory  security 
for  the  safe-keeping  and  prompt  payment  of  the  public 
moneys  so  deposited  by  depositing  in  the  Treasury  United 
States  bonds  to  an  amount  not  less  than  the  aggregate  sum 
at  any  time  on  deposit  with  such  banks  or  bankers:  And 
provided  further,  That  this  act  shall  apply  to  Cuba  only 
while  occupied  by  the  United  States.  Act  of  June  6,  1900 
(31  Stat.  Z.,  658}. 

DISBURSING   AGENTS. 


Par. 

291.  Collectors  to  act  as  disbursing  agents. 

292.  Special  disbursing  agents. 

293.  Limit  on  compensation. 

294.  Compensation  of  certain  disbursing 

ageflts. 


Par. 


295.  Bonds  of  special  agents. 
295a.  Expenses  of  fiscal  agents. 


collectors    to     291.  The  collectors  of  customs  in  the  several  collection 
agents.18       ns  districts  are  required  to  act  as  disbursing  agents  for  the 

June  12, 1858,  c.  ,     ' 

154,  s.  17,  v.  11,  p.  payment  of  all  moneys  that  are  or  may  hereafter  be  appro- 
sec.  3657,  K.S.  priated  for  the  construction  of  custom-houses,  court-houses, 
post-offices,  and  marine  hospitals;  with  such  compensation, 
not  exceeding  one-quarter  of  one  per  centum,  as  the  Secre- 
tary of  the  Treasury  may  deem  equitable  and  just.  (See 
sec.  255.) 

bureinciaaentsis      292.  Where  there  is  no  collector  at  the  place  of  location 
aoi vulp1  MI c> °^  anv  Public  work  specified  in  the  preceding  section,  the 
sec.  8658,  K.S.  Secretary  of  the  Treasury  may  appoint  a  disbursing  agent 
for  the  payment  of  all  moneys  appropriated  for  the  con- 
struction of  any  such  public  work,  with  such  compensation 
as  he  may  deem  equitable  and  fust. 

compensation1™  ^93.  No  extra  compensation  exceeding  one-eighth  of  one 
is^m. 1869>  v'  Per  centum  shall  in  any  case  be  allowed  or  paid  to  any 
is  p  r4il' 18?5' V  °fficer?  person,  or  corporation  for  disbursing  moneys 
Sec-36^4'B-s- appropriated  to  the  construction  of  any  public  building.1 
^94.  Any  disbursing  agent  who  has  been  or  may  be 
.  appointed  to  disburse  any  appropriation  for  any  United 
22,  p.  306.  States  court-house  and  post-office,  or  other  building  or 

grounds,  not  located  within  the  city  of  Washington,  shall 
be  entitled  to  the  compensation  allowed  by  law  to  collectors 
of  customs  for  such  amounts  as  have  been  or  may  be  dis- 
bursed. Act  of  August  7,  1882  (22  Stat.  L.,  306). 

Section  4  of  the  act  of  March  3,  1875  (18  Stat.  L.,  402),  contained  the  require- 
ment that  this  section  "  was  intended  and  shall  be  deemed  and  held  to  limit  the 
compensation  to  be  allowed  to  any  disbursing  officer  who  disbursed  moneys  appro- 
priated for  and  expended  in  the  construction  of  any  public  building  to  three-eighths 
of  one  per  centum  for  said  services." 


MILITARY    LAWS    OF    THE    UNITED    STATES. 


115 


Sec.  3614  R  S 


295,  Whenever  it  becomes  necessary  for  the  head  of  any  Bonds  of  special 
Department  or  office  to  employ  special  agents,  other  than  a^ug/4,  1354,  c. 

in  £    ^         A  AT  1  •    i    242' 

officers  of  the  Armv  or  Navy,  who  may  be  charged  with  ^3. 
the  disbursement  of   public  moneys,    such   agents  shall, 
before  entering  upon  duty,  give  bond  in  such  form  and  with 
such  security  as  the  head  of  the  Department  or  office  em- 
ploying them  may  approve.     Sec.  361^  jR.  /S. 

295a.  The  officers,  respectively,  whose  duty  it  is  made  by  Expensesof  ns- 
this  Title  to  receive,  keep,  or  disburse  the  public  moneys, 
as  the  fiscal  agents  of  the  Government,  may  be  allowed  any 
necessary  additional  expenses  for  clerks,  fireproof  chests 
or  vaults,  or  other  necessary  expenses  of  safe-keeping, 
transferring,  or  disbursing  the  moneys;  but  all  such 
expenses  of  every  character  shall  be  first  expressly  author- 
ized by  the  Secretary  of  the  Treasury,  whose  directions 
upon  all  the  above  subjects,  by  way  of  regulation  and 
otherwise,  so  far  as  authorized  by  law,  shall  be  strictly 
followed  b  all  the  officers.1 


TRANSFERS  OF  FUNDS  BY  THE  SECRETARY  OF  THE  TREASURY. 


Par. 

298.  Public  moneys  subject  to  draft  of  the 
Treasurer. 


Par. 

296.  Funds  subject  to  transfer. 

297.  Transfers  from  depositaries  to  Treas- 

ury. 

296.  All  public  moneys  paid  into  any  depository  shall  be 
subject  to  the  draft  of  the  Treasurer  of  the  United  States, 
drawn  agreeably  to  appropriations  made  by  law. 

297.  The  Secretarv  of  the  Treasurv  mav,  except  as  pro-    Transfers  of 

.  ,  .  .111     moneys  from  de- 

vided  in  the  next  section,  transfer  the  moneys  in  the  hands  positaries  to 
of  any  depositary  of  public  moneys  to  the  Treasur}^  of  the    Aug.  e/iwe,  c. 
United  States  to  the  credit  of  the  Treasurer;  and  he  may  see.  sWo,  R.  s.' 
transfer  moneys  in  the  hands  of  one  depositary  to  any  other 
depositary,  as  the  saf ety  of  the  public  moneys  and  the  con- 
venience of  the  public  service  shall  seem  to  him  to  require. 

298.  All  moneys  paid  into  the  Treasury  of  the  United 
States  shall  be  subject  to  the  draft  of  the  Treasurer. 

for  the  purpose  of  payments  on  the  public  account  the 
Treasurer  is  authorized  to  draw  upon  any  of  the  deposi- 
taries, as  he  may  think  most  conducive  to  the  public  inter- 
est and  to  the  convenience  of  the  public  creditors.  Each 
depositary  so  drawn  upon  shall  make  returns  to  the  Treas- 
ury and  Post-Office  Departments  of  all  moneys  received 


1  An  officer  charged  with  the  duty  of  safely  keeping  and  paying  over  public  mon 
is  not  relieved  from  liability  although  it  is  destroyed  by  fire  while  in  his  possessi 
and  without  negligence  on  his  part.  I  Compt.  Dec.,  191. 


116  MILITARY    LAWS    OF    THE    UNITED    STATES. 

and  paid  by  him,  at  such  times  and  in  such  forms  as  shall 
be  directed  by  the  Secretary  of  the  Treasury  or  the  Post- 
master-General. 

DEPOSIT  or  PUBLIC;  MONEY. 


Par.  I    Par. 


299-300.  Collectors  and  receivers,  etc.,  to 
deposit  public  funds. 

301.  Duty  of  disbursing  officers. 

302.  Penalty  for  failure    to   deposit 

funds. 


303.  Duties  of  disbursing  officers  as  cus- 

todians of  public  funds. 

304.  Reports  of  Treasurer,  etc. 


to  ^99.  All  collectors  and  receivers  of  public  money  of  every 
in  description,  within  the  District  of  Columbia,  shall,  as  often 
9oAsUf'v6'98p6'6i:  as  tnev  mav  be  directed  by  the  Secretar}T  of  the  Treasury 
§ibs  es  v87!3?'  p' or  the  Postmaster-General  so  to  do,  pay  over  to  the  Treas- 
43|'ec  3616  B  s  urer  °^  the  United  States,  at  the  Treasury,  all  public 
moneys  collected  by  them  or  in  their  hands.  All  such  col- 
lectors and  receivers  of  public  moneys  within  the  cities  of 
New  York,  Boston,  Philadelphia,  New  Orleans,  San  Fran- 
cisco, Baltimore,  Charleston,  and  St.  Louis  shall,  upon 
the  same  direction,  pay  over  to  the  assistant  treasurers  in 
their  respective  cities,  at  their  offices,  respectively,  all  the 
public  moneys  collected  by  them,  or  in  their  hands;  to  be 
safely  kept  by  the  respective  depositaries,  until  otherwise 
disposed  of  according  to  law.  It  shall  be  the  duty  of  the 
Secretary  and  Postmaster-General,  respectively,  to  direct 
such  payments  by  the  collectors  and  receivers  at  all  the 
Said  places,  at  least  as  often  as  once  in  each  week,  and  as 
much  oftener  as  they  may  think  proper. 

300.  All  marshals,  district  attorneys,  and  other  persons 
- than  those  mentioned  in  the  preceding  section,  having 
T?easu?y°ne:  m  public  money  to  pay  to  the  United  States,  may  pay  the 
9ofsUi5 ,  v I9?v'.62;  same  to  any  depositary  constituted  by  or  in  pursuance  of 
23o,ys.8iii,8v0>  iei  law,  which  may  be  designated  by  the  Secretary  of  the 
P's2ec6.'36i6,R.s.  Treasury. 

buying  °offi(?ere     301t  Jt  sha11  be  the  duty  of  every  disbursing  officer  hav- 
monly  publicing  any  public  money  intrusted  to  him  for  disbursement 
m^VVif'p  ^°  Deposit  the  same  with  the  Treasurer  or  some  one  of  the 
c^eTv.'iS'p.m  assistant  treasurers  of  the  United  States,  and  to  draw  for 
Sec.  8620,  R.S.  the  same,  only  as  it  may  be  required  for  payments  to  be 
made  by  him  in  pursuance  of  law  [and  draw  for  the  same 
only  in  favor  of  the  persons  to  whom  payment  is  made] ;  and 
all  transfers  from  the  Treasurer  of  the  United  States  to  a 
disbursing  officer  shall  be  by  draft  or  warrant  on  the  Treas- 
ury or  an  assistant  treasurer  of  the  United  States.     In 
places,  however,  where  there  is  no  treasurer  or  assistant 
treasurer,  the  Secretary  of  the  Treasury  may,  when  he 


MILITARY    LAWS    OF    THE    UNITED    STATES.  117 

deems  it  essential  to  the  public  interest',  specially  authorize 
in  writing  the  deposit  of  such  public  money  in  any  other 
public  depositor}^,  or,  in  writing,  authorize  the  same  to  be 
kept  in  any  other  manner,  and  under  such  rules  and  regu- 
lations as  he  ma}7  deem  most  safe  and  effectual  to  facilitate 
the  payments  to  public  creditors.  (See  sec.  64.88,  It.  S.) 

302.  Every  person  who  shall  have  moneys  of  the  United ,  Penalty  for 

-    L  J  failure  to  deposit. 

States  in  his  hands  or  possession,  and  disbursing  officers  nf^f'g3^18^' c- 
having  money  sin  their  possession  not  required  for  current  24|ec  5  Ma 
expenditure,  shall  pay  the  same  to  the  Treasurer,  an  assist- 18^-  \J&J-J9- 

see.  .»*!!:  I ,  K.  S. 

ant  treasurer,  or  some  public  depositary  of  the  United 
States,  without  delay,  and  in  all  cases  within  thirty  days  of 
their  receipt.  And  the  Treasurer,  the  assistant  treasurer, 
or  the  public  depositary  shall  issue  duplicate  receipts  for 
the  moneys  so  paid,  transmitting  forthwith  the  original  to 
the  Secretary  of  the  Treasury,  and  delivering  the  duplicate 
to  the  depositor:  Provided,  That  postal  revenue  and  debts 
due  to  the  Post-Office  Department  shall  be  paid  into  the 
Treasury  in  the  manner  now  required  by  law. 

303.  The  Treasurer  of  the  United  States,  all  assistant  u  Duties  of  dis- 

.  ,         ,       .  ,          .  bursmg    officers 

treasurers,  and  those  performing"  the  duties  ot  assistant as  custodians  of 

7  L  public  moneys. 

treasurer,  all  collectors  of  the  customs,  all  surveyors  of  the    Aus-  6» 1846.  c. 

.  ,.  .»-,-,.     90,  s.  6,  v.  9,  p.  60; 

customs,  acting  also  as  collectors,  all  receivers  or  public Mar-  3>  1857.  c- 
moneys  at  the  several  land  offices,  all  postmasters,  and  all  249-  July  3,1352, 

J  '  c.  54,  s.  7,  v.  10,  p. 

public  officers  of  whatsoever  character,  are  required  to^Mar.s.ises.c. 

'  *  96,  s.  5,  v.  12,  p. 

keep  safely,  without  loaning,  using,  depositing  in  banks,  01"  ^i/d^y'il64' 
exchanging  for  other  funds  than  as  specially  allowed  by  wsj^pr'^utt, 
law,  all  the  public  money  collected  by  them,  or  otherwise 382;  Feb.'i8,i869, 

J  J  c.  33,  s.  4,  v.  15,  p. 

at  any  time  placed  in  their  possession  and  custody,  till  the  271.^  ^^  R  g 
same  is  ordered,  by  the  proper  Department  or  officer  of 
the  Government,  to  be  transferred  or  paid  out;  and  when 
such  orders  for  transfer  or  payment  are  received,  faithfully 
and  promptly  to  make  the  same  as  directed,  and  to  do  and 
perform  all  other  duties  as  fiscal  agents  of  the  Government 
which  may  be  imposed  by  any  law,  or  by  any  regulation  of 
the  Treasury  Department  made  in  conformity  to  law.  The 
President  is  authorized,  if  in  his  opinion  the  interest  of  the 
United  States  require  the  same,  to  regulate  and  increase 
the  sums  for  which  bonds  are,  or  may  be,  required  by  law, 
of  all  district  attorneys,  collectors  of  customs,  naval  offi- 
cers, and  surveyors  of  customs,  navy  agents,  receivers  and 
registers  of  public  lands,  paymasters  in  the  Army,  Commis- 
sary-General, and  by  all  other  officers  employed  in  the  dis- 
bursement of  the  public  moneys,  under  the  direction  of  the 
War  or  Navy  Departments.  (See  sees.  51f£9-5497,  E.  S.) 


118 


MILITARY    LAWS    OF    THE    UNITED    STATES. 


«*04.  The  Treasurer,  each  assistant  treasurer,  and  each 
desi&nated  depositary  of  the  United  States,  and  the  cash- 
ier  °f  eac^  °^  the  national  banks  designated  as  such 
70,  s.  6,  v.  H,  p.  depositaries,  shall,  at  the  close  of  business  on  every  thir- 
Sec.  810,  R.  s.  tieth  day  of  June,  report  to  the  Secretary  of  the  Treasu^ 
the  condition  of  every  account  standing,  as  in  the  preced- 
ing section  specified,  on  the  books  of  their  respective 
offices,  stating  the  name  of  each  depositor,  with  his  official 
designation,  the  total  amount  remaining  on  deposit  to  his 
credit,  and  the  dates,  respectively,  of  the  last  credit  and 
the  last  debit  made  to  each  account.  And  each  disbursing 
officer  shall  make  a  like  return  of  all  checks  issued  by  him, 
and  which  may  then  have  been  outstanding  and  unpaid 
for  three  years  and  more,  stating  fully  in  such  report  the 
name  of  the  payee,  for  what  purpose  each  check  was 
given,  the  office  on  which  drawn,  the  number  of  the 
voucher  received  therefor,  the  date,  number,  and  amount 
for  which  it  was  drawn,  and,  when  known,  the  residence 
of  the  payee.1 


TENDER. 


Par. 

305,306.  Duties    and     debts    to    United 

States,  in  what  money  to  be 

paid. 


Par. 

307.  National-bank  notes,  when  receiva- 

ble. 

308.  Treasury  notes  for  debts  of  United 

States. 


.  6,  v.  11, 
o.  3473, 


305-  Al1  duties  on  imports  shall  be  paid  in  gold  and 
com  om<y?  tcom  certificates]  or  in  demand  Treasury 
n°tes,  issued  under  the  authority  of  the  acts  of  July  seven- 
23  IBS?  c  teen,  eighteen  hundred  and  sixty-one,  chapter  five,  and 
p.  February  twelve,  eighteen  hundred  and  sixty  -two,  chapter 
s.  twenty  ;  and  all  taxes  and  all  other  debts  and  demands 
than  duties  on  imports,  accruing  or  becoming  due  to  the 
United  States,  shall  be  paid  in  gold  and  silver  coin,  Treas- 
ury notes,  United  States  notes,  or  notes  of  national  banks. 
^     306>  ^°  £ol(*  or  s^ver  other  than  coin  of  standard  fine- 
h  e  u  n  uVd  ness  °*  tne  United  States,  shall  be  receivable  in  payment 
StAug  31  1852  c  °^  ^ues  t°  the  United  States,  except  as  provided  in  sec- 
twenty-three  hundred  and  sixty  -six,  Title  "  PUBLIC 
n  Cp5i'^s'  2'3'  LANDS,"  and  in  section  thirty  -five  hundred  and  sixty  -seven, 

Sec.8474,'B.S.  Title  "COINAGE,  WEIGHTS,  AND  MEASURES." 


9?8' 


1  For  statutes  regulating  the  transfer,  safe-keeping,  deposit,  and  disbursement  of 
public  moneys,  see  the  title  "  Disbursing  officers"  in  the  chapter  entitled  "THE  STAFF 
DEPARTMENTS." 


MILITARY    LAWS    OF   THE    UNITED   STATES. 


119 


307.  The  notes  of  national  banks  shall  be  received  at    National-bank 
par  for  all  debts  and  demands  owing  b}^  the  United  States  cej™ele' 

to  any  person  within  the  United  States,  except  interest  on  5^'s>23''v- 13'  P- 
the  public  debt,  or  in  redemption  of  the  national  currency.  s'ec.g475,R.s. 
(See  sec.  5182,  ft.  8.) 

308.  Treasury  notes  bearing"  interest  may  be  paid  to  anv    Treasury  notes 

,  J  payable  for  debts 

creditor  of  the  United  States  at  their  face  value,  excluding  of  united  states. 
interest,  or  to  any  creditor  willing  to  receive  them  at  par,  ™>  s.  2,  V.  12,'  p. 

.       ,     , .          .     .  '  710;    June    30, 

including  interest.  1864,  c.  172, 8. 2,  v. 


Par. 


OUTSTANDING   CHECKS. 


Par. 


13,  p.  218. 
Sec.8476,  U.S. 


311.  Payment  of  outstanding  checks. 

312.  Accounts  of  disbursing  officers  re- 

maining unchanged  for  three  years. 


fi6  c 

v-  >14» 


S. 


309.  Checks  outstanding  over  three  years 

to  be  covered  into  the  Treasury. 

310.  Vouchers  for  drafts  remaining  un- 

paid. 

309.  At  the  termination  of  each  fiscal  year  all  amounts  of 
moneys  that  are  represented  by  certificates,  drafts,    or 
checks,  issued  by  the  Treasurer,  or  by  any  disbursing  offi- 
cer of  any  Department  of  the  Government,  upon  the  Treas-  70>  g- 
urer  or  any  assistant  treasurer,  or  designated  depositary  »**• 
of  the  United  States,  or  upon  any  national  bank  desig- 
nated as  a  depositary  of  the  United  States,  and  which 
shall  be  represented  on  the  books  of  either  of  such  offices 

as  standing  to  the  credit  of  any  disbursing  officer,  and 
which  were  issued  to  facilitate  the  payment  of  warrants, 
or  for  any  other  purpose  in  liquidation  of  a  debt  due  from 
the  United  States,  and  which  have  for  three  years  or  more 
remained  outstanding,  unsatisfied,  and  unpaid,  shall  be 
deposited  by  the  Treasurer,  to  be  covered  into  the  Treasury 
by  warrant,  and  to  be  carried  to  the  credit  of  the  parties 
in  whose  favor  such  certificates,  drafts,  or  checks  were 
respectively  issued,  or  to  the  persons  who  are  entitled  to 
receive  pay  therefor,  and  into  an  appropriation  account  to 
be  denominated  "outstanding  liabilities."1 

310.  The  certificate  of  the  Secretary  of  the  Treasury 

stating  that  the  amount  of  any  draft  issued  by  the  Treas-  unjJayd2,  isee,  c. 

urer,  to  facilitate  the  payment  of  a  warrant  directed 

him  for  payment,  has  remained  outstanding  and  unpaid  16^j 

1  When  a  claim  passes  into  the  form  of  checks,  its  legal  character  changes  from  that 
of  a  demand  for  goods  sold  and  delivered  to  a  claim  represented  by  the  checks  given 
in  liquidation  of  the  original  demand.  The  fund  established  by  section  306,  Revised 
Statutes,  bears  upon  it  the  impress  of  a  trust,  and  the  statutes  of  limitation  can  not 
be  set  up  against  money  credited  to  the  claimant  in  the  permanent  appropriation  for 
outstanding  liabilities.  Such  money  is  held  as  a  trust  fund  payable  on  demand  with- 
out limit  of  time.  32  Ct.  Cls.,  30;  U.  S.  v.  Taylor,  104  U.  S.,  216. 


120  MILITARY    LAWS    OF   THE    UNITED   STATES. 

for  three  years  or  more,  and  has  been  deposited  and  cov- 
ered into  the  Treasury  in  the  manner  prescribed  by  the 
preceding  section,  shall  be,  when  attached  to  any  such 
warrant,  a  sufficient  voucher  in  satisfaction  of  any  such 
warrant  or  part  of  any  warrant,  the  same  as  if  the  drafts 
correctly  indorsed  and  fully  satisfied  were  attached  to  such 
warrant  or  part  of  warrant.  And  all  such  moneys  men- 
tioned in  this  and  in  the  preceding  section  shall  remain  as 
a  permanent  appropriation  for  the  redemption  and  pay- 
ment of  all  such  outstanding  and  unpaid  certificates,  drafts, 
and  checks. 
Payment  of  31  1.  The  payee  or  the  bona  fide  holder  of  any  draft  or 

outstanding  "    J  ~ 

drafts.  check  the  amount  of  which  has  been  deposited  and  cov- 

May  2,  1866,  c. 

14,  p.  42.  ered  into  the  Treasury  pursuant  to  the  preceding  sections, 
*  shall,  on  presenting  the  same  to  the  proper  officer  of  the 
Treasury  ,  be  entitled  to  have  it  paid  by  the  settlement  of 
an  account  and  the  issuing  of  a  warrant  in  his  favor, 
according  to  the  practice  in  other  cases  of  authorized  and 
liquidated  claims  against  the  United  States.  Sec.  308,  R.  S. 


70,  s.  3,  v. 


offi-     *^.  ^ke  amounts,  except  such  as  are  provided  for  in 
forlhrSCyeaanrfed  sect^on  tnree  hundred  and  six,  of  the  accounts  of  every 
70^5  v'i4866>42  'kind  of  disbursing  officer,  which   shall   have   remained 
Sec.'aoo,  R.  s.  unchanged,  or  which  shall  not  have  been  increased  by  any 
new  deposit  thereto,  nor  decreased  by  drafts  drawn  thereon, 
for  the  space  of  three  years,  shall  in  like  manner  be  cov- 
ered into  the  Treasury,  to  the  proper  appropriation  to 
which  they  belong;  and  the  amounts  thereof  shall,  on  the 
certificate  of  the  Treasurer  that  such  amount  has  been 
deposited  in  the   Treasury,   be   credited   by  the  proper 
accounting  officer  of  the  Department  of  the  Treasury  on 
the  books  of  the  Department,  to  the  officer  in  whose  name 
it  had  stood  on  the  books  of  any  agency  of  the  Treasury, 
if  it  appears  that  he  is  entitled  to  such  credit. 


CHAPTER   VI. 


THE   POST-OFFICE   DEPARTMENT. 

Par.  Par. 

313.  Establishment  of  the  Post-Office  De-  322,  323.  Senators,   members,    etc.,  may 

partment.  send  documents  free. 

314.  Oath  of  office.  j  324,  325.  Extension  of  franking  privilege. 

315.  Oath,  before  whom  taken.  Official  mail  of  Smithsonian  In- 

316.  Classes  of  mail  matter.     First  class.  stitution. 


317.  Rates  of  postage.     Soldiers'  letters. 

318.  Special-delivery  stamps. 

319.  Specially  stamped  letters  to  be  de- 

livered. 

320.  Letters  on  official  business  may  be 

sent  free.     Penalty  for  using  offi- 
cial envelopes  to   avoid  payment 


326.  Return  penalty  envelopes. 

327.  Mail  matter  of    Executive  Depart- 

ments,   etc.,    may   be    registered 
free. 

328.  Postmaster-General   to  contract  for 

all  envelopes   for   Executive  De- 
partments. 


of  postage.  I  329-331.  Post-offices  at  military  camps. 

321.  Official   envelopes  to   be   provided. 
How  franked. 


313.  There  shall  be  at  the  seat  of  Government  an  Exec- 
utive  Department  to  be  known  as  the  Post-Office  Depart-  ^j^™,  c. 
merit,  and  a  Postmaster-General,  who  shall  be  the  head  j^ 


thereof,  and  who  shall  be  appointed  by  the  President,  by  |35^S3S-  *•  2'  v-  17> 
and  with  the  advice  and  consent  of  the  Senate,  and  who    Seo*  S68'  B-  s' 
may  be  removed  in  the  same  manner;  and  the  term  of  the 
Postmaster-General  shall  be  for  and  during  the  term  of 
the  President  by  whom  he  is  appointed,  and  for  one  month 
thereafter,  unless  sooner  removed. 

314.  Before  entering  upon  the  duties  of  his  office  and    J^M^C, 
before  he  shall  receive  any  salary  the  Postmaster-General  fp;  s>  15>v>17'p> 
and  each  of  the  persons  employed  in  the  postal  service  shall  15ftai8,pJ974'  "' 
respectively  take  and  subscribe  before  some  magistrate  or    Sec>  8^1'  K>  s' 
other  competent  officer  the  following  oath:  "I,  A.  B.,  do 
solemnly  swear  (or  affirm)  that  I  will  faithfully  perform 
all  the  duties  required  of  me,  and  abstain  from  everything 
forbidden  by  the  laws  in  relation  to  the  establishment  of 
post-offices  and  post-roads  within  the  United  States;  and 
that  I  will  honestly  and  truly  account  for  and  pay  over  any 
money  belonging  to  the  said  United  States  which  may  come 
into  my  possession  or  control  ;  and  I  also  further  swear  that 

121 


122  MILITARY    LAWS    OF    THE    UNITED    STATES. 

I  will  support  the  Constitution  of  the  United  States;  so 
help  me  God."     Sec.  15,  act  of  March  5,  1874  (18  Stat. 
Z.,  19). 
oath,    before      315.  This  oath  or  affirmation  may  be  taken  before  anv 

whom  taken.  .  * 

^  June  8,^1872,  c.  officer,  civil  or  military,  holding  a  commission  under  the 
28?!  '     United  States,  and  such  officer  is  hereby  authorized  to 

15,  v.  is,  p.  19.      administer  and  certify  such  oath  or  affirmation.     Ibid. 

»6C.  'W'l.  R.  S. 

CLASSIFICATION    OF    MAIL    MATTER. 

matter68  °f  mail     316<  Mailable  matter  shall  be  divided  into  four  classes: 
7  ^20  p'35879' s'      First,  written  matter; 

Second,  periodical  publications; 
Third,  miscellaneous  printed  matter; 
Fourth,  merchandise. 

First  class.  Mailable  matter  of  the  first  class  shall  embrace  letters, 
postal  cards,  and  all  matters  wholly  or  partly  in  writing, 
except  as  hereinafter  provided.1 

RATES    OF   LETTER   POSTAGE. 

^Rates  of  post-  3^7  Qn  mailable  matter  of  the  first  class,  except  postal 
voY'S  p^sse885'  cards  and  drop  letters,  postage  shall  be  prepaid  at  the  rate 
of  two  cents  for  each  ounce  or  fraction  thereof;  postal 
cards  shall  be  transmitted  through  the  mails  at  a  postage 
charge  of  one  cent  each,  including  the  cost  of  manufac- 
ture; and  drop  letters  shall  be  mailed  at  the  rate  of  two 
cents  per  ounce  or  fraction  thereof,  including  delivery  at 
letter-carrier  offices,  and  one  cent  for  each  ounce  or  frac- 
tion thereof  where  free  delivery  by  carrier  is  not  estab- 
^soidierc'  it-  }jsne^  The  Postmaster-General  may,  however,  provide 
by  regulation,  for  transmitting  unpaid  and  duly  certified 
letters  of  soldiers,  sailors,  and 'marines  in  the  service  of 
the  United  States  to  their  destination,  to  be  paid  on 
delivery.2  Act  of  March  3,  1885  (23  Stat.  Z.,  386). 

SPECIAL    DELIVERY. 

318.  A  special  stamp  of  the  face  valuation  of  ten  cents 
i885,c'voi  .M2s*'  p.'  may  be  provided  and  issued,  whenever  deemed  advisable 
or  expedient,  in  such  form  and  bearing  such  device  as  may 
meet  the  approval  of  the  Postmaster-General,  which,  when 
attached  to  a  letter,    in  addition  to   the   lawful  postage 

1  For  description  of  matter  embraced  in  the  second,  third,  and  fourth  classes  see 
the  act  of  March  3,  1879  (20  Stat,  L.,  358) . 

2  This  statute  replaces  the  corresponding  provision  of  the  act  of  March  3,  1879,  (20 
Stat,  L.,  358.) 


MILITARY    LAWS    OF    THE    UNITED    STATES. 

thereon,  the  delivery  of  which  is  to  be  at  a  free-delivery 
office,  or  at  any  city,  town,  or  village  containing  a  popula- 
tion of  four  thousand  or  over,  according  to  the  Federal 
census,  shall  be  regarded  as  entitling  such  letter  to  im- 
mediate delivery  within  the  carrier  limit  of  any  free- 
deli  very 'office  which  may  be  designated  by  the  Postmaster- 
General  as  a  special-delivery  office,  or  within  one  mile  of 
the  post-office  at  any  other  office  coming  within  the  pro- 
visions of  this  section  which  may  in  like  manner  be  desig- 
nated as  a  special-delivery  office.  Sec.  3,  act  of  March  3, 
1885(83  Stat.  L.,  386}. 

319.  Such  specially  stamped  letters  shall  be  delivered  st|nP  |dc 
from  seven  o'clock  ante  meridian  up  to  twelve  o'clock  mid-  toSecd4el^fJed- 
night  at  offices  designated  by  the  Postmaster-General  under 

section  three  of  this  act.     Sec.  h  ibid. 

OFFICIAL   LETTERS. 

320.  It  shall  be  lawful  to  transmit  through  the  mail,  free    Letters,  etc.,on 

'     .        official   business 

of  postage,  any  letters,  packages,  or  other  matters  relating  may  be  sent  free. 

exclusively   to   the    business  of   the   Government  of  the 

United  States:  Provided.  That  every  such  letter  or  pack-    sec.  5,  Mar.  3, 

,      „     n  T     1877,  v.  19,  p.  335. 

age  to  entitle  it  to  pass  free  shall  bear  over  the  words 
u  Official  business  "  an  endorsement  showing  also  the  name 
of  the  department,  and,  if  from  a  bureau  or  office,  the 
names  of  the  department  and  bureau  or  office,  as  the 
case  may  be,  whence  transmitted.  And  if  any  person  Penalty  for  us- 

.  -IT.     ing  official  envel- 

shall  make  use  of  anv  such  official  envelope  to  avoid  the  opes  to  avoid 

.  ,      payment  of  post- 

pay  mentot  postage  on  his  private  letter,  package,  or  other  age 

matter  in  the  mail,  the  person  so  offending  shall  be  deemed 
guilty  of  a  misdemeanor,  and  subject  to  a  fine  of  three 
hundred  dollars,  to  be  prosecuted  in  any  court  of  compe- 
tent jurisdiction.1  Sec.  5,  act  of  March  3,  1877  (19  Stat. 
Z.,  336). 

321.  For  the  purpose  of  carrying  this  act  into  effect,  it  o  °ffic/0albeenp7i 
shall  be  the  duty  of  each  of  the  Executive  Departments  vl^|d;6  md 
of  the  United  States  to  provide  for  itself  and  its  subordi- 
nate offices  the  necessary  envelopes;  and  in  addition  to  the 
indorsement  designating  the  department  in   which   they  th^"emellt 
are  to  be  used,  the  penalty  for  the  unlawful  use  of  these 
envelopes  shall  be  stated  thereon.      Sec.  6,  ibid. 

1  For  regulations  respecting  the  use  of  penalty  envelopes  in  the  transmission  of 
official  correspondence,  see  paragraphs  813-817  Army  Regulations  of  1895,  Circular  12, 
A.  G.  O.,  1895;  Circulars  of  June  29,  1895;  July  13,  1895,  and  G.  O.  8,  A.  G.  O.,  1897. 

These  envelopes  are  for  use  in  domestic  correspondence  only,  and  will  not  cover 
the  transportation  of  letters  to  foreign  countries,  upon  which  postage  stamps  mils 
be  used. 


124  MILITARY    LAWS    OF   THE    UNITED    STATES. 


322-  Senators,  Representatives,  and  Delegates  in  Con- 
sem  documents  gress?  the  Secretary  of  the  Senate,  and  Clerk  of  the  House 
sec.  7,  ibid.      of   Representatives  may   send   and    receive   through   the 
mail  all  public  documents  printed  by  order  of  Congress;1 
HOW  franked.  an(j  ^ne  name  of  each  Senator,  Representative,  Delegate, 
Secretary  of  the  Senate,  and  Clerk  of  the  House  'shall  be 
•written  thereon,  with  the  proper  designation  of  the  office 
he  holds;  and  the  provisions  of  this  section  shall  apply  to 
each  of  the  persons  named  therein  until  the  first  day  of 
December  following  the   expiration    of   their  respective 
terms  of  office.     Sec.  7,  ibid. 

en^erweit£°offi~      323'  Hereafter     the     Vice-President,      Members     and 
ciais,  etc.  Members-elect  of  and  Delegates   and  Delegates-elect  to 

Junco,  loJH,  v. 

so,  p.  443.  Congress  shall  have  the  privilege  of  sending  free  through 

the  mails,  and  under  their  frank,  any  mail  matter  to  any 
Government  official  or  to  any  person,  correspondence  not 
exceeding  two  ounces  in  weight,  upon  official  or  depart- 
mental business.  Act  of  June  3,  1898  (30  Stat.  Z.,  J^tf). 
Extension  of  324  325.  The  provisions  of  the  fifth  and  sixth  sections 

franking  privi-  A 

lcfec  3  Jui-  5  °*  ^e  a«t  entitled  "An  act  establishing  post  routes,  and 

1884,  v.  23,  p.  i5s!  for  other  purposes  "  approved  March  third,  eighteen  hun- 

dred and  seventy-seven,  for  the  transmission  of  official 

mail  matter,  be,  and  they  are  hereby,  extended  to  all  offi- 

cers  of   the   United  States   Government,   not   including 

members  of  Congress,  the  envelopes  of  such  matter  in  all 

cases   to   bear  appropriate   indorsements   containing  the 

proper  designation  of  the  office  from  which  or  officer  from 

whom  the  same  is  transmitted,  with  a  statement  of  the 

penalty  for  their  misuse.     And  the  provisions  of  said  fifth 

and  sixth  sections  are  hereby  likewise  extended  and  made 

official  ni  a  i  i  applicable  to  all  official  mail  matter  of  the  Smithsonian 

sonian    institu-  Institution.     Sec.  3,  act  of  July  5,  188^(23  Stat.  Z.,  Io8). 

Return  Penai       326.  Any  Department  or  officer  authorized  to  use  the 

penalty  envelopes  may  inclose  them  with  return  address  to 

any  person  or  persons  from  or  through  whom  official  infor- 

mation is  desired,  the  same  to  be  used  only  to  cover  such 

official   information,  and   indorsements    relating  thereto. 

Ibid. 

Mail  matter  of     327.  Anv  letter  or  packet  to  be  registered  by  either  of 

Executive     D  e  - 

pitmen  ts,^  etc.,  the  Executive  Departments,  or  bureaus  thereof,  or  by  the 
teredfree.          Agricultural  Department,  or  by  the  Public  Printer,  may 

be  registered  without  the  payment  of  any  registry  fee; 

and  any  part  paid  letter  or  packet  addressed  to  either  of 

1  Extended  to  letters  addressed  officially  to  any  officer  of  the  Government  by  sec- 
tion 3,  act  of  March  3,  1891  (26  Stat.  L.,  1081). 


MILITARY    LAWS    OF    THE    UNITED    STATES.  125 

said  departments  or  bureaus  may  be  delivered  free;  but 
where  there  is  good  reason  to  believe  the  omission  to  pre- 
pay the  full  postage  thereon  was  intentional,  such  letter  or 
packet  shall  be  returned  to  the  sender:  Provided  further  , 
That  this  act  shall  not  extend  or  apply  to  pension  agents 
or  other  officers  who  receive  a  fixed  allowance  as  compen- 
sation for  their  services,  including  expenses  of  postages. 
And  section  thirty-nine  hundred  and  fifteen  of  the  Revised 
Statutes  of  the  United  States,  so  far  as  the  same  relates  to 
stamps  and  stamped  envelopes  for  official  purposes,  is 
hereby  repealed.  Sec.  3,  act  of  July  5,  1884  (®3  Stat. 
Z.,  158). 

PURCHASE  OF  ENVELOPES  FOR  USE  OF  THE  EXECUTIVE  DEPARTMENTS. 

328.  The  Postmaster-General  shall  contract  for  all  envel- 


con- 
r    1 


opes,  stamped  or  otherwise,  designed  for  sa*e  to  the  pub-  ^jj*  f°r 

lie,  or  for  use  by  his  own  or  other  Departments,  and  may  JJ^JjJ®   DePart 

con  tract  for  them  to  be  plain  or  with  such  printed  matter  1Qafc-  9£'«Jan;  •£ 

loyo,  v.  ^o,  p.  0^4 

as  may  be  prescribed  by  the  Department  making  requisition 
therefor:  Provided,  That  no  envelope  furnished  by  the 
Government  shall  contain  an}^  business  address  or  adver- 
tisement. *  Sec.  96,  act  of  Jan  nary  12,  1895  (28  Stat.  L.  , 


ESTABLISHMENT    OF    POST-OFFICES   AT    MILITARY    CAMPS. 


329.  During  the  continuance  of  the  existing  war  the  of 
Postmaster-General  may,  in  his  discretion,  establish  a  30Jun^3|  1898>  v- 
temporary  post-office  at  any  military  post  or  camp  for  the 
purpose  of  supplying  the  officers  and  troops  there  en- 
camped with  mails,  the  location  of  which  post-office  may 
at  any  time  be  changed  to  an}^  other  post  or  camp.  On 
the  establishment  of  such  post-office  he  shall  cooperate 
with  the  Secretary  of  War  or  officer  commanding  such 
post  or  camp  for  the  purpose-  of  securing  the  detail  of  an 
officer  of  the  Regular  or  Volunteer  Army  of  suitable  rank 
to  act  as  postmaster,  who  shall,  when  the  exigency  will 
permit,  execute  a  bond  to  the  United  States  as  such,  and 
of  a  sufficient  number  of  noncommissioned  officers  and 
privates  to  act  as  clerks  in  said  post-office,  who  shall  serve 
as  such  without  additional  salary,  pay,  or  compensation 
other  than  that  attaching  to  their  rank  and  position  in  the 
Army.  Each  of  said  persons  shall,  before  entering  upon 
the  discharge  of  his  duties,  take  the  oath  prescribed  for 

lln  the  event  of  an  exigency  requiring  the  immediate  delivery  of  envelopes,  the 
head  of  the  Department  in  which  the  exigency  exists  may  make  the  purchase  required 
by  the  exigency.  XXI  Opin.  Att.  Gen.,  181. 


126  MILITARY    LAWS    OF    THE    UNITED    STATES. 

persons  employed  in  the  postal  service.  In  any  case 
where  it  is  deemed  impracticable  by  the  military  authori- 
ties to  detail  persons  from  the  Army  to  act  as  postmaster 
or  clerks  the  Postmaster-General  is  authorized  to  appoint 
a  civilian  as  postmaster,  and  also  to  make  a  special  order 
allowing  to  him  reasonable  compensation  for  clerical  serv- 
ices and  to  meet  the  necessary  expenses  of  said  office,  as 
well  as  a  proportionate  increase  of  salary  to  the  postmaster 
during  the  period  of  such  extraordinary  business  as  may 
attach  to  his  office,  under  the  provisions  of  section  thirty- 
eight  hundred  and  sixty-three,  Revised  Statutes,  payable 
out  of  the  appropriations  for  the  postal  service.  He  may 
also  provide  for  the  issue  and  payment  of  money  orders 
at  any  post-office  established  under  the  provisions  of  this 
act  after  the  postmaster  shall  have  given  bond  as  re- 
quired by  law.  Act  of  June  6,  1898  (30  Stat.  L.,  4$%). 

33°-  The  Postmaster-General  shall  supply  to  post-offices 
referred  to  in  the  preceding  section  all  necessary  postage 
stamps,  stamped  envelopes,  postal  cards,  and  other  sup- 
plies of  whatever  description.  He  may  also  prescribe  regu- 
lations for  the  conduct  of  the  business  at  such  post-offices 
in  conformity,  so  far  as  the  same  may  be  applicable,  to  the 
regulations  relating  to  the  ordinary  postal  service.  Sec. 
2,  ibid. 

331.  In  any  case  where,  in  the  judgment  of  the  Post- 
master-General, any  military  post  or  camp  can  be  better 
and  more  economically  supplied  by  a  branch  post-office,  he 
may,  without  reference  to  its  distance  from  the  main  office, 
establish  the  same  and  meet  the  expenses  thereof  by  special 
order,  as  in  the  case  of  post-offices  referred  to  in  the  pre- 
ceding section.  lSec.  3,  ibid. 

TThe  act  of  June  2,  1900  (31  Stat.  L.,  253),  and  subsequent  acts  of  appropriation 
make  provision  for  the  "postal  service  in  the  Philippine  Islands  or  territory  held  by 
military  occupation,  and  for  additional  transportation  to  and  from  said  territory,  also 
including  postal  service  for  military  camps  or  stations,  to  be  used  in  the  discretion  of 
the  Postmaster-General." 


CHAPTER 


THE  DEPARTMENT  OF  JUSTICE— HABEAS  CORPUS— 
THE  COURT  OF  CLAIMS. 

THE    DEPARTMENT    OF   JUSTICE. 


Par. 

332.  Establishment    of    Department    of 

Justice. 

333.  Solicitor-General. 

334.  Title  to  land  to  be  examined. 

335.  Suspension  of  statute. 


Par. 


340.  Conduct  and  argument  of  cases. 

341.  Performance  of  duty  by  officers  of 

Department  of  Justice. 

342.  Officers  of  the  Department  to  per- 

form all  legal  services  required  for 


336.  Duties  of  Attorney-General.  other  Departments. 

337.  Opinion  of  Attorney-General   upon 


343.  Attendance  of  counsel. 

344.  Interest  of  United  States  in  pending 

suits,  who  may  attend  to. 

345.  Publication  of  opinions. 
346-361.  The  writ  of  habeas  corpus. 
362-417.  The  Court  of  Claims. 


questions  of  law. 

338.  Legal  advice  to  Departments  of  War 

and  Navy. 

339.  Reference  of  questions  by  Attorney- 

General  to  subordinates. 

332.  There  shall  be  at  the  seat  of  government  an  Execu- 
tive Department  to  be  known  as  the  Department  of  Jus- Justlce- 

tice,  and  an  Attorney-General,   who   shall  be  the   head  M^^vS17p?92; 
thereof  June  22>  1870>  c* 150>  s~ 1>  v* 16>  p- 162'    ^ec*  846'     s" 

333.  There  shall  be  in  the  Department  of  Justice  an  offi- J^licitol'-Gen- 
cer  learned  in  the  law,  to  assist  the  Attorney-General  in  i^fe^\^8u,'p. 
the  performance  of  his  duties,  called  the  Solicitor-General,  v^Jsf p!^9?2. 1884> 
who  shall  be  appointed  by  the  President,  by  and  with  the    Sec>  847» B* s* 
advice  and  consent  of  the  Senate,  and  shall  be  entitled  to 

a  salary  of  seven  thousand  dollars  a  year.  In  case  of  a 
vacancy  in  the  office  of  Attorney-General,  or  of  his  absence 
or  disability,  the  Solicitor-General  shall  have  power  to  exer- 
cise all  the  duties  of  that  office. 

EXAMINATION    OF    TITLES. 

334.  No  public  money  shall  be  expended  upon  any  site  bj 

or  land  purchased  by  the  United  States  for  the  purposes  |t^tees '  Se_t  n 
of  erecting  thereon  any  armory,  arsenal,  fort,  fortification,  J^p^Sfc.  °' 6> 
navy -yard,  custom-house,  light-house,  or  other  public  build-  Sec-  866' B>  8* 
ing,  of  any  kind  whatever,  until  the  written  opinion  of  the 

127 


128  MILITABY   LAWS    OF   THE    HOTTED   STATES. 

Attorney-General  shall  be  had  in  favor  of  the  validity  of 
the  title,  1  nor  until  the  consent  of  the  legislature  of  the 
State  in  which  the  land  or  site  may  be,  to  such  purchase, 
has  been  given.  The  district  attorneys  of  the  United 
States,  upon  the  application  of  the  Attorney-General,  shall 
furnish  any  assistance  or  information  in  their  power  in 
relation  to  the  titles  of  the  public  property  lying  within 
their  respective  districts.  And  the  Secretaries  of  the  De- 
partments, upon  the  application  of  the  Attorney-General, 
shall  procure  any  additional  evidence  of  title  which  he  may 
deem  necessary,  and  which  may  not  be  in  the  possession 
of  the  officers  of  the  Government,  and  the  expense  of  pro- 
curing it  shall  be  paid  out  of  the  appropriations  made  for 
the  contingencies  of  the  Departments  respectively.  * 
stltuKn^cases  335>  In  case  °^  emergency  when,  in  the  opinion  of  the 
°fjeReifeApr'u  President,  the  immediate  erection  of  any  temporary  fort 
1898,  v.  so,  p.  737.  or  fortification  is  deemed  important  and  urgent,  such  tem- 
porary fort  or  fortification  may  be  constructed  upon  the 
written  consent  of  the  owner  of  the  land  upon  which  such 
work  is  to  be  placed;  and  the  requirements  of  section  three 
hundred  and  fifty-five  of  the  Revised  Statutes  shall  not  be 
applicable  in  such  cases.  Joint  Res.  No.  18,  of  April  11, 
1898(30  Stat.  L.,  751). 

OPINIONS   OF   ATTORNEY  -GENERAL. 

ney^£ifttor"     336-  The   Attorney  -General   shall  give  his  advice  and 
sec.  364,  R.  s.  Opinion  upon  questions  of  law,  whenever  required  by  the 

President. 

tonfey-Ge^era^  33^'  ^ne  head  of  any  Executive  Department  may  require 
offaw  questionsthe  opinion  of  the  Attorney-General  on  any  questions  of 
ai'ismg  m  the  administration  of  his  Department.2 


i5oGv   e'  ° 

163!     Sec.  356,  R.  S. 


33^§  Whenever  a  question  of  law  arises  in  the  adminis- 
Wiun?22N]87o'c  tration  of  the  Department  of  War  or  the  Department  of 
150,  s.  e,  v.  16,  p.  the  Navy,  the  cognizance  of  which  is  not  given  by  statute 
set-.  357,  R.  s.  fo  some  other  officer  from  whom  the  head  of  the  Depart- 
ment may  require  advice,  it  shall  be  sent  to  the  Attorney  - 

lThe  Attorney-General  in  certifying  the  title  of  land  purchased  by  the  Government 
must  look  at  the  question  as  one  of  pure  law,  and  can  not  relax  the  rules  of  law  on 
account  either  of  the  desirableness  of  the  object  or  the  smallness  of  the  value  of  the 
land.  VI  Opin.  Att.  Gen.,  432.  See  the  chapters  entitled  THE  PUBLIC  LANDS,  CON- 
TRACTS AND  PURCHASES,  AND  THE  CORPS  OP  ENGINEERS.  See,  also,  I  Compt.  Dec.,  348. 

2  The  Attorney-General  is  not  authorized  to  give  an  official  opinion  in  any  case. 
except  on  the  call  of  the  President  or  some  one  of  the  heads  of  Departments.  I  Opin. 
Att.  Gen.  ,  211.  Subordinate  officers  of  the  Government  who  desire  an  official  opinion 
of  the  Attorney-General  must  seek  it  through  the  head  of  the  Department  to  which 
they  are  accountable.  Ibid, 


MILITARY    LAWS    OF    THE    UNITED    STATES.  129 

General,  to  be  by  him  referred  to  the  proper  officer  in  his 
Department,  or  otherwise  disposed  of  as  he  may  deem 
proper. 1 

339.  Any  question  of  law  submitted  to  the  Attorney-    Ref?rence    of 

~  i   />        i  •  •    •  J    questions  by  At- 

General  tor  his  opinion,  except  questions  involving  a  con-  Jorsuborcreneral 
struction  of  the  Constitution  of  the  United  States,  may  be17June22'1870>c- 
by  him  referred  to  such  of  his  subordinates  as  he  may 162,' 8 

,  -11  •  o6C.  .ioh,  It.  o. 

deem  appropriate,  and  he  may  require  the  written  opinion 
thereon  of  the  officer  to  whom  the  same  may  be  referred. 
If  the  opinion  given  by  such  officer  is  approved  by  the 
Attorney-General,  such  approval  indorsed  thereon  shall 
give  the  opinion  the  same  force  and  effect  as  belong  to  the 
opinions  of  the  Attorney-General.2 

340.  Except  when  the  Attorney-General  in  particular 

cases  otherwise  directs,  the  Attorney-General  and  Solicitor-  ca|^t  24  1789  c 
General  shall  conduct  and  argue  suits  and  writs  of  error  '' 

and  appeals  in  the  Supreme  Court  and  suits  in  the  Court  J 
of  Claims  in  which  the  United  States  is  interested,  and  ]$>  s- 5>  v- 16«  P- 
the  Attorney-General  may,  whenever  he  deems  it  for  the  Sec-  369' B* s- 
interest  of  the  United  States,  either  in  person  conduct  and 

1  The  Attorney-General  will  only  give  official  opinions  on  questions  of  law  arising 
on  facts  which  are  authoritatively  stated  by  a  head  of  Department.  X  ibid. ,  267.  He 
has  no  authority  to  settle  questions  of  fact,  nor  to  give  advice  on  questions  of  law, 
except  for  the  assistance  of  the  officer  calling  for  his  opinion  on  points  stated.  He 
takes  the  facts  as  they  are  stated  to  him  and  predicates  his  opinion  on  them.  Ill  ibid. , 
309.  It  is  not  the  duty  of  the  Attorney-General  to  give  opinions  on  questions  of  fact, 
nor  to  review  the  proceedings  of  a  court-martial  in  search  of  questions  of  law.  V 
ibid.,  626. 

The  Attorney-General  will  not  give  a  speculative  opinion  on  an  abstract  question 
of  law,  which  does  not  arise  in  any  case  presented  for  the  action  of  an  Executive 
Department.  XI  ibid.,  189.  Nor  will  he  review  the  opinion  of  a  former  Attorney- 
General,  unless  a  proper  case  is  presented  therefor,  and  submitted  by  the  head  of  a 
Department.  Ibid. 

Where  an  official  opinion  from  the  Attorney-General  is  desired  on  questions  of  law 
arising  on  any  case,  the  request  should  be  accompanied  by  a  statement  of  the  mate- 
rial facts  in  the  case,  and  also  the  precise  questions  on  which  advice  is  wanted. 
XIV  ibid.,  367.  See  note  to  paragraph  339,  post. 

'2The  opinions  of  successive  Attorneys-General,  possessed  of  greater  or  less  amount 
of  legal  acumen,  acquirement,  and  experience,  have  come  to  constitute  a  body  of  legal 
precedents  and  exposition,  having  authority  the  same  in  kind,  if  not  the  same  in 
degree,  with  decisions  of  the  courts  of  justice.  VI  ibid.,  326.  The  opinion  of  the 
Attorney-General  for  the  time  being  is,  in  terms,  advisory  to  the  Secretary  who  calls 
for  it;  but  it  is  obligatory  as  the  law  of  the  case  unless,  on  appeal  by  such  Secretary 
to  the  common  superior  of  himself  and  the  Attorney-General,  namely,  the  President 
of  the  United  States,  it  be  by  the  latter  overruled.  VII  ibid.,  692.  The  Attorney- 
General  will  not  give  a  speculative  opinion,  on  an  abstract  question  of  law,  which 
does  not  arise  in  any  case  presented  for  the  action  of  an  Executive  Department. 
XIX  ibid. ,  189.  He  will  only  give  opinions  on  questions  of  law  arising  on  facts  which 
are  authoritatively  stated  by  a  head  of  Department.  X  ibid.,  267.  Although  the 
acts  prescribing  the  duties  of  the  Attorneys-General  do  not  declare  the  effect  of 
their  advice,  it  has  been  the  practice  of  the  Departments  to  heed  it.  It  has  been 
found  greatly  advantageous,  if  not  absolutely  necessary,  to  have  uniformity  of  action 
upon  analogous  questions  and  cases;  and  that  result  is  more  likely  to  be  attained 
under  the  guidance  of  a  single  Department,  constituted  for  the  purpose, than  by  a 
disregard  of  its  opinions  and  advice.  V  ibid.,  97. 

22924—08 9 


130  MILITARY    LAWS    OF   THE    UNITED    STATES. 

argue  any  case  in  any  court  of  the  United  States  in  which 
the  United  States  is  interested,  or  may  direct  the  Solicitor- 
General  or  any  officer  of  the  Department  of  Justiceto  to 
do  so. 
Performanceof     341.  The  Attorney-General  may  require  any  solicitor  or 

duty  by  officers  J  ."•*•• 

^Department  of  officer  of  the  Department  of  Justice  to  perform  any  duty 
June  22, 1870  c  ^quired  of  the  Department  or  any  officer  thereof. 

Sec.  860,  B.'s.  150,  s.  14,  v.  16,  p.  164. 

&££SS&t  t  to     342-  Tne  officers  of  the  Department  of  Justice,  under  the 
?eerv?crSraequirgead  direction  of  the  Attorney-General,  shall  give  all  opinions 
ments16'  Depart'  and  render  all  services  requiring  the  skill  of  persons  learned 
i5o,Us!ei4%18i760>p'  m  ^ne  ^aw  necessary  to  enable  the  President  and  heads  of 
16|'ec.  86i,  B.  s.  Departments,  and  the  heads  of  Bureaus  and  other  officers 
in  the  Departments,  to  discharge  their  respective  duties; 
and  shall,  on  behalf  of  the  United  States,  procure  the 
proper  evidence  for,  and  conduct,  prosecute,  or  defend  all 
suits  and  proceedings  in  the  Supreme  Court  and  in  the 
Court  of  Claims,  in  which  the  United  States,  or  any  officer 
thereof,  as  such  officer,  is  a  party  or  may  be  interested; 
and  no  fees  shall  be  allowed  or  paid  to  any  other  attorney 
or  counselor  at  law  for  any  service  herein  required  of  the 
officers  of  the  Department  of  Justice,  except  in  the  cases 
provided  by  section  three  hundred  and  sixty-three. 
counseidance  °f     *^'  Whenever  the  head  of  a  Department  or  Bureau 
6i^es'v4i61874i2'  giyes  the  Attorney-General  due  notice  that  the  interests  of 
Sec.' 864,  B.  s.  the  United  States  require  the  service  of  counsel  upon  the 
examination  of  witnesses  touching  any  claim,  or  upon  the 
legal  investigation  of  any  claim,  pending  in  such  Depart- 
ment or  Bureau,  the  Attorney-General  shall  provide  for 
such  service. 

unfteTstates  fn     344>  ^Qe  Solicitor-General,  or  any  officer  of  the  Depart- 
mly Intend  ment  of  Justice,  may  be  sent  by  the  Attorney-General  to 
1870  c  an^  State  °r  District  in  the  United  States  to  attend  to  the 
m  St  6>  ^  16>  p'  interests  of  the  United  States  in  any  suit  pending  in  any 
Sec.  367,  B.  s.  of  the  courts  of  the  United  States,  or  in  the  courts  of  any 
State,  or  to  attend  to  any  other  interest  of  the  United 
States. 

optak.nsation  °f     345<  ^-ne  Attorney-General  shall  from  time  to  time  cause 
i5o,u£ei!%wi60'i>: to  ke  edited,  and  printed  at  the  Government  Printing  Of- 
16|'ec  383  B  s  ^c6' an  edition  of  one  thousand  copies  of  such  of  the  opin- 
ions of  the  law  officers  herein  authorized  to  be  given  as  he 
may  deem  valuable  for  preservation  in  volumes,  which  shall 
be,  as  to  size,  quality  of  paper,  printing,  and  binding,  of  uni- 
form style  and  appearance,  as  nearly  as  practicable,  with 
volume  eight  of  such  opinions,  published,  by  Robert  Farn- 


MILITARY    LAWS    OF    THE    UNITED    STATES. 


131 


haul,  in  the  year  eighteen  hundred  and  sixty-eight  Each 
volume  shall  contain  proper  headnotes,  a  complete  and  full 
index,  and  such  footnotes  as  the  Attorney-General  may  ap- 
prove. Such  volumes  shall  be  distributed  in  such  manner 
as  the  Attorney-General  may  from  time  to  time  prescribe.1 

HABEAS    CORPUS. 


Par. 

346.  Power   of  courts   to   issue  writs   of 

habeas  corpus. 

347.  Power  of  judges  to  grant  writs  of 

habeas  corpus. 

348.  AVrits  of  habeas   corpus  when  pris- 

oner is  in  jail. 

349.  Application  for  the  writ  of  habeas 

corpus. 

350.  Allowance  and  direction  of  the  writ. 

351.  Time  of  return. 

352.  Form  of  return. 

353.  Body  of  the  party  to  be  produced. 

354.  Day  for  hearing. 


Par. 

355.  Denial  of  return,  counter  allegations, 

amendments. 

356.  Summary    hearing;    disposition    of 

party. 

357.  In  cases  involving  the  law  of  na- 

tions, notice  to  be  served  on  State 
attorney-general. 

358.  Appeals  in  cases  of  habeas  corpus  to 

circuit  court. 

359.  Appeal  to  Supreme  Court. 

360.  Appeals,  how  taken. 

361 .  Pending  proceedings  in  certain  cases, 

action  by  State  authority  void. 


346.  The  Supreme  Court   and  the  circuit  and  district 
courts  shall  have  power  to  issue  writs  of  habeas  corpus. 


1  Table  showing  the  period  covered  by  each  of  the  nineteen  volumes  of  the  Official  Opinions 
of  the  Attorneys-  General  of  the  United  States,  (a) 


Opinions. 

Period. 

Opinions. 

Period. 

From— 

To— 

From  — 

To— 

Vol.    1... 

Aug.  21,1791 
June    9,1825 
Oct.    10,1835 
Feb.  11,1842 
July  17,1848 
Mar.  12,1853 
Oct.      9,  1854 
July  10,1856 
Mar.  24,1857 
Jan.     3,  1861 
Nov.    6,1863 

June    6,  1825 
Sept.  21,  1835 
Feb.   10,1842 
June  28,  1848 
Mar.     3,  1853 
Oct.      7,1854 
July     9,  1856 
Mar.    4,  1857 
Dec.   17,1857 
Oct.     9,  1863 
July  14,1866 

Vol  12 

Aug.    1,1866 
Mar.  11,1869 
Jan.    15,1872 
May  27,1875 
Apr.  29,1878 
Jan.     6,  1881 
Apr.  23,1884 
Apr.   16,1887 
Jan.   14,1891 
Nov.  27,1893 

Mar.     3,  1869 
Dec.    21,1871 
Sept,  30,1874 
Mar.     8,  1878 
Dec.    22,1880 
Apr.    19,1884 
Apr.    13,  1887 
Dec.    31,1890 
Mar.    26,1894 
Nov.    19,1897 

2 

13 

3 

14 

1  
5 

15 

16 

c,  

17 

18 

8 

19 

9 

20 

10  

21  

11  

j  From  Vol.  Ill,  Digest  of  Decisions  of  the  Second  Comptroller.  There  is  also  a  Digest  of  the  Opinions 
of  the  several  Attorneys-General  contained  in  Volumes  I  to  XVI,  inclusive. 

2 The  Supreme  Court  may  issue  the  writ  in  virtue  of  its  original  jurisdiction  only  in 
cases  affecting  ambassadors,  other  public  ministers,  and  consuls,  or  in  those  to  which 
a  State  is  a  party.  Ex  parte  Hung  Hang,  108  U.  S.,  552.  In  the  exercise  of  its 
appellate  jurisdiction,  it  may  issue  the  writ  for  the  purpose  of  reviewing  the  judicial 
dicision  of  some  inferior  officer  or  court.  Ibid.,  553;  Ex  parte  Bollman  and  Swart- 
wout,  4  Cr.,  75;  Ex  parte  Watkins,  7  Pet.,  568;  Ex  parte  Wells,  18  How.,  307,  328; 
Ex  parte  Yerger,  8  Wall.,  85;  Ex  parte  Lange,  18  Wall.,  163;  Ex  parte  Parks,  93  U.  S., 
18;  Ex  parte  Virginia,  100  U.  S.,  339;  Ex  parte  Siebold,  100  U.  S.,  371.  Application 
to  the  Supreme  Court  for  the  issue  of  the  writ  must  show  that  the  case  is  within  its 
jurisdiction.  In  re  Milburn,  9  Peters,  704. 


132  MILITARY    LAWS    OF    THE    UNITED    STATES. 

toPgraent°writegof  347-  The  several  justices  and  judges  of  the  said  courts, 
h^epatS2C4°i789'c  witmn  their  respective  jurisdictions,  shall  have  power  to 
Apr!1i46vi869'8c.;^ran^  wr^s  °^  haoeas  corpus  for  the  purpose  of  an  inquiry 
Mar  V;'i833'4c^nto  ^e  cause  of  restraint  of  liberty. 

57,  s.'7,  v.  4,  p.634;  Feb.  5,  1867,  c.  28,    s.  1,  v.  14,  p.  386; 
Aug.  29,  1842,  c.  257,  s.  1,  v.  5,  p.  639.   Sec.  762,  B.  S. 

co^pusf  wahfn     348<  The  writ  of  habeas  corpus  shall  in  no  case  extend 

3aif°ner        in  ^°  a  prisoner  in  jail,  unless  whore  he  is  in  custody  under 

20Sspi4^v'i7p9>8i:  or  ^7  color  of  the  authority  of  the  United  States,  or  is  com- 

Ma7r.2,i833^c^67,mj^e(j  for  trial  before  some  court  thereof;  or  is  in  custody 

Feb.  5,  J^7pc^'.  for  an  act  done  or  omitted  in  pursuance  of  a  law  of  the 

257^  s^i'  ^5  p'  United  States,  or  of  an  order,  process,  or  decree  of  a  court 

^sW.  758,  B.  s.  or  Ju(*ge  thereof;  or  is  in  custody  in  violation  of  the  Con- 

stitution or  of  a  law  or  treaty  of  the  United  States;  or, 

being  a  subject  or  citizen  of  a  foreign  state,  and  domiciled 

therein,  is  in  custody  for  an  act  done  or  omitted  under 

any  alleged  right,  title,  authority,  privilege,  protection, 

or  exemption  claimed  under  the  commission,  or  order,  or 

sanction  of  any  foreign  state,  or  under  color  thereof,  the 

validity  and  effect  whereof  depend  upon  the  law  of  nations; 

or  unless  it  is  necessary  to  bring  the  prisoner  into  court  to 

testify.1 

th«pwri?1ofnha-     *^-  Application  for  writ  of  habeas  corpus  shall  be  made 
b<Feb°spi867  c  ^°  ^e  cour^  or  justice,  or  judge  authorized  to  issue  the 
2j^  s.  i,  v.  14,  p.  same?  by  complaint  in  writing,  signed  by  the  person  for 
Sec.  764,  B.  s.  wnOse  relief  it  is  intended,  setting  forth  the  facts  concern- 
ing the  detention  of  the  party  restrained,  in  whose  custody 
he  is  detained,  and  by  virtue  of  what  claim  or  authority,  if 
known.     The  facts  set  forth  in  the  complaint  shall  be  veri- 
fied by  the  oath  of  the  person  making  the  application.2 
35°-  The  court>  or  justice,  or  judge  to  whom  such  appli- 


WFeb  5  1867  c  cati°n  is  made  shall  forthwith  award  a  writ  of  habeas  cor- 
28^8.  i.  v-  14.  P-  pus,  unless  it  appears  from  the  petition  itself  that  the  party 
sec.  755,  B.  s.  js  not  entitled  thereto.     The  writ  shall  be  directed  to  the 
person  in  whose  custody  the  part}7  is  detained.3 

1A  justice  of  the  Supreme  Court  may  issue  the  writ  in  any  part  of  the  United 
States  where  he  happens  to  be,  and  mav  make  it  returnable  to  himself,  or  may  refer 
it  to  the  court  for  determination.  Ex  parte  Clarke,  100  U.  S.,  399,  403.  The  writ 
can  not  be  made  to  perform  the  function  of  a  writ  of  error.  Ex  parte  Virginia,  100 
U.  S.,  339;  Ex  parte  Reed,  ibid.,  IS,  23.  The  writ  may  be  used  in  connection  with 
the  writ  of  certiorari  to  determine  whether  the  court  below  acted  with  jurisdiction. 
Ex  parte  Lange,  18  Wall.,  163;  Ex  parte  Virginia,  100  U.  S.,  339;  Ex  parte  Siebold, 
ibid.,  371.  This  section  does  not  require  that  the  law  therein  mentioned  shall  be  by 
express  act  of  Congress.  Any  obligation  fairly  and  properly  inferable  from  the  Con- 
stitution, or  any  duty  of  a  United  States  officer  to  be  derived  from  the  general  scope 
of  his  duties,  is  a  "law"  within  the  meaning  of  the  statute.  Cunningham  v.  Neagle, 
135  U.  S.,  1.  See  also  Ex  parte  Dorr,  3  How.,  103;  Ex  parte  Barnes,  1  Sprague,  133; 
Ex  parte  Bridges,  2  Woods,  428. 

2See  Craemer  v.  Washington  State,  168  U.  S.,  124;  Whitten  v.  Tomlinson,  160 
U.  S.,  231;  Kohe  v.  Lehlback,  ibid.,  293;  Church  on  Habeas  Corpus,  2d  ed.,  sec.  91. 

3  In  the  courts  of  the  United  States  the  practice  prevailing  at  the  common  law  at 
the  time  of  the  adoption  of  the  Constitution  is  still  pursued.  The  writ  may  be  granted 


MILITARY    LAWS    OF    THE    UNITED    STATES.  133 

351.  Any  person  to  whom  such  writ  is  directed  shall    Timeofretum. 

-,  i  .    ,   .  Feb.  6,  1867,  c. 

make  due  return  thereof  within  three  days  thereafter,  |^8-  lf  v-  14>  p- 
unless  the  party  be  detained  beyond  the  distance  of  twenty    Sec- 766'  K- s- 
miles;  and  if  beyond  that  distance  and  not  beyond  a  dis- 
tance of  a  hundred  miles,  within  ten  days;  and  if  beyond 
the  distance  of  a  hundred  miles,  within  twenty  days.2 

in  term  time  or  by  a  justice  or  judge  of  a  Federal  court,  having  jurisdiction  to  issue 
the  writ,  in  vacation,  or  at  any  time,  and  may  be  issued  by  a  justice  of  the  Supreme 
Court  in  any  part  of  the  country,  wherever  he  may  be.  Kurd,  Hab.  Corp.,  214; 
U.  S.  v.  Clarke,  100  U.  S.,  403.  The  usual  course  of  proceeding  is  for  the  court,  on 
the  application  of  the  prisoner  for  a  writ  of  habeas  corpus,  to  issue  the  writ  and,  on 
its  return,  to  hear  and  dispose  of  the  case;  but  where  the  cause  of  imprisonment  is 
fully  shown  by  the  petition,  the  court  may,  without  issuing  the  writ,  consider  and 
determine  whether,  upon  the  grounds  presented  in  the  petition,  the  prisoner,  if 
brought  before  the  court,  would  be  discharged.  Ex  parte  Milligan,  4  Wall.,  2. 
Under  the  requirements  of  this  section,  the  writ,  though  a  matter  of  right,  does  not 
issue  as  a  matter  of  course  and  may  be  refused  if,  upon  the  showing  made  in  the 
petition,  it  appear  that  the  petitioner,  if  brought  into  court  would  be  remanded.  In 
re  King,  51  F.  R.,  434;  In  re  Jordan,  49  F.  R.,  238;  In  re  Haskell,  52  F.  R.,  795. 
Suspension  of  the  privilege  of  the  writ  does  not  suspend  the  writ  itself.  The  writ 
issues  as  a  matter  of  course;  and,  on  its  return,  the  court  decides  whether  the  appli- 
cant is  denied  the  privilege  of  proceeding  any  further.  Ex  parte  Milligan,  4  Wall. ,  2. 

2  The  duty  of  an  officer  of  the  Army  upon  whom  a  writ  of  habeas  corpus  is  served 
is  prescribed  in  the  following  paragraphs  of  the  Army  Regulations  of  1901 : 

Should  a  writ  of  habeas  corpus  issued  by  a  State  court  or  judge  be  served  upon  an 
Army  officer  commanding  him  to  produce  an  enlisted  man  or  general  prisoner  and 
show  cause  for  his  detention,  the  officer  will  decline  to  produce  in  court  the  body  of 
the  person  named  in  the  writ,  but  will  make  respectful  return  in  writing  to  the  effect 
that  the  man  is  a  duly  enlisted  soldier  of  the  United  States  or  a  general  prisoner 
under  sentence  of  court-martial,  as  the  case  may  be,  and  that  the  Supreme  Court  of 
the  United  States  has  decided  that  a  magistrate  or  court  of  a  State  has  no  jurisdiction 
in  such  a  case. 

A  writ  of  habeas  corpus  issued  by  a  United  States  court  or  judge  will  be  promptly 
obeyed.  The  person  alleged  to  be  illegally  restrained  of  his  liberty  will  be  taken 
before  the  court  from  which  the  writ  has  issued  and  a  return  made  setting  forth  the 
reasons  for  his  restraint.  The  officer  upon  whom  such  a  writ  is  served  will  at  once 
report  by  telegraph  the  fact  of  such  service  direct  to  the  Adjutant-General  of  the 
Army  and  to  the  Commanding  General  of  the  Department. 

1.  The  return  under  paragraph  1075,  Army  Regulations,  will  be  made  in  accordance 
with  Form  A  of  this  order,  and  will  refer,  as  in  last  paragraph  of  that  form,  to  the 
brief  of  authorities  which  follows  the  forms  of  this  order,  and  a  copy  of  that  brief 
will  be  annexed  to  the  return.     Should  the  court  order  the  discharge  of  the  party,  the 
officer  making  the  return,  or  counsel,  should  note  an  appeal  pending  instructions 
from  the  War  Department,  and  he  will  report  to  the  Adjutant-General  the  action 
taken  by  the  court  and  forward  a  copy  of  the  opinion  of  the  court  as  soon  as  it  can 
be  obtained. 

2.  The  return  under  paragraph  1074,  Army  Regulations,  will  be  made  in  accordance 
with  Form  B  of  this  order,  but  a  copy  of  the  brief  of  authorities  is  not  intended  to 
be  attached  to  the  return  to  writ  of  habeas  corpus  issuing  from  a  State  court.     G.  O. 
127,  A.  G.  O.,  1900. 

FORM  A. 

HABEAS   CORPUS   BY    UNITED   STATES   COURT. 


RETURN  TO   WRIT. 


In  re  (name  of  party  held) 


[Writ  of  habeas  corpus — Return  of  respondent.] 

0 

To  the  (court  or  judge) . 

The  respondent,  Maj. ,  U.  S.  Infantry,  upon  whom  has  been  served 

a  writ  of  habeas  corpus  for  the  production  of  -  — ,  respectfully  makes 

return  and  states  that  he  holds  the  said  — —  by  authority  of  the  United 


134  MILITARY    LAWS    OF    THE    UNITED    STATES. 


lie?™!  352-  The  person  to  whom  the  writ  is  directed  shall  certify 
^  s.  i,  v.  14,  p.  £o  t^  cour^  or  justice,  or  judge  before  whom  it  is  return  - 
sec.  757,  B.  s.  Q^\Q  ^6  true  cause  of  the  detention  of  such  party. 


States  as  a  soldier  in  the  United  States  Army  (or  "as  a  general  prisoner  under  sen- 
tence of  general  court-martial")  under  the  following  circumstances: 

That  the  said  —  —  was  duly  enlisted  as  a  soldier  in  the  service  of  the 

United  States  at  --  ,  —  —  ,  on  ---  ,  1900,  for  a  term  of  --  years.  [If  the 
offense  is  fraudulent  enlistment,  this  recital  should  be  omitted.] 

[Here  state  the  offense.  If  it  is  fraudulent  enlistment  by  representing  himself  to 
be  of  age,  it  may  be  stated  as  follows:] 

That  on  the  -  day  of  -  ,  1900,  at  —  —  ,  --  ,  the  said  -  --  , 
being  then  a  minor,  did  fraudulently  enlist  in  the  military  service  of  the  United 
States  for  the  term  of  -  years,  by  falsely  representing  himself  to  be  over  twenty- 
one  years  of  age,  to  wit:  -  years  and  -  months;  and  has,  since  said  enlistment, 
received  pay  and  allowances  (or  either)  thereunder. 

[If  the  offense  is  desertion,  it  may  be  stated  substantially  as  follows:] 

That  the  said  —  —  deserted  said  service  at  —  -  ,  -  ,  on  —  —  , 

1900,  and  remained  absent  in  desertion  until  he  was  apprehended  at  —  —  ,  —  —  , 
on  ---  ,  1900,  by  —  —  ,  and  was  thereupon  committed  to  the  custody 

of  the  respondent  as  commanding  officer  of  the  post  of  --  . 

The  said  —  —  has  been  placed  in  confinement  (or  "  arrest,"  as  the  case 

may  be),  charged  with  said  offense,  and  formal  charges  against  him  therefor  have 
been  preferred,  a  copy  of  which  is  hereto  annexed  (or  "are  being  prepared"),  and 
that  he  will  be  brought  to  trial  thereon  as  soon  as  practicable  before  a  court-martial 
to  be  convened  by  the  commanding  general  of  the  Department  of  —  —  (or  "con- 
vened by  Special  Orders,  No.  -  ,  dated  Headquarters  Department  of  —  :  -  , 
—  ,  1900,  a  copy  of  which  order  is  hereto  annexed"). 

[If  the  party  held  is  a  general  prisoner,  the  following  paragraph  should  be  substi- 
tuted for  the  preceding  paragraph:] 

That  the  said  --  was  duly  arraigned  for  said  offense  before  a  general 
court-martial,  convened  by  Special  Orders,  No.  --  ,  dated  Headquarters  Depart- 
ment of  —  —  ,  -  ,  1900,  was  convicted  thereof  by  said  court,  and  was  sentenced 
to  be  —  —  ,  which  sentence  was  duly  approved  on  the  --  day  of  —  —  ,  1900,  by 
the  officer  ordering  the  court  (or  "by  the  officer  commanding  said  Department  of 
-  for  the  time  being"),  as  required  by  the  104th  article  of  war.  A  copy  of 
the  order  promulgating  said  sentence  is  hereto  attached. 

In  obedience,  however,  to  the  said  writ  of  habeas  corpus  the  respondent  herewith 
produces  before  the  court  the  body  of  the  said  -  —  ,  respectfully  refers  to  the 
decisions  cited  in  the  annexed  brief,  and  for  the  reasons  set  forth  in  this  return  prays 
this  honorable  court  to  dismiss  the  said  writ. 


Major, U.  S.  Infantry. 

Dated , 


,  1900. 

FORM  B. 

HABEAS   CORPUS    BY    STATE   COURT. 
RETURN  TO   WRIT. 

[Make  return  as  in  case  of  writ  by  a  United  States  court,  except  as  to  last  para- 
graph, for  which  substitute  as  follows:] 

And  said  respondent  further  makes  return  that  he  has  not  produced  the  body  of 

the  said ,  because  he  holds  him  by  authority  of  the  United  States  as  above  set 

forth,  and  that  (this  court  or  your  honor,  as  the  case  may  be)  is  without  jurisdiction 
in  the  premises,  and  he  respectfully  refers  to  the  decisions  of  the  Supreme  Court  of 
the  United  States  in  Ableman  v.  Booth,  21  Howard,  506,  and  Tarble's  case,  13  Wal- 
lace, 397,  as  authority  for  his  action,  and  prays  (this  court  or  your  honor)  to  dismiss 
the  writ. 


Major, U.  S.  Infantry. 

Dated — , 

,  1900. 

Brief  to  be  filed  with  return  to  a  writ  of  habeas  corpus  issued  by  United  States  court  in  case 
of  a  soldier  whose  discharge  is  sought  under  section  1117,  Revised  Statutes. 

If  a  minor  sixteen  years  old  or  over  claims  to  be  twenty-one  years  of  age  or  over 
and  enlists  without  the  consent  required  by  section  1117,  Revised  Statutes,  the  con- 


MILITARY    LAWS    OF    THE    UNITED    STATES.  135 

353.  The  person  making  the  return  shall  at  the  same  time  tBofy9j  the  par- 
bring  the  body  of  the  party  before  the  judge  who  granted  duced- 

,  I  . .  .  Fsb.  5,  1867,  c. 

the  Writ.  28,  a.  l,v.  14,p.385. 

Sec.  758,  R.  8. 

tract  of  enlistment  is  not  voidable  by  the  minor,  nor  by  his  parents  or  guardian  if 
at  the  time  of  the  filing  of  the  petition  the  soldier  is  held  in  pursuance  of  a  sentence 
of  a  court-martial,  or  any  step  has  been  taken  with  a  view  to  bringing  him  before 
such  court. 

1.  CONTRACT  NOT  VOIDABLE  BY  MINOR. 


ment."  This  the  court  refused  to  grant,  holding  that  section  1117,  Eevised  Statutes 
"was  made  for  the  exclusive  benefit  of  parents  and  guardians,"  and  that,  quoting 
from  the  syllabus— 

"A  minor  over  sixteen  years  of  age,  who  at  the  time  of  his  enlistment  makes  affi- 
davit  that  he  is  twenty-one  years  of  age,  will  not,  on  his  own  application,  be  released 
on  habeas  corpus  on  the  ground  that  he  was  a  minor  at  the  time  of  his  enlistment, 
and  that  the  written  consent  of  his  guardian  was  not  obtained." 

(b)  When  soldier  is  in  confinement.— In  re  Morrissey,  137  United  States,  157;  In  re 
Grimley,  137  United  States,  147;  In  re  Wall,  8  Federal  Reporter,  85;  In  re  Davison, 
21  Federal  Reporter,  618;  In  re  Zimmerman,  30  Federal  Reporter,  176;  In  re  Hearn, 
32  Federal  Reporter,  141;  In  re  Spencer,  40  Federal  Reporter,  149;  In  re  Lawler,  40 
Federal  Reporter,  233;  Solomon  v.  Davenport,  87  Federal  Reporter,  318. 

In  the  Morrissey  case  the  Supreme  Court  of  the  United  States  settles  this  beyond 
question.  Morrissey,  a  minor  of  seventeen  years  of  age,  enlisted  without  the  consent 
of  his  mother,  who  was  living.  He  deserted,  remained  in  concealment  until  he 
reached  his  majority,  and  then  presented  himself  before  a  recruiting  officer  and 
demanded  his  discharge  from  the  Army  on  the  ground  that  he  was  a  minor  when 
enlisted.  The  court  said  that  the  provision  of  section  1117,  Revised  Statutes, 
"is  for  the  benefit  of  the  parent  or  guardian,  *  *  *  but  it  gives  no  privilege  to 
the  minor.  *  An  enlistment  is  not  a  contract  only,  but  effects  a  change  of 

status.  It  is  not,  therefore,  like  an  ordinary  contract,  voidable  by  the  infant.  *  *  * 
The  contract  of  enlistment  was  good  so  far  as  the  petitioner  is  concerned.  He  was  not 
only  de  facto,  but  de  jure,  a  soldier — amenable  to  military  jurisdiction." 

All  the  cases  cited  are  instructive  as  illustrative  of  the  different  circumstances 
under  which  this  principle  has  been  declared. 

In  the  Lawler  case  the  deserter  was  arrested  and  "held  as  such  awaiting  trial, 
which  will  be  as  soon  as  a  court-martial  can  be  convened  and  organized  for  that 
purpose." 

In  the  case  of  Solomon  v.  Davenport,  the  deserter  was  held  by  a  sheriff  under  a 
warrant  of  United  States  commissioner. 

In  the  Spencer  case  the  court  said:  "The  authorities  which  have  been  read  to  me 
seem  to  establish  very  conclusively  this  rule — that  the  enlistment  of  a  minor  is 
voidable,  not  necessarily  void;  and  that  he  does  really  become  by  such  enlistment, 
although  under  age,  engaged  in  the  service  of  the  United  States,  and  subject  to  the 
power  and  jurisdiction  of  the  military  authorities;  and,  such  being  the  case,  the 
court-martial  had  jurisdiction  to  arrest  and  try  him  for  the  charge  of  desertion." 

2.  CONTRACT  NOT  VOIDABLE    BY   PARENTS  OR   GUARDIANS  IF   THE   SOLDIER  is  HELD 

PURSUANT   TO    A   SENTENCE   OF    A    COURT-MARTIAL   OR    ANY    STEP    HAS    BEEN    TAKEN 
WITH    A    VIEW   TO    BRINGING    HIM   BEFORE   SUCH    COURT. 

In  re  Kaufman,  41  Federal  Reporter,  876;  In  re  Dohrendorf  etal.,  40  Federal 
Reporter,  148;  In  re  Cosenow,  37  Federal  Reporter,  668;  In  re  Dowd,  90  Federal 
Reporter,  718;  ex  parte  Anderson,  16  Iowa,  595;  McConologue's  case,  107  Massachu- 
setts, 170. 

In  the  .Kaufman  case  the  father  sought  the  discharge  of  his  son,  who  was  held  by 
the  military  authorities  and  had  been  ordered  before  a  military  court  for  trial  as  a 
deserter.  Quoting  from  the  syllabus:  "A  minor  who  enlists  in  the  United  States 
Army  upon  his  representation  that  he  is  of  age,  and  receives  pay  and  clothing  and 
afterwards  deserts  and  is  arrested  as  a  deserter,  and  at  the  time  of  his  petition  is  held 
by  the  United  States  awaiting  trial  by  a  court-martial  for  the  crime  of  desertion, 


136  MILITARY    LAWS    OF    THE    UNITED    STATES. 

jnBay  for  hear-  354  when  ^  writ  ifl  returne(^  a  day  shall  be  set  for  the 
28fsei,'v5i4>?;386'  hearing  °f  the  cause,  not  exceeding  five  days  thereafter, 

S«T.  759,  B.S.  unlegS  the  party  petitioning  requests  a  longer  time.1 
tum,niciu°nte?-     355-  The  petitioner  or  the  party  imprisoned  or  restrained 
tmen!meit°sns'  may  deny  anJ  of  tne  facts  set  fortn  in  the  return,  or  may 
28F?i,5V^8i47,'p.'a^e^e  any  °ther  facts  that  may  be  material  in  the  case. 
^ec.  760,  R.  s.  ^aid  denials  or  allegations  shall  be  under  oath.    The  return 
and  all  suggestions  made  against  it  may  be  amended,  by 
leave  of  the  court,  or  justice,  or  judge,  before  or  after  the 
same  are  filed,  so  that  thereby  the  material  facts  may  be 
ascertained. 

ingT^Sosttton  356-  Tne  court,  or  justice,  or  judge  shall  proceed  in  a 
of  party.  summary  way  to  determine  the  facts  of  the  case,  by  hear- 

will  not  be  released  under  a  writ  of  habeas  corpus  upon  the  ground  that  being  a 
minor  his  enlistment  was  unlawful  and  contrary  to  the  Revised  Statutes  of  the  United 
States." 

In  the  Cosenow  case  the  minor  swore  that  he  was  twenty-one  years  and  seven 
months  old  at  the  time  of  enlistment.  He  deserted  and  at  the  time  of  the  filing  of 
the  petition  was  held  in  custody  awaiting  the  action  of  the  reviewing  authority  on 
the  proceedings  of  the  court-martial.  His  father  sought  the  discharge  of  his  son  on 
the  ground  of  infancy  at  the  time  of  enlistment.  The  court  refused  to  discharge 
him,  holding  that  "an  enlistment  contrary  to  law  is  not  void,  but  voidable;"  that 
the  court-martial  had  jurisdiction  of  the  offense,  and  the  soldier  "must  be 
remanded  to  await  the  result  of  his  trial." 

The  Dowd  case  arose  on  the  application  of  the  mother  for  the  release  of  her  son, 
who  was  held  under  sentence  of  a  summary  court.  The  court  held,  quoting  from 
the  syllabus:  "The  enlistment  of  a  minor  in  the  Army  without  the  consent  of  his 
parents  or  guardian,  required  by  Revised  Statutes,  section  1117,  is  not  void,  but 
voidable  only,  and  while  he  remains  in  the  service  under  such  enlistment  the  minor 
is  amenable  to  the  Articles  of  War,  and  can  not  be  remanded  to  the  custody  of  his 
parents  by  a  civil  court  on  a  writ  of  habeas  corpus  while  undergoing  a  sentence 
imposed  on  him  by  a  court-martial  for  a  violation  of  such  articles." 

In  the  Anderson  case  it  appears  that  a  minor  enlisted  without  his  father's  consent, 
and  being  held  for  trial  before  a  court-martial  for  desertion,  his  father  sought  his 
discharge  on  habeas  corpus.  The  court  refused  to  discharge  the  soldier,  saying  "he 
must  abide  by  the  decision  of  the  latter  court  (court-martial)  before  the  question  of 
the  validity  of  his  enlistment  can  be  determined  in  the  civil  courts  on  habeas  corpus." 

In  McConologue's  case  the  court  said:  "A  minor's  contract  of  enlistment  is  indeed 
voidable  only  and  not  void,  and  if,  before  a  writ  of  habeas  corpus  is  sued  out  to  avoid 
it,  he  is  arrested  on  charges  of  desertion,  he  should  not  be  released  by  the  court 
while  proceedings  for  his  trial  by  the  military  authorities  are  pending." 

Under  the  custom  of  the  service  the  parents  or  guardian  of  a  minor  who  enlists 
without  their  consent  can  obtain  his  discharge  upon  application  to  the  Secretary  of 
War,  prior  to  the  commission  of  a  military  offense.  Their  rights  under  section  1117, 
Revised  Statutes,  are  thus  sufficiently  protected;  but  when  the  minor  has  committed 
a  military  offense  the  interests  of  the  public  in  the  administration  of  justice  are  para- 
mount to  the  right  of  the  parent,  and  require  that  the  soldier  shall  abide  the  conse- 
quences of  his  offense  before  the  right  to  his  discharge  be  passed  upon.  Die.  Opin. 
J.  A.  G.,  389-390. 

The  soldier  should  not  be  allowed  to  escape  punishment  for  his  offense,  even 
though  his  parents  assert  their  right  to  his  services.  A  minor  in  civil  life  is  liable  to 
punishment  for  a  crime  or  misdemeanor,  even  though  his  confinement  may  inter- 
fere with  the  rights  of  his  parents. 

1  If  the  service  of  the  writ  be  prevented  by  military  force,  it  will  be  ordered  to  be 
placed  on  the  files  of  the  court,  to  be  served  when  practicable.  Ex  parte  Winder,  2 
Clifford,  89. 

An  order  from  a  subordinate  in  the  War  Department  to  an  officer  not  to  obey  the 
writ  by  the  production  of  the  body,  is  no  justification  to  the  officer.  Ex  parte  Field, 
5  Blatchford,  C.  C.,  63. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  137 


ing  the  testimony  and  arguments,  and  thereupon  to  dis-  y/f'i  \18^ 
pose  of  the  party  as  law  and  justice  require.1  38|ec  m  R 

357.  When  writ  of  habeas  corpus  is  issued  in  the  case 
of  any  prisoner  who,  being  a  subject  or  citizen  of  a  foreign 
State  and  domiciled  therein,  is  committed,  or  confined,  or  in 
custody,  by  or  under  the  authority  or  law  of  any  one  of  the  2Sf^-  ^j?-  jf\ 
United  States,  or  process  founded  thereon,  on  account  of 
any  act  done  or  omitted  under  an  alleged  right,  title,  author- 
ity, privilege,  protection,  or  exemption,  claimed  under  the 
commission  or  order  or  sanction  of  any  foreign  State,  or 
under  color  thereof,  the  validity  and  effect  whereof  depend 
upon  the  law  of  nations,  notice  of  the  said  proceeding,  to 
be  prescribed  by  the  court,  or  justice,  or  judge  at  the  time 

1  The  purpose  of  the  writ  is  to  enable  the  court  to  inquire,  first,  if  the  petitioner  is 
restrained  of  his  liberty.  If  he  is  not,  the  court  can  do  nothing  but  discharge  the 
writ.  Tf  there  is  such  restraint,  the  court  can  then  inquire  into  the  causes  of  it, 
and  if  the  alleged  cause  is  unlawful,  it  must  then  discharge  the  prisoner.  *  *  * 
In  the  case  of  a  man  in  the  military  or  naval  service,  where  he  is,  whether  as  an 
officer  or  private,  always  more  or  less  subject  in  his  movements,  by  the  very  neces- 
sity of  military  rule  and  subordination,  to  the  orders  of  his  superior  officer,  it  should 
be  quite  clear  that  some  unusual  restraint  upon  his  liberty  of  personal  movement 
exists  to  justify  the  issue  of  the  writ;  otherwise  every  order  of  the  superior  officer 
directing  the  movements  of  the  subordinate,  which  necessarily  to  some  extentc  on- 
trols  his  freedom  of  will,  may  be  held  to  be  a  restraint  of  his  liberty  and  the  party 
so  ordered  may  seek  relief  from  obedience  by  means  of  a  writ  of  habeas  corpus. 
Something  more  than  moral  restraint  is  necessary  to  make  a  case  for  habeas  corpus. 
There  must  be  actual  confinement  or  the  present  means  of  enforcing  it.  Wales  v. 
Whitney,  114  U.  S.,  564,  571.  Where  a  court-martial  has  jurisdiction  of  the  person 
and  of  the  subject-matter  and  is  competent  to  pass  the  sentence  under  which  the 
prisoner  is  held,  its  proceedings  can  not  be  collaterally  impeached,  and  a  writ  of 
habeas  corpus  can  not  be  made  to  perform  the  function  of  a  writ  of  error.  Ex  parte 
Reed,  100  U.  S.,  13,  23;  Ex  parte  Kearney,  7  Wheat.,  38;  Ex  parte  Watkins,  3  Pet., 
193;  Ex  parte  Milligan,  4  Wall.,  2;  Ex  parte  Mason,  105  U.  S.,  696;  Ex  parte  Curtis, 
106  U.  S.,  371;  Ex  parte  Carrl,  ibid.,  521;  Ex  parte  Bigelow,  113  U.  S.,  328;  Davis 
v.  Beason,  133  ibid.,  333;  In  re  Frederick,  149  ibid.,  70;  Smith  v.  Whitney,  116  U.  S., 
167;  U.  S.  v.  Grimley,  137  U.  S.,  147;  Johnson  v.  Sayre,  158  U.  S.,  109;  In  re  Boyd, 
49  F.  R.,  48;  Crossley  v.  California,  168  U.  S.,  640;  Ex  parte  Lennon,  164  Fed.  Rep., 
320;  In  re  Lawrence,  84  ibid,  99. 

Where  a  medical  director  in  the  Navy,  against  whom  charges  had  been  preferred 
and  in  whose  case  a  general  court-martial  had  been  ordered,  was  placed  in  arrest  by 
the  Secretary  of  the  Navy,  and  notified  to  confine  himself  to  the  limits  of  the  city  of 
Washington:  Held,  That  this  constituted  no  such  restraint  of  liberty  as  to  sustain  a 
writ  of  habeas  corpus.  Wales  v.  Whitney,  114  U.  S.,  564.  Where  a  person  is  in 
custody  under  process  from  a  State  court  of  original  jurisdiction  for  an  alleged 
offense  against  the  laws  of  such  State,  and  it  is  claimed  that  he  is  restrained  of  his 
liberty  in  violation  of  the  Constitution  of  the  United  States,  the  circuit  court  has  a 
discretion  whether  it  will  discharge  him  upon  a  habeas  corpus,  in  advance  of  his 
trial  in  the  court  in  which  he  is  indicted;  that  discretion,  however,  to  be  subordi- 
nated to  any  special  circumstances  requiring  immediate  action.  When  the  State 
court  has  finally  acted  upon  the  case,  the  circuit  court  has  still  a  discretion  whether, 
under  all  the  circumstances,  the  accused,  if  convicted,  shall  be  put  to  his  writ  of 
error  from  the  highest  court  of  the  State,  or  whether  it  will  proceed,  by  writ  of 
habeas  corpus,  summarily  to  determine  whether  the  prisoner  is  restrained  of  his 
liberty  in  violation  of  the  Constitution  of  the  United  States.  Ex  parte  Royall,  117 
U.  S.,  241,  253;  Ex  parte  Watkins,  3  Pet.,  201;  Ex  parte  Bridges,  2  Woods,  428;  Ex 
parte  Lange,  18  Wall.,  163;  In  re  King,  51  F.  R.,  434;  Ex  parte  Hanson,  28  F.  R.,  127, 
131;  In  re  Jordan,  49  F.  R.,  238;  In  re  Lawrence,  80  ibid.,  99;  Ex  parte  Lennon, 
64  ibid.  ,  320.  Where  a  United  States  marshal  in  custody  for  an  act  done  in  pursuance 
of  a  law  of  the  United  States  is  brought  before  a  Federal  court  by  habeas  corpus  and 


138  MILITARY    LAWS    OF   THE  UNITED    STATES. 

of  granting  said  writ,  shall  be  served  on  the  attorney -gen- 
eral or  other  officer  prosecuting  the  pleas  of  said  State, 
and  due  proof  of  such  service  shall  be  made  to  the  court, 
or  justice,  or  judge  before  the  hearing. 
Appeals    in     358.  From  the  final  decision  of  any  court,  justice,  or 

cases  of  habeas  .  .  , .        . 

corpus  to  circuit  judge  interior  to  the  circuit  court,  upon  an  application  tor 
Aug. 29, 1842,  c.  a  writ  of  habeas  corpus  or  upon  such  writ  when  issued,  an 

257,  v.  5,  p.  539; 

Feb.  5, 1867,  c.  28,  appeal  may  be  taken  to  the  circuit  court  for  the  district  in 

s.  1,  v.  14,  p.  385;     vTT    .1  .      , 

Mar.  27,  1868,  c.  which  the  cause  is  heard: 

34, s. 2,  v.  15, p. 44.  T        .  ...  . 

Sec.  768,  B.  s.  1.  In  the  case  01  any  person  alleged  to  be  restrained  01 
his  liberty  in  violation  of  the  Constitution,  or  of  any  law 
or  treaty  of  the  United  States. 

2.  In  the  case  of  any  prisoner  who,  being  a  subject  or 
citizen  of  a  foreign  State,  and  domiciled  therein,  is  com- 
mitted or  confined,  or  in  custody  by  or  under  the  authority 
or  law  of  the  United  States,  or  of  any  State,  or  process 

discharged,  he  can  not  afterwards  be  tried  by  the  State  courts.  Cunningham  v. 
Neagle,  135  U.  S.,  1.  See,  also,  In  re  Boardman,  169  U.  S.,  39;  Baker  v.  Grice,  ibid., 
284;  Nishimura  Ekin  v.  U.  S.,  142  ibid.,  651,  166  U.  S.,  391;  lasigi?'.  VandeCurr,  166 
U.  S.,  391. 

Conflict  o/  State  and  Federal  authority. — The  writ  of  habeas  corpus  is  a  high  pre- 
rogative writ  known  to  the  common  law,  the  great  object  of  which  is  the  liberation 
of  those  who  may  be  imprisoned  without  sufficient  cause.  It  is  in  the  nature  of  a 
writ  of  error  to  examine  the  legality  of  the  commitment.  Ex  parte  Watkins,  3  Pet., 
202.  The  Federal  courts  by  whom,  and  the  cases  in  which,  it  may  be  issued  are 
described  in  sections  751,  752,  753,  754,  762,  763,  764,  and  765  of  the  Revised  Statutes. 
Subject  to  the  paramount  authority  of  the  National  Government,  by  its  own  tribunals, 
to  inquire  into  the  legality  of  custody  of  prisoners  held  by  the  United  States  courts 
or  officers,  the  States  may  inquire  into  the  grounds  on  which  any  person  in  their 
respective  limits  is  restrained  of  his  liberty.  Robb  v.  Connolly,  111  U.  S.,  624.  A 
State  court  has  no  jurisdiction  by  habeas  corpus  to  release  a  prisoner  held  by  order  of 
Federal  court.  Ableman  v.  Booth,  21  How.,  506.  And  a  judicial  officer  of  a  State 
can  not,  by  means  of  a  writ  of  habeas  corpus,  take  and  discharge  a  person  held  by 
or  under  color  of  authority  of  the  United  States.  If  it  appear  upon  the  return  to 
a  writ  of  habeas  corpus  that  the  person  is  detained  under  color  of  the  authority  of  the 
United  States,  the  State  court  has  no  further  jurisdiction.  Tarble's  case,  13  Wall., 
397.  We  do  not  question  the  authority  of  the  State  court  or  judge  who  is  authorized 
by  the  laws  of  the  State  to  issue  the  writ  of  habeas  corpus  to  issue  it  in  any  case 
where  the  party  is  imprisoned  within  its  territorial  limits,  provided  it  does  not  appear, 
when  the  application  is  made,  that  the  person  imprisoned  is  in  custody  under  the 
authority  of  the  United  States.  The  court  or  judge  has  a  right  to  inquire,  in  this 
mode  of  proceeding,  for  what  cause  and  by  what  authority  the  prisoner  is  confined 
within  the  territorial  limits  of  the  State  sovereignty.  And  it  is  the  duty  of  the  mar- 
shal or  other  person  having  the-custody  of  the  prisoner  to  make  kno\yn  to  the  judge 
or  court,  by  a  proper  return,  the  authority  by  which  he  holds  him  in  custody. 
*  *  *  But  after  the  return  is  made  and  the  State  judge  or  court  judicially  apprised 
that  the  party  is  in  custody  under  the  authority  of  the  United  States,  they  can  pro- 
ceed no  further.  *  *  *  And  although,  as  we  have  said,  it  is  the  duty  of  the  mar- 
shal or  other"  person  holding  him  to  make  known,  by  a  proper  return,  the  authority 
under  which  he  detains  him,  it  is  at  the  same  time  imperatively  his  duty  to  obey  the 
process  of  the  United  States,  to  hold  the  prisoner  in  custody  under  it,  and  to  refuse 
obedience  to  the  mandate  or  process  of  any  other  Government.  And  consequently 
it  is  his  duty  not  to  take  the  prisoner,  nor  suffer  him  to  be  taken,  before  a  State  judge 
or  court  upon  a  .habeas  corpus  issued  under  State  authority.  No  State  judge  or 
court,  after  they  are  judicially  informed  that  the  party  is  imprisoned  under  the 
authority  of  the  United  States,  has  any  right  to  interfere  with  him,  or  to  require  him 
to  be  brought  before  them.  And  if  the  authority  of  a  State,  in  the  form  of  a  judicial 
process  or  otherwise,  should  attempt  to  control  the  marshal  or  other  authorized  officer 
or  agent  of  the  United  States,  in  any  respect  in  the  custody  of  his  prisoner,  it  would 
be  his  duty  to  resist  it  and  to  call  to  his  aid  any  force  that  might  be  necessary  to 


MILITARY    LAWS    OF    THE    UNITED    STATES.  139 

founded  thereon,  for  or  on  account  of  &ny  act  done  or 
omitted  under  any  alleged  right,  title,  authority,  privilege, 
protection,  or  exemption,  set  up  or  claimed  under  the  com- 
mission, order,  or  sanction  of  any  foreign  State  or  sover- 
eignty, the  validity  and  effect  whereof  depend  upon  the 
law  of  nations,  or  under  color  thereof.1 

359.  From  the  final  decision  of  such  circuit  court  an    Appeal  to  su- 
appeal  may  be  taken  to  the  Supreme  Court  in  the  cases  prA™g.CS^i842; 
described  in  the  preceding  section.  Mar.  3, 1885,  v.  23,  P.  437.    s'ecV.'764,Pkf3|.; 

360.  The  appeals  allowed  by  the  two  preceding  sections    Appeals,  how 
shall  be  taken  on  such  terms,  and  under  such  regulations    Aug.  29, 1842,  c. 
and  orders,  as  well  for  the  custody  and  appearance  of  the  Fe^>-  5,  ISGT.'C.  28,' 
person  alleged  to  be  in  prison  or  confined  or  restrained  of    Sec.' 765,pk.  si 
his  liberty,  as  for  wending  up  to  the  appellate  tribunal  a 
tr'anscript  of  the  petition,  writ  of  habeas  corpus,  return 

thereto,  and  other  proceedings,  as  may  be  prescribed  by 
the  Supreme  Court,  or,  in  default  thereof,  by  the  court  or 
judge  hearing  the  cause.2 

maintain  the  authority  of  law  against  illegal  interference.  No  judicial  process,  what- 
ever form  it  may  assume,  can  have  any  lawful  authority  outside  of  the  limits  of  the 
jurisdiction  of  the  court  or  judge  by  whom  it  was  issued,  and  an  attempt  to  enforce 
it  beyond  these  boundaries  is  nothing  less  than  lawless  violence.  Ableman  v.  Booth, 
21  How.,  506.  A  State  judge  has  no  jurisdiction  to  issue  a  writ  of  habeas  corpus 
for  a  prisoner  in  custody  of  an  officer  of  the  United  States  if  the  fact  of  such  custody 
is  known  to  him  before  issuing  the  writ;  and  if  such  fact  appears  on  the  return  to 
the  writ,  all  further  proceedings  by  him  are  void.  And  if  the  United  States  officer 
resist  the  enforcement  of  the  State  writ  and  is  imprisoned  therefor,  he  will  be  dis- 
charged by  the  Federal  court.  Ex  parte  Sifford,  5  Am.  Law  Reg.,  O.  S.,  659.  A 
military  officer  of  the  United  States  is  not  bound  to  produce  the  body  of  an  enlisted 
soldier  in  answer  to  a  writ  of  habeas  corpus  issued  from  a  State  court  or  judge.  In 
re  Neill,  8  Blatch.,  166.  The  return  of  a  military  officer  to  a  writ  of  habeas  corpus 
need  not  be  on  oath.  In  re  Neill,  8  Blatch.,  165.  The  validity  of  the  enlistment 
of  a  soldier  can  not  be  inquired  into  by  a  State  court  by  the  issue  of  a  writ  of  habeas 
.corpus,  and  an  officer  of  the  Army  may  properly  refuse  to  discharge  an  enlisted  man 
in  his  command  upon  the  order  of  a  State  court.  In  re  Farrand,  1  Abbot,  140,  147. 

An  officer  or  agent  of  the  United  States  engaged  in  the  performance  of  a  duty 
arising  under  the  laws  and  authority  of  the  United  States,  is  not  liable  to  a  criminal 
prosecution  in  the  courts  of  a  State  for  acts  done  by  him  in  his  official  capacity.  (In 
re  Waite,  81  Fed.  Rep.,  359.)  An  officer  who,  in  the  performance  of  what  he  con- 
ceives to  be  his  official  duty,  transcends  his  authority  and  invades  private  rights,  is 
answerable  therefor  to  the  Government  under  which  he  acts,  and  to  individuals 
injured  by  his  action;  but  where  there  is  no  criminal  intent  he  is  not  liable  to  answer 
the  criminal  process  of  another  Government.  In  re  Lewis,  83  ibid.,  159;  in  re  Neagle, 
135  U.  S.,  1.  Federal  courts  have  authority  in  habeas  corpus  proceedings  to  inquire 
into  the  guilt  or  innocence  of  persons  committed  on  preliminary  examination  by  a 
State  tribunal  on  a  criminal  charge  for  acts  done  in  the  service  of  the  United  States, 
so  far  as  to  determine  whether  the  acts  were  done  wantonly  and  with  a  criminal 
intent.  Ibid.,  159.  When  an  officer  of  the  United  States  is  sought  to  be  held  in  a 
State  court  for  punishment  for  acts  done  in  the  performance  of  his  duty  to  the  United 
States,  it  is  not  a  sufficient  reason  for  refusing  his  release  upon  habeas  corpus  that  he 
may  raise  the  question  of  his  immunity  in  the  State  court,  and  carry  the  matter  by 
writ  of  error  to  the  United  States  Supreme  Court,  if  necessary,  since  the  operations 
of  the  Federal  Government  would,  in  the  meantime,  be  obstructed  by  the  confine- 
ment of  its  officer.  In  re  Waite,  81  Fed.  Rep.,  359. 

xEx  parte  McCardle,  6  Wallace,  318;  ibid.,  7  Wallace,  506;  ex  parte  Yerger,  8, 
ibid.,  85. 

2  For  the  appellate  jurisdiction  of  the  circuit  court  of  appeals  in  habeas  corpus  cases, 
see  section  6  of  the  act  of  March  3,  1891.  (26  Stat.  L.,  826). 


140  MILITAKY    LAWS    OF    THE    UNITED    STATES. 

P™;     301.  Pending  the  proceedings  or  appeal  in  the  cases 
mentioned  in  the  three  preceding  sections,  and  until  final 
14 Aug.^9, 1842,  c.  judgment  therein,  and  after  final  judgment  of  discharge, 
lek. I',  iswjcfjffii any  Pi'^ceeding  against  the  person  so  imprisoned  or  con- 
Mar V3, 1893%^?;  ^ne^  or  restrained  of  his  liberty,  in  any  State  court,  or 
p'see.'  766,  K.  s.  ^3r  or  un(ler  the  authority  of  any  State,  for  any  matter  so 
heard  and  determined,  or  in  process  of  being  heard  and 
determined,  under  such  writ  of  habeas  corpus,  shall  be 
deemed  null  and  void.     That  no  appeal  shall  be  had  or 
allowed  after  six  months  from  the  date  of  the  judgment  or 
order  complained  of.   Act  of  March  3, 1893  (27Stat.  L. ,  751) . 

SUSPENSION  OF    THE    PRIVILEGE    OF    THE  WRIT  OF    HABEAS    CORPUS. 

The  privilege 1  of  the  writ  of  habeas  corpus  shall  not  be 
suspended,  unless  when  in  cases  of  rebellion  or  invasion 
the  public  safety  may  require  it.2 

1  The  privilege  of  the  writ  must  here  mean  the  right  to  the  writ.    Paschal,  141.    The 
power  to  issue  the  writ  is  not  the  privilege;  to  ask  for  it  is.     Ibid. 

2  It  would  seem,  as  the  power  is  given  to  Congress  to  suspend  the  privilege  of  the 
writ  in  cases  of  rebellion  or  invasion,  that  the  right  to  judge  whether  the  exigency 
had  arisen  must  exclusively  belong  to  that  body.     Martin  v.  Mott,  12  Wheat.,  19;  Ex 
parte  Milligan,  4  Wall.,  2;  VIII  Opin.  Att.  Gen.,  365.     The  privilege  of  the  writ  was 
suspended  by  theactof  March  12, 1863  (12Stat.  L.,  755),  which  contained  the  follow- 
ing requirement:  "During  the  present  rebellion  the  President  of  the  United  States 

is  authorized  to  suspend  the 
irt  thereof." 
iptember  15, 

1863,  the  President,  by  proclamation,  suspended  the  privilege  of  the  writ  during  the 
rebellion,  throughout  the  United  States,  in  all  cases  "when,  by  the  authority  of  the 
President  of  the  United  States,  the  military,  naval,  and  civil  officers  of  the  United 
States,  or  any  of  them,  held  persons  under  their  command  or  in  their  custody,  either 
as  prisoners  of  war,  spies,  or  aiders  or  abettors  of  the  enemy,  or  officers,  soldiers,  or 
seamen,  enrolled,  drafted,  or  mustered  or  enlisted  in  or  belonging  to  the  land  or 
naval  forces  of  the  United  States,  or  as  deserters  therefrom,  or  otherwise  amenable 
to  military  law,  or  the  Rules  and  Articles  of  War,  or  the  rules  or  regulations  pre- 
scribed for  the  military  or  naval  service  by  authority  of  the  President  of  the  United 
States,  or  for  resisting  a  draft,  or  for  any  other  offense  against  the  military  or  naval 
service."  See,  also,  United  States  v.  Hamilton,  3  Dall.,  17;  Hepburn  et  al.  v.  Ellzey, 
2  Cr.,  445;  Ex  parte  Bollman  and  Swartwout,  4  Or.,  75;  Ex  parte  Kearney,  7  Wh.,  38; 
Ex  parte  Tobias  Watkins,  3  Pet.,  192;  Ex  parte  Milburn,  9  Pet.,  704;  Holmes  v.  Jen- 
nison  et  al.,  14  Pet.,  540;  Ex  parte  Dorr,  3  How.,  103;  Luther  v.  Borden,  7  How.,  1; 
Ableman  v.  Booth  and  United  States?;.  Booth,  21  How.,  506;  Ex  parte  Vallandigham, 
1  Wall.,  243;  Ex  parte  Milligan,  4  Wall.,  2;  Ex  parte  McCardle,  7  Wall.,  506:  Ex 
parte  Yerger,  8  Wall.,  85;  Tarble's  case,  13  Wall.,  397;  Ex  parte  Lange,  18  Wall., 
163;  Ex  part*  Parks,  93  U.  S.,  18;  Ex  parte  Karstendick,  93  U.  S.,  396. 


MILITARY    LAWS    OF   THE    UNITED    STATES. 


141 


THE    COUKT   OF    CLAIMS.1 


JURISDICTION,  POWERS,  AND   PROCEDURE. 


Par. 

362.  Jurisdiction. 

363.  Private  claims   in   Congress,    when 

transmitted  to  Court  of  Claims. 

364.  Judgments  for  set-off   or    counter- 

claim, how  enforced. 

365.  Decree  on   account  of   paymasters, 

etc. 

366.  Claims  referred  by  Departments. 

367.  Procedure  in  cases  transmitted  by 

Departments. 

368.  Judgments  in  cases  transmitted  by 

Departments,  how  paid. 

369.  Claims  growing  out  of  treaties  not 

cognizable  therein. 

370.  Claims  pending  in  other  courts  not 

to    be    prosecuted    in    Court    of 
Claims. 

371.  Aliens. 

372.  Limitation. 

373.  Rules  of  practice;  contempts. 

374.  Oaths  and  acknowledgments. 

375.  Petition. 

376.  Petition    dismissed    if    issue  found 

against  claimant  as  to  allegiance, 
etc. 

377.  Burden  of  proof  and  evidence  as  to 

loyalty. 

362.  The  Court  of  Claims  shall  have  jurisdiction  to  hear 
and  determine  the  following  matters: 

First.  All  claims  founded  upon  any  law  of  Congress,2  or  0 £  1Jt??£tef  or 
upon  any  regulation  of  an  Executive  Department,3  or  upon  J^^by  °con- 


Par. 

378.  Commissioner  to  take  testimony. 

379.  Power  to  call  upon  Departments  for 

information. 

380.  Testimony  not  to  be  taken,  when. 

381.  Witnesses  not  excluded  on  account 

of  color. 

382.  Examination  of  claimant. 

383.  Testimony   taken  whjere    deponent 

resides. 

384.  Witnesses,  how  compelled  to  attend 

before  commissioners. 
Cross-examination. 
Witnesses,  how  sworn. 
Fees    of    commissioner,    by    whom 

paid. 

Claims  forfeited  for  fraud. 
New  trial  on  motion  of  claimant. 
New    trial    on    motion    of    United 

States. 

391.  Payment  of  judgments. 
Interest. 
Interest  on  claims. 

394.  Payment  of    judgment  a  full  dis- 

charge, etc. 

395.  Final  judgments  a  bar. 
396-402.  The  Bowman  Act. 
403-417.  The  Tucker  Act. 

Jurisdiction. 


385. 
386. 

387. 

388. 
389. 
390. 


392. 
393. 


aThe  Court  of  Claims  was  established  by  the  acts  of  February  24,  1855  (10  Stat. 
L.,  612) ;  March  3,  1863  (12  Stat.  L.,  765),  and  May  8,  1872  (17  Stat.  L.,  85).  This 
court  was  created  with  a  view  to  give  legal  redress  to  the  citizen  as  against  the  Gov- 
ernment where  he  would  have  had  legal  redress  as  against  another  citizen.  It  is  a 
curious  fact,  not  generally  known,  that  the  example  of  Prussia  and  the  German 
States  in  guarding  the  private  rights  of  persons  by  subjecting  the  Government,  in 
matters  of  account,  to  the  judicial  power  of  ordinary  courts  of  justice,  led  to  the 
establishment  of  the  Court  of  Claims.  Brown  v.  U.  S.,  5  Ct.  Cls.,  571,  577.  The 
provisions  of  the  act  of  March  3,  1863,  authorizing  the  Court  of  Claims  to  hear  and 
determine,  without  a  jury,  claims  against  Government  with  set-offs,  is  not  unconsti- 
tutional. McElrath  r.  U.  S.,  102  U.  S.,  426. 

2  A  claimant  presenting  a  claim  founded  upon  a  law  of  Congress  has  a  legal  right, 
under  section  1059,  Revised  Statutes,  to  a  definitive  adjudication;  and  the  power  of 
the  court  to  afford  that  can  not  be  considered  as  interfered  with  by  anything  short 
of  a  lodgment  of  the  power  of  definitive  adjudication  in  some  other  tribunal  or 
officer.     Thomas  v.  U.  S.,  16  Ct.  Cls.,  522.     The  rejection  of  a  claim  by  the  account- 
ing officers  leaves  the  party  to  pursue  his  remedy  at  law,  viz,  an  action  in  this  court, 
though  he  may  have  accepted  the  portion  allowed.     Long  will  v.  U.  S.,  17  Ct.  Cls., 
288;  U.  S.  v.  Kauffman,  96  U.  S.,  567. 

3  Regulations  of  an  Executive  Department  are  rules  relating  to  the  subjects  on 
which  a  Department  acts  and  are  made  by  its  head  under  an  act  of  Congress  con- 


142  MILITARY    LAWS    OF    THE    UNITED    STATES. 

i22^i,V^'p;any  contract,  expressed  or  implied,3  with  the  Government 
Ss.TI^.'ilJp:0^  ^he  United  States,  and  all  claims  which  may  be  referred 
c^^vA'sfp.^si.'  ^°  ^  by  either  House  of  Congress. 

ferring  that  power  and  thereby  giving  such  regulations  the  force  of  law.  A  mere 
order  of  the  President  or  of  a  Secretary  is  not  a  regulation.  Harvey  v.  U.  S.,  3  Ct. 
Cls.,  38.  By  the  term  "any  regulation"  is  doubtless  intended  any  regulation 
within  the  lawful  discretion  of  the  head  of  an  Executive  Department.  *  *  * 
When  Congress  permits  regulations  to  be  formulated  and  published  and  carried 
into  effect  year  after  year,  the  legislative  ratification  must  be  implied.  Maddox  v. 
U.  S.,20Ct.  Cls.,  193,  198. 

3  The  jurisdiction  of  the  Court  of  Claims  is  confined  to  suits  arising  from  contracts 
express  or  implied.  Langford  v.  U.  S.,  101  U.  S.,  341.  The  United  States  can  not  be 
sued  in  the  Court  of  Claims  on  equitable  considerations  merely.  Bonner  v.  U.  S. ,  9 
Wall.,  156.  The  language  of  the  statutes  which  confer  jurisdiction  on  the  Court  of 
Claims  excludes,  by  the  strongest  implication,  demands  against  the  Government 
founded  on  torts.  In  such  cases,  where  it  is  proper  for  the  nation  to  furnish  a  rem- 
edy, Congress  has  wisely  reserved  the  matter  for  its  own  determination.  Gibbons 
v.  U.  S.,  8  Wall.,  269,  275;  Keed  v.  U.  S.,  11  Wall,  591;  Langford  v.  U.  S.,  101  U. 
S.,  341.  See,  also,  paragraphs  339-353,  post. 

CONTRACTS. 

The  Court  of  Claims,  in  the  construction  and  enforcement  of  contracts,  is  bound  to 
apply  the  principles  which  govern  like  contracts  between  individuals.  U.  8.0.  Smoot, 

15  Wall.,  36;  Curtis  v.  U.  S.,  2  Ct.  Cls.,  144;  Brooke  v.  U.  S.,  ibid.,  180.     All  questions 
of  salary  are  questions  of  contract,  and  whetherthe  salary  is  fixed  by  law,  or  by  order 
of  a  Department  under  authority  of  law,  the  Government  contracts" to  pay  the  officer 
his  salary,  and,  failing  to  do  so,  a  suit  therefor  may  be  maintained  in  this  court, 
whether  the  case  arises  under  a  revenue  act  or  any  other.     Patton  v.  U.  S.,  7  Ct.  Cls., 
362.     The  United  States  can  no  more  discharge  its  contracts  by  such  performance 
than  can  an  individual  person  do  so.     Congress  may  fail  to  appropriate,  in  whole  or 
in  part,  the  money  required  for  payment  of  a  public  creditor,  and  thus  leave  the 
public  officer  without  authority  to  draw  money  from  the  Treasury  for  that  purpose, 
but  the  indebtedness  and  liability  remain  in  force.      Mitchell  v.  U.S.,  18  Ct.  Cls., 
281,  287;  Graham  v.  U.  S.,  1  ibid.,  380;  Collins  v.  U.  S.,  15  ibid.,  22;  French  v.  U.  S., 

16  ibid.,  419.     An  officer  who  has  been  wholly  retired  from  the  service,  but  in  whose 
case  the  order  of  retirement  has  been  revoked  by  the  President,  who  directs  his 
name  to  be  placed  on  the  retired  list,  is  an  officer  de  facto,  and  though  illegally  on 
such  retired  list,  money  paid  him  by  way  of  salary,  so  long  as  he  holds  the  office  in 
good  faith,  can  not  be  recovered  back.     When  one  claiming  to  be  an  officer  renders 
no  service  and  holds  no  official  relations  with  the  Government,  money  paid  him  for 
service  may  be  recovered  back.     Miller  v.  U.  S.,  19  Ct.  Cls.,  338.      In  an  action  in 
the  Court  of  Claims  to  recover  a  balance  claimed  to  be  due  on  pay  account,  the  United 
States  can  set  up,  as  a  counter  claim,  an  alleged  overpayment  to  him  on  account  of 
pay,  and  can  have  judgment  for  its  collection.     U.  S.  v.  Burchard,  125  U.  S.,  176; 
McElrath  v.  U.  S.,  102  U.  S.,  426. 

An  officer  can  only  bind  the  Government  by  acts  which  come  within  a  just  exer- 
cise of  his  official  power.  Hunters.  U.  S.,  5  Pet.,  173, 178;  The  Floyd  Acceptances,  7 
Wall.,  666;  Whiteside  v.  U.  S.,  93  U.  S.,  247.  Unless  the  Government  has  ratified  a 
contract  of  an  officer  in  excess  of  his  authority,  or  received  the  benefit  of  it,  it  is  not 
liable.  The  ratification  of  some  of  a  series  of  unauthorized  acts  is  not  to  be  construed 
to  be  an  approval  of  any  not  specified.  Pitcher  v.  U.  S.,  1  Ct.  Cls.,  7;  De  Celis  r. 
U.S.,13Ct,Cls.,117. 

IMPLIED   CONTRACTS. 

To  constitute  an  implied  contract  "there  must  have  been  some  consideration 
moving  to  the  United  States;  or  they  must  have  received  the  money,  charged  with  a 
duty  to  pay  it  over;  or  the  claimant  must  have  had  a  lawful  right  to  it  when  it  was 
received,  as  in  the  case  of  money  paid  by  mistake.  Knote  v.  U.  S.,  95  U.  S.,  149, 156. 
A  contract  to  reimburse  is  implied  when  the  Government  takes  private  property  for 
public  use.  Such  a  taking  of  private  property  by  the  Government  when  the  emer- 
gency of  the  public  service  in  time  of  war,  or  impending  public  danger,  is  too  urgent 
to  admit  of  delay,  is  everywhere  regarded  as  justified,  if  the  necessity  for  the  use  of 
the  property  is  imperative  and  immediate  and  the  danger,  as  heretofore  described, 


MILITAEY    LAWS    OF    THE    UNITED    STATES.  143 

Second.  All  set-offs,1  counterclaims,  claims  for  damages,  COunte°rciLmsno1 
whether  liquidated  or  unliquidated,  or  other  demands  what-  United  states. 
soever,  on  the  part  of  the  Government  of  the  United  States  ^ar,.  \lsfj<  c- 
against  any  person  making  claim  against  the  Government76^  W59  R  g' 
in  said  court. 

Third.  The  claim  of  any  paymaster,  quartermaster,  com-  0fflCe?sbu  rsing 
missary  of  -subsistence,  or  other  disbursing  officer  of  the  14Ma>  1866»  v- 
United  States,  or  of  his  administrators  or  executors,  for 
relief  from  responsibility  on  account  of  capture  or  other- 
wise, while  in  the  line  of  his  duty,  of  Government  funds, 
vouchers,  records,  or  papers  in  his  charge,  and  for  which 
such  officer  was  and  is  held  responsible. 


2 


is  impending;  and  it  is  equally  clear  that  the  taking  of  such  property,  under  such 
circumstances,  creates  an  obligation  on  the  part  of  the  Government  to  reimburse 
the  owner  to  the  full  value  of  the  service.  Private  rights,  under  such  extreme  and 
imperious  circumstances,  must  give  way,  for  the  time,  to  the  public  good,  but  the 
Government  must  make  full  restitution  for  the  sacrifice.  U.  S.  v.  Russell,  13  Wall., 
623,  629.  Beneficial  volunteer  service  does  not  raise  an  implied  contract,  unless 
there  has  been  an  inducement,  agreement,  or  ratification.  Boston  v.  The  District  of 
Columbia,  19  Ct.  Cls.,  31.  The  court  has  jurisdiction  of  a  suit  by  a  patentee  for 
the  royalty  agreed  to  be  paid  for  the  use  of  his  invention  by  an  authorized  officer  of 
the  Government.  Burns  v.  U.  S.,  12  Wall.,  246. 

A  contract  is  implied  from  the  fact  that  4he  Government  manufactured  a  patented 
military  device,  without  market  value,  on  the  solicitation  of  the  patentee,  that  it  should 
pay  for  the  right  to  use  the  invention.  Palmer  v.  U.  S.,  128  U.  S.,  262.  The  United 
States  may  be  sued  for  use  of  a  patented  invention  by  its  officers  for  its  benefit  if  the 
right  of  the  patentee  is  acknowledged.  Hollister  v.  Benedict  Manufacturing  Co.,  113 
U.  S.,  59;  U.  S.  v.  Burns,  12  Wall.,  246.  When  an  officer  of  the  Government  is 
properly  assigned  to  the  work  of  devising  something  to  be  used  in  the  public  service, 
the  Government  meeting  the  expenses  and  paying  the  officer  his  usual  salary,  the 
Government  is  not  liable  for  royalty  on  the  invention,  though  it  was  made  by  the 
officer  previous  to  the  time  he  was  assigned  to  the  work,  if  the  labor  and  expense  of 
perfecting  i,t  was  borne  by  the  Government.  Solomons  v.  U.  S.,  22  Ct.  Cls.,  335; 
21  ibid.,  479.  The  policy  of  the  War  Department  of  late  years  toward  inventors  has 
been  one  of  neutrality,  neither  denying  nor  admitting  legal  rights,  but  taking  inven- 
tions to  perfect  the  Government  arms,  leaving  inventors  free  to  seek  redress  without 
prejudice  before  other  tribunals  than  an  Executive  Department.  Berdan  v.  U.  S., 
26  Ct.  Cls.,  48,  60.  See,  also,  Clyde  v.  U.  S.,  13  Wall.,  38;  U.  S.  v.  Russell,  13  Wall., 
623;  U.  S.  v.  Bostwick,  94  U.  S.,  53;  Fichera's  case,  9  Ct.  Cls.,  254;  Macauley's 
case,  11  Ct.  Cls.,  693;  Clark's  case,  11  Ct.  Cls.,  698;  Roman  et  al.  v.  U.  S.,  11  Ct. 
Cls.,  761;  Campbell's  case,  13  Ct.  Cls.,  470. 

xThe  right  of  set-off  did  not  exist  at  common  law,  and  is  everywhere  founded  upon 
statutory  regulation.  Tillou  v.  U.  S.,  1  Ct.  Cls.,  454;  2  ibid.,  588,  and  U.  S.  v.  Eck- 
ford,  6  Wall.,  484.  State  laws  in  such  a  case  do  not  constitute  the  rule  of  decision, 
but  the  question  arises,  exclusively,  under  the  act  of  Congress;  and  no  local'  law  nor 
usage  can  have  any  influence  in  its  determination.  Ibid.  ;  Reeside  v.  Walker,  11 
How.,  272,  290. 

.  2  Under  this  provision  relief  has  been  afforded  to  a  paymaster  who  was  attacked 
and  robbed  by  highwaymen.  Broadhead  v.  U.  S.,  19  Ct.  Cls.,  125.  To  a  disbursing 
officer  for  loss  by  the  failure  of  a  national  bank,  which  was  a  designated  depository. 
Hobbs  v.  U.  S.,  17  ibid.,  189.  To  a  disbursing  officer  for  money  stolen  from  a  safe. 
Scott  v.  U.  S.,  18  ibid.,  1;  Clark  v.  U.  S.,  11  ibid.,  698;  Howell  v.  U.  S.,  7  ibid.,  512. 
To  a  quartermaster  for  money  lost  from  his  person,  the  money  being  carried  in  the 
way  such  officers  usually  carry  it  on  similar  occasions,  under  circumstances  utterly 
free  from  suspicion  and  after  diligent  efforts  had  been  made  to  recover  the  same. 
Whittlesey  v.  U.  S.  ,  5  ibid.  ,  452.  To  a  quartermaster  for  m  oney  stolen  from  his  room, 
due  precaution  for  its  safety  having  been  taken.  Malone  v.  U.  S.,  5  ibid.,  486;  Norton  v. 
U.  S.,  2  ibid.,  523.  To  a  paymaster  for  money  contained  in  a  treasure  box  stolen  by 
soldiersat  a  garrison.  Glenn  v.  U.  S.,  4  ibid.,  501.  To  an  engineer  officer  for  money 
captured  by  the  enemy.  Prince  v.  U.  S.,  3  ibid.,  209.  To  a  paymaster  for  funds  and 
vouchers  captured  by  the  enemy.  Ruggles  v.  U.  S.,  2  ibid.,  520;  Moore  v.  U.  S.,  ibid., 


144  MILITARY    LAWS    OF    THE    UNITED    STATES. 

tu?ed?nd°IbaS-  Fourth.  Of  all  claims  for  the  proceeds  of  captured  or 
d°Ma?.pi2pe563,a.bandoned  property,  as  provided  by  the  act  of  March  12, 
p/fflbf'  July1!,  eighteen  hundred  and  sixty-three,  chapter  one  hundred 
3?%  isfpp.8!?!  and  twenty,  entitled  "An  act  to  provide  for  the  collection 
c?1?76^iT  sfvfiij  °^  abandoned  property  and  for  the  prevention  of  frauds  in 
P.  243.  insurrectionary  districts  within  the  United  States,"  or  by 

the  act  of  July  two,  eighteen  hundred  and  sixty-four,  chap- 
ter two  hundred  and  twenty -five,  being  an  act  in  addition 
thereto:  Provided,  That  the  remedy  given  in  cases  of  seiz- 
ure under  the  said  acts,  by  preferring  claim  in  the  Court  of 
Claims,  shall  be  exclusive,  precluding  the  owner  of  any 
property  taken  by  agents  of  the  Treasury  Department  as 
abandoned  or  captured  property  in  virtue  or  under  color  of 
said  acts  from  suit  at  common  law,  or  any  other  mode  of 
redress  whatever,  before  any  court  other  than  said  Court 
of  Claims.1 

in^cTnVresT     363«  A11  petitions  and  bills  praying  or  providing  for  the 

ted6  to  court^of  satisfaction  of  private  claims  against  the  Government, 

C1MarS>3  1863,  c.  founded  upon  any  law  of  Congress,  or  upon  any  regulation 

765. s'  2>  v' 12)  P'  °f  an  Executive  Department,  or  upon  any  contract,  ex- 

sec.  1060,  B.  s.  presse(j  or  implied,  with  the  Government  of  the  United 

States,  shall,  unless  otherwise  ordered  by  resolution  of  the 

House  in  which  they  are  introduced,  be  transmitted  by 

the  Secretary  of  the  Senate  or  the  Clerk  of  the  House  of 

Representatives,  with  all  the  accompanying  documents, 

to  the  Court  of  Claims. 

sef-offglorncoun-  364.  Upon  the  trial  of  any  cause  in  which  arw  set-off, 
forced1.111'  °  !n~  counterclaim,  claim  for  damages,  or  other  demand  is  set 


522;  Beckwith  v.  U.  S.,  ibid.,  526;  Hubbell  v.  U.  S.,  ibid.,  527.  To  an  acting  commis- 
sary of  subsistence  for  money  expended,  the  expenditures  being  covered  by  vouchers 
captured  by  the  enemy.  Murphy  v.  U.  S.,  3  ibid.,  212. 

Belief  has  been  denied  to  a  paymaster  for  money  embezzled  by  a  clerk,  the  loss 
having  been  made  good  by  the  disbursing  officer,  under  pressure,  but  without  protest 
on  his  part.  Hall  v.  U.  S. ,  9  Ct.  Cls. ,  270.  In  the  case  of  a  paymaster  for  funds  stolen 
by  an  orderly  detailed  for  messenger  duty  in  his  office.  Holman  v.  U.  S. ,  11  ibid. ,  642. 
To  a  collector  of  revenue,  for  the  value  of  revenue  stamps  stolen  from  his  office,  during 
his  absence  therefrom,  said  collector  not  being  a  disbursing  officer  within  the  meaning 
of  the  statute.  Stapp  v.  U.  S. ,  4  ibid. ,  219.  To  an  acting  commissary  of  subsistence  in 
Dakota,  for  money  alleged  to  have  been  stolen,  no  testimony  having  been  offered  in 
the  case  but  his  own.  Pattee  v.  U.  S.,  3  ibid.,  397.  In  a  case  arising  under  this  pro- 
vision, the  petitioner  is  a  competent  witness  to  prove  the  amount  of  money  lost,  if  the 
loss  itself  be  established  by  other  testimony.  U.  S.  v.  Clark,  96  U.  S.,  37;  Hobbs  v. 
U.  S.,  17  Ct.  Cls.,  189;  Scott  v.  U.  S.,  18  ibid.,  1;  Broad  head  v.  U.  S.,  19  ibid.,  125; 
Hoyle  v.  U.  S.,  21  ibid.,  300.  An  acting  commissary  of  subsistence  is  entitled  to  relief 
under  the  provisions  of  this  statute,  and  it  is  not  necessary  that  the  officer  should 
have  given  a  bond  to  entitle  him  to  lelief.  Wood  v.  U.  S.,  25  ibid.,  98.  It  was  held 
by  the  Supreme  Court  in  U.  S.  v.  Smith  (14  Ct.  Cls.,  114,  and  105  U.  S.,  620)  that 
the  statute  of  limitation  applied  to  cases  arising  under  this  section.  See  also  U.  S.  v. 
Clark,  96  U.S.,  37. 

1  U.  S.  v.  Anderson,  9  Wall.,  56;  Pugh  v.  U.  S.,  13  Wall.,  633;  U.  S.  v.  Kimball,  13 
Wall.,  636;  U.  S.  v.  Crussell,  14  Wall.,  1;  Slawson  v.  U.  S.,  16  Wall.,  310. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  145 


up  on  the  part  of  the  Government  against  any  person  mak-  g2U 

ing  claim  against  the  Government  in  said  court,  the  court  7g-c  1061  R'   ' 

shall  hear  and  determine  such  claim  or  demand  both  for 

and  against  the  Government  and  claimant;  and  if  upon  the 

whole  case  it  finds  that  the  claimant  is  indebted  to  the  Gov- 

ernment, it  shall  render  judgment  to  that  effect,  and  such 

judgment  shall  be  final,  with  the  right  of  appeal,  as  in  other 

cases  provided  for  by  law.     Any  transcript  of  such  judg- 

ment, filed  in  the  clerk's  office  of  any  district  or  circuit 

court,  shall  be  entered  upon  the  records  thereof,  and  shall 

thereby  become  and  be  a  judgment  of  such  court  and  be 

enforced  as  other  judgments  in  such  courts  are  enforced.1 

365.  Whenever  the  Court  of  Claims  ascertains  the  facts    Decree  ,on  ac- 

counts  of   pay- 

of  any  loss  by  any  paymaster,  quartermaster,  commissary 
of  subsistence,  or  other  disbursing  officer,  in  the  cases  here- 
inbef  ore  provided,  to  have  been  without  fault  or  negligence 
on  the  part  of  such  officer,  it  shall  make  a  decree  setting 
forth  the  amount  thereof,  and  upon  such  decree  the  proper 
accounting  officers  of  the  Treasury  shall  allow  to  such  officer 
the  amount  so  decreed,  as  a  credit  in  the  settlement  of  his 
accounts. 

366.  Whenever  any  claim  is  made  against  any  Executive  .  ciaimsreferred 

J  J  by  Departments. 

Department,  involving  disputed  facts  or  controverted  ques-  71J^7e|5i58687g- 

tions  of  law,  where  the  amount  in  controversy  exceeds  s'ec.  ioes,  B.  s. 

three  thousand  dollars,  or  where  the  decision  will  affect  a 

class  of  cases,  or  furnish  a  precedent  for  the  future  action 

of  any  Executive  Department  in  the  adjustment  of  a  class 

of  cases,  without  regard  to  the  amount  involved  in  the 

particular  case,  or  where  any  authority,  right,  privilege,  or 

exemption  is  claimed  or  denied  under  the  Constitution  of 

the  United  States,  the  head  of  such  Department  may  cause 

such  claim,  with  all  the  vouchers,  papers,  proofs,  and  docu- 

ments pertaining  thereto,  to  be  transmitted  to  the  Court 

of  Claims,  and  the  same  shall  be  there  proceeded  in  as  if 

originally  commenced  by  the  voluntary  action  of  the  claim- 

ant; and  the  Secretary  of  the  Treasury  may,  upon  the 

certificate  of  any  Auditor  or  Comptroller  of  the  Treasury, 

direct  any  account,  matter,  or  claim,  of  the  character, 

amount,  or  class  described  in  this  section,  to  be  transmit- 

ted, with  all  the  vouchers,  papers,  documents,  and  proofs 

pertaining  thereto,  to  the  said  court,  for  trial  and  adjudica- 

tion: Provided,  That  no  case  shall  be  referred  by  any  head 

of  a  Department  unless  it  belongs  to  one  of  the  several 

1  Aliens  U.  S.,  17  Wall.,  207. 
22924—08  -  -10 


146  MILITARY    LAWS    OF    THE    UNITED    STATES. 

classes  of  cases  which,  by  reason  of  the  subject-matter  and 
character,  the  said  court  might,  under  existing  laws,  take 
jurisdiction  of  on  such  voluntary  action  of  the  claimant. 
CaSre?ranesmitn     367<  A11  cases  transmitted  by  the  head  of  any  Depart- 
ment^ Depart"  nient,  or  upon  the  certificate  of  any  Auditor  or  Comptroller, 
7iJ?  T^iirifVe'  according  to  the  provisions  of  the  preceding  section,  shall 
sec.  1064,  B.  s.  ^  proceeded  in  as  other  cases  pending  in  the  Court   of 
Claims,  and  shall,  in  all  respects,  be  subject  to  the  same 
rules  and  regulations.1 

caief  gTrammitn      368<  The  amount  of  any  final  judgment  or  decree  ren- 
ments,yhowepaid"  dered  in  favor  of  the  claimant,  in  any  case  transmitted  to 
7iJ?7ev5i58p876'  ^ne  Court  of  Claims  under  the  two  preceding  sections,  shall 
sec.  ices,  B.  s.  j^  pajd  ou£  of  anv  specific  appropriation  applicable  to  the 
case,  if  any  such  there  be;  and  where  no  such  appropria- 
tion exists,  the  judgment  or  decree  shall  be  paid  in  the 
same  manner  as  other  judgments  of  the  said  court. 

369-  The  jurisdiction  of  the  said  court  shall  not  extend 
n^  G^m  against  the  Government  not  pending  therein 
92*sai9  3V18^'  p'on  December  one,  eighteen  hundred  and  sixty-two,  grow- 
7<Sec  1066  B  s  *n£  ou^  °^  or  dependent  on  any  treaty  stipulation  entered 

into  with  foreign  nations  or  with  the  Indian  tribes. 
inglai^s    other     370«  No  Person  snall  fi^  or  prosecute  in  the  Court  of 
prosecuted to  in  Claims,  or  in  the  Supreme  Court  on  appeal  therefrom,  any 
° j^n<?4Cia«Pc'  c^aim  f°r  or. in  respect  to  which  he  or  any  assignee  of  his 
78ec.8io6175'8'.ls' nas  Pending  in  any  other  court  any  suit  or  process  against 
any  person  who,  at  the  time  when  the  cause  of  action  al- 
leged in  such  suit  or  process  arose,  was,  in  respect  thereto, 
acting  or  professing  to  act,  mediately  or  immediately,  under 
the  authority  of  the  United  States. 

julei27 1868  c      37*'  Aliens,  who  are  citizens  or  subjects  of  any  Govern- 
276,8.2,  v.  15,' p.  ment  which  accords  to  citizens  of  the  United  States  the 
Sec.  loes,  B.  s.  right  to  prosecute  claims  against  such  Government  in  its 
courts,   shall  have   the  privilege  of    prosecuting    claims 
against  the  United  States  in  the  Court  of  Claims,  whereof 
such  court,  by  reason  of  their  subject-matter  and  charac- 
ter, might  take  jurisdiction.2 

Ma?*  seises  c      3^'  ^verJ  claim  against  the  United  States,  cognizable 
92^8. 10,' v.  12,'  P.  by  the  Court  of  Claims,  shall  be  forever  barred  unless  the 
Sec.  1069,  B.  s.  petition  setting  forth  a  statement  thereof  is  filed  in  the 
court,  or  transmitted  to  it  by  the  Secretary  of  the  Senate 
or  the  Clerk  of  the  House  of  Representatives  as  provided 
by  law,  within  six  years  after  the  claim  first  accrues:  Pro- 
vided, That  the  claims  of  married  women  first  accrued  dur- 

1  Clyde  v.  U.  S.,  13  Wall.,  38. 

2  CJ.  S.  v.  O'Keefe,  11  Wall.,  178;  Carlisle  v.  U.  S.,  16  Wall.,  147. 


MILITARY    LAWS    OF   THE    UNITED    STATES.  147 

ing  marriage,  of  persons  under  the  age  of  twenty-one  years 
first  accrued  during  minority,  and  of  idiots,  lunatics,  insane 
persons,  and  persons  beyond  the  seas  at  the  time  the  claim 
accrued,  entitled  to  the  claim,  shall  not  be  barred  if  the 
petition  be  filed  in  the  court  or  transmitted,  as  aforesaid, 
within  three  years  after  the  disability  has  ceased;  but  no 
other  disability  than  those  enumerated  shall  prevent  any 
claim  from  being  barred,  nor  shall  any  of  the  said  disabili- 
ties operate  cumulatively. 

373.  The  said  court  shall  have  power  to  establish  rules  ti^contemp^' 
for   its   government  and  for  the  regulation  of  practice i^J'fVi!?' p 
therein,  and  it  may  punish  for  contempt  in  the  manner  ^j^fj;  £  ^ 
prescribed  by  the  common  law,  may  appoint  commission-  7^c  1070  R  s 
ers,  and  may  exercise  such  powers  as  are  necessary  to 

carry  into  effect  the  powers  granted  to  it  by  law. 

374.  The  judges  and  clerks  of  said  court  may  administer  krSwfegmenta" 
oaths  and  affirmations,  take  acknowledgments  of  instru-  g^^V^ras! 
ments  in  writing,  and  give  certificates  of  the  same.  Sec<  1071» B* s- 

375.  The  claimant  shall,  in  all  cases,  fully  set  forth  in    leb.l^is^,  c. 
his  petition  the  claim,  the  action  thereon  in  Congress,  or  JJ2.:  Mai-Ts/isG?] 
by  any  of  the  Departments,  if  such  action  has  been  had;^;^8-  12>v-12^ 
what  persons  are  owners  thereof  or  interested  therein,    Sec-1072>B-s- 
when  and  upon  what  consideration  such  persons  became 

so  interested;  that  no  assignment  or  transfer  of  said  claim, 
or  of  any  part  thereof  or  interest  therein,  has  been  made, 
except  as  stated  in  the  petition;  that  said  claimant  is  justly 
entitled  to  the  amount  therein  claimed  from  the  United 
States,  after  allowing  all  just  credits  and  offsets;  that  the 
claimant,  and,  where  the  claim  has  been  assigned,  the 
original  and  every  prior  owner  thereof,  if  a  citizen,  has  at 
all  times  borne  true  allegiance  to  the  Government  of  the 
United  States,  and,  whether  a  citizen  or  not,  has  not  in 
any  way  voluntarily  aided,  abetted,  or  given  encourage- 
ment to  rebellion  against  the  said  Government,  and  that 
he  believes  the  facts  as  stated  in  the  said  petition  to  be  true. 
And  the  said  petition  shall  be  verified  by  the  affidavit  of 
the  claimant,  his  agent,  or  attorney.1 

376.  The  said  allegations  as  to  true  allegiance  and  vol- 
untary  aiding,  abetting,  or  giving  encouragement  to  rebel- 
lion  against  the  Government  may  be  traversed  by  the 
Government,   and  if  on  the    trial    such  issues    shall   be^f-12'1 
decided  against  the  claimant,  his  petition  shall  be  dis- 
missed. 

1U.  S.  v.  Insurance  Companies,  22  Wall.,  99. 


148  MILITARY    LAWS    OF   THE   UNITED    STATES. 


^77.  Whenever  it  is  material  in  any  claim  to  ascertain 
tojuneU25  1868  whether  any  person  did  or  did  not  give  any  aid  or  comfort 
c/7i,s.3,  v.  15,  p.  t0  the  late  rebellion,  the  claimant  asserting  the  loyalty  of 
Sec.  1074,  K.S.  anv  Sucj1  persOn  to  the  United  States  during  such  rebellion 
shall  be  required  to  prove  affirmatively  that  such  person 
did,  during  said  rebellion,  consistently  adhere  to  the  United 
States,  and  did  give  no  aid  or  comfort  to  persons  engaged 
in  said  rebellion  ;  and  the  voluntary  residence  of  any  such 
person  in  any  place  where,  at  any  time  during  such  resi- 
dence, the  rebel  force  or  organization  held  sway,  shall  be 
prima  facie  evidence  that  such  person  did  give  aid  and 
comfort  to  said  rebellion  and  to  the  persons  engaged  therein. 
commissioners     378.  The  Court  of  Claims  shall  have  power  to  appoint 

to  take  testi- 

mony. commissioners  to  take  testimony  to  be  used  in  the  investi- 

Feb.  24,1855,c.  .  J 

122,  s.  3,  v.  10,  p.  gation  of  claims  which  come  before  it:  to  prescribe  the  fees 

613;  Mar.  3,  1863,  &     .  .  .F 

c.  92,  s.  4,  v.  12,  p.  which  they  snail  receive  tor  their  services,  and  to  issue 

Sec.  1075,  B.  s.  commissions  for  the  taking  of  such  testimony,  whether 

taken  at  the  instance  of  the  claimant  or  of  the  United 

States. 

Power  to  caii     379.  The  said  court  shall  have  power  to  call  upon  any  of 

upon  Depart-  .  *  ,  *  J 

ments  for  infor-  the  Departments  lor  any  information  or  papers  it  may  deem 

Feb.  24,  1855,  c.  necessary,  and  shall  have  the  use  of  all  recorded  and  printed 

614!  reports  made  by  the  committees  of  each  House  of  Congress, 

Sc<*.  1076}  !*•  &•  *^ 

when  deemed  necessary  in  the  prosecution  of  its  business. 
But  the  head  of  any  Department  may  refuse  and  omit  to 
comply  with  any  call  for  information  or  papers  when,  in  his 
opinion,  such  compliance  would  be  injurious  to  the  public 
interest. 

toTSilIta1?ennt  380>  Wnen  it}  appears  to  the  court  in  any  case  that  the 
WFeb*  24  1855  c  facts  se^  f  or^h  in  the  petition  of  the  claimant  do  not  furnish 
122,  s.  4,  v.  io,'p.  anv  ground  for  relief,  it  shall  not  be  the  duty  of  the  court 
Sec.  1077,  R.  s.  to  authorize  the  taking  of  any  testimony  therein. 
excluded8  eosn  ac-  381>  No  witness  shall  b^  excluded  in  any  suit  in  the  Court 
count  of  color.  of  Claims  on  account  of  color.1 

July  2,  1864,  c.  210,  s.  3,  v.  13,  p.  351;  Mar.  2,  1867,  c.  166,  s.  2, 
v.  14,  p.  457;  June  25,  1868,  c.  71,  s.  4,  v.  15,  p.  75.    Sec.  1078,  R.  S. 


382<  Tne  court  mav?  at  tne  instance  of  the  attorney  or 
92Msars  3)v18i28'  p"  solicitor  appearing  in  behalf  of  the  United  States,  make  an 


any  case  pending  therein,  directing  any  claimant 
15sec'.7io8o,  R.  s.  *n  sucn  case  *°  aPPeaiS  upon  reasonable  notice,  before  any 
commissioner  of  the  court,  and  be  examined  on  oath  touch- 
ing any  or  all  matters  pertaining  to  said  claim.  Such 
examination  shall  be  reduced  to  writing  by  the  said  com- 
missioner, and  be  returned  to  and  filed  in  the  court,  and 

Section  1079,  Revised  Statutes,  repealed  by  section  8,  act  of  March  3,  1887  (24 
Stat.  L.,  505).  See,  also,  Cornett  v.  Williams,  20  Wall.,  226;  Wood's  Case,  10  Ct.  Cls., 
395. 


MILITARY    LAWS    OF   THE    UNITED   STATES.  149 

may,  at  the  discretion  of  the  attorney  or  solicitor  of  the 
United  States  appearing  in  the  case,  be  read  and  used  as 
evidence  on  the  trial  thereof.  And  if  any  claimant,  after 
such  order  is  made  and  due  and  reasonable  notice  thereof 
is  given  to  him,  fails  to  appear,  or  refuses  to  testify  or 
answer  fully  as  to  all  matters  within  his  knowledge  material 
to  the  issue,  the  court  may,  in  its  discretion,  order  that  the 
said  cause  shall  not  be  brought  forward  for  trial  until  he 
shall  have  fully  complied  with  the  order  of  the  court  in  the 
premises.2 

383.  The  testimony  in  cases  pending  before  the  Court  of  t^6/^1^0^ 
Claims  shall  be  taken  in  the  county  where  the  witness  re-  deponent  re- 
sides, when  the  same  can  be  convenientlv  done.  .  Feb.  24,  1355,  c. 

122,  s.  3,  v.lO.p.  613. 
GPP  iom  R  ^ 

384.  The  Court  of  Claims  may  issue  subpoenas  to  require    witnesses,  how 

.,  ,  *       •>  •  ^  i  '-i-if.          compelled  to  at- 

tne  attendance  or  witnesses  in  order  to  be  examined  before  tend  before  com- 
anv  person  commissioned  to  take  testimonv  therein,  and    Feb.  24,  isss.c. 

1_  ^  U     11    U  ^  £  •£    •  J£  122,8.  3,   V.  10,  p. 

such  subpoenas  shall  have  the  same  force  as  if  issued  from  eis. 

^U**»  1  flft^    R  W 

a  district  court,  and  compliance  therewith  shall  be  com- 
pelled under  such  rules  and  orders  as  the  court  shall 
establish. 

385.  In  taking  testimony  to  be  used  in  support  of  any  .Cross-examma- 
claim,  opportunity  shall  be  given  to  the  United  States  to    Feb.  24,  1355,  c. 

.  .  .122,8.  5,  v.  10,  p. 

me  interrogatories,  or  by  attorney  to  examine  witnesses,  ei|.    ^^ 
under  such  regulations  as  said  court  shall  prescribe;  and 
like  opportunity  shall  be  afforded  the  claimant,  in  cases 
where  testimony  is  taken  on  behalf  of  the  United  States, 
under  like  regulations. 

386.  The  commissioner  taking  testimony  to  be  used  in  the    witnesses,  how 


sw' 


Court  of  Claims  shall  administer  an  oath  or  affirmation  toFeb,M  1855  c 
the  witnesses  brought  before  him  for  examination.     122  s  3  v.  10,  p.  eis. 

'      Seo  1084  R  S 

387.  When  testimony  is  taken  for  the  claimant,  the  fees    Fee's  Of  'com- 


of  the  commissioner  before  whom  it  is  taken,  and  the  cost  whompSd.1"'  by 
of  the  commission  and  notice,  shall  be  paid  by  such  claim-  i^'JJV  i?'p. 
ant;  and  when  it  is  taken  at  the  instance  of  the  Govern-61|ec.1085,B.s. 
ment,  such  fees,  together  with  all  postage  incurred  by  the 
Assistant  Attorney-General,  shall  be  paid  out  of  the  con- 
tingent fund  provided  for  the  Court  of  Claims  or  other 
appropriation  made  by  Congress  for  that  purpose. 

388.  Any  person  who  corruptly  practices  or  attempts  to  edCfof?raudrfei 
practice  any  fraud  against  the  United  States  in  the  proof,  92Msarii3'v^l;  £ 
statement,  establishment,  or  allowance  of  any  claim,  or  of  76S7«;C.  1086,  B.  s. 
any  part  of  any  claim  against  the  United  States,  shall  ipso 
facto  forfeit  the  same  to  the  Government;  and  it  shall  be 
the  duty  of  the  Court  of  Claims,  in  such  cases,  to  find 

2Macauley's  Case,  11  Ct.  Cls.,  575. 


150  MILITARY    LAWS    OF    THE    UNITED    STATES. 

specifically  that  such  fraud  was  practiced  or  attempted  to 
be  practiced,  and  thereupon  to  give  judgment  that  such 
claim  is  forfeited  to  the  Government,  and  that  the  claimant 
be  forever  barred  from  prosecuting  the  same. 

motion  of ^laim*      ^®*  When  judgment  is  rendered  against  any  claimant, 

anFeb  24  1855  c  ^e  cour^  mav  grant  a  new  trial  for  any  reason  which,  by 

122,  s.  9,  v.  10,  p.  the  rules  of  common  law  or  chancery  in  suits  between 

Sec.  IDS?,  R.S.  individuals,  would  furnish  sufficient  ground  for  granting 

a  new  trial. 

motion  onjnited     390t  The  Court  of  Claims,  at  any  time  while  any  claim  is 

Stjune25  1868  c  pending  before  it,  or  on  appeal  from  it,  or  within  two  years 

71,  s.  2,  v.  is,  p.  next  after  the  final   disposition   of   such  claim,  may,  on 

Sec.  loss,  u.  s.  motiOn  on  behalf  of  the  United  States,  grant  a  new  trial 

and  stay  the  payment  of  any  judgment  therein,  upon  such 

evidence,   cumulative  or  otherwise,   as  shall  satisfy  the 

court  that  any  fraud,  wrong,  or  injustice  in  the  premises 

has  been  done  to  the  United  States;  but  until  an  order  is 

made  staying  the  payment  of  a  judgment,  the  same  shall 

be  payable  and  paid  as  now  provided  by  law.1 

jud|£Siten  i  °f     391<  ^n  a^  cases  °^  final  judgments  by  the  Court  of  Claims, 
TSj£  8,^1888,  c.  or^  on  appeal,  by  the  Supreme  Court,  where  the  same  are 
76|"ec  1089  K  s  affirmed  in  favor  of  the  claimant,  the  sum  due  thereby  shall 
be  paid  out  of  any  general  appropriation  made  by  law  for 
the  payment  and  satisfaction  of  private  claims,  on  presen- 
tation to  the  Secretary  of  the  Treasury  of  a  copy  of  said 
judgment,  certified  by  the  clerk  of  the  Court  of  Claims, 
and  signed  by  the  chief  justice,  or,  in  his  absence,  by  the 
presiding  judge  of  said  court. 

interest.  392.  In  cases  where  the  judgment  appealed  from  is  in 

92^  s.  7,  v.  12,'  p.  favor  of  the  claimant,  and  the  same  is  affirmed  by  the 
s'ec.  1090, R.S.  Supreme  Court,  interest  thereon  at  the  rate  of  five  per 
centum  shall  be  allowed  from  the  date  of  its  presentation 
to  the  Secretary  of  the  Treasury  for  payment  as  aforesaid, 
but  no  interest  shall  be  allowed  subsequent  to  the  affirm- 
ance, unless  presented  for  payment  to  the  Secretary  of  the 
Treasury  as  aforesaid. 

interest  on     393.  No  interest  shall  be  allowed  .on  any  claim  up  to  the 
Mar.'s,  1863,  c.  time  of  the  rendition  of  judgment  thereon  by  the  Court  of 

92s7vl2p  Jo  «/ 

766.  '  Claims,  unless  upon  a  contract  expressly  stipulating  for 

Scc«10yl9  ft»S*    ,  /»  • 

the  payment  of  interest. 
Payment  of     394.  The  payment  of  the  amount  due  by  any  judgment 

judgment  a  full  ^   J          .  .  111 

discharge,  etc.     or  the  Court  of  Claims  and  of  any  interest  thereon  allowed 
92,  s.  7,  V.  12,'  p.  by  law,  as  hereinbefore  provided,  shall  be  a  full  discharge 
s'ec.  1092,  B.S.  to  the  United  States  of  all  claim  and  demand  touching  any 
of  the  matters  involved  in  the  controversy. 

1  Ex  parte  Russell,  13  Wall,  664;  Ex  parte,  in  matter  of  U.  S.,  16  Wall.,  699. 


MILITARY   LAWS    OF   THE    UNITED    STATES.  151 

395.  Any  final  judgment  against  the  claimant  on  any    Final    judg- 
claim  prosecuted  as  provided  in  this  chapter  shall  forever  mMar.\bi863,  c. 
bar  any  further  claim  or  demand  against  the  United  States  ?66.8'   '  >- 
arising  out  of  the  matters  involved  in  the  controversy. 

THE   BOWMAN   ACT. 

396.  Whenever  a  claim  or  matter  is  pending  before  any 
committee  of  the  Senate  or  House  of  Representatives,  or  g> 
before  either  House  of  Congress,  which  involves  the  inves- 
tigation and  determination  of  facts,  the  committee  or  House 
may  cause  the  same,  with  the  vouchers,  papers,  proofs,  and 
documents  pertaining  thereto,   to  be  transmitted  to  the 
Court  of  Claims  of  the  United  States,  and  the  same  shall 
there  be  proceeded  in  under  such  rules  as  the  court  may 
adopt.     When  the  facts  shall  have  been  found,  the  court 
shall  not  enter  judgment  thereon,  but  shall  report  the  same 
to  the  committee  or  to  the  House  by  which  the  case  was 
transmitted  for  its  consideration.     Sec.  1,  act  of  March  3, 
1883(22  Stat.  I,.,  485). 

397.  That  when  a  claim  or  matter  is  pending  in  any  of 

the  Executive  Departments  which  may  involve  ooht^JJJj^**1£**JJ 
verted  questions  of  fact  or  law,  the  head  of  such  Depart- 
ment may  transmit  the  same,  with  the  vouchers,  papers, 
proofs,  and  documents  pertaining  thereto,  to  said  court, 
and  the  same  shall  be  there  preceded  in  under  such  rules 
as  the  court  may  adopt.  When  the  facts  and  conclusions 
of  law  shall  have  been  found,  the  court  shall  not  enter 
judgment  thereon,  but  shall  report  its  findings  and  opin- 
ions to  the  Department  by  which  it  was  transmitted  for  its 
guidance  and  action.1  Sec.  2,  ibid. 

398.  The  jurisdiction  of  said  court  shall  not  extend  to  or 
include  any  claim  against  the  United  States  growing 

of  the  destruction  or  damage  to  property  by  the  Army  or 
Navy  during  the  war  for  the  suppression  of  the  rebellion, 
or  for  the  use  and  occupation  of  real  estate  by  any  part  of 
the  military  or  naval  forces  of  the  United  States  in  the 
operations  of  said  forces  during  the  said  war  at  the  seat  of 
war;  nor  shall  the  said  court  have  jurisdiction  of  any  Ctaim 
against  the  United  States  which  is  now  barred  by  virtue 
of  the  provisions  of  any  law  of  the  United  States.  Sec.  3, 
ibid. 

1  Where  claims  are  referred  by  the  head  of  an  Executive  Department,  of  his  own 
motion,  and  without  the  consent  of  the  claimant,  the  court  will  take  jurisdiction 
under  the  Bowman  Act.  Billings  v.  U.  S.,  23  Ct.  Cls.,  166,  175. 


152  MILITARY    LA.W8    OF    THE    UNITED    STATES. 


399>  In  any  case  of  a  claim  ^or  suPPlies  or  stores  taken 
Jresslonf°of  TiJe  ^J  or  furnished  to  any  part  of  military  or  naval  forces  of 
^ne  United  States  for  their  use  during  the  late  war  for  the 
suppression  of  the  rebellion,  the  petition  shall  aver  that 
the  person  who  furnished  such  supplies  or  stores,  or  from 
whom  such  supplies  or  stores  were  taken,  did  not  give  any 
aid  or  comfort  to  said  rebellion,  but  was  throughout  that 
war  loyal  to  the  Government  of  the  United  States,  and  the 
a  isctiona  ^act  °f  sucn  loyalty  shall  be  a  jurisdictional  fact;  and  un- 
fact.  iegs  foe  said  court  shall,  on  a  preliminary  inquiry,  find  that 

the  person  who  furnished  such  supplies  or  stores,  or  from 
whom  the  same  were  taken  as  aforesaid,  was  loyal  to  the 
Government  of  the  United  States  throughout  said  war,  the 
court  shall  not  have  jurisdiction  of  such  cause,  and  the  same 
shall,  without  further  proceedings,  be  dismissed.  Sec.  4> 
ibid. 

fo?ethesebni&     40°.  Tnat  the  Attorney-General,  or  his  assistants  under 

StsecS'5  ibid       ^is  direction,  shall  appear  for  the  defense  and  protection 

of  the  interests  of  the  United  States  in  all  cases  which 

may  be  transmitted  to  the  Court  of  Claims  under  this  act, 

with  the  same  power  to  interpose  counterclaims,  offsets, 

defenses  for  fraud  practiced  or  attempted  to  be  practiced 

by  claimants,  and  other  defenses,  in  like  manner  as  he  is 

now  required  to  defend  the  United  States  in  said  court. 

Sec.  5,  ibid. 

Parties  in  in-     4Q1.  That  in  the  trial  of  such  cases  no  person  shall  be 

terest   may   tes- 

excluded  as  a  witness  because  he  or  she  is  a  party  to  or 

interested  in  the  same.     Sec.  6,  ibid. 
co*r\Vfrci8aims     402'  Tnat  reports  of  the  Court  of  Claims  to  Congress 
uSf  etc  <fb?tac-  under  this  act,  if  not  finally  acted  upon  during  the  session 
U  sec  ?  ibid      ^  which  they  are  reported,  shall  be  continued  from  session 

to  session  and  from  Congress  to  Congress  until  the  same 

shall  be  finally  acted  upon.1     Sec.  7,  ibid. 

THE    TUCKER    ACT. 

thlGovernSe^t!     403'  That  the  Court  of  Claims  shall  have  jurisdiction  to 

hear  and  determine  the  following  matters: 
jurisdiction  of     First.  All  claims  founded  upon  the  Constitution  of  the 

Court  of  Claims. 

R.  s.,  see.  1058,  United  States2  or  any  law  of  Congress,  except  for  pensions, 

Paragraphs  332  to  338,  inclusive,  constitute  the  Bowman  Act  (22  Stat.  L.,  485). 

2  The  clause  giving  the  Court  of  Claims  jurisdiction  of  claims  founded  upon  the 
Constitution  of  the  United  States  gives  the  court  jurisdiction  over  obligations  arising 
out  of  the  occupation  or  taking  of  real  property.  Stovall  r.  U.  S.,  26  Ct.  Cls.,226. 
A  distinction  exists  between  property  used  for  Government  purposes  and  property 
destroyed  for  the  public  safety.  If  the  conditions  admitted  of  it  being  acquired  by 
contract  and  used  for  the  benefit  of  the  Government,  it  may  be  regarded  as  acquired 


MILITARY    LAWS    OF    THE    UNITED    STATES.  153 

or  upon  any  regulation  of  an  Executive  Department,  or  <MMar^  1887« v- 
upon  any  contract,  expressed  or  implied,  with  the  Govern- 
ment of  the  United  States,  or  for  damages,  liquidated  or 
unliquidated,  in  cases  not  sounding  in  tort,  in  respect  of 
which  claims  the  party  would  be  entitled  to  redress  against 
the  United  States  either  in  a  court  of  law,  equity,  or  admi- 
ralty if  the  United  States  were  suable:  Provided,  however,  Pr°™«°. 
That  nothing  in  this  section  shall  be  construed  as  giving 
to  either  of  the  courts  herein  mentioned  jurisdiction  to 
hear  and  determine  claims  growing  out  of  the  late  civil 
war.  and  commonly  known  as  "war  claims,"  or  to  hear.  "War"andre- 

J  jected  claims  ex- 

and  determine  other  claims  which  have  heretofore  beencePted- 
rejected  or  reported  on  adversely  by  any  court,  Depart- 
ment, or  commission  authorized  to  hear  and  determine  the 
same. 

Second.  All  set-offs,  counterclaims,  claims  for  damages,  ter_chSms  et£n" 
whether  liquidated   or   unliquidated,   or   other   demands 
whatsoever  on  the  part  of  the  Government  of  the  United    £imStion 
States  against  any  claimant  against  the  Government  in  said 
court:  Provided,  That  no  suit  against  the  Government  of 
the  United  States  shall  be  allowed  under  this  act  unless  the 
same  shall  have  been  brought  within  six  years  after  the  right 
accrued  for  which  the  claim  is  made.     Act  of  March  3, 
1887,  vol.  ^hp.  505.  Provided  further,  That  no  suit  against 
the  Government  of  the  United  States,  brought  by  any  I' 
officer  of  the  United  States  to  recover  fees  for  services  P-  ^ 
alleged  to  have  been  performed  for  the  United  States,  shall 
be  allowed  under  this  act  unless  an  account  for  said  fees 
shall  have  been  rendered  and  finally  acted  upon  according 
to  the  provisions  of  the  act  of  July  31,  1894, *  unless  the 
proper  accounting  officer  of  the  Treasury  fails  to  finally 
act  thereon  within  six  months  after  the  account  is  received 
in  said  office.     Act  of  June  27,  1898  (30  Stat.  L.,  Ifilfi; 
sec.  3,  act  of  July  1,  1898  (30  ibid.,  649). 

404.  That  the  district  courts  of  the  United  States  shall 
have  concurrent  jurisdiction  with  the  Court  of  Claims  as 
to  all  matters  named  in  the  preceding  section  where  the  gjjj  of  claims>' 
amount  of  the  claim  does  not  exceed  one  thousand  dollars,    Sec- 2i  md- 
and  the  circuit  courts  of  the  United  States  shall  have  such 
concurrent  jurisdiction  in  all  cases  where  the  amount  of 

under  an  implied  contract;  but  if  the  taking,  using,  or  occupying  was  in  the  nature 
of  destruction  for  the  general  welfare,  or  incident  to  the  ravages  of  war,  and  whether 
brought  about  by  casualty  or  by  authority,  and  whether  on  hostile  or  national  terri- 
tory, the  loss  (in  absence  of  positive  legislation)  must  be  borne  by  him  upon  whom 
it  falls.  Hafleblower  v.  U.  S.,  21  Ct.  Cls.,  228. 
1 28  Stat.  L.,  162. 


154 


MILITARY    LAWS    OF    THE    UNITED    STATES. 


Petitions  for 
release  from  offi- 
cial bond. 

Sec.  3,  ibid. 


such  claim  exceeds  one  thousand  dollars  and  does  not  exceed 
ten  thousand  dollars.  All  causes  brought  and  tried  under 
the  provisions  of  this  act  shall  be  tried  by  the  court  with- 
jime?7?i&8,s.  out  a  jury.  Sec.  2,  ibid.  The  jurisdiction  hereby  con- 
2,  v.  so,  p.  494.  ferre(j  UpOn  the  said  circuit  and  district  courts  shall  not 
extend  to  cases  brought  to  recover  fees,  salary,  or  compen- 
sation for  official  services  of  officers  of  the  United  States 
or  brought  for  such  purpose  by  persons  claiming  as  such 
officers  or  as  assignees  or  legal  representatives  thereof. 
Sec.  2,  act  of  June  27,  1898  (30  Stat.  Z.,  494). 

405.  That  whenever  any  person  shall  present  his  peti- 
tion to  the  Court  of  Claims  alleging  that  he  is  or  has  been 
indebted  to  the  United  States  as  an  officer  or  agent  thereof, 
or  by  virtue  of  any  contract  therewith,  or  that  he  is  the 
guarantor,  or  surety,  or  personal  representative  of  any 
officer,  or  agent,  or  contractor  so  indebted,  or  that  he,  or 
the  person  for  whom  he  is  such  surety,  guarantor,  or  per- 
sonal representative  has  held  any  office  or  agency  under 
the  United  States,  or  entered  into  any  contract  therewith, 
under  which  it  may  be  or  has  been  claimed  that  an  indebt- 
edness to  the  United  States  has  arisen  and  exists,  and  that 
he  or  the  person  he  represents  has  applied  to  the  proper 
Department  of  the  Government  requesting  that  the  account 
of  such  office,  agency,  or  indebtedness  may  be  adjusted 
and  settled,  and  that  three  years  have  elapsed  from  the 
date  of  such  application  and  said  account  still  remains 
unsettled  and  unadjusted,  and  that  no  suit  upon  the  same 
has  been  brought  by  the  United  States,  said  court  shall, 
due  notice  first  being  given  to  the  head  of  said  Depart- 
ment and  to  the  Attorney-General  of  the  United  States, 
proceed  to  hear  the  parties  and  to  ascertain  the  amount, 
if  any,  due  the  United  States  on  said  account.  The  Attor- 
ney-General shall  represent  the  United  States  at  the  hear- 
ing of  said  cause.  The  court  may  postpone  the  same  from 
time  to  time  whenever  justice  shall  require.  The  judgment 
of  said  court  or  of  the  Supreme  Court  of  the  United  States, 
to  which  an  appeal  shall  lie,  as  in  other  cases,  as  to  the 
amount  due,  shall  be  binding  and  conclusive  upon  the  par- 
ties. The  payment  of  such  amount  so  found  due  by  the 
court  shall  discharge  such  obligation.  An  action  shall 
accrue  to  the  United  States  against  such  principal,  or 
surety,  or  representative  to  recover  the  amount  so  found 
due,  which  may  be  brought  at  any  time  within  three  years 
after  the  final  judgment  of  said  court.  Unless  suit  shall  be 
brought  within  said  time,  such  claim  and  the  claim  on  the 


Judgment. 


Limitation. 


MILITARY    LAWS    OF    THE    UNITED    STATES. 


155 


original 
ibid. 


indebtedness   shall  be  forever  barred. 


Petition 
settlement 


ibid. 


Service. 
Sec.  6,  ibid. 


Sec.  3, 

Jurisdiction 
and  procedure. 

406.  That  the  jurisdiction  of  the  respective  courts  of  the    Sec 
United  States  proceeding  under  this  act,  including  the  right 

of  exception  and  appeal,  shall  be  governed  by  the  law  now 
in  force,  in  so  far  as  the  same  is  applicable  and  not  incon- 
sistent with  the  provisions  of  this  act;  and  the  course  of 
procedure  shall  be  in  accordance  with  the  established  rules 
of  said  respective  courts,  and  of  such  additions  and  modi- 
fications thereof  as  said  courts  may  adopt.  Sec.  h  ibid. 

407.  That  the  plaintiff  in  any  suit  brought  under 
provisions  of  the  second  section  of  this  act  shall  file  a 
petition,  duly  verified,  with  the  clerk  of  the  respective  court 
having  jurisdiction  of  the  case,  and  in  the  district  where 
the  plaintiff  resides.     Such  petition  shall  set  forth  the  full 
name  and  residence  of  the  plaintiff,  the  nature  of  his  claim, 
and  a  succinct  statement  of  the  facts  upon  which  the  claim 
is  based,  the  mone}^  or  any  other  thing  claimed,  or  the 
damages  sought  to  be  recovered  and  praying  the  court  for 
a  judgment  or  decree  upon  the  facts  and  law.     Sec.  5,  ibid. 

408.  That  the  plaintiff  shall  cause  a  copy  of  his  petition 
filed  under  the  preceding  section  to  be  served  upon  the 
district  attorney  of  the  United  States  in  the  district  wherein 
suit  is  brought,  and  shall  mail  a  copy  of  the  same,  by  reg- 
istered letter,  to  the  Attorney-General  of  the  United  States, 
and  shall,  thereupon  cause  to  be  filed  with  the  clerk  of  the 
court  wherein  suit  is  instituted  an  affidavit  of  such  service 
and  the  mailing  of  such  letter.  "  It  shall  be  the  duty  of  the 
district  attorney  upon  whom  service  of  petition  is  made  as 
aforesaid  to  appear  and  defend  the  interests  of  the  Gov- 
ernment in  the  suit,  and  within  sixty  days  after  the  service 
of  petition  upon  him,  unless  the  time  should  be  extended 
by  order  of  the  court  made  in  the  case  to  file  a  plea,  answer, 
or  demurrer  on  the  part  of  the  Government,  and  to  file  a 
notice  of  any  counterclaim,  set-off,  claim  for  damages,  or 
other  demand  or  defense  whatsoever  of  the  Goverement 
in  the  premises:  Provided,  That  should  the  district  attor- 
ney  neglect  or  refuse  to  file  the  plea,  answer,  demurrer,  or  swer 
defense,  as  required,  the  plaintiff  may  proceed  with  the 
case  under  such  rules  as  the  court  may  adopt  in  the  prem- 
ises; but  the  plaintiff  shall  not  have  judgment  or  decree 
for  his  claim,  or  any  part  thereof,  unless  he  shall  establish 
the  same  by  proof  satisfactory  to  the  court.     Sec.  6,  ibid. 

409.  That  it  shall  be  the  duty  of  the  court  to  cause  a 
written  opinion  to  be  filed  in  the  cause,  setting  forth  the 
specific  findings  by  the  court  of  the  facts  therein  and  the 


Defense. 


156 


MILITARY    LAWS    OF    THE    UNITED    STATES. 


writpspofaerrorand 
sec.  9,  ibid, 


procedure. 


conclusions  of  the  court  upon  all  questions  of  law  involved 
in  the  case,  and  to  render  judgment  thereon.  If  the  suit 
be  in  equity  or  admiralty,  the  court  shall  proceed  with  the 
same  according  to  the  rules  of  such  courts.  Sec.  7,  ibid. 
interested  par-  410.  That  in  the  trial  of  any  suit  brought  under  any  of 
y'  the  provisions  of  this  act,  no  person  shall  be  excluded  as  a 
witness  because  he  is  a  party  to  or  interested  in  said  suit; 
and  any  plaintiff-  or  party  in  interest  may  be  examined  as 
a  witness  on  the  part  of  the  Government. 

Section  ten  hundred  and  seventy-nine  of  the  Revised 
Statutes  is  hereby  repealed.  The  provisions  of  section  ten 
hundred  and  eighty  of  the  Revised  Statutes  shall  apply  to 
cases  under  this  act.  Sec.  8,  ibid. 

411>  ^nat  ^e  P^11^  ™  the  United  States,  in  any  suit 
brought  under  the  provisions  of  this  act  shall  have  the 
same  rights  of  appeal  or  writ  of  error  as  are  now  reserved 
in  the  statutes  of  the  United  States  in  that  behalf  made, 
and  upon  the  conditions  and  limitations  therein  contained. 
The  modes  of  procedure  in  claiming  and  perfecting  an 
appeal  or  writ  of  error  shall  conform  in  all  respects,  and  as 
near  as  may  be,  to  the  statutes  and  rules  of  court  govern- 
ing appeals  and  writs  of  error  in  like  causes.  Sec.  9,  ibid. 

412«  Tnat  wnen  tne  findings  of  f  act  and  the  law  applica- 
kle  thereto  have  been  filed  in  any  case  as  provided  in  section 
six  °f  this  act,  and  the  judgment  or  decree  is  adverse  to 
the  Government,  it  shall  be  the  duty  of  the  district  attor- 
ney to  transmit  to  the  Attorney-General  of  the  United 
States  certified  copies  of  all  the  papers  filed  in  the  cause, 
with  a  transcript  of  the  testimony  taken,  the  written  find- 
ings of  the  court,  and  his  written  opinion  as  to  the  same; 
whereupon  the  Attorney-General  shall  determine  and  direct 
whether  an  appeal  or  writ  of  error  shall  be  taken  or  not; 
and  when  so  directed  the  district  attorney  shall  cause  an 
appeal  or  writ  of  error  to  be  perfected  in  accordance  with 
the  terms  of  the  statutes  and  rules  of  practice  governing 
the  same:  Provided,  That  no  appeal  or  writ  of  error  shall 

. 

be  allowed  after  six  months  from  the  judgment  or  decree 
in  such  suit.  From  the  date  of  such  final  judgment  or 
decree  interest  shall  be  computed  thereon,  at  the  rate  of 
four  per  centum  per  annum,  until  the  time  when  an  appro- 
priation is  made  for  the  payment  of  the  judgment  or  decree. 
Sec.  10,  ibid. 

413t  Tnat  tne  Attorney-General  shall  report  to  Congress, 
the  beginning  of  each  session  of  Congress,  the  suits 
under  this  act  in  which  a  final  judgment  or  decree  has  been 


ibid. 


Appeal. 


Proviso. 

Limitation. 


interest. 


grfsesp°rt  to  C°n" 
sec.  11,  ibid.     anc[ 


MILITARY    LAWS    OF   THE    UNITED    STATES.  157 

rendered  giving  the  date  of  each,  and  a  statement  of  the 
costs  taxed  in  each  case.  Sec.  11,  ibid. 

414.  That  when  any  claim  or  matter  may  be  pending  in   claims  referred 
any  of  the  Executive  Departments  which  involves  contro-  ysecepi2,  SS? 
verted  questions  of  fact  or  law,  the  head  of  such  Depart- 
ment, with  the  consent  of  the  claimant,  may  transmit  the 

same,  with  the  vouchers,  papers,  proofs,  and  documents 
pertaining  thereto,  to  said  Court  of  Claims,  and  the  same 
shall  be  there  proceeded  in  under  such  rules  as  the  court 
may  adopt.  When  the  facts  and  conclusions  of  law  shall 
have  been  found,  the  court  shall  report  its  findings  to  the 
Department  by  which  it  was  transmitted.1  Sec.  1%,  ibid. 

415.  That  in  every  case  which  shall  come  before  the   ciaimsreferred 

^  f  under    Bowman 

Court  of  Claims,  or  is  now  pending  therein,  under  the  A|^c  13  iMd 
provisions  of  an  act  entitled  "An  act  to  afford  assistance 
and  relief  to  Congress  and  the  Executive  Departments  in 
the  investigation  of  claims  and  demands  against  the  Gov- 
ernment,'1 approved  March  third,  eighteen  hundred  and 
eighty-three,  if  it  shall  appear  to  the  satisfaction  of  the 
court,  upon  the  facts  established,  that  it  has  jurisdiction „ 
to  render  judgment  or  decree  thereon  under  existing  laws    Judgment. 
or  under  the  provisions  of  this  act,  it  shall  proceed  to  do 
so,  giving  to  either  party  such  further  opportunity  for 
hearing  as  in  its  judgment- justice  shall  require,  and  report 
its  proceedings  therein  to  either  House  of  Congress  or  to 
the  Department  by  which  the  same  was  referred  to  said 
court.     Sec.  13,  ibid. 

416.  That  whenever  any  bill,  except  for  a  pension,  shall 
be  pending  in  either  House  of  Congress  providing  for 
payment  of  a  claim  against  the  United  States,  legal  or 
equitable,  or  for  a  grant,  gift,  or  bounty  to  any  person, 
the  House  in  which  such  bill  is  pending  may  refer  the 
same  to  the  Court  of  Claims,  who  shall  proceed  with  the 
same  in  accordance  with  the  provisions  of  the  act  approved 
March  third,  eighteen  hundred  and  eighty-three,  entitled 
An  "act  to  afford  assistance  and  relief  to  Congress  and  the 
Executive  Departments  in  the  investigation  of  claims  and 
demands  against  the  Government,"  and  report  to  such 
House  the  facts  in  the  case  and  the  amount,  where  the 
same  can  be  liquidated,  including  any  facts  bearing  upon 
the  question  whether  there  has  been  delay  or   laches  in 
presenting  such  claim  or  applying  for  such  grant,  gift, 
or  bounty,    and  any   facts    bearing  upon  the  question 
whether  the  bar  of  any  statute  of  limitation  should  be  re- 

1See  paragraph  333  supra  (section  3,  act  of  March  3,  1883). 


158  MILITARY    LAWS    OF    THE    UNITED    STATES. 

moved  or  which  shall  be  claimed  to  excuse  the  claimant 
for  not  having  resorted  to  any  established  legal  remedy. 
Sec.  14,  ibid. 

ibid  417'  If  ttie  Government  of  the  United  States  shall  put 
in  issue  the  right  of  the  plaintiff  to  recover  the  court  may, 
in  its  discretion,  allow  costs  to  the  prevailing  party  from 
the  time  of  joining  such  issue.  Such  costs,  however,  shall 
include  only  what  is  actually  incurred  for  witnesses,  and 
for  summoning  the  same,  and  fees  paid  to  the  clerk  of  the 
court.2  Sec.  15,  ibid. 


2  Vol.  24,  Stat.  L.,  pp.  506-508,  paragraphs  339  to  353,  supra,  constitute  the  Tucker 
Act.  The  act  of  March  3,  1891  (20  Stat.  L.,  851),  confers  jurisdiction  upon  this  court 
to  adjust  certain,  claims  arising  from  Indian  depredations. 


CHAJPTER  -VIII. 


THE  DEPARTMENT  OF  THE  NAVY— THE  MARINE  CORPS. 


THE    NAVY    DEPARTMENT. 


Par. 


Par. 

449.  Prohibition  of  punishments  on 

sels  of  war. 

450.  Administration  of  oaths. 


418.  The  Navy  Department. 
419-446.  The  Marine  Corps. 

447.  Transfers  to  the  Navy. 

448.  Details  of  navy  officers. 

418.  There  shall  be  at  the  seat  of  government  an  Execu- 
tive  Department  to  be  known  as  the  Department  of  the 
Navy,  and  a  Secretary  of  the  Navy,  who  shall  be  the  head1 
thereof.1  ' 


of  the 


sec.4i5,  B.S. 


THE    MARINE    CORPS. 


Par. 

419.  Composition. 

420.  Rank  of  commandant. 

421.  Restriction  on  appointments. 

422.  Vacancies. 

423.  Age    limit  —  Examination    for 

pointment. 

424.  Examinations  for  promotion. 

425.  Staff. 

426.  Staff  vacancies. 

427.  Relative  rank. 

428.  Brevets. 

429.  Pay  and  allowances. 

430.  No  commutation  of  forage. 

431.  Retirement. 

432.  Credit  for  volunteer  service. 


ap- 


Par. 

433.  Retiring  boards,  composition. 

434.  Enlisted  men,  strength. 

435.  The  Marine  Band. 

436.  Enlistments,  to  be  for  five  years. 

437.  Oath  of  enlistment. 

438.  Exemption  from  arrest. 

439.  Rations  at  sea. 

440.  Rations  on  shore  duty. 

441.  The  same. 

442.  Organization  of  Marine  Corps. 

443.  Shore  duty  of  the  Marine  Corps. 

444.  Regulations. 

445.  Application  of  Articles  of  War. 

446.  Service  on  army  courts-martial. 


419.  From  and  after  the  date  of  the  approval  of  this 
the  active  list  of  the  line  officers  of  the  United  States  19 
Marine  Corps  shall  consist  of  one  brigadier-general  com- 
mandant, five  colonels,  five  lieutenant  colonels,  ten  majors, 
sixty  captains,   sixt}7  first  lieutenants  and  sixty 
lieutenants.     *     *     *     Vacancies  in  all  grades  in  the  line 
created  by  this  section  shall  be  filled  as  far  as  possible  by 


eonrmrl  30,  1876,  V.  19,  p. 
&eCOna  71;  Mar.  3,1899,8. 


1  The  office  and  functions  of  the  Secretary  of  the  Navy  were  included  in  those  of 
Secretary  of  War  from  August  7,  1789,  the  date  of  the  establishment  of  the  War 
Department,  until  April  30,  1798,  when  the  Department  of  the  Navy  was  established. 
Act  of  April  30,  1798  (1  Stat.  L.,  553). 


160  MILITARY    LAWS    OF    THE    UNITED    STATES. 

promotion  by  seniority  from  the  line  officers  on  the  active 
list  of  said  Corps:  And  provided  further,  That  the  com- 
missions of  officers  now  in  the  Marine  Corps  shall  not  be 
vacated  by  this  act.1  Section  18,  act  of  March  3,  1899 
(30  Stat.  Z.,  1008). 

Rank  of  com-     420.  The  commandant  of  the  Marine  Corps  shall  have 

Mar.  2/1867,  c.  the  rank  and  pay  of  a  brigadier-general.     Vacancies  in  the 

SIT-  June  b,  1874J  grade  of  briofadier-pfeneral  shall  be  filled  by  selection  from 

v.  18,  p.  58;  Mar.  fe  .&       ,.  „      .       _         .          %, 

3, 1899,  s.  is,  v.  so,  officers  on  the  active  list  of  the  Marine  Corps  not  below 
p'sec.  i60i, K.S.  the  grade  of  field  officer.2     /Section  18,  act  of  March  3, 
1899  (30  Stat.  L.,  1008). 

Restriction  on  421.  Upon  the  passage  of  this  Act  not  more  than  forty- 
appointments,  v 

2i1va3b3'  \oo9  s'  ^ve  °*  ^ne  ^P^ns,  fort}r-five  first  lieutenants  and  forty- 
five  second  lieutenants  herein  provided  for  shall  be 
appointed;  fifteen  captains,  fifteen  first  lieutenants  and 
fifteen  second  lieutenants  to  be  appointed  subsequently  to 
January  first,  nineteen  hundred.  Sec.  81,  act  of  March  3, 
1899  (30  Stat.  L.,  1009). 

APPOINTMENTS   AND    PROMOTIONS. 

8trictCionCies>  re  *22.  That  the  vacancies  existing  in  said  Corps  after  the 
QMar.  3, 1899,  s.  promotions  and  appointments  herein  provided  for  shall 
be  filled  by  the  President  from  time  to  time,  whenever 
the  actual  needs  of  the  naval  service  require  it,  first, 
from  the  graduates  of  the  Naval  Academy  in  the  manner 
now  provided  by  law;  or  second,  from  those  who  are 
serving  or  who  have  served  as  second  lieutenants  in  the 
Marine  Corps  during  the  war  with  Spain;  or,  third,  from 
meritorious  noncommissioned  officers  of  the  Marine  Corps; 
or,  fourth,  from  civil  life:  Provided,  That  after  said  va- 
cancies are  once  filled  there  shall  be  no  further  appoint- 
ments from  civil  life.  Sec.  19,  act  of  March  3,  1899 
(30  Stat.  L.,  1009). 

Limit  of  age;     423.  That  no   person   except   such   officers   or   former 

sec.w.ibid.     graduates  of  the  Naval  Academy  as  have  served  in  the  war 

with  Spain,  as  hereinbefore  provided  for,  shall  be  appointed 

a  commissioned  officer  in  the  Marine  Corps  who  is  under 

xThe  act  of  January  30,  1885  (23  Stat.  L.,  287),  contained  the  requirement  that 
there  should  be  no  more  appointments,  except  by  way  of  promotion,  in  the  Marine 
Corps  until  the  total  number  of  officers  therein  should  be  reduced  to  seventy-five. 

2 By  the  act  of  June  6,  1874  (18  Stat.  L.,  58),  the  rank  of  the  commandant  of  the 
Marine  Corps  was  reduced  from  brigadier-general  to  colonel,  upon  the  occurrence  of 
a  vacancy  in  the  office  of  brigadier-general  commandant,  then  authorized  by  law. 
A  vacancy  having  occurred  on  November  1,  1876,  a  commandant  was  appointed  with 
the  rank  of  colonel.  By  section  18  of  the  act  of  March  3, 1899  (30  Stat.  L.,  1008),  the 
rank  of  brigadier  general  commandant  was  restored.  The  act  of  June  6,  1874,  had 
contained  the  requirement  that  the  commandant  of  the  Marine  Corps  should  be 
selected  and  appointed  from  the  officers  of  the  Corps. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  161 

twenty  or  over  thirty  years  of  age;  and  that  no  person 
shall  be  appointed  a  commissioned  officer  in  said  Corps 
until  he  shall  have  passed  such  examination  as  may  be 
prescribed  by  the  President  of  the  United  States,  except 
graduates  of  the  Naval  Acadenry,  as  above  provided. 
That  the  officers  of  the  Marine  Corps  above  the  grade  of 
captain,  except  brigadier-general,  shall,  before  being  pro- 
moted, be  subject  to  such  physical,  mental  and  moral 
examination  as  is  now,  or  may  hereafter  be,  prescribed  by 
law  for  other  officers  of  the  Marine  Corps.1  Sec.  80,  ibid. 


EXAMINATIONS    FOR   PROMOTION. 


424.  Hereafter  promotions  to  every  grade  of  commis- 
sioned  officers  in  the  Marine  Corps  below  the  grade  of27'?-321 
commandant  shall  be  made  in  the  same  manner  and  under 
the  same  conditions  as  now  are  or  may  hereafter  be  pre- 
scribed, in  pursuance  of  law,  for  commissioned  officers  of 
the  Army:  Provided,  That  examining  boards  which  may 
be  organized  under  the  provisions  of  this  act,  to  determine 
the  fitness  of  officers  of  the  Marine  Corps  for  promotion, 
shall,  in  all  cases,  consist  of  not  less  than  five  officers,  three 
of  whom  shall,  if  practicable,  be  officers  of  the  Marine 
Corps,  senior  to  the  officer  to  be  examined,  and  two  of 
whom  shall  be  medical  officers  of  the  Navy:  Provided 
further,  That  when  not  practicable  to  detail  officers  of  the 
Marine  Corps  as  members  of  such  examining  board,  offi- 
cers of  the  line  of  the  Navy  shall  be  so  detailed. x  Act  of 
July  28,  1892  (27  Stat.  L.,  321). 


425.  The  staff  of  the  Marine  Corps  shall  consist  of  one 
adjutant  and  inspector,  one  quartermaster  and  one  pay- 
master, each  with  the  rank  of  colonel;  one  assistant  adju- 
tant and  inspector,  two  assistant  quartermasters  and  one 
assistant  paymaster,  each  with  the  rank  of  major;  and  three 
assistant  quartermasters  with  the  rank  of  captain.  That 
the  vacancies  created  by  this  act  in  the  departments  of  the 
adjutant  and  inspector  and  paymaster  shall  be  filled  first 
by  promotion  according  to  seniority  of  the  officers  in  each 
of  these  departments  respectively,  and  then  by  selection 
from  the  line  officers  on  the  active  list  of  the  Marine  Corps 
not  below  the  grade  of  captain,  and  who  shall  have  seen 

1Tor  laws  regulating  the  examination  of  commissioned  officers  of  the  Army  for 
promotion,  see  the  title  "Examinations  for  Promotion"  in  the  chapters  entitled 
MISSIONED  OFFICERS  and  THE  STAFF  DEPARTMENTS. 

22924—08 11 


162  MILITARY    LAWS    OF    THE    UNITED    STATES. 

not  less  than  ten  years'  service  in  the  Marine  Corps.  That 
the  vacancies  created  by  this  act  in  the  quartermaster's 
department  of  said  corps  shall  be  filled,  first  by  promotion 
according"  to  seniority  of  the  officers  in  this  department, 
and  then  by  selection  from  the  line  officers  on  the  active 
list  of  said  corps  not  below  the  grade  of  first  lieutenant. 
Sec.  28,  Hid. 

426.  All  vacancies  hereafter  occurring  in  the  staff  of  the 
Marine  Corps  shall  be  filled  first  by  promotion  according 
to  seniority  of  the  officers  in  their  respective  departments, 
and  then  by  selection  from  officers  of  the  line  on  the  active 
list,  as  hereinbefore  provided  for.  Ibid. 

RANK,   BREVETS. 

^'  ^ne  °fficers  °f  the  Marine  Corps  shall  be,  in  relation 
i32Use4°'v844'p'  t°  rank,  on  the  same  footing  as  officers  of  similar  grades  in 
7iec.i603,ii.s.  th^  Army. 

Brevets.  428.  Commissions  by  brevet  may  be  conferred  upon  corn- 

Apr.  16,  1813,  c.  missioned  officers  of  the  Marine  Corps  in  the  same  cases, 

Oo,  S.  O,  \  .  O,  p.  J-—  1» 

64Ps  21\'  31818427-  llPon  ^ne  same  conditions,  and  in  the  same  manner  as  are 
i32nes'39  v83^'  p'  or  may  ^e  Pr°vided  by  law  for  officers  of  the  Army.1 

713;  July  6,'  1812,'  c.  137,  s.  4,  v.  2,  p.  785;  Mar.  1,  1869,  c.  52,  s.  2,  v.  15,  p.  281;  Mar.  3, 
1869,  c.  124,  s.  7,  v.  15,  p.  5*18;  July  15,  1870,  c.  294,  s.  16,  v.  16,  p.  319.     Sec.  1604,  K.S. 

PAY,   RETIREMENT,   ETC. 

c<SJ  °f  Marinc     429'  Tne  officers  of  the  Marine  Corps  shall  be  entitled 
132^5  ^418p7i3:t°  receive  the  same  pay  and  allowances,  and  the  enlisted 


268gs  5i  v8io  P'  men  snaH  be  entitled  to  receive  the  same  pay  and  bounty 
for  re-enlisting,  as  are  or  may  be  provided  by  or  in  pursu- 
sec.  1612,  K.S.  ance  of  ]aw  for  £ne  ofj|cers  anc[  enlisted  men  of  like  grades 

in  the  infantry  of  the  Army.2 

u^VfoSSS11*"     430.  No  commutation  for  forage  shall  be  paid.     Act  of 

23^28?.'  1885)V'  'January  30,  1885  (23  Stat.  L.,  287). 

Retirement  of     431.  The  commissioned  officers  of  the  Marine  Corps  shall 
Aug  3  isei  c  ^e  retired  in  like  cases,  in  the  same  manner,  and  Avith  the 

12'  Sp  1528^'  Vuiy  same  relative  conditions,  in  all  respects,  as  are  provided  for 

12'  ly&2i2C  'p2°596:  °fficers  of  the  Army,  except  as  is  otherwise  provided  in  the 

Ja'n.21,1870',  c.  9^  nPvf  uppfinn 

s.  i,  v.  16,  p.  62;  next  section. 

July  15,  1870,  e.  294,  s.  4,  \.  16,  p.  317;  June  10,  1872,  c.  419,  s.  1.  v.  17,  p.  378.    Sec.  1622,  11.  S. 

1  In  addition  to  the  recognition  of  meritorious  services  by  means  of  brevets,  section 
1605,  Revised  Statutes,  authorizes  the  President,  with  the  consent  of  the  Senate,  to 
advance  any  officer  of  the  Marine  Corps  not  exceeding  thirty  numbers  in  rank  '  '  for 
eminent  and  conspicuous  conduct  in  battle  or  extraordinary  heroism.  '  '     Section  1607, 
Kevised  Statutes,  authorizes  the  President,  with  the  consent  of  the  Senate,  to  advance 
any  marine  officer  one  grade  "if,  upon  the  recommendation  of  the  President,  by 
name,  he  receives  the  thanks  of  Congress  for  highly  distinguished  conduct  in  conflict 
with  the  enemy,  or  for  extraordinary  heroism  in  the  line  of  his  profession."     See 
also  sections  1606  and  1607,  Revised  Statutes,  and  the  act  of  March  3,  1901  (31  Stat. 
L.,  1108). 

2  For  statutes  regulating  the  pay  and  allowances  of  commissioned  officers  and 
enlisted  men,  see  the  chapter  entitled  THE  PAY  DEPARTMENT. 


MILITARY    LAWS    OF    THE    UNITED    STATES. 


163 


432.  All  marine  officers  shall  be  credited  with  the  length    c/edit  for  vo1- 

&       unteer  service. 

of  time  they  may  have  been  employed  as  officers  or  enlisted  17f  Y's^v1^!'  °' 
men  in  the  volunteer  service  of  the  United  States.  51|^c  1600  R  s 

433.  In  case  of  an  officer  of  the  Marine  Corps,  the  retir-   Retiring  board' 

r   ^  composition. 

ing  board  shall  be  selected  by  the  Secretary  of  the  Navy,  42A8U|i'7  V??'  °' 
under  the  direction  of  the  President.     Two-fifths  of  the28!- 

»5rC»  M»l»>,  K.N. 

board  shall  be  selected  from  the  Medical  Corps  of  the  Navy 
and  the  remainder  shall  be  selected  from  officers  of  the 
Marine  Corps,  senior  in  rank,  so  far  as  may  be,  to  the  officer 
whose  disability  is  to  be  inquired  of.1 

ENLISTED    MEN. 

434.  The  enlisted  force  of  the  Marine  Corps  shall  consist    EnlHe(? men. 

Sec.  23,  ibid. 

of  five  sergeant-majors,  one  drum  major,  twenty  quarter- 
master-sergeants, seventy-two  gunnery  sergeants  with  the 
rank  and  allowance  of  the  first  sergeant,  and  whose  pay 
shall  be  thirty-five  dollars  per  month;  sixty  first  sergeants; 
two  hundred  and  forty  sergeants;  four  hundred  and  eighty 
corporals;  eighty  drummers;  eighty  trumpeters;  and  four 
thousand  nine  hundred  and  sixty-two  privates.  Sec.  *23, 

435.  The  band  of  the  United  States  Marine  Corps  shall    g,*rij5e^Jd- 
consist  of  one  leader,  with  the  pay  and  allowance  of  a  first 
lieutenant;  one  second  leader,  whose  pay  shall  be  seventy- 
five  dollars  per  month,  and  who  shall  have  the  allowances 

of  a  sergeant  major;  thirty  first-class  musicians,  whose  pay 
shall  be  sixty  dollars  per  month;  and  thirt}^  second-class 
musicians,  whose  pay  shall  be  fifty  dollars  per  month  and 
the  allowance  of  a  sergeant;  such  musicians  of  the  band  to 
have  no  increased  pay  for  length  of  service  Sec.  %h  ibid- 

436.  Enlistments  into  the  Marine  Corps  shall  be  for  a 
period  not  less  than  five  years.  Res- 106' v- 16'  p- 387> 

437.  The  officers  and  enlisted  men  of  the  Marine  Corps 
shall  take  the  same  oaths,  respectively,  which  are  provided 72^ 
by  law  for  the  officers  and  enlisted  men  of  the  Army. 

438.  Marines  shall   be  exempt,   while  enlisted  in  said 

service,  from  all  personal  arrest  for  debt  or  contract.  July  n  1798)  (.. 

72,  s.  5,  v.  1,  pp.  595,  596;  June  30,  1834,  c.  132,  s.  3,  v.  4,  p.  713!      Sec.  1610,  R.S. 

439.  The  non-commissioned  officers,  privates,  and  musi- 
cians of  the  Marine  Corps  shall  each  be  entitled  to  receive  e.v.Vp-  524-  July 
one  navy  ration  daily.  1J< 1798-  "• 2< v- '•  *•  595- 

440.  No  law  shall  be  construed  to  entitle  enlisted  men  shortcut}-.8  ' 
on  shore  duty  to  any  rations  or  commutation  therefor  other  30Mp^  1898>  v- 
than  such  as  are  now,  or  may  hereafter,  be  allowed  to 

1  For  statutes  regulating  the  functions'  and  procedure  of  retiring  boards,  see  the 
chapter  entitled  COMMISSIONED  OFFICERS. 


Sec-1608<  B-s- 


1798  c 


164  MILITARY    LAWS    OF    THE    UNITED    STATES. 

enlisted  men  of  the  Army.     Act  of  May  4,  1898  (30  Stat. 
Z.,  387). 

MarTiwi  v  ^1-  When  it  is  impracticable  or  the  expense  is  found 
31,  P.  use.  greater  to  supply  marines  serving  on  shore  duty  in  the 
island  possessions  and  on  foreign  stations  with  the  army 
ration,  such  marines  may  be  allowed  the  navy  ration  or 
commutation  therefor.  Act  of  March  3,  1901  (31  Stat.  L.  , 
1130). 

ORGANIZATION. 

detachment?™1     442.  The  Marine  Corps  may  be  formed  into  as  many  com- 

72?£1?,v.Yp959f  panies  or  detachments  as  the  President  may  direct,  with  a 

sec.  leu,  R.  s.  pr0per  distribution  of  the  commissioned  and  noncommis- 

sioned officers  and  musicians  to  each  company  or  detach- 

ment. 

DUTIES  ON   SHORE. 


443    xhe  Marine  Corps  shall  be  liable  to  do  duty  in  the 
nd  garrisons  of  the  United  States,  on  the  seacoast, 
or  any  other  duty  on  shore,  as  the  President,  at  his  discre- 
tion, may  direct. 

444.  The  President  is  authorized  to  prescribe  such  inili- 
132,  s.  s,  v.  4,  p.  £ary  reguiations  for  the  discipline  of  the  Marine  Corps  as 
sec.  1620,  R.S.  ^  mav  ^em  expedient. 

445-  The  Marine  Corps  shall,  at  all  times,  be  subject  to 
saving  tne  ^aws  an(*  regulations  established  for  the  government  of 
Navy  ,  except  when  detached  for  service  with  the  Army 
713-  July  ii,  1798;  ^J  order  of  the  President;  and  when  so  detached  they  shall 
59572'  8'  4>  v'  *'  p'  be  subject  to  the  rules  and  articles  of  war  prescribed  for  the 
Sec.  1621,  B.S.  government  of  the  Army. 
Articles  of  war.     44$.  Officers  of  the  Marine  Corps  detached  for  service 

Service  on  army  r    , 

courts-martial.^  with  the  Army  by  order  of  the  President  may  be  associ- 
*•*•  ated  with  officers  of  the  Regular  Army  on  courts-martial 

for  the  trial  of  offenders  belonging  to  the  Regular  Army, 
or  to  forces  of  the  Marine  Corps  so  detached;  and  in  such 
cases  the  orders  of  the  senior  officer  of  either  corps  who 
may  be  present  and  duly  authorized  shall  be  obeyed. 
Seventy  -eighth  article  of 


TRANSFERS. 


m5itSytom[?5     447t  ^n^  Person  enlisted  in  the  military  service  of  the 

sejSyei  1864  c  United  States  may,  on  application  to  the  Navy  Depart- 

201,8.  i,'v.  is,'  P'.  nient,  approved  by  the  President,  be  transferred  to  the 

sec.i42i,B.s.  Navy  or  Marine  Corps,  to  serve  therein  the  residue  of  his 

term  of  enlistment,  subject  to  the  laws  and  regulations 

for  the  government  of  the  Navy.     But  such  transfer  shall 


MILITARY    LAWS    OF   THE   UNITED   STATES.  165 

not  release  him  from  any  indebtedness  to  the  Govern- 
ment, nor,  without  the  consent  of  the  President,  from 
any  penalty  incurred  for  a  breach  of  the  military  law. 


DETAILS  OF   NAVAL    OFFICERS. 


448.  The  President  may  detail,  temporarily,  three  com- 

petent  naval  officers  for  the  service  of  the  War  Depart-  tailed  for  service 

of  the  War  De- 

ment in  the  inspection  of  transport  vessels,  and  for  such  P*^™6^ 
other  services  as  maybe  designated  by  the  Secretary  of  21-v-  *?ifc  ^V 

bcc.  14:{«  ,K.S. 

War. 

PROHIBITION   OF    PUNISHMENTS   ON   VESSELS   OF   WAR. 

449.  No  other  punishment  l  shall  be  permitted  on  board 
of  vessels  belonging  to  the  Navy,  except  by  sentence  of 
a  general  or  summary  court-martial.     All  punishments  in- 
flicted by  the  commander,  or  by  his  order,  except  repri- 
mands, shall  be  fully  entered  in  the  ship's  log.     Article 
%4i  Rules  for  the  Government  of  the  Navy. 

ADMINISTRATION   OF   OATHS. 

450.  Judges-advocate  of   naval  general   courts-martial    gjj8^    1901 
and  courts  of  inquiry,  and  all  commanders  in  chief  of  WfCfi.!**     - 
naval  squadrons,  commandants  of  navy  -yards  and  stations, 

officers  commanding  vessels  of  the  Navy,  and  recruiting 
officers  of  the  Navy,  and  the  adjutant  and  inspector,  assist- 
ant adjutant  and  inspector,  commanding  officers,  and  re- 
cruiting officers  of  the  Marine  Corps  be,  and  the  same  are 
hereby,  authorized  to  administer  oaths  for  the  purposes 
of  the  administration  of  naval  j  dstice  and  for  other  pur- 
poses of  naval  administration.2  Act  of  March  3,  1901  (31 
Stat.  Z.,  1086). 


other  punishments"  above  referred  to  are  those  authorized  to  be  inflicted 
by  the  twenty-fourth  naval  article  of  war. 
2  The  act  of  January  25,  1895,  (28  Stat.  L.,  639),  had  contained  a  similar  provision. 


CHAPTER  TX. 


THE  DEPARTMENT  OF  THE  INTERIOR. 


Par.  I  Par. 


451.  Establishment  of  Department  of  the 
Interior. 


452.  Duties  of  Secretary. 

453.  Powers  of  Secretary. 

451.  There  shall  be  at  the  seat  of  Government  an  Execu- 
tive Department  to  be  known  as  the  Department  of  the 
3%  s' lf  v'  9'  p*  Interior,  and  a  Secretary  of  the  Interior,  who  shall  be  the 

W.i   .         i  *>~        I?       W        ]  "I       J  1  <> 

i3CC»     TO4*  .•&•&•     riOO/i     TriOT'O/AT 

Duties  of  Sec-  neaa  Ine  reOI. 

reE;3li849,  c.     452-  The  Secretary  of  the  Interior  is  charged  with  the 
108,^88.  3, SA  7^8,  supervision  of  public  business  relating  to  the  following 

July8,1870,c.230;  an>vio/»fa' 

S    1    V    16     P     jgg.  OUMJC^liO . 

ii;l:ln?i>cw]     First-  The  census;  when  directed  by  law. 
i76lys  2iVi£?'pp'     Second.  The  public  lands,  including  mines.1 
92/166.'  Third    The  Indians.2 

Fourth.  Pensions  and  bounty  lands, 
sec.  441,  R.  s.      Fifth.  Patents  for  inventions.3 
Seventh.  Education. 

Eighth.  Government  Hospital  for  the  Insane.4 
Ninth.  Columbia  Asylum  for  the  Deaf  and  Dumb. 
sec-     453.  The  Secretary  of  the  Interior  shall  hereafter  exer- 
Mar.'  i,  1873,  c.  cise  all  the  powers  and  perform  all  the  duties  in  relation 

7  v  17   D  484 

s'eci  442,'R.  s.  to  the  Territories  of  the  United  States  that  were,  prior  to 
March  first,  eighteen  hundred  and  seventy -three,  by  law 
or  by  custom  exercised  and  performed  by  the  Secretary  of 
State. 

1  For  statutes  respecting  the  public  lands  see  the  chapter  so  entitled. 

2 By  section  6  of  the  act  of  March  3,  1849  (9  Stat.  L.,  395),  the  supervising  and 
appellate  powers  in  respect  to  Indian  affairs,  formerly  exercised  by  the  Secretary  of 
War,  were  transferred  to  the  Secretary  of  the  Interior.  For  statutes  respecting  the 
Indians  see  the  chapter  so  entitled. 

3  The  distribution  of  public  documents,  vested  in  the  Department  of  the  Interior  by 
the  act  of  February  5,  1859  (11  Stat.  L.,  379),  and  subsequent  statutes,  was,  by  sec- 
tions 61-64  of  the  act  of  January  12,  1895  (28  Stat.  L.,  601),  transferred  to  the 
Superintendent  of  Documents,  an'officer  acting  under  the  supervision  of  the  Public 
Printer. 

4 For  statutes  regulating  admission  in,  etc.,  to  this  establishment  see  the  chapter 
entitled  THE  GOVERNMENT  ASYLUM  FOR  THE  INSANE. 

166 


217 


CHAPTER    X. 


THE  REVISED   STATUTES l— THE  STATUTES  AT  LARGE— 
THE  ARMY  REGULATIONS— THE  ARMY  REGISTER. 


Par. 

454-468.  The  Revised  Statutes,  edition  of 

1874. 

469-473.  The  same,  edition  of  1878. 
474-480.  The  supplements  to  the  Revised 


Par. 


481-486.  The  Statutes  at  Large. 
487-489.  The  Army  Regulations. 
490-494.  The  Army  Register. 


Statutes. 


THE    REVISED    STATUTES. 


Par. 
454. 


of 


470. 


471. 


Commissioners  to  revise  and  consol- 
idate the  General  Statutes  of  the 
United  States. 

455.  Duties  of  the  commissioners. 

456.  Work  to  be  submitted  to  Congress. 

457.  Revision  to  be  completed  as  soon  as 

practicable. 

458.  Preparation  of  Revised  Statutes  for 

printing.  Headnotes.  Marginal 
references.  References  to  judicial 
decisions.  Index. 

459.  Printed  copies  to  be  evidence. 

460.  Title  of  revision  of  statutes. 
461  .  Certificate  to  Revised  Statutes. 

462.  Scope  of  Revised  Statutes. 

463.  Repeal  of  acts  embraced  in  revision. 

464.  Accrued  rights  reserved. 

454.  The  President  of  the  United  States  is  hereby  au- 
thorized,  by  and  with  the  advice  and  consent  of  the  Senate, 
to  appoint  three  persons,  learned  in  the  law,  as  commis- 
sioners,  to  revise,  simplify,  arrange,  and  consolidate  all 
statutes  of  the  United  States,  general  and  permanent  in 

1  The  Revised  Statutes  must  be  accepted  as  the  law  on  the  subjects  which  they 
embrace  as  it  existed  on  the  1st  day  of  December,  1873,  and  were  enacted  to  present 
the  entire  body  of  the  laws  in  a  concise  and  compact  form.  When  the  language  of 
the  Revised  Statutes  is  plain  and  unambiguous,  the  grammatical  structure  simple 
and  accurate,  and  the  meaning  of  the  whole  intelligible  and  obvious,  a  court  is  not 
at  liberty,  by  construction,  to  reproduce  the  law  as  it  stood  before  the  revision. 
U.  S.  r.  Bowen,  100  TT.  S.,  508.  See  also  Wright  v.  U.  S.,  15  Ct.  Cls.,  80,  86;  U.  S. 
v.  No.  Am,  Com.  Co.,  74  Fed.  Rep.,  145. 

167 


Par. 

465.  Prosecutions  and  punishments. 

466.  Acts  of  limitation. 

467.  Arrangement  and  classification 

sections. 

468.  Acts  passed  since  December  1, 1873, 

not  affected. 

469.  Commissioner  to  prepare  new  edi- 

tion of  Revised  Statutes. 

Duty  of  commissioner.  Amend- 
ments. References.  Revision  of 
indexes. 

Additional  matter  to  be  included. 

472.  When  to  be  completed.     To  be  legal 

evidence. 

473.  New  edition  of  Revised  Statutes  to 

be  prinia  facie  evidence. 


u  n  l 


168  MILITARY   LAWS   OF   THE   UNITED   STATES. 

their  nature,  which  shall  be  in  force  at  the  time  such  com- 
missioners may  make  the  final  report  of  their  doings. 
Act  of  June  87,  1866  (H  Stat.  /,.,  74). 

Duties  of  the  455.  In  performing  this  duty  the  "commissioners  shall 
sec.  2,  ibid.  bring  together  all  statutes  and  parts  of  statutes  which, 
from  similarity  of  subject,  ought  to  be  brought  together, 
omitting  redundant  or  obsolete  enactments,  and  making 
such  alterations  as  may  be  necessary  to  reconcile  the  con- 
tradictions, supply  the  omissions,  and  amend  the  imper- 
fections of  the  original  text;  and  they  shall  arrange  the 
same  under  titles,  chapters,  and  sections,  or  other  suitable 
divisions  and  subdivisions,  with  headnotes  briefly  ex- 
pressive of  the  matter  contained  in  such  divisions;  also 
with  side  notes,  so  drawn  as  to  point  to  the  contents  of  the 
text,  and  with  references  to  the  original  text  from  which 
each  section  is  compiled,  and  to  the  decisions  of  the  Federal 
courts,  explaining  or  expounding  the  same,  and  also  to 
such  decisions  of  the  State  courts  as  they  may  deem  expe- 
dient; and  they  shall  provide  by  a  temporary  index,  or 
other  expedient  means,  for  an  easy  reference  to  every 
portion  of  their  report.  Sec.  2,  ibid. 
worktobesub-  45gt  That  when  the  commissioners  have  completed  the 

mitted    to    Con- 

grlss-  o  -K-^       revision  and  consolidation  of  the  statutes,  as  atoresaid, 

&6C*  o,  ibid, 


shall  cause  a  copy  of  the  same,  in  print,  to  be  sub- 
mitted to  Congress,  that  the  statutes  so  revised  and  con- 
solidated may  be  reenacted,  if  Congress  shall  so  determine; 
and  at  the  same  time  they  shall  also  suggest  to  Congress 
such  contradictions,  omissions,  and  imperfections  as  may 
appear  in  the  original  text,  with  the  mode  in  which  they 
have  reconciled,  supplied,  and  amended  the  same;  and 
they  may  also  designate  such  statutes  or  parts  of  statutes 
as,  in  their  judgment,  ought  to  be  repealed,  with  their  rea- 
sons for  such  repeal.1  Sec.  3,  ibid. 


1  The  act  of  June  27,  1866  (14  Stat.  L.,  74) ,  was  revived  by  the  act  of  May  4,  1870, 
(16  Stat.  L.,  96),  which  authorized  the  President  to  appoint  three  commissioners  to 
prosecute  and  complete  the  work  prescribed  by  that  statute.  The  work  of  revision 
was  to  be  completed  within  three  years  from  the  date  of  passage  of  the  act  (May  4, 
1870).  The  act  of  March  3,  1873  (17  Stat.  L.,  579),  authorized  the  appointment  of  a 
joint  committee  of  Congress  to  accept  the  draft  of  the  revision  of  laws,  so  far  as  the 
same  was  completed  at  the  expiration  of  the  time  designated  for  that  purpose  (May  4, 
1873) .  The  same  statute  authorized  the  existing  joint  committee  to  contract  with 
some  suitable  person  or  persons  to  prepare  a  revision  of  the  statutes,  already  reported 
by  the  commissioners,  in  the  form  of  a  bill  to  be  presented  at  the  opening  of  the 
Forty-third  Congress.  The  publication  of  the  first  edition  of  the  Revised  Statutes 
was  authorized  by  the  act  of  June  20,  1874  (18  Stat.  L.,  113);  pp.  401-403,  post. 


MILITARY   LAWS    OF   THE    UNITED   STATES.  169 

457.  That  the  statutes  so  revised  and  consolidated  shall    Revision  to  be 

,  ,     -,    ,       ^  completed        as 

be  reported  to  Congress  as  soon  as  practicable,  and  the  J£°ne 
whole  work  closed  without  unnecessary  delay.    Sec.  5,  ibid.    Sec- 


FIRST   EDITION   OF   THE    REVISED   STATUTES. 

458.  That  the  Secretary  of  State  is  hereby  charged  with    Preparation  of 

^        T     .          <.  .  ,  ,    .  .      ,  Revised  Statutes 

the  duty  of  causing  to  be  prepared  for  printing,  pubhca-  for  printing,  etc. 
tion,  and  distribution  the  Revised  Statutes  of  the  United  i874,v.  is, 


States  enacted  at  this  present  session  of  Congress;  that 

he  shall  cause  to  be  completed  the  headnotes  of  the  several    Headnotes. 

titles  and  chapters  and  the  marginal  notes  referring-  to  the    Marginal  refer- 

.  ences  to  original 

statutes  from  which  each  section  was  compiled  and  repealed  statutes. 

by  said  revision;  and  references  to  the  decisions  of  the.  References  to 

judicial       deci- 

courts  of  the  United  States  explaining  or  expounding  thesions- 
same,  and  such  decisions  of  State  courts  as  he  may  deem 
expedient,  with  a  full  and  complete  index  to  the  same.          index. 

459.  And  when  the  same  shall  be  completed,  the  said    Promulgation. 
Secretary  shall  duty  certify  the  same  under  the  seal  of  the 

United  States,  and  when  printed  and  promulgated  as  here- 

inafter provided,  the  printed  volumes  shall  be  Wai  evi-  .  ?rinte^  c°Pies 

JT   ,      .  _  to  be  evidence. 

dence  of  the  laws  and  treaties  therein  contained,  in  all  the 
courts  of  the  United  States,  and  of  the  several  States  and 
Territories.  l  Sec.  %,  act  of  June  W,  1874  (IS  Stat.  L.  ,  113). 

460.  That  the  revision  of  the  statutes  of  a  general  and 
permanent  nature,  with  the  index  thereto,  shall  be  printed    Sec-  3- 
in  one  volume,  and  shall  be  entitled  and  labeled  "Revised 
Statutes  of  the  United  States;"  and  the  revision  of  the 
statutes   relating   to   the  District  of  Columbia;  to  post- 
roads,  and  the  public  treaties  in  force  on  the  first  day  of 
December,  one  thousand  eight  hundred  and  seventy-three, 
with   a   suitable  index  to  each,   shall  be  published  in  a 
separate  volume,  and  entitled  and  labeled  "  Revised  Stat- 

utes relating  to  District  of  Columbia  and  Post-Roads. 
Public  Treaties."  Sec.  3,  Hid. 

461.  That  the  certificate  to  the  printed  volume  of  the  • 


Revised  Statutes  of  the  United  States  required  by  section    Dec.  28,i874,v. 

18,  p.  298. 

1  The  first  edition  of  the  Revised  Statutes  is  a  transcript  of  the  original  in  the  State 
Department.  It  is  prima  facie  evidence  of  the  law,  but  the  original  is  the  only  con- 
clusive evidence  of  the  exact  text  of  the  law.  Wright  vs.  U.  S.,  15  Ct.  Cls;,  80,  87. 

The  incorporation  of  a  particular  statutory  provision  into  the  Revised  Statutes, 
adopted  in  1874,  was  a  legislative  declaration  that  the  law  on  that  subject  was  as 
therein  provided;  and,  in  the  absence  of  any  obscurity  in  the  meaning,  the  court  can 
not  look  to  the  preexisting  statutes  to  see  whether  or  not  they  were  correctly  incor- 
porated. U.  S.  v.  The  North  American  Commercial  Co.,  74  Fed.  Rep.,  145;  U.  S.  v. 
Bowen,  100  U.  S.,  508.  As  to  the  effects  of  amendments  to  the  Revised  Statutes,  see 
IT.  S.  v.  Jessup,  15  Fed.  Rep.,  790. 


170  MILITARY    LAWS    OF   THE    UNITED   STATES. 

two  of  "An  act  providing  for  publication  of  the  revised 
statutes  and  laws  of  the  United  States,"  approved  June 
twentieth,  eighteen  hundred  and  seventy-four,  shall  be 
made  by  the  Secretary  of  State  under  the  seal  of  the 
Department  of  State,  and  so  much  of  said  section  as  pro- 
vides that  such  certificate  shall  be  under  the  seal  of  the 
United  States,  is  hereby  repealed.  Act  of  December  28, 
1874(18  Stat.  Z., 


SCOPE    OF    THE    REVISED    STATUTES   AND   REPEAL    PROVISIONS. 


ySedPstatutef  *       ^2.  The  foregoing  seventy-three  titles  embrace  the  stat- 

Sec.  6596,  R.S.  u^eg  of  ^he  United  States  general  and  permanent  in  their 

nature,  in  force  on  the  first  day  of  December,  one  thousand 

eight  hundred  and  seventy  -three,  as  revised  and  consoli- 

dated by  commissioners  appointed  under  an  act  of  Con- 

gress, and  the  same  shall  be  designated  and  cited,  as  The 

Revised  Statutes  of  the  United  States.1 

Repeal  of  acts     463.  All  acts  of  Congress  passed  prior  to  said  first  day 

embraced  in  re-  .  * 

vision.  ot  December,  one  thousand  eight  hundred  and  seventy  - 

Sec.5696,K.S.  .          .  J 

three,  any  portion  of  which  is  embraced  in  any  section  of 
said  revision,  are  hereby  repealed,  and  the  section  appli- 
cable thereto  shall  be  in  force  in  lieu  thereof;  all  parts  of 
such  acts  not  contained  in  such  revision  having  been 
repealed  or  superseded  by  subsequent  acts,  or  not  being 
general  and  permanent  in  their  nature:  Provided,  That  the 
incorporation  into  said  revision  of  any  general  and  perma- 
nent provision,  taken  from  an  act  making  appropriations, 
or  from  an  act  containing  other  provisions  of  a  private, 
local,  or  temporary  character,  shall  not  repeal,  or  in  any 
way  affect  any  appropriation,  or  any  provision  of  a  private, 
local,  or  temporary  character,  contained  in  any  of  said  acts, 
but  the  same  shall  remain  in  force;  and  all  acts  of  Con- 
gress passed  prior  to  said  last-named  day,  no  part  of  which 
are  embraced  in  said  revision,  shall  not  be  affected  or 
changed  by  its  enactment. 

Accrued  rights  434.  The  repeal  of  the  several  acts  embraced  in  said  revi- 
sec.6597,n.s.  sion  shall  not  affect  any  act  done,  or  any  right  accruing 
or  accrued,  or  any  suit  or  proceeding  had  or  commenced  in 
any  civil  cause  before  the  said  repeal,  but  all  rights  and 
liabilities  under  said  acts  shall  continue,  and  may  be 
enforced  in  the  same  manner,  as  if  said  repeal  had  not  been 

1  The  Revised  Statutes  are  an  act  of  Congress.  The  enactment  was  approved  and 
became  the  law  on  June  22,  1874.  Wright  v.  U.  S.,  15  Ct.  Cls.,  80.  In  case  of  doubt, 
ambiguity,  or  uncertainty  the  previous  statutes  may  be  referred  to.  Ibid.  See  also 
Bowent'.  U.  S.,  100  U.  S.,  508.  U.  S.  v.  Bowen,  100  F.  S.,  508;  Bate  Refrigerating 
Co.  r.  Sulzberger,  157  U.  S.,  1. 


MILITARY   LAWS    OF   THE    UNITED   STATES.  I7l 

made;  nor  shall  said  repeal  in  any  manner  affect  the  right 
to  any  office,  or  change  the  term  or  tenure  thereof. 

465.  All  offenses  committed,  and  all  penalties  or  forfeit-a  ^J^Jj^oj8 
ures  incurred  under  any  statute  embraced  in  said  revision  mfj*%698  K  g 
prior  to  said  repeal,  may  be  prosecuted  and  punished  in 

the  same  manner  and  with  the  same  effect  as  if  said  repeal 
had  not  been  made. 

466.  All  acts  of  limitation,  whether  applicable  to  civil    Acts  of  iimita- 

.  tion. 

causes  and  proceedings,  or  to  the  prosecution  of  offenses,  Sec-  5599,B.s. 
or  for  the  recovery  of  penalties  or  forfeitures,  embraced 
in  said  revision  and  covered  by  said  repeal,  shall  not  be 
affected  thereby,  but  all  suits,  proceedings,  or  prosecutions, 
whether  civil  or  criminal,  for  causes  arising  or  acts  done 
or  committed  prior  to  said  repeal,  may  be  commenced  and 
prosecuted  within  the  same  time  as  if  said  repeal  had  not 
been  made. 

467.  The  arrangement  and  classification  of  the  several    Arrangement 

and  classifica- 

.sections  of  the  revision  have  been  made  tor  the  purpose  of  tio_,n  of  s,6™1  on* 

1  »6C.  obOt),  U.S. 

a  more  convenient  and  orderly  arrangement  of  the  same, 
and  therefore  no  inference  or  presumption  of  a  legislative 
construction  is  to  be  drawn  by  reason  of  the  title  under 
which  any  particular  section  is  placed. 


468.  The  enactment  of  the  said  revision  is  not  to  affect  .Ac1*        ,0 

since  Dec.  1,1873, 

or  repeal  any  act  o.f  Congress  passed  since  the  1st  day  of  n<pealfte18t^75  c 
December,  one  thousand  eight  hundred  and  seventy-three,  {£.  \^,f-  &%• 

_      ,  Mar.  o,  lo7o,c.  lot), 

and  all  acts  passed  since  that  date  are  to  have  full  effect  s.9,v.i8,p.  401. 

j  t  Sec.  5001,  K.S. 

as  it  passed  after  the  enactment  of  this  revision,  and  so 
far  as  such  acts  vary  from  or  conflict  with  any  provision 
contained  in  said  revision,  they  are  to  have  effect  as  sub- 
sequent statutes,  and  as  repealing  any  portion  of  the 
revision  inconsistent  therewith. 

SECOND    EDITION    OF   THE    REVISED   STATUTES. 

EDITION  OF  1878. 

469.  That  the  President  of  the  United  States  be,  and  he 
is  hereby,  authorized  to  appoint,  by  and  with  the  advice 

and  consent  of  the  Senate,  one  person,  learned  in  the  law,  19^,a^|'  1877>  v> 
as  a  commissioner,  for  the  purpose  of  preparing  and  pub- 
lishing a  new  edition  of  the  first  volume  of  the  Revised 
Statutes  of  the  United  States.1     Act  of  March  2,  1877  (19 
Stat.  Z.,  268). 

lThe  second  edition  of  the  Revised  Statutes  is  only  a  new  publication;  a  compila- 
tion, containing  the  original  law,  with  specific  amendments  incorporated  therein 
according  to  the  judgment  of  the  editor.  Wright  v.  U.  S.,  15  Ct.  Cls.,  80.  The 
Revised  Statutes  did  not  affect  statutes  passed  between  December  1  ,  1873,  and  June 
22,  1874.  See  note  1  to  paragraph  405,  ante. 


172  MILITARY    LAWS    OF    THE    UNITED    STATES. 


'  That  in  performing  this  duty,  said  commissioner 

sec.  2,  *id.  shall  be  required  to  incorporate  into  the  text  of  the  Revised 
Statutes  as  published  in  the  year  anno  Domini  eighteen 
hundred  and  seventy-five,  under  the  act  of  June  twentieth, 

Amendments,  eighteen  hundred  and  seventy  -four,  all  the  amendments 
which  have  been  made  in  the  revision  so  published  since 
the  first  day  of  December,  eighteen  hundred  and  seventy- 
three,  and  all  that  shall  be  made  up  to  the  close  of  the 

References,  present  session  of  Congress,  with  marginal  references  to 
such  amendatory  acts,  and  to  all  the  decisions  of  the  sev- 
eral courts  of  the  United  States  (as  far  as  the  same  may 
have  been  published)  which  may  have  been  made  sub- 
sequent to  those  already  cited  in  the  margin  of  the  present 
revision,  and  may  include  also  citations  to  such  judicial 
decisions  of  the  various  State  courts  as  he  may  deem 
important;  and  he  shall  also  make  marginal  references  to 
the  various  statutes  passed  by  Congress  since  the  first  day 
of  December,  eighteen  hundred  and  seventy-three,  not 
expressly  therein  declared  to  be  amendments  to  the  Revised 
Statutes,  but  which,  in  the  opinion  of  said  commissioner, 
may  in  an}r  manner  affect  or  modify  any  of  the  provisions 
of  the  said  Revised  Statutes,  or  anjr  of  the  amendments 
thereto,  indicating  in  such  marginal  notes  by  a  difference 
in  type  the  references  to  statutes  of  this  kind,  and  he  shall 
dexelisi°n  °f  in  rev^se  ^e  indexes  and  incorporate  therein  references  to  the 

additions  herein  required.     Sec.  2,  ibid. 

'matter  to  ^in-  ^**  That  there  shall  also  be  included  in  said  edition  the 
Clsecd3  md  Articles  of  Confederation,  the  Declaration  of  our  National 
Independence,  the  Ordinance  of  seventeen  hundred  and 
eighty-seven  for  the  government  of  the  Northwestern 
Territory,  the  Constitution  of  the  United  States,  with  foot- 
notes referring  to  decisions  of  the  Federal  courts  thereon, 
the  "Act  to  provide  for  the  revision  and  consolidation  of 
the  statute  laws  of  the  United  States,"  approved  June 
twenty-seventh,  eighteen  hundred  and  sixty-six,  and  the 
'  '  Act  providing  for  publication  of  the  Revised  Statutes 
and  the  laws  of  the  United  States,"  approved  June  twen- 
tieth, eighteen  hundred  and  seventy-four,  as  well  as  the 
present  act.  Sec.  3,  ibid. 

when  to  be     472.  That  said  new  edition  shall  be  completed  in  manu- 

completed.  .  . 

sec.  4,  ibid.  script  by  said  commissioner  by  the  first  day  of  January, 
anno  Domini  eighteen  hundred  and  seventy-eight,  and  by 
him  presented  to  the  Secretary  of  State  for  his  examina- 
tion and  approval,  who  is  hereby  required  to  examine  and 
compare  the  same,  as  amended,  with  all  the  amendatory 
20^27°.'  18?8>  v'  ac^s?  and?  within  two  months  after  having  been  submitted 


MILITARY    LAWS    OF    THE    UNITED    STATES.  173 

to  him,  and  when  the  same  shall  be  completed,  the  said 
Secretary  shall  duty  certify  the  same  under  the  seal  of  the 
Secretary  of  State,  and  when  printed  and  promulgated  as 
herein  provided  the  printed  volume  shall  be  legal  evidence  denceelegalevi" 
of  the  laws  therein  contained,  in  all  the  courts  of  the 
United  States,  and  of  the  several  States  and  Territories, 
but  shall  not  preclude  reference  to  nor  control,  in  any  case 
of  discrepancy,  the  effect  of  any  original  act  as  passed  by 
Congress  since  the  first  day  of  December,  eighteen  hun- 
dred and  seventy-three,  and  said  Secretary  shall  cause 
fifteen  thousand  copies  of  the  same  to  be  printed  and 
bound  at  the  -Government  Printing  Office,  under  the 
supervision  of  said  commissioner,  at  the  expense  of  the 
United  States,  and  without  unnecessary  delay.1  Sec.  4, 2oMar279f  1878'  v' 
ibid. 

473.  That  an  act  entitled  "An  act  to  provide  for  the 
preparation  and  publication  of  a  new  edition  of  the 
Statutes  of  the  United  States,"  approved  March  second,  2oMar279' 1878' v' 
eighteen  hundred  and  seventy-seven,  be,  and  the  same  is 
hereby,  amended  as  follows,  to  wit:  By  striking  out  from 

1  Under  the  authority  conferred  by  this  statute  the  Hon.  George  S.  Boutwell  was 
appointed  a  commissioner  to  prepare  the  new  edition.  The  following  extract  from 
the  preface  to  the  second  edition  of  the  Revised  Statutes  will  explain  its  scope. 

By  an  act  of  Congress  approved  March  2,  1877  (v.  19,  c.  82,  p.  268),  authority  was 
given  for  the  appointment  by  the  President  of  a  commissioner,  whose  duty  it  should 
be  to  prepare  and  publish,  subject  to  the  examination  and  approval  of  the  Secretary 
of  State,  a  new  edition  of  the  first  volume  of  the  Revised  Statutes  of  the  United 
States. 

The  jurisdiction  of  the  commissioner  was  defined  and  limited  by  the  statute.  He 
was  directed  to  incorporate  into  the  text  of  the  first  edition  of  the  statutes  all  the 
amendments  made  since  the  first  day  of  December,  eighteen  hundred  and  seventy- 
three,  including  those  made  by  the  Forty-fourth  Congress,  with  marginal  references 
to  the  acts  of  amendment  and  to  the  decisions  of  the  several  courts  of  the  United 
States,  with  like  references  to  all  the  statutes  passed  in  the  same  period,  which,  in 
the  opinion  of  the  commissioner,  might  in  any.  many  affect  or. modify  any  of  the 
provisions  of  the  first  edition  of  the  Revised  Statutes. 

He  was  also  directed  to  include  in  the  new  edition  the  Articles  of  Confederation,  the 
.Declaration  of  our  National  Independence,  the  Ordinance  of  Seventeen  hundred  and 
eighty-seven  for  the  Government  of  the  Northwestern  Territory,  and  the  Constitu- 
tion of  the  United  States,  with  footnotes  referring  to  the  decisions  of  the  Federal 
courts  thereon.  These  papers  were  not  printed  with  the  first  edition  of  the  statutes. 

This  edition  is  not  in  any  proper  sense  a  new  revision  of  the  statutes  of  the  United 
States.  The  commissioner  was  not  clothed  with  power  to  change  the  substance  or  to 
alter  the  language  of  the  existing  edition  of  the  Revised  Statutes,  nor  could  he  cor- 
rect any  errors  or  supply  any  omissions  therein  except  as  authorized  by  the  several 
statutes  of  amendment.  Of  specific  amendments  there  are,  however,  several  hun- 
dred, which  have  been  incorporated  with  the  text.  The  portions  of  the  statutes 
repealed  are  printed  in  italics  and  included  in  brackets,  and  the  new  matter  intro- 
duced is  printed  in  the  ordinary  roman  letter  and  also  included  in  brackets. 

So  much  of  the  work  as  affects  the  text  of  the  present  edition  has  been  examined 
under  the  direction  of  the  Hon.  William  M.  Evarts,  Secretary  of  State,  by  Hon. 
Charles  P.  James,  one  of  the  commissioners  by  whom  the  first  edition  of  the  Revised 
Statutes  was  prepared. 

The  acts  of  Congress  passed  since  the  first  edition  of  the  Revised  Statutes  was 
issued,  and  affecting  the  text  thereof,  are  referred  to  in  the  margin  of  the  respective 
sections  so  affected.  .  . 

In  this  edition  full  and,  it  is  believed,  complete  notes  of  reference  to  the  opinions 
of  the  Supreme  Court  of  the  United  States  will  be  found  under  the  several  para- 


174 


MILITARY    LAWS    OF   THE    UNITED    STATES. 


the  ninth  and  tenth  lines  of  section  four,1  as  published  in 
the  nineteenth  volume  of  the  Statutes  at  Large,  the  words 
"and  conclusive;"  and,  in  the  tenth  line,  the  words  "and 
treaties;"  and,  by  inserting  after  the  word  "Territories," 
at  the  end  of  the  eleventh  line,  the  following  words,  to  wit: 
"but  shall  not  preclude  reference  to,  nor  control,  in  case 
of  any  discrepancy,  the  effect  of  any  original  act  as  passed 
by  Congress  since  the  first  day  of  December,  eighteen  hun- 
dred and  seventy -three."  Act  of  March  ,9,  1878  (20  Stat. 
Z.,  07). 

SUPPLEMENTS    TO    THE    REVISED    STATUTES. 


Par. 


474,  475.  The  supplement  of  1881. 

476,  477.  The  supplement  of  1891  (Vol.  I). 


Par. 


478.  The  supplement  of  1895  (Vol.  II). 

479,  480.  The  supplement  of  1899. 


THE  SUPPLEMENT  OF  1881. 

th!URepvfs?deistet°  474«  That  the  supplement  to  the  Revised  Statutes,  ein- 
utfoint  res  NO  bracing  the  statutes  general  and  permanent  in  their  nature 
\\'2/,Up!6308.1880'  Passe(l  after  the  Revised  Statutes  with  references  connect- 
ing provisions  on  the  same  subject,  explanatory  notes,  cita- 
tions of  judicial  decisions,  and  a  general  index,  prepared 
by  William  A.  Richardson,  be  stereotyped  at  the  Govern- 
ment Printing  Office;  and  the  index  and  plates  thereof 
and  all  right  and  title  therein  and  thereto  shall  be  in  and 
fully  belong  to  the  Government  for  its  exclusive  use  and 
benefit. 2  Joint  resolution  No.  44,  June  7, 1880  (21  Stat.  L. , 
308}. 


graphs  of  the  Constitution  to  which  the  opinions  respectively  relate,  and  reference 
is  also  made  to  the  small  number  of  decisions  which  interpret  or  in  any  manner 
touch  the  Ordinance  for  the  Government  of  the  Northwestern  Territory. 

The  appendix  contains  the  varipus  statutes  which  provide  for  or  relate  to  the 
"revision  and  consolidation  of  the  statute  laws  of  the  United  States,"  and  also  a 
cross  index  by  which  the  various  provisions  of  the  Revised  Statutes  may  be  traced 
to  the  original  enactments  in  the  Statutes  at  Large. 

In  the  preparation  of  the  index  I  have  had  the  best  assistance  which  I  could  com- 
mand, and  no  labor  has  been  avoided  that  could  contribute  in  the  least  to  the  per- 
fectness  of  the  work.  While  it  is  not  probable  that  the  end  sought  has  been  attained 
I  indulge  the  hope  that  the  character  of  the  index  may,  in  some  reasonable  degree, 
meet  the  expectation  of  Congress,  the  executive  officers  of  the  Government,  the 
judiciary,  and  the  profession  generally. 

The  analytical  index  to  the  Constitution  was  prepared  by  W.  J.  McDonald,  esq., 
late  Chief  Clerk  of  the  United  States  Senate. 

The  historical  notes  to  the  Declaration  of  Independence,  the  Articles  of  Confed- 
eration, and  the  Constitution  are  taken  from  a  work  entitled  ' '  The  Organic  Laws  of 
the  United  States  of  America,"  prepared  by  Maj.  Ben:  Perley  Poore,  and  printed  by 
authority  of  Congress. 

1  Paragraph  474,  ante. 

2  Under  this  resolution  a  supplement  was  published  in  1881,  entitled  volume  1.     It 
was  then  supposed  that  other  volumes  would  be  authorized,  from  time  to  time,  by 
subsequent  legislation.     This  proved  not  to  be  the  ca^e,  as  the  act  of  April  9,  1890 
( paragraph  420,  post],  provided  for  the  continuation  of  the  publication,  to  be  issued  in 
one  volume  and  to  embrace  the  general  laws  passed  subsequent  to  the  issue  of  the 
Revised  Statutes  and  including  those  of  the  Forty -seven  th ,  Forty-eighth,  Forty-ninth, 
Fiftieth,  and  Fifty-first  Congresses.     See  note  2  to  paragraph  423,  post. 


MILITARY    LAWS    OF   THE    UNITED    STATES. 


175 


50- 


contents. 


475.  The  publication  herein  authorized  shall  be  taken  to  ,  T,°  b?,  Prim* 

r  facie  evidence. 

be  prirna  facie  evidence  of  the  laws  therein  contained,  in  all    IUd- 
the  courts  of  the  United  States  and  of  the  several  States 
and  Territories  therein;  but  shall  not  preclude  reference 
to,  nor  control,  in  case  of  any  discrepancy,  the  effect  of 
any  original  act  as  passed  by  Congress:  Provided,  That    Proviso. 
nothing  herein  contained  shall  be  construed  to  change  or 
alter  any  existing  law.     Ibid. 

THE  SUPPLEMENT  OF  1891,  VOL.  I. 

476.  That  the  publication  of  the  Supplement  to  the  Re- 
vised  Statutes,  embracing  the  statutes  general  and  perma- 
nent  in  their  nature,  passed  after  the  Revised  Statutes,  26 
with  references  connecting  provisions  on  the  same  subject, 
explanatory  notes,  and  citations  of  judicial  decisions,  be 
continued  and  issued  in  one  volume,  to  include  the  general 
laws  of  the  Forty-seventh,  Forty-eighth,  Forty-ninth,  Fif- 
tieth, and  Fifty-first  Congresses,  with  a  table  of  alterations 
and  a  general  index  to  the  whole,  to  be  prepared  and  edited 
by  the  editor  of  the  existing  Supplement,  authorized  by  the 
joint  resolution  of  June  twenty  -eighth,  eighteen  hundred 
and  eighty,  numbered  forty-four  (Supplement  to  Revised 
Statutes,  page  five  hundred  and  eight}^-two),  to  be  stereo- 
typed at  the  Government  Printing  Office,  using  the  present 
plates,  as  far  as  practicable,  with  such  alterations  as  may 
be  found  necessary,  the  work  and  plates  and  all  right  and 
title  therein  and  thereto  to  be  in  and  fully  belong  to  the 
Government  for  its  exclusive   use  and  benefit.     Act  of 
April  9,  1890  (26  Stat.  Z.,  50). 

*  X-  *  *  * 

477.  That  the  publication   herein    authorized  shall  be 
taken  to  be  prima  facie  evidence  of  the  laws  therein  con- 
tained,  but  shall  not  change  nor  alter  any  existing  law,  nor 
preclude  reference  to  jior  control,  in  case  of  any  discrep- 
ancy, the  effect  of  any  original  act  passed  by  Congress.1 
Sec.  3,  ibid. 

THE  SUPPLEMENT  OF  1895,  VOL.  II. 

478.  That  the   publication  of   the   Supplement  to  ^ 
Revised   Statutes  of  the  United  States  shall  be  further  27F£b$; 
continued  under  the  editorial  charge  of  the  editor  of  the 

1  The  volume  published  in  conformity  to  the  authority  herein  conferred  was  pub- 
lished in  1891,  and  is  entitled  "Vol.  1,  Supplement  to  the  Revised  Statutes  of  the 
United  States.     Second  edition.     1874-1891,"  and  supersedes  the  volume  jwbhshed 
under  the  authority  ronferred  by  the  joint  resolution,  No.  44,  of  June  /,  U 
Stat.  L.,  308). 


'  v' 


To  enable  Hie  Secretary  of  die  Treasury  to  J*T, 
the  work  shall  be  competed,  for  preparing  and  edit- 
Supplement  to  the  KeTked  Statutes  of  the  United 
Slates  for  the  Ftftr  ifth  Coagress,  under  the  adtof  Feb- 

hundred  and  ninetr-three 


doOais.     Ac*+fJ*/y  1,1398  (30  Slot.  L., 
4M.  Hereafterthe  S«pp*emeiit  of  the  Re  vised  Statote 
dhdc^topriybiBiafttfbMaqpiiittn 

in  one  volume,  and  an  expenses  of  preparing  and  editing 
the  same  shall  not  exceed  one  thousand  dollars.     Act  of 


SEATCTFS  AT 


4SL  At  the  end  of  each 
of 


United 


shall  be  stereo- 
the 

of  tiie 
of  said  uam~ 


7-  -r.  -L 


~:  -   --- 


-:-  :- 
Xf  :• 
:-  ; 


i 


I 


MTLJT AET   I. AW5  Of  THE   tJinEl>  9XATJE5. 


prorided  for  the  priBtng9dfetribiition. 
•et  of  April 


The  Scuetatj  of  Slate  shall 


be  Bade  afc  UK  dose  of  CTCTJ 

::..:-- 

To  the  Preadent  and   Vke-Preaifc^  of  the  U 
Stales,  two 


To  tbe  War  Department,  two  hundred  copies; 


See.  7f, 
483.  TU  ^"i  i  ii  tii     of  I'tifr  i   iiilhiHJiMl  In  hut 


needful  for 

not  exceeding'  one  thousand  copies  of  the  laws  of 

^^      fl^gfc  «*MKirM*  in  *mw  niM~  vwvr          Tl^J 

484.  After  the  doee  of  each  Congress  the  Secretary  of   5ST 
State  shall  have  edited, 
of  the 

to  enable  kaa\  to 
ies,  or  as  many  thereof  as  may  be  needed,  as  foDovs: 

To  the  Prudent  of  the  United  States.  & 
one  of  wtndi  sfaaU  be  f or  the  Hbnrr  of  the 


of  the  United  States  to 


178 


MILITARY    LAWS    OF    THE    UNITED    STATES. 


the  public  expense,  by  authority  of  law,  shall  preserve 
such  copies,  and  deliver  them  to  their  successors  respec- 
tively as  a  part  of  the  property  appertaining  to  the  office. 
A  printed  copy  of  this  section  shall  be  inserted  in  each 
volume  of  the  Statutes  distributed  to  any  such  officers. 


ARMY    REGULATIONS. 


Par. 

487. 


President  authorized  to  make  and 
publish  regulations  for  the  Army. 


Par. 


488.  Secretary  of  War  to  cause  all  regu- 
lations now  in  force  to  be  codified 
and  published  to  the  Army. 


thSdetomaake     487>  That  so  mucl1  of  the  act  aPPr°ved  July  15,  1870,1 
SSftwns1!?  rteheentitled  Uj^n  ac^  making  appropriations  for  the  support  of 
AMar  i  1875  v  ^ne  Army  for  the  year  ending  June  30,  1871,  and  for  other 
is,  p.  337.          purposes  "  as  requires  the  system  of  General  Regulations 
for  the  Army  therein  authorized  to  be  reported  to  Congress 
at  its  next  session,  and  approved  by  that  body  be,  and  the 
same  is  hereby,  repealed;    and  the  President  is  hereby 
authorized,  under  said  section,  to  make  and  publish  regu- 
lations for  the  government  of  the  Army  in  accordance  with 
existing  laws.2     Act  of  March  1,  1875  (18  Stat.  Z.,  337.) 

1  Section  37  of  the  act  of  July  28,  1866  (14  Stat.  L.,  337),  contained  the  following 
requirement:  "The  Secretary  be  and  he  is  hereby  directed  to  have  prepared  and  to 
report  to  Congress,  at  its  next  session,  a  code  of  regulations  for  the  government  of 
the  Army,  and  of  the  militia  in  actual  service,  which  shall  embrace  all  necessary 
orders  and  forms  of  a  general  character  for  the  performance  of  all  duties  incumbent 
on  officers  and  men  in  the  military  service,  including  rules  for  the  government  of 
courts-martial,  the  existing  regulations  to  remain  in  force  until  Congress  shall  have 
acted  on  said  report."     No  code  of  regulations  was  submitted  to  Congress  in  con- 
formity to  the  terms  of  this  statute,  and  it  was  subsequently  held  by  the  Attorney- 
General  of  the  United  States,  in  an  opinion  rendered  in  the  case  of  Contract-Surgeon 
Bayne  (XVII  Opin.  Att.  Gen.,  461),  that  the  above  section,  if  not  repealed  by  the 
general  repealing  clause  of  the  Revised  Statutes  (section  5596),  was  superseded  by 
the  act  of  March  1, 1875  (18  Stat.  L.,  337),  (a)  which  in  effect  conferred  authority  to 
modify  existing  Army  Eegulations  as  well  as  to  create  new  ones.     It  was  also  held 
by  the  same  officer  that  the  code  of  regulations  prepared  in  conformity  to  the  author- 
ity conferred  by  section  2  of  the  act  of  June  23, 1879,  (6)  which  was  approved  and  pub- 
lished to  the  Army  on  February  17,  1881  (Army  Regulations  of  1881),  superseded 
the  code  of  Army  Regulations  of  1863  (XVII  Opin.  Att.  Gen.,  461).     See,  also,  U.  S. 
v.  Eaton,  144  U.  S.,  617,  688;  Caha  v.  U.  S.,  152  D.  S.,  212,  219;  Morrison  v.  U.  S., 
13  Ct.  Cls.,  1-6;  Smith  v.  U.  S.,  23  ibid.,  452;  Low  v.  Harrison,  72  Maine,  104. 

2  The  codification  of  the  "Regulations  of  the  Army  and  General  Orders,"  prepared 
in  conformity  to  section  2  of  the  Act  of  June  23,  1879  (21  Stat.  L.,  34),  which  was 
approved  and  promulgated  to  the  Army  on  February  17,  1881  (Army  Regulations  of 
1881) ,  superseded  the  body  of  regulations  similarly  promulgated  in  1863.     XVII 
Opin.  Att.  Gen.,  461. 

The  Army  Regulations  derive  their  force  from  the  power  of  the  President  as  Com- 
mander in  Chief,  and  are  binding  upon  all  within  the  sphere  of  his  legal  and  consti- 
tutional authority.  Kurtz  v.  Moffatt,  115  U.  S.,  487,  503;  U.  S.  v.  Eliason,  16  Pet,  291; 
U.  S.  v.  Freeman,  3  How.,  556.  The  power  of  the  Executive  to  establish  rules  and 
regulations  for  the  government  of  the  Army  is  undoubted.  The  power  to  establish 
implies,  necessarily,  the  power  to  modify  or  repeal,  or  to  create  anew.  The  Secretary 
of  War  is  the  regular,  constitutional  organ  of  the  President  for  the  administration  of 
the  military  establishment  of  the  nation,  and  orders  publicly  promulgated  through 


«  Paragraph,  post. 


b  21  Stat.  L.,  34. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  179 

489.  That  the  Secretary  of  War  is  authorized  andw^crettu:y  of 
directed  to  cause  all  the  regulations  of  the  Army  now  in  [nlorcSbecST 
force  to  be  codified  and  published  to  the  Armv,  and  to!^e£  a"d  ?ub- 

"  '  lished  to  the 

defray  the  expenses  thereof  out  of  the  contingent  fund  Ars™J-2  June  ^ 
of  the  Army . l  Sec.  2,  act  of  June  23,  1879  (21  Stat.  L. ,  34).  187^v-  &.  ™«- ' 

him  must  be  received  as  the  act  of  the  Executive  and,  as  such,  be  binding  upon  all 
within  the  sphere  of  his  legal  or  constitutional  authority.  Such  regulations  can  not 
be  questioned  or  defied  because  they  may  be  thought  unwise  or  mistaken.  U.  S.  v. 
Eliason,  16  Pet,  291,302. 

The  term  regulations  of  an  Executive  Department  describes  rules  and  regulations 
relating  to  subjects  on  which  a  department  acts,  which  are  made  by  the  head  under 
an  act  of  Congress  conferring  that  power,  and  thereby  giving  to  such  regulations  'he 
force  of  law.  A  mere  order  of  the  President  or  of  a  Secretary  is  not  a  regulation. 
Harvey  v.  U.  S.,  3  Ct.  Cls.,  38,  42;  Dig.  Opin.  J.  A.  G.,  par.  494,  and  note  1;  IV 
Compt.  Dec.,  225.  A  "regulation"  affects  a  class  of  officers;  an  "instruction"  is  a 
direction  to  govern  the  conduct  of  the  particular  officer  to  whom  it  is  addressed. 
Landram  v.  U.  S.,  16  Ct.  Cls.  74.  The  Army  Regulations  when  sanctioned  by  the 
President  have  the  force  of  law,  because  it  is  done  by  him  by  the  authority  of  law. 
U.  S.  v.  Freeman,  3  How.,  556;  Gratiot  v.  U.  S.,  4  How.,  80;  Ex  parte  Reed,  100  U.  S., 
13;  Smith  v.  U.  S.,  23  Ct.  Cls.,  452.  When  Congress  permits  regulations  to  be 
formulated  and  published  and  carried  into  effect  from  year  to  year,  the  legislative 
ratification  must  be  implied.  Maddox  v.  U.  S.,  20  Ct.  Cls.,  193,  198. 

The  authority  of  the  head  of  an  Executive  Department  to  issue  orders,  regula- 
tions, and  instructions,  with  the  approval  of  the  President,  is  subject  to  the  Condi- 
tion, necessarily  implied,  that  they  must  be  consistent  with  the  statutes  which  have 
been  enacted  by  Congress.  U.  S.  v.  Symonds,  120  U.  S.,  46,  49;  U.  S.  v.  Bishop, 
idem.,  51;  Dig.  Opin.  J.  A.  G.,  par.  494,  note  2;  par.  6,  p.  168.  Regulations  can 
have  no  retroactive  effect.  (U.  S.  v.  Davis,  132  U.  S. ,  334. )  Provision  of  statute  exists 
by  which  the  statute  regulations  of  the  Army  may,  within  certain  limits,  be  altered 
by  the  Secretary  of  War,  but  there  is  no  such  provision  in  regard  to  the  statute 
regulations  of  the  Navy.  VI  Opin.  Att.  Gen.,  10;  8  ibid.,  337.  The  same  discrepancy 
exists  in  the  military  law  of  Great  Britain.  Ibid. 

Regulations  prescribed  and  framed  by  the  Secretary  of  War  and  which  are  intended 
for  the  direction  and  government  of  the  officers  of  the  Army  and  agents  of  the 
Department  do  not  bind  the  Commander  in  Chief  nor  the  head  of  the  War  Depart- 
ment. Burns  v.  U.  S.,  12  Wall.,  246;  Smith  v.  U.  S.,  24  Ct.  Cls.,  209,  215.  But  see 
Arthur  v.  U.  S.,  16  Ct.  Cls.,  422,  and  U.  S.  v.  Barrows,  1  Abb.,  351. 

Regulations  which  heads  of  Departments  are  expressly  authorized  to  make,  in 
which  the  public  is  interested,  become  a  part  of  that  body  of  public  records  of  which 
fhe  courts  take  judicial  notice.  Caha  v.  U.  S.,  152  U.  S.,  211. 

The  purpose  of  a  regulation  is  to  carry  into  effect  the  law;  but  where  rights,  duties, 
and  obligations  are  defined  by  statute  they  can  not  be  taken  away  or  abridged  by 
regulations.  Laurey  v.  U.  S.,  32  Ct  Cls.,  259;  U.  S.,  v.  Garlinger,  169  U.  S.,  316. 

While  regulations  duly  promulgated  have  the  force  of  law  in  a  limited  sense,  they 
can  not  enlarge  or  restrict  the  liability  of  the  officer  on  his  bond.  Meads  v.  U.  S.,  81 
Fed.  Rep.,  684. 

Amendment  and  waiver  of  regulations. — Regulations  made  by  the  head  of  a  Depart- 
ment may  be  amended  or  waived  in  their  application  to  particular  cases.  Ill  Compt. 
Dec.,  305;  IV,  ibid.,  40;  I,  ibid.,  326.  There  must  be  a  specific  waiver,  however,  and  in 
the  absence  of  such  specific  waiver  the  regulation  as  it  stands  will  be  applied  by  the 
accounting  officers  in  the  settlement  of  accounts.  Ill,  ibid.,  304;  IV,  ibid.,  40. 

1  The  Secretary  of  War  is  expressly  authorized  by  other  enactments  of  Congress  to 
prescribe  regulations  for  the  transportation,  safe-keeping,  and  distribution  of  articles 
of  supply  purchased  by  the  Quartermaster's  and  Subsistence  Departments  (sec.  219, 
R.  S. ) ;  for  the  preparation,  submission,  and  opening  of  bids,  act  of  April  10,  1878 
(20  Stat.  L.,  36) ;  for  the  deposit  of  refuse  and  debris  from  rivers  that  is  calculated  to 
interfere  with  navigation,  act  of  August  5,  1886  (24  Stat.  L.,  329);  for  the  deposit  of 
refuse  material  beyond  the  harbor  lines  established  in  accordance  with  statutes,  sec.  11, 
act  of  September  11,  1890  (26  Stat.  L.,  455);  for  the  use  of  the  channel  at  the  mouth 
of  the  Mississippi  River  which  has  been  improved  by  the  United  States,  act  of  June 
1,  1874  (18  Stat.  L.,  50);  for  the  use  and  operation  of  canals  and  other  works  of  river 
and  harbor  improvement  which  have  been  purchased  or  constructed  by  the  United 
States,  sec.  4,  act  of  August  17,  1894  (28  Stat.  L.,  362);  for  the  construction  of  bridges 
across  the  navigable  waters  of  the'United  States;  for  the  use  of  certain  drawbridges, 


180 


MILITARY    LAWS    OF    THE    UNITED    STATES. 


THE    ARMY    REGISTER. 


Par. 


490.  Army  Register  to  be  furnished  an- 

nually to  the  Senate. 

491.  The  same  to  be  furnished  annually 

to  the  House  of  Representatives. 


Par. 

492.  Schedule  of  pay  to  appear. 

493.  Volunteer  rank. 

494.  Lineal  rank. 


Army  Register 
to  be  furnished 


490.  That  the  Secretary  of  War  and  the  Secretary  of  the 
senately  to  the  ^avy  be  requested  to  furnish  annually,  on  the  first  of  Jan- 
i3Si8i5res'  Dec'  ualT5  ea°h  member  of  the  Senate  with  a  copy  of  the  Reg- 
ister of  the  officers  of  the  Army  and  Navy  of  the  United 
States.     Senate  resolution,  December  13,  1815. 

sec.  5  (ibid. ) ;  to  secure  a  proper  administrative  examination  of  accounts  sent  to  him 
hi  accordance  with  the  provisions  of  the  act  of  July  31,  1894  (28  Stat.  L.,  211);  to 
carry  out  the  provisions  of  the  act  of  March  29,  1894  (28  Stat.  L.,  47),  in  relation  to 
property  returns,  etc. 

Regulation,0  may  be  divided  into  different  classes  with  respect  to  the  question  of 
the  power  of  the  person  making  the  regulation  to  authorize  an  exception  to  it. 
There  are,  or  may  be,  those  which  have  received  the  sanction  of  Congress,  and  it  is 
evident  that  the  Secretary  of  War  would  have  no  authority  to  make  an  exception  to 
one  of  these.  There  are  also  those  that  are  made  pursuant  to  and  in  aid  of  a  statute. 
These  may  be  modified,  but  until  this  is  done  are  binding  as  well  on  the  authority 
that  made  them  as  on  others.  U.  S.  v.  Barrows,  1  Abbott,  351. 

There  is  also  a  large  body  of  other  regulations  emanating  from  and  depending 
solely  on  the  authority  of  the  President  as  Commander  in  Chief.  With  reference  to 
such  regulations  it  has,  I  believe,  been  sometimes  claimed  that  the  same  rule  should 
be  applied  to  them  that  is  applied  to  the  regulations  made  pursuant  to  statute.  But 
this  has  not  been  done  in  practice,  and  I  do  not  think  that  it  should  be  done,  for  the 
reason  that  it  would  seem  to  be  an  unnecessary,  embarrassing,  and  perhaps  uncon- 
stitutional limitation  of  the  authority  of  the  President  as  Commander  in  Chief.  Opin. 
J.  A.  Gen..  March  5,  1896. 

HISTORICAL   NOTE. 

The  first  volume  of  Army  Regulations,  using  that  term  in  the  sense  in  which  it  is 
now  understood,  was  issued  to  the  Army  on  May  1,  1813,  under  the  authority  con- 
ferred by  the  act  of  March  3  of  that  year. 

From  March  29,  1779,  until  May  1,  1813,  the  "Regulations  for  the  Order  and  Dis- 
cipline of  the  Troops  of  the  United  States"  were  in  force.  They  were  prepared  by 
Major-General  Baron  Steuben,  the  Inspector-General  of  the  Army  during  the  latter 
part  of  the  war  of  the  Revolution,  and  consisted  in  great  part  of  matter  which  would 
now  be  properly  termed  drill  regulations.  The  work  was  first  printed  at  Worcester, 
Mass.,  in  1778,  and  was  formally  approved  and  adopted  by  Congress  on  March  29, 
1779.  The  last  edition  of  the  Steuben  regulations  appeared  in  1809,  and  it  continued 
in  use  as  a  drill  book  after  it  had  ceased  to  have  authority  as  a  volume  of  army  regu- 
lations. In  1808  a  small  volume  was  published,  apparently  with  the  sanction  of  the 
War  Department,  containing  the  Articles  of  War  which  had  been  enacted  in  1806, 
to  which  were  added  such  military  laws  as  were  then  in  force. 

Section  5  of  the  act  of  March  3,  1813  (2  Stat.  L.,  819),  required  the  Secretary  of 
War  to  prepare  general  regulations  which,  "when  approved  by  the  President  of  the 
United  States,  shall  be  respected  and  obeyed  until  altered  or-  revoked  by  the  same 
authority."  The  volume  of  regulations  issued  in  pursuance  of  this  authority  was 
entitled  "Military  laws  and  rules  and  regulations  for  the  armies  of  the  United 
States,"  and  was  approved  by  the  President  on  May  1,  1813.  It  contained  the 
Articles  of  War  of  1806,  together  with  the  statutes  relating  to  the  military  establish- 
ment and  a  small  number  of  regulations,  properly  so  called.  Editions  of  this  work 
were  published  in  1814  and  1815,  the  latter,  however,  without  the  authority  of  the 
War  Department. 

The  act  of  April  24,  1816  (3  Stat.  L.,  298),  provided  that  the  "regulations  in  force 
before  the  reduction  of  the  Army  be  recognized  as  far  as  the  same  shall  be  found 
applicable  to  the  service,  subject,  however,  to  such  alterations  as  the  Secretary  of 
War  may  adopt,  with  the  approbation  of  the  President."  In  accordance  with  this 


MILITARY   LAWS    OF   THE   UNITED   STATES. 

491.  That  the  Secretary  of  War  cause  to  be  annually  laid 

before  this  House  a  number  of  copies  of  the  printed  armyalf1ytotheHouse 

,       *  *  *  of  Kepresenta- 

list,  equal  to  the  number  of  members  of  the  House.     House  ^55^^ 
resolution,  February  1,  1830.  Feb-  L  »»•" 

492.  That  there  be  annexed  annually  hereafter  to  the    Schedule  of 
Army  Register  an  accurate  schedule  of  the  pay  and  emolu-    House    rea. 

Aui?  30  1842 

ments,  with  the  commutation  value  thereof,  to  which  the 
various  officers  of  the  Army  of  each  grade  are  entitled 
House  resolution,  August  30, 18J$. 

493.  The  highest  volunteer  rank  which  has  been  held  by    volunteer 
officers  of  the  Regular  Army  shall  be  entered,  with  their  Sec.'  1220,  R.  s. 
names,  respectively,  upon  the  Army  Register. 

legislation  a  volume  of  regulations  was  issued  in  September,  1816,  and  in  January, 
1820,  a  new  edition  containing  the  orders  of  the  War  Department  issued  since  Sep- 
tember, 1816. 

Section  14  of  the  act  of  March  2,  1821  (3  Stat.  L.,  616),  contained  a  provision  that 
"the  system  of  regulations  prepared  by  Major-General  Scott  shall  be,  and  the  same 
are  hereby,  approved  and  adopted  for  the  government  of  the  Army  of  the  United 
States  and  of  the  militia  when  in  the  service  of  the  United  States."  These  regula- 
tions were  approved  by  President  Monroe  and  published  to  the  Army  in  July,  1821. 
On  May  7,  1822,  section  14  of  the  act  of  March  2,  1821,  was  formally  repealed,  thus 
withdrawing  the  legislative  sanction  which  had  been  conferred  by  the  statute  above 
cited.  As  to  this  enactment  Attorney-General  Wirt  advised  that,  "  notwithstanding 
such  repeal,  the  regulations  having  received  the  sanction  of  the  President,  continued 
in  force  by  the  authority  of  the  President  in  all  cases  where  they  did  not  conflict 
with  positive  legislation."  1  Opin.  Att.  Gen.,  549.  The  Regulations  of  1821  were 
revised  under  the  direction  of  General  Scott  and  a  new  edition  was  issued  on  March  1, 
1825,  which  continued  in  force  until  1835. 

A  volume  of  General  Regulations,  compiled  under  the  direction  of  Major-General 
Macomb,  was  printed  and  prepared  for  issue  on  September  1,  1835,  but  was  not 
formally  approved  and  promulgated  until  December  31,  1836.  A  second  edition  of 
this  work,  with  some  modifications,  was  issued  in  1841,  and  a  third  edition,  contain- 
ing alterations  and  amendments,  which  have  been  promulgated  in  orders  or  taken 
from  former  volumes  of  regulations,  was  issued  to  the  Army  on  May  1,  1847. 

On  January  1, 1857,  a  volume  of  Army  Regulations,  containing  a  number  of  impor- 
tant modifications,  together  with  a  general  rearrangement  of  paragraphs  and  subject- 
matter,  was  prepared  under  the  direction  of  Secretary  Davis,  and  published  with  the 


Regulations  and  Articles  of  War.5 

The  thirty-seventh  section  of  the  act  of  July  28,  1866  (14  Stat.  L.,  337),  directed 
the  Secretary  of  War  'Ho  have  prepared  and  to  report  to  Congress  at  its  next  session 
a  code  of  regulations  for  the  government  of  the  Army  and  of  the  militia  in  actual 
service,  which  shall  embrace  all  necessary  orders  and  forms  of  a  general  character  for 
the  performance  of  all  duties  incumbent  on  officers  and  men  in  the  military  service, 
including  rules  for  the  government  of  courts-martial;  the  existing  regulations  to 
remain  in  force  until  Congress  shall  have  acted  on  said  report."  No  code  of  regula- 
tions having  been  submitted,  Congress  provided,  in  section  20  of  the  act  of  July  15, 
1870  (16  Stat.  L.,  319),  that  "the  Secretary  of  War  shall  prepare  a  system  of  general 
regulations  for  the  administration  of  the  affairs  of  the  Army,  which,  when  approved 
by  Congress,  shall  be  in  force  and  obeyed  until  altered  or  revoked  by  the  same 
authority,  and  said  regulations  shall  be  reported  to  Congress  at  its  next  session: 
Provided,  That  the  said  regulations  shall  not  be  inconsistent  with  the  laws  of  the 
United  States." 

In  conformity  to  this  legislation  a  code  of  regulations,  which  had  been  prepared  by  a 
board  of  officers  of  which  Inspector-General  Marcy  was  the  president,  was  submitted  to 
the  House  of  Representatives  on  February  17, 1873,  and  was  by  that  body  referred  t< 
Committee  on  Military  Affairs  and  ordered  to  be  printed.     No  steps  looking  to  their 
adoption  were  taken  during  the  remainder  of  the  session,  and  the  Finty-second  Con- 


182  MILITAEY    LAWS    OF   THE    UNITED    STATES. 


etc 


cineal  rank>      494>  *n  ever.Y  Official  Army  Register  hereafter  issued 

upei49'  the  lineal  rank  of  a11  officers  of  tne  line  of  tne  Army  shall 
be  given  separately  for  the  different  arms  of  the  service; 
and  if  the  officer  be  promoted  from  •  the  ranks,  or  shall 
have  served  in  the  Volunteer  Army,  either  as  an  enlisted 
man  or  officer,  his  service  as  a  private  and  noncommissioned 
officer  shall  be  given,  and  in  addition  thereto  the  record  of 
his  service  as  volunteer.  Sec.  2,  act  of  June  18,  1878  (20 
Stat.  L.,149). 

gress  adjourned  without  action.  The  question  was  taken  up  by  the  Military  Com- 
mittee of  the  House  of  Representatives  in  the  Forty-third  Congress,  and  the  proposi- 
tion of  adopting  a  code  of  Army  Regulations  was  carefully  considered.  The  conclu- 
sion reached  by  the  committee  was  that  the  power  to  make  and  amend  or  alter  reg- 
ulations had  best  be  left  to  Executive  discretion.  To  that  end  a  recommendation 
was  submitted,  which  was  adopted  by  Congress  and  approved  by  the  President  on 
March  1,  1875  (18  Stat.  L.,  337).  This  enactment  repealed  section  20  of  the  act  of 
July  15,  1870,  and  authorized  the  President  "to  make  and  publish  regulations  for  the 
government  of  the  Army  in  accordance  with  existing  laws." 

Section  2  of  the  act  of  June  23,  1879  (21  Stat.  L.,  34)  ,  authorized  and  directed  the 
Secretary  of  War  '  '  to  cause  all  the  regulations  now  in  force  to  be  codified  and  pub- 
lished to  the  Army,"  and  provided  that  the  expense  attending  the  publication  of  the 
work  should  be  defrayed  from  the  appropriation  for  the  contingent  expenses  of  the 
Army  for  the  current  fiscal  year.  Under  the  authority  thus  conferred  the  Regula- 
tions of  1881  were  prepared  and  issued  to  the  Army,  the  order  of  promulgation  bear- 
ing date  February  17,  1881.  A  revision  and  condensation  of  this  volume  was  issued 
by  the  Secretary  of  War  on  February  9,  1889.  The  Regulations  now  in  force  became 
effective  on  October  31,  1895,*  having  received  Executive  approval  on  that  date. 


CHAPTER   XI. 


THE     MILITARY     ESTABLISHMENT  ^GENERAL     PROVI- 
SIONS OF  ORGANIZATION. 

THE  MILITARY  FORCES  OF  THE  UNITED  STATES. 
COMPOSITION. 

THE    REGULAR   ARMY THE    VOLUNTEER   ARMY — THE    MILITIA.8 


495-498.  Composition. 

499-508.  The  permanent  establishment. 

509-514.  The  war  establishment. 

515-516.  Increase  of  1899. 

517-528.  The  Volunteer  Armv. 


Par. 

529-534.  Tactical  organizations. 

535-542.  Disbandment. 

543-554.  The  Volunteer  Army  of  1899. 
General  officers,  aids,  and  mil- 
itary secretaries. 


COMPOSITION. 


Par. 

495.  The  national  forces. 

496.  Composition. 

497.  The  Regular  Army. 

498.  The  Volunteer  Army. 

499.  The  Regular  Army.  * 

500.  Composition. 

501.  Native  troops,  Philippine  Islands. 


Par. 

502.  The  same,  officers. 

503.  The  same,  pay  and  allowances. 

504.  The  same,  enlisted  men. 

505.  The  Porto  Rican  regiment. 

506.  Indian  scouts. 

507.  508.  Enlisted  strength  of  the  Army, 

restriction. 


495.  All  able-bodied  male  citizens  of  the  United  States, 
and  persons  of  foreign  birth  who  shall  have  declared  their 
intention  to  become  citizens  of  the  United  States  under 
and  in  pursuance  of  the  laws  thereof,  between  the  ages  of 
eighteen  and  forty  -five  years,  are  hereby  declared  to  con- 
stitute the  national  forces,  and,  with  such  exceptions  and 
under  such  conditions  as  may  be  prescribed  by  law,  shall 
be  liable  to  perform  military  duty  in  the  service  of  the 
United  States.     Sec.  Jf,  act  of  April  22,  1898  (30  Stat.  L., 
361). 

496.  The  organized  and  active  land  forces  of  the  United 
States  shall  consist  of  the  Army  of  the  United  States  and  2'  v- 


national 


p-  a 


1  For  a  note  respecting  the  statutory  history  of  the  military  establishment,  see  the 
end  of  chapter. 

-  For  statutes  respecting  the  militia,  see  chapter  XXXV,  post. 

183 


184  MILITARY    LAWS    OF   THE   UNITED    STATES. 

of  the  militia  of  the  several  States  when  called  into  the 
service  of  the  United  States:2  Provided,  That  in  time  of 
war  the  Army  shall  consist  of  two  branches  which  shall  be 
designated,  respectively,  as  the   Regular  Army  and  the 
Volunteer  Army  of  the  United  States.  l     Sec.  8,  ibid. 
Am6    Regular     497.  The  Regular  Army  is  the  permanent  military  estab- 
_  AP£.22'Jg8>s-lishment,  which  is  maintained  both  in  peace  and  war  ac 

o,  V.  oU,  p.  obi. 

cording  to  law.2     Sec.  3,  ibid. 

Am£V°lunteer  498-  Tne  Volunteer  Army  shall  be  maintained  -only  dur- 
4  v^o5?'  36i8'  s'  iQg  the  existence  of  war,  or  while  war  is  imminent,  and 
shall  be  raised  and  organized,  as  in  this  act  provided,  only 
after  Congress  has  or  shall  have  authorized  the  President 
to  raise  such  a  force  or  to  call  into  the  actual  service  of  the 
United  States  the  militia  of  the  severa.  States:  Provided, 
That  all  enlistments  for  the  Volunteer  Army  shall  be  for 
a  term  of  two  years,  unless  sooner  terminated,  and  that  all 
officers  and  men  composing  said  army  shall  be  discharged 
from  the  service  of  the  United  States  when  the  purposes 
for  which  they  were  called  into  service  shall  have  been 
accomplished,  or  on  the  conclusion  of  hostilities.3  Sec.  h 


THE  PERMANENT  ESTABLISHMENT. 
THE    REGULAR   ARMY. 

The    Regular    -499.    The   Regular  Army   is   the   permanent  military 
Apr!  22,  1898,  s.  establishment,  which  is  maintained  both  in  peace  and  war 
according  to  law.     Sec.  3,  act  of  April  ##,  1898  (30  Stat. 
L.  361). 

composition.  5QO.  From  and  after  the  approval  of  this  act  the  Army 
of  the  United  States,  including  the  existing  organizations, 
shall  consist  of: 

3iFeb?4l'  1901>  v"     Fifteen  regiments  of  cavalry. 
sec.  1694  R.  s.      A  corps  of  artillery. 

Thirty  regiments  of  infantry. 
One  Lieutenant-General. 

1  The  invariable  policy  of  the  Government  has  been  to  consider  the  military  forces 
as  falling  into  two  classes:  Those  who  were  soldiers  or  sailors  by  profession,  irre- 
spective of  the  national  exigency,  who  took  war  when  it  came,  and,  if  they  survived 
it,  continued  to  make  military  occupation  the  business  of  their  lives;  second,  those 
who  left  their  ordinary  avocations  at  the  outbreak  of  or  during  the  continuance  of 
hostilities  and  enlisted  with  the  expectation  of  serving  only  so  long  as  the  exigency 
continued.     Cleary  v.  U.  S.,  35  Ct.  Cls.,  207,  211. 

2  For  the  composition  and  organization  of  the  Regular  Army,  see  paragraphs  499  to 
508,  post;  see  also  the  chapters  entitled,  respectively,  STAFF  DEPARTMENTS  and  THE 
TROOPS  OF  THE  LINE.     For  the  war  organization  of  the  Regular  Army,  see  paragraphs 
509  to  514,  post. 

3  For  organization,  composition,  etc.,  of  the  volunteer  armies  see  act  of  April  21, 
1898  (30  Stat.  L.,  361);  for  composition  and  organization  of  the  volunteer  forces 
authorized  by  the  act  of  March  2,  1899,  see  paragraphs  543  to  554,  post. 


MILITARY   LAWS   OF   THE   UNITED   STATES.  185 

\ 

Six  major-generals. 

Fifteen  brigadier-generals. 

An  Adjutant-General's  Department. 

An  Inspector-General's  Department. 

A  Quartermaster's  Department.1 

A  Subsistence  Department.8 

A  Pay  Department. 

A  Medical  Department.3 

A  Corps  of  Engineers.* 

An  Ordnance  Department.6 

A  Signal  Corps.6 

The  officers  of  the  Record  and  Pension  Office. 

The  Chaplains. 

The  officers  and  enlisted  men  of  the  Army  on  the  retired 
list. 

The  professors,  the  Corps  of  Cadets,  the  Army  Detach- 
ments, and  band  of  the  Military  Academy. 

Indian  Scouts,  as  now  authorized  by  law;  and  such  other 
officers  and  men  as  may  hereinafter  be  provided  for.  Act 
of  February  2,  1901  (31  Stat.  Z.,  748). 

NATIVE  TROOPS — TROOPS   IN  THE  PHILIPPINE   ISLANDS. 

501.  That  when  in  his  opinion  the  conditions  in  the  p  JrPf fp  jfj  J1® 
Philippine  Islands  justify  such  action  the  President  isjgggf-  Organi' 
authorized  to  enlist  natives  of  those  islands  for  service  in  36f ^V.'p!  757. 8' 
the  Army,  to  be  organized  as  scouts,  with  such  officers  as 
he  shall  deem  necessary  for  their  proper  control,  or  as 
troops  or  companies,  as  authorized  by  this  act,  for  the 
Regular  Army.  The  President  is  further  authorized,  in 
his  discretion,  to  form  companies,  organized  as  are  com- 
panies of  the  Regular  Army,  in  squadrons  or  battalions, 
with  officers  and  noncommissioned  officers  corresponding 
to  similar  organizations  in  the  cavalry  and  infantry  arms. 
The  total  number  of  enlisted  men  in  said  native  organi- 
zations shall  not  exceed  twelve  thousand,  and  the  total 
enlisted  force  of  the  line  of  the  Army,  together  with  such 
native  force,  shall  not  exceed  at  any  one  time  one  hundred 
thousand.  Sec.  36,  act  of  February  2,  1901  (31  Stat.  Z., 
757). 

1  Including  a  force  of  post  quartermaster-sergeants  and  detachment  of  army  serv- 
ice men  at  the  Military  Academy. 

2  Including  a  force  of  post  commissary-sergeants. 

3  Including  the  Hospital  Corps  and  the  nurse  corps  (female). 
*  Including  a  band  and  three  battalions  of  engineer  soldiers. 

6  Including  a  corps  of  ordnance  sergeants  and  a  force  of  enlisted  men  of  ordnance. 
6  Including  an  enlisted  force  of  sergeants,  corporals,  and  privates. 


186  MILITARY    LAWS    OF   THE    UNITED    STATES. 

The  same,  offi-     502.  The  majors  to  command  the  squadrons  and  bat- 
ceibtd.  talions  shall  be  selected  by  the  President  from  captains  of 

the  line  of  the  Regular  Army,  and  while  so  serving  they 
shall  have  the  rank,  pay,  and  allowances  of  the  grade  of 
major.  The  captains  of  the  troops  or  companies  shall  be 
selected  by  the  President  from  the  first  lieutenants  of  the 
line  of  the  Regular  Army,  and  while  so  serving  they  shall 
have  the  rank,  pay,  and  allowances  of  captain  of  the  arm 
to  which  assigned.  The  squadron  and  battalion  staff  offi- 
cers, and  first  and  second  lieutenants  of  companies,  may 
be  selected  from  the  noncommissioned  officers  or  enlisted 
men  of  the  Regular  Army  of  riot  less  than  two  years' 
service,  or  from  officers  or  noncommissioned  officers  or 
enlisted  men  serving,  or  who  have  served,  in  the  volunteers 
subsequent  to  April  twenty-first,  eighteen  hundred  and 
ninety -eight,  and  officers  of  those  grades  shall  be  given 
provisional  appointments  for  periods  of  four  years  each, 
and  no  such  appointments  shall  be  continued  for  a  second 
or  subsequent  term  unless  the  officer's  conduct  shall  have 
been  satisfactory  in  every  respect.  Ibid. 

andhanwanceJ     ^^'  When,  in  the  opinion  of  the  President,  natives  of 
IMd-  the  Philippine  Islands  shall,  by  their  services  and  charac- 

ter, show  fitness  for  command,  the  President  is  authorized 
to  make  provisional  appointments  to  the  grades  of  second 
and  first  lieutenants  from  such  natives,  who,  when  so  ap- 
pointed, shall  have  the  pay  and  allowances  to  be  fixed  by 
the  Secretary  of  War,  not  exceeding  those  of  correspond- 
ing grades  of  the  Regular  Army.  Ibid. 
The  same.  En-  5Q4.  rphe  pay  and  allowances  of  provisional  officers  of 

listed  men.  r   ™ 

JbM.  native  organizations  shall  be  those  authorized  for  officers 

of  like  grades  in  the  Regular  Army.  The  pay,  rations, 
and  clothing  allowances  to  be  authorized  for  the  enlisted 
men  shall  be  fixed  by  the  Secretary  of  War,  and  shall  not 
exceed  those  authorized  for  the  Regular  Army.  Ibid. 


THE    PORTO    RICAN    REGIMENT. 


Porto  Rican     505.  The  President  is  authorized  to  organize  and  main- 
regiment.     Or-  .  ' 
ganijation.        tain  one  provisional  regiment  of  not  exceeding  three  bat- 

37  v.  3i/p.  768.  talions  of  infantry,  for  service  in  Porto  Rico,  the  enlisted 
strength  thereof  to  be  composed  of  natives  of  that  island 
as  far  as  practicable.  The  regiment  shall  be  organized  as 
to  numbers  as  authorized  for  infantry  regiments  of  the 
Regular  Army.  The  pay,  rations,  and  clothing  allowances 
to  be  authorized  for  the  enlisted  men  shall  be  fixed  by  the 
Secretarv  of  War,  and  shall  not  exceed  those  authorized 


MILITARY  LAWS  OF  THE  UNITED  STATES. 


187 


K  g 


for  the  Regular  Army.  The  field  officers  shall  be  selected 
from  officers  of  the  next  lower  grades  in  the  Regular  Army 
and  shall,  while  so  serving  in  the  higher  grade,  have  the 
rank,  pay,  and  allowances  thereof.  The  company  and 
regimental  and  battalion  staff  officers  shall  be  appointed 
by  the  President.  The  President  may,  in  his  discretion, 
continue  with  their  own  consent  the  volunteer  officers  and 
enlisted  men  of  the  Porto  Rico  regiment,  whose  terms  of 
service  expire  by  law  July  first,  nineteen  hundred  and 
one.  Enlistments  for  the  Porto  Rico  regiment  shall  be 
made  for  periods  of  three  years,  unless  sooner  discharged. 
The  regiment  shall  be  continued  in  service  until  further 
directed  by  Congress.  Sec.  37,  act  of  February  2,  1901 
(31  Stat.  Z.,  758). 

INDIAN   SCOUTS. 

506.  The  President  is  authorized  to  enlist  a  force  of 
Indians,  not  exceeding  one  thousand,  who  shall  act  as  ^uv 
scouts  in  the  Territories  and  Indian  country.  They  shall  19^, 
be  discharged  when  the  necessity  for  their  service  shall 
cease,  or  at  the  discretion  of  the  department  commander. 
A  proportionate  number  of  noncommissioned  officers  may 
be  appointed.  And  the  scouts,  when  they  furnish  their 
own  horses  and  horse  equipments,  shall  be  entitled  to 
receive  forty  cents  per  day  for  their  use  and  risk  so  long 
as  thus  employed.1  Act  of  August  12,  1876  (19  Stat.  Z., 
131). 

ENLISTED    STRENGTH    OF   THE   ARMY. 


507.  The  total  enlisted  force  of  the  line  of  the  Army,    Maximum 
together  with  such  native  force,  shall  not  exceed,  at  any s  Feb.  2,'  1901,  s. 
one  time,  one  hundred  thousand.2     Sec.  36,  act  of  Febru,-* 

ary  8,  1901  (31  Stat.  Z.,  757). 

508.  The  President  is  authorized  to  maintain  the  en- 
listed force  of  the  several  organizations  of  the  Army  at 

JThe  act  of  July  24,  1876  (19  Stat.  L.,  97),  which  limited  the  number  of  Indian 
scouts  to  be  employed  to  300  was  repealed  by  the  act  of  August  12,  1876  (ibid.,  131). 

2 The  acts  of  June  1,  1874  (18  Stat.  L.,  73),  March  3,  1875  (ibid.,  452),  July  24,  1876 
(19 Stat.  L.,77),  November  21, 1877  (20  Stat.  L.,  2),  and  June  18, 1878  (ibid.,  146),  con- 
tained a  provision  limiting  the  number  of  enlisted  men  in  the  Army  to  25,000,  includ- 
ing hospital  stewards  and  Indian  scouts.  The  act  of  June  29,  1879  (21  Stat.  L.,  30), 
contained  the  requirement  "that  no  money  appropriated  by  this  act  shall  be  paid  for 
recruiting  the  Army  beyond  the  number  of  25,000  enlisted  men,  including  Indian 
scouts  and  hospital  stewards;  and  thereafter  there  shall  be  no  more  than  25,000 
enlisted  men  in  the  Army  at  any  one  time,  unless  otherwise  authorized  by  law." 


^1     M.W  i     yiit»   IkTWCMta     J.J.,     J.VM   ^,    O.11U.    ITJ-ttiUll    O,     -LOOU     ^lUiU..,    O«J  /  ).  J.  ilC   a^H   V-M.     -"-  *    *,     -^~~  . 

(24 Stat.  L.,  435),  which  provided  that  the  enlisted  force  of  the  Hospital  Corps  should 
be  in  excess  of  the  strength  authorized  by  law,  was  expressly  repealed  by  the  act  of 


188  MILITARY    LAWS    OF    THE    UNITED    STATES. 

their  maximum  strength,  as  fixed  by  this  act,  during  the 
present  exigencies  of  the  service,  or  until  such  time  as 
Congress  may  hereafter  otherwise  direct.1  Sec.  30,  act 
of  February  2,  1901  (31  Stat.  Z.,  756}. 

THE   WAR   ESTABLISHMENT. 
THE  REGULAR  ARMY — THE  VOLUNTEER  ARMY. 

THE    REGULAR    ARMY. 


Par. 

509.  Increase  in  strength  of  troops,  com- 

panies, and  batteries. 

510.  Batteries  in  time  of  war. 


Par. 


512.  Pay  of  enlisted  men  in  time  of  war. 
512.  Pay  of  officers  for  increased  com- 
mands. 


511.  Increase  in  second  lieutenants.  |  513.  Reduction  of  war  establishment. 

tc!n     509-  UPon  a  declaration  of  war2  by  Congress,  or  declara- 


^  Congress  that  war  exists,  the  enlisted  strength  of 
a  company,  troop,  and  battery,  respectively,  may,  in  the 
discretion  of  the  President,  be  increased  to  comprise  not 
exceeding:3 

For  each  company  of  infantry:  One  first  sergeant,  one 
quartermaster-sergeant,  four  sergeants,  twelve  corporals, 
two  musicians,  one  artificer,  one  wagoner,  and  eighty  -four 
privates;  total  enlisted,  one  hundred  and  six. 

For  each  troop  of  cavalry:  One  first  sergeant,  one  quar- 
termaster-sergeant, six  sergeants,  eight  corporals,  two 
farriers  and  blacksmiths,  two  trumpeters,  one  saddler,  one 
wagoner,  seventy-eight  privates;  total  enlisted,  one  hun- 
dred. 

March  8,  1898  (30  Stat  L.,  261),  which  fixed  the  enlisted  strength  of  the  Army  at 
26,610. 

Sections  6  and  7  of  the  act  of  July  29,  1861  (12  Stat.  L.,  279),  increasing  the  mili- 
tary establishment,  declared  such  increase  to  be  for  the  period  of  the  existing  rebel- 
lion, and,  unless  otherwise  ordered  by  Congress,  required  the  military  establishment 
to  be  reduced  to  a  number  not  exceeding  25,000  men,  "within  one  year  after  the 
constitutional  authority  of  the  Government  of  the  United  States  shall  be  reestab- 
lished, and  organized  resistance  to  such  authority  shall  no  longer  exist."  Section  7 
of  the  act  of  April  26,  1898  (30  Stat.  L.,  365),  and  section  15  of  the  act  March  2,  1899 
(ibid.,  981),  contained  similar  requirements. 

2  By  the  act  of  April  25,  1898,  war  was  formally  declared  to  exist  with  the  Kingdom 
of  Spain.     The  following  is  the  text  of  the  declaration:  "First.  That  war  be,  and  the 
same  is  hereby,  declared  to  exist,  and  that  war  has  existed  since  the  twenty-first  day 
of  April,  anno  Domini  eighteen  hundred  and  ninety-eight,  including  said  day, 
between  the  United  States  of  America  and  the  Kingdom  of  Spain. 

"Second.  That  the  President  of  the  United  States  be,  and  he  hereby  is,  directed  and 
empowered  to  use  the  entire  land  and  naval  forces  of  the  United  States,  and  to  call 
into  the  actual  service  of  the  United  States  the  militia  of  the  several  States,  to  such 
extent  as  may  be  necessary  to  carry  this  act  into  effect."  Act  of  April  25,  1898. 

3  Under  the  authority  conferred  by  this  statute  a  third  battalion  was  established 
by  the  President  in  each  of  the  infantry  regiments  of  the  Regular  Army  on  April  26, 
1898.     General  Orders  27  and  32,  A.  G.  O.,  1898.     The  companies  of  cavalry,  artil- 
lery, and  infantry  were  ordered  to  be  recruited  to  the  war  strength  authorized  by  the 
act  of  April  26,  1898,  by  G.  0.  27,  A.  G.  O.  of  1898.     The  three-battalion  organiza- 
tion having  been  adopted  for  the  infantry  of  the  permanent  establishment  by  sec- 
tion 10  of  the  act  of  February  2,  1901  (30  Stat.  L.,  750),  the  authority  conferred  by  sec- 
tion 2,  act  of  April  26,  1898,  has  ceased  to  be  operative, 


MILITARY    LAWS    OF    THE    UNITED    STATES.  189 

For  each  battery  of  heavy  artillery:  One  first  sergeant, 
twenty-two  sergeants,  ten  corporals,  two  musicians,  two 
artificers,  one  wagoner,  one  hundred  and  sixty-two  pri- 
vates; total  enlisted,  two  hundred. 

For  each  battery  of  field  artillery:  One  first  sergeant, 
one  quartermaster-sergeant,  one  veterinary  sergeant,  six 
sergeants,  fifteen  corporals,  two  farriers,  two  artificers, 
one  saddler,  two  musicians,  one  wagoner,  one  hundred 
and  forty-one  privates;  total  enlisted,  one  hundred  and 
seventy -three. 

For  each  company  of  engineers:  One  first  sergeant,  ten 
sergeants,  ten  corporals,  ten  musicians,  sixty-four  first- 
class  privates,  sixty-three  second-class  privates;  total  en- 
listed, one  hundred  and  fifty.  In  time  of  war  there  shall 
be  added  to  the  Signal  Corps  of  the  Army  ten  corporals, 
one  hundred  first-class  privates,  and  forty  second-class 
privates,  who  shall  have  the  pay  and  allowances  of  engineer 
troops  of  the  same  grade.  Sec.  2,  act  of  April  26,  1898 
(30  Stat.  L.,364). 

510.  In  time  of  war  the  President  shall  cause  the  batteries  ti^e  of  war68  in 
of  artillery  authorized  by  law  to  be  organized  as  heavy  or    Sec>  5> md- 
field  artillery,  as  in  his  judgment  the  exigencies  of  the 

service  may  require.     Sec.  5,  ibid. 

511.  When  recruited  to  their  war  strength  the  Presi-  0ndCSenantT 
dent  may  add  one  second  lieutenant  to  each  battery  of    Sec-4>  ibid- 
artillery;  such  offices  to  be  filled  by  appointments,  as  pre- 
scribed by  existing  law.     Sec.  4,  ibid. 

PAY    AND   ALLOWANCES. 

512.  In  time  of  war  the  pay  proper  of  enlisted  men  shall  menyinf  tfmfof 
be  increased  twenty  per  centum  over  and  above  the  rates  w|£c  6  ibid 
of  pay  as  fixed  by  law:   Provided,  That  in  war  time  no 
additional   increased   compensation   shall   be   allowed    to 

soldiers  performing  what  is  known  as  extra  or  special 
duty:  Provided  further,  That  any  soldier  who  deserts 
shall,  besides  incurring  the  penalties  now  attaching  to  the 
crime  of  desertion,  forfeit  all  right  to  pension  which  he 
might  otherwise  have  acquired.  Sec.  6,  ibid. 

513.  In  time  of  war  every  officer  serving  with  troops 
operating  against  an  enemy  who  shall   exercise, 
assignment  in  orders  issued  by  competent  authority,  a 
command  above  that  pertaining  to  his   grade,   shall  be 
entitled  to  receive  the  pay  and  allowances  of  the  grade 
appropriate  to  the  command  so  exercised:  Provided,  That 
a  rate  of  pay  exceeding  that  of  a  brigadier-general  shall  not 
be  paid  in  any  case  by  reason  of  such  assignment.     Sec.  7, 
ibid. 


190  MILITARY    LAWS    OF    THE    UNITED    STATES. 

REDUCTION    OF    WAR    ESTABLISHMENT. 

514.  At  the  end  of  any  war  in  which  the  United  States 
may  become  involved  the  Army  shall  be  reduced  to  a  peace 
basis  by  the  transfer  in  the  same  arm  of  the  service  or 
absorption  by  promotion  or  honorable  discharge  under 
such  regulations  as  the  Secretary  of  War  may  establish 
of  supernumerary  commissioned  officers  and  the  honor- 
able discharge  or  transfer  of  supernumerar}^  enlisted  men; 
and  nothing  contained  in  this  act  shall  be  construed  as 
authorizing  a  permanent  increase  in  the  commissioned  or 
enlisted  force  of  the  Regular  Army  beyond  that  now  pro- 
vided by  the  law  in  force  prior  to  the  passage  of  this  act, 
except  as  to  the  increase  of  twenty-five  majors  provided 
for  in  section  one  hereof.  Sec.  7,  ibid. 

INCREASE  OF  1899.1 

crease^arch1^  ^^'  ^°  mee^  ^ne  present  exigencies  of  the  military  serv- 
J>8s?98' 12>  v<  ^  i°e  the  President  is  hereby  authorized  to  maintain  the 
Regular  Army  at  a  strength  of  not  exceeding  sixty-five 
thousand  enlisted  men,  to  be  distributed  amongst  the 
several  branches  of  the  service,  including  the  Signal 
Corps,  according  to  the  needs  of  each.3  Sec.  1%,  act  of 
March  2, 1899  (30  Stat.  Z.,  979). 

1  For  the  volunteer  establishment  authorized  by  the  act  of  March  2,  1899  (30  Stat. 
L.,  979),  see  paragraphs  543  to  554,  post. 

2 Under  the  authority  conferred  by  this  section  the  following  distribution  of  enlisted 
men  was  authorized  by  the  President.  See  G.  O.  37,  A.  G.  O.,  1899: 

CAVALRY. 

12  troops  of  100  enlisted  men  each 1 ,  200 

Regimental  and  squadron  noncommissioned  staff 6 

Regimental  band 28 

Total  number  of  enlisted  men  in  regiment 1,  234 

Number  of  regiments 10 

Total  number  of  enlisted  men  in  cavalry 12,  340 


Each  troop  of  cavalry  shall  consist  of — 

1  first  sergeant.  1  saddler. 

1  quartermaster-sergeant.  1  wagoner. 

6  sergeants.  2  trumpeters. 

8  corporals.  76  privates. 

2  cooks. 

2  farriers  and  blacksmiths.  100 

ARTILLERY. 

12  batteries  of  heavy  artillery,  120  enlisted  men  each 1 ,  440 

2  batteries  of  field  artillery,  120  enlisted  men  each 240 

Regimental  noncommissioned  staff 

Regimental  band ^  28 

Total  number  of  enlisted  men  in  regiment 1 ,  710 

Number  of  regiments - «. 7 

Total  number  of  enlisted  men  in  artillery 11, 970 


MILITARY    LAWS    OF    THE    UNITED    STATES.  191 

516.  Such  increased  regular     *     *     *     force  shall  con-  Discharge  of  in- 

..  .  .  !       j       .  ,,  •,,!/.  i  creased  force. 

tinue  in  service  only  during  the  necessity  therefor,  and    ibid. 
not  later  than  July  tirst,  nineteen  hundred  and  one.     Ibid. 


[Footnote  ~  — Continued.] 

Each  battery  of  heavy  artillery  shall  consist  of — 

1  first  sergeant.  2  mechanics. 

1  quartermaster-sergeant.  2  cooks. 

8  sergeants.  92  privates. 

12  corporals. 

2  musicians.  120 
Each  battery  of  field  artillery  shall  consist  of — 

1  first  sergeant.  2  musicians. 

1  stable  sergeant,  2  cooks. 

1  quartermaster-sergeant.  91  privates. 
6  sergeants. 

12  corporals.  120 
4  artificers. 

INFANTRY. 

12  companies  of  112  enlisted  men  each 1, 344 

Regimental  and  battalion  noncommissioned  staff 6 

Regimental  band 28 

Total  number  of  enlisted  men  in  regiment 1, 378 

Number  of  regiments . 25 

Total  number  of  enlisted  men  in  infantry 34, 450 


Each  company  of  infantry  shall  consist  of — 

1  first  sergeant.  2  musicians. 

1  quartermaster-sergeant.  1  artificer. 
4  sergeants.  89  privates. 

12  corporals. 

2  cooks.  112 

Battalion  of  engineers 752 

Total  line  of  the  Army § 59, 512 

STAFF   DEPARTMENTS,    ARMY    SERVICE    DETACHMENT,    ETC. 

U.  S.  Military  Academy,  General  Army  Service,  cavalry  detachment,  field 

musicians  and  band 250 

Signal  Corps,  720,  organized  as  follows: 

100  first-class  sergeants.  300  first-class  privates. 

200  sergeants.  50  second-class  privates. 

50  corporals.  20  cooks. 

720 
Hospital  Corps,  2,600,  organized  as  follows: 

Hospital  stewards 175 

Acting  hospital  stewards 325 

Privates 2, 100 

2,600 

Ordnance  Department 60& 

Commissary-sergeants 100 

Post  quartermaster-sergeants 105 

Electrician  sergeants 75 

Indian  scouts 75 

Recruiting  parties,  recruits,  etc 500 

Total  staff ,  etc  ..  5,030 

Line  of  the  Army 59, 512 

Total..  .  64,542 


192  MILITARY    LAWS    OF    THE    UNITED    STATES* 


THE    VOLUNTEER   ARMY. 


ORGANIZATION    AND    RECRUITMENT. 


Par. 

517.  Apportionment. 

518.  The  same,  organization. 

519.  Medical  staff. 

520.  Militia  organizations,  officers. 

521.  Appointment  of  officers. 

522.  Examining  boards. 


Par. 

523.  Acceptance  of  militia  organizations. 

524.  Term  of  enlistment. 

525.  Recruitment. 

526.  Returns  and  muster  rolls. 

527.  Pay  and  allowances. 

528.  The  same. 


organization     517.  When  it  becomes  necessary  to  raise  a  volunteer 

ana     apportion-  •* 

mApr  22  1898  army'  tne  -President  shall  issue  his  proclamation  stating 
a.  5,  v.  so,  p.  SGI.' the  number  of  men  desired,  within  such  limits  as  may  be 
fixed  by  law,  and  the  Secretary  of  War  shall  prescribe 
such  rules  and  regulations,  not  inconsistent  with  the  terms 
of  this  Act,  as  may  in  his  judgment  be  necessary  for  the 
purpose  of  examining,  organizing,  and  receiving  into 
service  the  men  called  for:  Provided,  That  all  men  re- 
ceived into  service  in  the  Volunteer  Army  shall,  as  far  as 
practicable,  be  taken  from  the  several  States  and  Terri- 
tories and  the  District  of  Columbia  and  the  Indian  Terri- 
tory in  proportion  to  their  population.  And  any  company, 
troop,  battalion,  or  regiment  from  the  Indian  Territory 
shall  be  formed  and  organized  under  such  rules  and  regu- 
lations as  shall  be  prescribed  by  the  Secretary  of  War.1 
Sec.  5,  act  of  April  22,  1898  (30  Stat.  L.,  361). 
organization.  518.  The  Volunteer  Army  and  the  militia  of  the  States 
when  called  into  service  of  the  United  States  shall  be 

1  Under  the  authority  conferred  by  the  acts  of  April  20  and  April  22,  1898,  and  in 
pursuance  of  the  declaration  of  war  with  the  Kingdom  of  Spain  contained  in  the  act 
of  April  25,  1898,  a  call  was  addressed  to  the  governors  of  the  several  States  for  a 
force  of  125,000  volunteers.  G.  0.  30,  A.  G.  0.  1898.  For  regulations  respecting  the 
enrollment,  armament,  and  equipment  of  the  volunteer  forces  thus  called  into  the 
service  of  the  United  States,  see  General  Orders  26,  31,  33,  and  41,  A.  G.  O.  of  1898. 

Section  6  of  the  act  of  April  22,  1898,  conferred  authority  upon  the  President  "to 
organize  companies,  troops,  battalions,  or  regiments,  possessing  special  qualifications, 
from  the  nation  at  large,  not  to  exceed  three  thousand  men,  under  such  rules  and 
regulations,  including  the  appointment  of  the  officers  thereof,  as  may  be  prescribed 
by  the  Secretary  of  War."  The  act  of  May  11,  1898  (30  Stat.  L.,  405),  authorized 
the  organization  of  "a  volunteer  brigade  of  engineers  from  the  nation  at  large,  to 
consist  of  not  more  than  three  regiments  and  not  more  than  three  thousand  five 
hundred  men,  possessing  the  special  qualifications  necessary  for  engineer  troops, 
under  euch  rules  and  regulations,  including  the  appointment  of  the  officers  thereof, 
as  may  be  prescribed  by  the  Secretary  of  War. ' '  By  the  same  enactment  the  organi- 
zation of  "an  additional  volunteer  force  of  not  exceeding  ten  thousand  enlisted  men 
possessing  immunity  from  diseases  incident  to  tropical  climates"  was  also  authorized. 
The  officers  of  these  forces  were  to  be  appointed  by  the  President  with  the  advice 
and  consent  of  the  Senate,  and  they  were  not  apportioned  among  the  States  and  Ter- 
ritories, as  required  in  section  5  of  the  act  of  April  22,  1898.  The  act  of  May  18, 
1898  (30  Stat.  L.,  418),  authorized  the  formation  of  a  volunteer  signal  corps.  This 
statute  contained  the  requirement  that  "two-thirds  of  all  officers  below  the  rank  of 
major  and  a  like  proportion  of  the  enlisted  men  shall  be  skilled  electricians  or  tele- 
graph operators." 


MILITARY    LAWS    OF    THE    UNITED    STATES. 


193 


Medical  staff. 
Ibid' 


Army 


organized  under,  and  shall  be  subject  to,  the  laws,  orders, 
and  regulations  governing  the  Regular  Army.  Section  6, 
ibid. 

519.  Each  regiment  of  the  Volunteer  Army  shall  have 
one  surgeon,  two  assistant  surgeons,  and  one  chaplain,  and 
all  the  regimental  and  company  officers  shall  be  appointed 
by  the  governors  of  the  States  in  which  their  respective 
organizations  are  raised.     Ibid. 

520.  When  the  members  of  any  company,  troop,  battery, 
battalion,  or  regiment  of  the  organized  militia  of  any  State 
shall  enlist  in  the  Volunteer  Army  in  a  body,  as  such 
company,  troop,  battery,  battalion,  or  regiment,  the  regi- 
mental, company,  troop,  battery,  and  battalion  officers  in 
service  with  the  militia  organization  thus  enlisting  may 
be  appointed  by  the  governors  of  the  States  and  Terri- 
tories, and  shall  when  so  appointed  be  officers  of  corre- 
sponding grades  in  the  same  organization  when  it  shall 
have  been  received  into  the  service  of  the  United  States 
as  a  part  of  the  Volunteer  Army.     Ibid. 

521.  The  governor  of  any  State  or  Territory  may,  with 
the  consent  of  the  President,  appoint  officers  of  the  Regu- 
lar  Army  in  the  grades  of  field  officers  in  organizations  of 
the  Volunteer  Army,  and  the  President  may  appoint  offi- 
cers of  the  Regular  Army  in  the  grade  of  field  officers  in 
organizations  of  the  Volunteer  Army  raised  in  the  District 
of  Columbia  and  the  Indian  Territory,  and  in  the  regiments 
possessing  special  qualifications,  provided  for  in  section 
six  of  an  act  of  Congress  approved  April  twenty-second, 
eighteen  hundred  and  ninety-eight,  and  in  section  two  of 
the  act  of   Congress   approved   May  eleventh,  eighteen 
hundred   and   ninety-eight;    and  officers   thus   appointed 
shall  be  entitled  to  retain  their  rank  in  the  Regular  Army: 
Provided,  That  not  more  than  one  officer  of  the  Regular 

7  . 

Army  shall  hold  a  commission  in  any  one  regiment  of  the  merit. 

Volunteer  Army  at  the  same  time:  And  provided  further, 

That  officers  so  appointed  shall  be  entitled  to  receive  only    Pay. 

the  pay  and  allowances  of  their  rank  in  the  volunteer    May  28,  i898,s. 

organization.1     Sec.  0,  act  of  May  28,  1898  (30  Stat.  L.,  2'V-30'P«421- 

421). 

522.  The  general  commanding  a  separate  department  or   Militjj2^°fgf 
a  detached  army  is  authorized  to  appoint  from  time  to  ciencyof  officers. 

...»...,  ,  Apr.  22,  Io9o,  8. 

time  military  boards  of  not  less  than  three  nor  more  than  H  v.  so,  P.  304. 
five  Volunteer  officers  of  the  Volunteer  Army  to  examine 


Limit  for  each 

volunteer     regi- 


1  But  see  section  12,  act  of  April  26,  1898,  paragraph  553,  post 
22924—08  -  13 


194  MILITARY    LAWS    OF   THE    UNITED    STATES. 

into  the  capacity,  qualifications,  conduct,  and  efficiency  of 

any  commissioned  officer  of  said  army  within  his  command: 

Rank  of  mem-  Provided,  That  each  member  of  the  board  shall  be  superior 

bers  of  board. 

in  rank  to  the  officer  whose  qualifications  are  to  be  inquired 
Adverse  report  into:  And  provided  further,  That  if  the  report  of  such  a 
board  is  adverse  to  the  continuance  of  any  officer,  and  the 
report  be  approved  by  the  President,  such  officer  shall  be 
discharged  from  service  in  the  Volunteer  Army,  at  the 
discretion  of  the  President,  with  one  month's  pay  and 
allowances.  Sec.  14,  act  of  April  22,  1898  (30  Stat.  L., 
364). 

zations!a  °rgani  523-  ln  tne  event  of  a  call  by  the  President  for  either 
s. t^sofp.1!!?.'  volunteers  or  the  militia  of  the  country  the  President  is 
authorized  to  accept  the  quotas  of  troops  of  the  various 
States  and  Territories,  including  the  District  of  Columbia 
and  Indian  Territory,  as  organized  under  the  laws  of  the 
States  and  Territories,  including  the  District  of  Columbia, 
in  companies,  troops,  and  batteries,  each  to  contain  so  far 
as  practicable  the  number  of  enlisted  men  authorized  in 
this  act  for  each  arm  of  the  service,  and  battalions  of  not 
less  than  three  such  companies  and  regiments  of  not  less 
than  ten  nor  more  than  twelve  such  companies.  But  this* 
proviso  shall  apply  to  companies,  troops,  batteries,  bat- 
talions, and  regimental  organizations  and  none  other:  Pro- 
vided further,  That  in  volunteer  organizations  received 
into  the  service  under  this  act  and  existing  laws,  one  hos- 
pital steward  shall  be  authorized  for  each  battalion.  Sec. 
3,  act  of  April  26,  1898. 

Jen*  of  enlist-     524.  All  enlistments  for  the  Volunteer  Army  shall  be 
sec.  4,  ibid.      for  a  term  of  two  years,  unless  sooner  terminated.    Sec.  4, 

ibid. 

IS^SS114'  525-  A11  organizations  of  the  Volunteer  Army  shall  be 
so  recruited  from  time  to  time  as  to  maintain  them  as  near 
to  their  maximum  strength  as  the  President  may  deem 
necessary,  and  no  new  organization  shall  be  accepted  into 
service  from  any  State  unless  the  organizations  already  in 
service  from  such  State  are  as  near  to  their  maximum 
strength  of  officers  and  enlisted  men  as  the  President  may 
deem  necessary.  Sec.  7,  ibid. 

RETURNS    AND   MUSTER   ROLLS. 

rouf  * ums    and     526>  A11  returns  and  muster  rolls  of  organizations  of  the 
sec.8,twd.      Volunteer  Army  and  of  militia  organizations  while  in  the 
service  of  the  United  States  shall  be  rendered  to  the  Adju- 
tant-General of  the  Army,  and  upon  the  disbandment  of 


MILITARY   LAWS    OF   THE    UNITED    STATES.  195 

such  organizations  the  records  pertaining  to  them  shall  be 
transferred  to  and  filed  in  the  Record  and  Pension  Office 
of  the  War  Department.  And  regimental  and  all  other 
medical  officers  serving  with  volunteer  troops  in  the  field 
or  elsewhere  shall  keep  a  daily  record  of  all  soldiers 
reported  sick  or  wounded,  as  .shown  by  the  morning  calls 
or  reports,  and  shall  deposit  such  reports  with  other  reports 
provided  for  in  this  section  with  the  Record  and  Pension 
Office,  as  provided  herein  for  other  reports,  returns,  and  % 
muster  rolls.  Sec.  8}  ibid. 

PAY    AND    ALLOWANCES. 

527.  All  officers   and  enlisted   men   of  the   Volunteer    Payandaiiow- 
Army,  and  of  the  militia  of  the  States  when  in  the  service    sec.'i2,  ma. 
of  the  United  States,  shall  be  in  all  respects  on  the  same 

footing  as  to  pa}r,  allowances,  and  pensions  as  that  of  offi- 
cers and  enlisted  men  of  corresponding  grades  in  the 
Regular  Army.  Sec.  12,  ibid. 

528.  The  pay  and  allowance  of  such  of  the  volunteers  as    Pay  of  voiun- 
are  received  into  the  service  of  the  United  States  under  SfroiimentWand 
the  Act  of  Congress  approved  April  twenty-second,  eight- mMayr26,i898,v. 
een  hundred  and  ninety-eight,  and  the  acts  supplemental    ' p* 
thereto,  shall  be  deemed  to  commence  from  the  day  on 

which  they  joined  for  duty  and  are  enrolled  at  the  battalion, 
regimental,  or  State  rendezvous.  Act  of  May  26,  1898 
(30  Stat.  L 


TACTICAL   ORGANIZATIONS,    STAFF   OFFICERS. 


Par. 

529.  Corps,  divisions,  brigades. 

530.  Staff,  army  corps. 

531.  Staff,  division  and  brigade. 

532.  The  same  termination  of  appoint- 

ment. 


Par. 


533.  Eligibility  of  regular  officers. 

534.  Volunteer  signal  corps. 


529.  In  time  of  war,  or  when  war  is  imminent,  the  troops  .corps,    divi- 
in  the  service  of  the  United  States,  whether  belonging  to  gades. 

,  ,r    ,  ....  *I  _          April  22,  1898. 

tne  Kegular  or  V  olunteer  Army  or  to  the  militia,  snail  be  s.  9,  v.  so,  p.  362. 
organized,  as  far  as  practicable,  into  divisions  of  three 
brigades,  each  brigade  to  be  composed  of  three  or  more 
regiments;  and  whenever  three  or  more  divisions  are 
assembled  in  the  same  army  the  President  is  authorized  to 
organize  them  into  army  corps,  each  corps  to  consist  of 
not  more  than  three  divisions.1  Sec.  9,  act  of  April  %%, 
1898(30  Stat.  L., 


1  Seven  army  corps  were  constituted  by  the  President  in  G.  O.,  36,  A.  G.  O.,  1898. 
They  are  to  be  numbered,  serially,  from  one  to  seven. 


196  MILITARY    LAWS    OF   THE    UNITED    STATES. 

GENERAL  STAFF  OFFICERS. 

staff  of  army     530.  The  staff  of  the  commander  of  an  army  corps  shall 

sec!  10,  ibid,     consist  of  one  assistant  adjutant-general,  one  chief  engi- 

neer, one  inspector-general,  one  chief  quartermaster,  one 

chief  commissary  of  subsistence,  one  judge-advocate,  and 

one  chief  surgeon,  who  shall  have,  respectively,  the  rank 

of  lieutenant-colonel;  one  assistant  adjutant-general,  who 

shall  have  the  rank  of  captain,  and  the  aids-de-camp  au- 

thorized by  law.     Sec.  10,  ibid. 

staff  of  divi-     531.  The  staff  of  the  commander  of  a  division  shall  con- 

sion    and    bri-  .  . 

gade.  sist  of  one  assistant  adjutant-general,  one  engineer  officer, 

one  inspector-general,  one  chief  quartermaster,  one  chief 
commissary  of  subsistence,  a  chief  signal  officer,1  and  one 
chief  surgeon,  who  shall  have,  respectively,  the  rank  of 
major,  and  the  aids-de-camp  authorized  by  law.  The  staff 
of  the  commander  of  a  brigade  shall  consist  of  one  assist- 
ant adjutant-general,  one  assistant  quartermaster,  and  one 
commissary  of  subsistence,  each  with  the  rank  of  captain; 
one  surgeon,  and  the  aids-de-camp  authorized  by  law. 
Sec.  10,  ibid. 

532.  The  staff  officers  herein  authorized  for  the  corps, 
division,  and  brigade  commanders  may  be  appointed  by 
the  President,  by  and  with  the  advice  and  consent  of  the 
Senate,  as  officers  of  the  Volunteer  Army,  or  may  be 
assigned  by  him,  in  his  discretion,  from  officers  of  the 
Regular  Army,  or  the  Volunteer  Army,  or  of  the  militia 
Proviso.  in  the  service  of  the  United  States:  Provided,  That  when 

Terra  in  ation 

of  appointment,  relieved  from  such  staff  service  said  appointments  or  as- 

signments shall  terminate.     Sec.  10,  ibid. 

Thesama,  ^  533.  Officers  of  the  Regular  Army  shall  be  eligible  for 
regular  officers.  sucn  staff  appointments,  and  shall  not  be  held  to  vacate 
—not  to  termi-  their  offices  in  the  Regular  Army  by  accepting  the  same, 
commission.  but  shall  be  entitled  to  receive  only  the  pay  and  allowances 
—pay.  of  their  staff  rank:  Provided  further,  That  officers  of  the 

olc  ^e£u^ar  Army   receiving  commissions   in   regiments   of 


Army.  engineers,  or  any  other    commissions  in  the  Volunteer 

Army,  shall  not  be  held  to  vacate  their  offices  in  the  Reg- 
ular Army  by  accepting  the  same,  but  shall  be  entitled  to 
receive  only  the  pay  and  allowances  of  such   volunteer 
'  1898>  v*  rank  while  serving  as  such.     Act  of  May  28,  1898  (30  Stat. 

L.,  J&l). 

sig-     534   The   volunteer   signal  corps   shall  consist  of   one 
colonel,  one  lieutenant-colonel,  one  major  as   disbursing 

1  Joint  resolution  No.  57,  July  8,  1898  (30  Stat.  L.,  752). 


MILITARY    LAWS    OF    THE    UNITED    STATES. 

officer,  and  such  other  officers  and  men  as  may  be  required, 
not  exceeding-  one  major  for  each  army  corps,  and  two 
captains,  two  first  lieutenants,  two  second  lieutenants,  five 
first-class  sergeants,  ten  sergeants,  ten  corporals,  and 
thirty  first-class  privates  to  each  organized  division  of 
troops.  Sec.  2,  act  of  May  28,  1S9S  (30  Stat.  Z.,  417). 

DISBANDMENT    OF    THE    VOLUNTEER    ARMY. 


197 


Par. 

535.  Discharge  of  volunteers. 

536.  Extra  pay  on  discharge. 

537.  538,  539.  The   same,    payment 

heirs. 


to 


Par. 

540.  Property,    accountability     of 

charged  officers. 

541.  Travel  pay  on  discharge  by  order. 

542.  Colors  of  volunteer  regiments. 


dis- 


535. All  officers  and  men  composing  said  army  shall  be 
discharged  from  the  service  of  the  United  States  when    sec.4,iwd. 
the  purposes  for  which  they  were  called  into  service  shall 
have  been  accomplished,  or  on  the  conclusion  of  hostili- 
ties.1    Sec.  4,  iUd.     Act  of  April  22,  1898  (30  Stat. 
L.,  364}. 


of 


EXTRA    PAY   ON    DISCHARGE. 


536.  In  lieu  of  granting  leaves  of  absence  and  furloughs 
to  officers  and  enlisted  men  belonging  to  companies  and  ^^'^ 1899)  v> 
regiments  of  United  States  Volunteers  prior  to  muster 
out  of  the  service,  all  officers  and  enlisted  men  belonging 
to  volunteer  organizations  hereafter  mustered  out  of  the 
service  who  have  served  honestly  and  faithfully  beyond 
the  limits  of  the  United  States  shall  be  paid  two  months' 
extra  pay  on  muster  out  and  discharge  from  the  service, 
and  all  officers  and  enlisted  men  belonging  to  organiza- 
tions hereafter  mustered  out  of  the  service  who  have 
served  honestly  and  faithfully  within  the  limits  of  the 
United  States  shall  be  paid  one  month's  extra  pay  on  mus- 
ter out  and  discharge  from  the  service,  from  any  money 
in  the  Treasury  not  otherwise  appropriated:  Provided, 
That  the  discharge  of  all  officers  and  enlisted  men  from 
the  volunteer  service  of  the  United  States  shall,  as  far  as 
practicable,  take  effect  on  the  date  of  the  muster  out  of 
the  organization  to  which  they  belong,  and  that  regiments 
and  other  independent  organizations  shall  be  mustered  out 

1  The  invariable  policy  of  the  Government  has  been  to  consider  the  military  forces 
as  falling  into  two  classes — those  who  were  soldiers  or  sailors  by  profession,  and 
those  who  entered  the  service  for  the  exigency  only.  To  this  latter  class — to  those 
who  have  been  discharged  when  the  war  ended — Congress  have  always  and  repeat- 
edly given  this  same  gratuity  of  two  months  additional  pay  to  help  the  men  through 
the  interval  between  their  discharge  and  the  resumption  of  their  avocations  in  civil 
life.  Cleary  v.  U.  S.,  35  Ct.  Cls.,  207,  211.  See  note  to  paragraph  496,  ante. 


198  MILITARY   LAWS    OF   THE    UNITED   STATES. 

at  camps  within  the  limits  of  the  United  States  or  at  the 
rendezvous  of  the  State,  regiment,  or  independent  organi- 
zation.1    Act  of  January  12,  1899  (30  Stat.  Z.,  784). 
Mar.sa?e'i899,      537-  AU  enlisted  men  in  the  Regular  Army  who  enlisted 

v.  so,  p.  1073.  subsequent  to  the  declaration  of  war  for  the  war  only  and 
mustered  out  of  the  service  who  have  served  honestly  and 
faithfully  beyond  the  limits  of  the  United  States  shall  be 
paid  two  months'  extra  pay  on  muster  out  and  discharge 
from  the  service,  and  all  enlisted  men  in  the  Regular 
Army  who  enlisted  subsequent  to  the  declaration  of  war 
for  the  war  only  and  mustered  out  of  the  service  who  have 
served  honestly  and  faithfully  within  the  limits  of  the 
United  States  shall  be  paid  one  month's  extra  pay  on  mus- 
ter out  and  discharge  from  the  service  from  any  money  in 
the  Treasury  not  otherwise  appropriated,  said  moneys  to 
be  immediately  available.  Act  of  March  3,  1899  (30 
Stat.  Z.,  1073). 

538-  The  act  of  January  twelfth,  eighteen  hundred  and 
ninety-nine,  is  hereby  amended  so  as  to  authorize  the  pay- 
ment to  the  legal  heirs  or  representatives  of  the  officers 
and  enlisted  men  who  died  or  were  killed  or  who  may  die 
in  the  service  the  extra  pay  provided  for  in  that  act  for 
officers  and  enlisted  men  who  have  been  or  are  to  be  mus- 
tered out.  Ibid. 
May  lafiwo  v  539*  The  act  approved  January  twelfth,  eighteen  hun- 

3i,p.2i7.'  dred  and  ninety-nine,  granting  "extra  pay  to  officers 
and  enlisted  men  of  the  United •  States  Volunteers," 
shall  extend  to  all  volunteer  officers  of  the  general  staff 
who  have  not  received  waiting  orders  pay  prior  to  dis- 
charge, at  the  rate  of  one  month  to  those  who  did  not 
serve  beyond  the  limits  of  the  tTnited  States  and  two 
months  to  those  who  served  beyond  the  limits  of  the 

JThe  term  "service"  as  used  in  the  act  of  January  12,  1899  (30  Stat.  L.,  784), 
which  provides  extra  pay  to  officers  and  enlisted  men  of  tho  United  States  Volun- 
teers when  "mustered  out  of  service,"  meanc  the  military  service  of  the  United 
States,  and  does  not  apply  to  officers  or  enlisted  men  of  the  Regular  Army  who,  on 
muster  out  as  officers  of  volunteer  organizations,  return  to  duty  in  the  Regular  Army. 
VComp.  Dec.,  529. 

A  soldier  killed  while  running  the  guard  did  not  serve  "honestly  and  faithfully," 
within  the  meaning  of  the  acts  of  January  12  and  March  3, 1898,  and  his  heirs  are  not 
entitled  to  the  extra  pay  therein  provided.  VI,  ibid.,  794. 

Service  in  the  Philippine  Islands  and  service  m  the  Hawaiian  Islands  is  service 
"beyond  the  limita  of  the  United  States"  within  the  meaning  of  the  act  of  January 
12, 1899.  VI  Compt.  Dec.,  374,  379. 

The  extra  pay  allowed  by  the  act  of  Jt  nuary  12,  1899,  and  the  acts  amendatory 
thereof,  to  officers  and  enlisted  men  of  vo  unteers  on  their  muster  out  of  the  mili- 
tary service,  is  not  authorized  in  the  case  of  an  officer  discharged  on  the  adverse 
report  of  a  board  of  officers  convened  under  section  14  of  tho  act  of  April  22,  1898 
(ibid.,  700);  or  in  the  case  of  a  soldier  discharged  at  his  own  request  (ibid.,  346); 
or  in  the  case  of  an  officer  on  furlough  or  while  awaiting  muster  out  (ibid.,  42). 


MILITARY   LAWS    OF   THE   UNITED    STATES.  199 

United  States;  and  officers  and  enlisted  men  of  volunteer 
organizations,  who  have  served  honestly  and  faithfully  in 
the  Volunteer  Army  of  the  United  States  during  the  war 
with  Spain  and  have  been  honorably  discharged  without 
furlough,  or  by  reason  of  their  services  being  no  longer 
required,  or  at  any  time  by  reason  of  wounds  received,  or 
disability  contracted  in  the  service  and  in  the  line  of  duty, 
and  who  have  not  received  the  extra  pay  granted  in  said 
act  or  in  subsequent  acts  of  Congress  supplemental 
thereto:  And  this  act  shall  be  deemed  to  apply  to  officers 
of  volunteers  who  resigned  and  enlisted  men  of  volunteers 
who  were  discharged  upon  their  own  applications  subse- 
quent to  the  issue  of  orders  for  the  muster  out  of  their 
organizations  and  prior  to  the  dates  of  muster  out.  Act 
of  May  26,  1900  (31  Stat.  L.,  217). 

PROPERTY    ACCOUNTABILITY    OP   DISCHARGED   OFFICERS. 


ty  ac~ 


540.  Officers  who  at  any  time  were  accountable  or  re- 
sponsible  for  public  property  shall  be  required,  before  final  2  y*1^ 
payment  is  made  to  them  on  discharge  from  the  service, 

to  obtain  certificates  of  nonindebtedness  to  the  United 
States  from  only  such  of  the  bureaus  of  the  War  Depart- 
ment to  which  the  property  for  which  they  were  account- 
able or  responsible  pertains,  and  the  certificate  from  the 
Chief  of  the  Division  of  Bookkeeping  and  Warrants, 
Treasury  Department,  and  such  certificates,  accompanied 
by  the  affidavits  of  officers,  of  nonaccountability  or  nonre- 
sponsibility  to  other  bureaus  of  the  War  Department, 
certified  to  by  the  commanding  officer  of  the  regiment  or 
independent  organization,  shall  warrant  their  final  pay- 
ment: Provided,  That  officers  who  have  not  been  respon-  oath 
sible  at  any  time  for  public  property  shall  be  required  to 
make  affidavit  of  that  fact,  certified  to  by  their  command- 
ing officers,  which  shall  be  accepted  as  sufficient  evidence 
to  warrant  their  final  payment  on  their  discharge  from  the 
service:  Provided  further,  That  mustering  officers  are 
empowered  to  administer  oaths  in  all  matters  pertaining  to 
the  muster  out  of  volunteers.  Sec.  2,  act  of  January  12, 
1899  (30  Stat.  L.,  784). 

TRAVEL   PAY   ON   DISCHARGE   BY   ORDER. 

541.  When  the  Secretary  of  War,  in  the  exercise  of  h 
discretion,  has  directed  the  discharge  of  any  enlisted  men  orjun'e  6  ,1900  , 
of  the  regular  or  volunteer  forces  of  the  Army,  and  the  31«  p- 
orders  or  instructions  directing  such  discharge  stated  that 


200  MILITAEY   LAWS    OF   THE    UNITED   STATES. 

such  enlisted  men  were  entitled  to  travel  pay,  such  order 
or  instruction  shall  be  sufficient  authority  for  the  payment 
to  the  soldiers  of  the  traveling  allowances  provided  for 
by  section  twelve  hundred  and  ninety  of  the  Revised  Stat- 
utes. And  officers  of  the  Pay  Department  of  the  Army 
shall  have  credit  in  the  settlement  of  their  accounts  for  all 
payments  made  in  obedience  to  said  orders  or  instructions 
of  the  Secretary  of  War:  Provided,  That  soldiers  dis- 
charged under  such  orders  or  instructions,  which  stated 
that  such  soldiers  were  entitled  to  travel  pay,  and  who 
were  absent  by  authority  "on  the  date  of  the  muster  out  of 
their  regiments  or  of  discharge,  are  entitled  to  and  will  be 
paid  traveling  allowances  from  place  of  muster  out  of  their 
regiments  or  the  places  designated  in  the  final  statements 
as  the  place  of  discharge  to  the  place  of  enlistment  or 
enrollment:  Provided  further ,  That  the  provisions  of  this 
act  shall  apply  only  to  cases  that  have  arisen  or  shall  arise 
under  orders  or  instructions  for  discharge  with  travel  pay 
issued  between  April  twenty -first,  eighteen  hundred  and 
ninety-eight,  and  the  date  of  the  passage  of  this  act:  Pro- 
vided further,  That  it  shall  not  be  held  as  applying  to  any 
case  in  which  the  order  directing  the  discharge  did  not  set 
forth  that  the  soldier  was  entitled  to  travel  pay.  Act  of 
June  6,  1900  (31  Stat.  L.,  708). 

COLORS   OF  VOLUNTEER  REGIMENTS. 

co?oeilenti°n  °f  542-  That  the  Secretary  of  War  be,  and  he  is  hereby, 
3ofpb890.' 18"' v'  au^horized  to  permit  volunteer  regiments,  on  being  mus- 
tered out  of  the  service  of  the  United  States,  to  retain  all 
of  their  regimental  colors.  Said  colors  shall  be  turned 
over  to  the  State  authorities  to  which  said  regiments  be- 
long, and  the  regimental  quartermaster  in  making  his 
returns  may,  in  lieu  of  said  colors  and  in  full. release  there- 
for, file  with  the  proper  official  of  the  War  Department  a 
receipt  from  the  quartermaster-general  of  said  State  that 
said  colors  have  been  delivered  to  said  State  authorities. 
Act  of  February  25,  1899  (30  Stat.  L.,  890). 

THE  VOLUNTEER  ARMY  OF  1899. 

COMPOSITION   AND   ORGANIZATION. 

Organization^      543    ^o  meet  the  present  exigencies  of  the  military  serv- 

s.  12,  v.  so, p.  979.  jce  the  President  is  hereby  authorized  to     *     *     *     raise 

a  force  of  not  more  than  thirty-five  thousand  volunteers 

to  be  recruited  as  he  may  determine  from  the  country  at 


MILITAEY    LAWS    OF    THE    UNITED    STATES.  201 

large,  or  from  the  localities  where  their  services  are  needed, 
without  restriction  as  to  citizenship  or  educational  qualifi- 
cations, and  to  organize  the  same  into  not  more  than  twenty- 
seven  regiments  organized  as  are  infantry  regiments  of 
war  strength  in  the  Regular  Army,  and  three  regiments 
to  be  composed  of  men  of  special  qualifications  in  horse- 
manship and  marksmanship,  to  be  organized  as  cavalry  for 
service  mounted  or  dismounted.  Sec.  12,  act  of  March  2, 
1899(30  Stat.  L.,979). 

544.  Each  regiment  shall  have  one  surgeon,  with  the  rank  su^fnsmen  t>s 
of  major;  two  assistant  surgeons,  one  of  whom  shall  have    1Ud- 

the  rank  of  captain  and  one  that  of  first  lieutenant,  and 
three  hospital  stewards.  Ibid. 

ENLISTMENTS   AND   REENLISTMENTS. 

545.  All  enlistments  for  the  volunteer  force  herein  au-    Enlistments. 
thorized  shall  be  for  the  term  of  two  years  and  four  months, 

unless  sooner  discharged.     Ibid. 

546.  Enlisted  men  of  volunteers  who  desire  to  remain  in    Transfers, 
the  military  service,  either  in  the  Regular  Army  or  the 
temporary  force  authorized  by  this  act,  may,  if  found 
qualified  therefor,  be  transferred  to  and  enlisted  in  such 
batteries,  troops,  or  companies  as  may  be  below  the  maxi- 
mum authorized  strength,  and  when  so  transferred  and 
enlisted  shall  be  credited  on  their  new  enlistment  with  the 
periods  of  service  rendered  by  them,  respectively,  as  vol- 
unteers.1    Sec.  1 


GENERAL   OFFICERS. 


547.  The  President  shall  have  power  to  continue  in  serv-  General  offl- 
ice  or  to  appoint,  by  and  with  the  advice  and  consent  of  sec.  is,  ibid. 
the  Senate,  brigadier-generals  of  volunteers,  who,  includ- 
ing the  brigadier-generals  of  the  Regular  Army,  shall  not 
exceed  one  for  every  four  thousand  enlisted  men  actually 
in  service,  and  major-generals  of  volunteers,  who,  includ- 
ing the  major-generals  of  the  Regular  Army,  shall  not 
exceed  one  for  every  twelve  thousand  enlisted  men :  Pro- 
vided, That  Regular  Army  officers  continued  or  appointed 
as  general  officers  or  as  field  or  staff  officers  of  volunteers, 
under  the  provisions  of  this  act  shall  not  vacate  their  Regu- 
lar Army  commissions:  And  provided  further,  That  no 
general  officers  appointed  under  the  provisions  of  this  sec- 
tion shall  be  continued  in  service  as  such  beyond  July  first, 
nineteen  hundred  and  one.  Sec.  13,  ibid. 


202 


MILITARY   LAWS    OF   THE    UNITED   STATES. 


VOLUNTEER  STAFF. 

staff:  composi-     548.  The  President  is  hereby  authorized  to  continue  in 

tion.  J 

Sec.  14,  ibid,  service,  or  to  appoint  by  and  with  the  advice  and  consent 
of  the  Senate,  officers  of  the  volunteer  staff  as  follows: 

Three  assistant  adjutant-generals  with  the  rank  of  lieu- 
tenant-colonel, and  six  assistant  adjutant-generals  with  the 
rank  of  major. 

Three  inspectors-general  with  the  rank  of  lieutenant- 
colonel,  and  six  inspectors-general  with  the  rank  of  major. 

Five  judge-advocates  with  the  rank  of  major. 

Thirty  quartermasters  with  the  rank  of  major,  and  forty 
assistant  quartermasters  with  the  rank  of  captain. 

Six  commissaries  of  subsistence  with  the  rank  of  major, 
and  twelve  assistant  commissaries  of  subsistence  with  the 
rank  of  captain. 

Thirty-four  surgeons  with  the  rank  of  major. 

Thirty  additional  paymasters  with  the  rank  of  major. 

Four  signal  officers  with  the  rank  of  major,  nine  signal 
officers  with  the  rank  of  captain,  nine  signal  officers  with 
the  rank  of  first  lieutenant,  and  nine  signal  officers  with 
the  rank  of  second  lieutenant.  Sec.  14,  ibid. 

549.  For  each  Regular  Army  officer  of  a  staff  corps  or 
department  who  may  be  retained  in  or  appointed  to  a 
higher  volunteer  rank  in  said  staff  corps  or  department 
than  that  actually  held  by  him  in  the  regular  establish- 
ment, there  may  be  appointed  one  officer  of  volunteers  of 
the  lowest  grade  mentioned  in  this  section  for  such  staff 
corps  or  department,  but  no  appointment  shall  be  made 
which  will  increase  the  total  number  of  officers,  Regular 
and  Volunteer,  serving  in  any  grade,  above  the  number 
authorized  by  this  Act.     Ibid. 

550.  All  the  volunteer  staff  officers  herein  authorized  to 
be  appointed  or  retained  in  the  service  shall  be  honorably 
discharged  on  July  first,  nineteen  hundred  and  one,  or 
sooner  if  their  services  are  no  longer  required.     Ibid. 

551.  All  officers  herein  authorized  shall  be  appointed  by 
the  President,  by  and  with  the  advice  and  consent  of  the 
Senate.     Ibid. 


The  same. 
Ibid. 


Discharge. 
Ibid. 


Appointment. 
Ibid. 


MUSTER-OUT   AND    DISCHARGE. 


Method. 
Sec.  15,  ibid. 


552.  The  officers  and  enlisted  men  of  the  Volunteer  Army 
shall  be  mustered  out  of  the  military  service  of  the  United 

1  Section  15  of  the  act  of  March  2,  1899,  contained  the  requirement  "  that  the  Presi- 
dent is  authorized  to  enlist  temporarily  in  service  for  absolutely  necessary  purposes 
in  the  Philippine  Islands  volunteers,  officers,  and  men,  individually  or  by  organiza- 
tion, now  in  those  islands  and  about  to  be  discharged,  provided  their  retention  shall 
not  extend  beyond  the  time  necessary  to  replace  them  by  troops  authorized  to  be 
maintained  under  the  provisions  of  this  act  and  not  beyond  a  period  of  six  months." 


MILITARY    LAWS    OF   THE   UNITED    STATES.  203 

States  and  discharged  as  provided  in  the  act  of  April 
twenty-second,  eighteen  hundred  arid  ninety-eight.1  Sec. 
15,  ibid. 

553.  Each  and  every  provision  of  this  act  shall  continue    Reduction. 
in  force  until  July  first,  nineteen  hundred  and  one;  and 

on  and  after  that  date  all  the  general,  staff,  and  line  offi- 
cers appointed  to  the  Army  under  this  act  shall  be  dis- 
charged and  the  numbers  restored  in  each  grade  to  those 
existing  at  the  passage  of  this  act,  and  the  enlisted  force 
of  the  line  of  the  Army  shall  be  reduced  to  the  number  as 
provided  for  by  a  law  prior  to  April  first,  eighteen  hun- 
dred and  ninety-eight,  exclusive  of  such  additions  as  have 
been,  or  may  be,  made  under  this  act  to  the  artillery, 
and  except  the  cadets  provided  for  by  this  act  who  may 
be  appointed  prior  to  July  first,  nineteen  hundred  and 
one:  And  provided  further,  That  no  officer  who  has  been, 
or  may  be,  promoted  under  existing  law,  or  under  the 
rules  of  seniority,  shall  be  disturbed  in  his  rank.  Ibid. 

554.  Any  officer  of  volunteers,  and  any  enlisted  man  of  c^^1  p?egi- 
either  regulars  or  volunteers,  who  was  discharged  in  them^-8  1901  y 
Philippine  Islands  and  there  reentered  the  service,  through  31» p-762- 
commission  or  enlistment,  in  the  Thirty -sixth  or  Thirty- 
seventh  Regiments  United  States  Volunteer  Infantry,  or 

in  the  Eleventh  Regiment  United  States  Volunteer  Cav- 
alry, shall,  when  discharged,  except  by*  way  of  punish- 
ment for  an  offense,  receive  for  travel  allowances,  from 
the  place  of  his  discharge  to  the  place  in  the  United  States 
of  his  last  preceding  appointment  or  enlistment,  four  cents 
per  mile:  Provided,  That  for  sea  travel,  on  discharge, 
from  or  between  our  island  possessions  actual  expenses 
only  shall  be  paid  to  officers,  and  transportation  and  sub- 
sistence only  shall  be  furnished  enlisted  men:  Provided 
further,  That  officers  and  enlisted  men  discharged  in  the 
United  States  under  the  provisions  of  this  act  shall  not 
be  entitled  to  transportation  or  travel  allowance  back  to 
the  Philippine  Islands.  Act  of  February  8, 1901  (31  Stat. 
Z.,  762). 

HISTORICAL  NOTE. — The  military  establishment  at  the  organization  of  the  Govern- 
ment under  the  Constitution  contained  no  officer  of  higher  rank  than  lieutenant- 
colonel.  Authority  was  conferred  by  the  act  of  March  3,  1791  (1  Stat.  L.,  222),  to 
appoint  a  major-general  and  a  brigadier-general,  should  the  President  deem  that 
course  necessary,  and,  by  the  act  of  March  28,  1792  (ibid.,  246),  the  number  of 

1  See  paragraph  535,  ante.  For  statutes  conferring  extra  pay  on  officers  and  enlisted 
men  of  volunteers,  on  muster  out  or  discharge,  see  acts  of  January  12,  1899  (30  Stat. 
L.,  784),  paragraphs  536  and  538,  ante;  March  3,  1899  (ibid.,  1073),  paragraph  537, 
ante;  and  May  26, 1900  (31  ibid.,  217),  paragraph  539,  ante.  For  statutes  regulating 
travel  pay  of  enlisted  men  discharged  by  order  of  the  Secretary  of  War  see  the  act  01 
June  6,  1900  (31  ibid.,  708),  paragraph  541,  ante. 


204  MILITAEY    LAWS    OF   THE    UNITED    STATES. 

brigadier-generals  was  to  be  increased  to  four,  if,  in  the  opinion  of  the  President, 
such  appointments  would  " be  conducive  to  the  good  of  the  public  service."  This 
authority  was  withdrawn,  however,  by  section  3  of  the  act  of  May  30, 1796  ( ibid. ,  483) . 
The  number  of  brigadier-generals  was  reduced  to  one,  and  the  office  of  major-general 
was  abolished  by  the  act  of  March  '3,  1797  (ibid.,  507).  The  act  of  May  28,  1798 
(ibid.,  558),  passed  in  contemplation  of  war  with  France,  conferred  authority  upon 
the  President  to  appoint  a  lieutenant-general  and  a  suitable  number  of  major-generals ; 
by  section  3  of  the  act  of  July  16,  1798  (ibid.,  604),  the  number  of  major-generals  so 
appointed  was  restricted  to  two,  and  the  number  of  brigadier-generals  to  four.  The 
grade  of  lieutenant-general  was  abolished  and  replaced  by  that  of  General  of  the 
Armies  of  the  United  States,  by  section  9  of  the  act  of  March  3,  1799  (ibid.,  752). 
The  difficulties  with  France  having  been  put  in  the  way  of  settlement,  recruiting  was 
suspended  until  the  further  order  of  Congress  by  the  act  of  February  20,  1800 
(2  ibid.,  7);  military  appointments  were  authorized  to  be  suspended  by  the  act  of 
May  14,  1800  (ibid.,  85),  and  at  the  reduction  of  1802,  the  number  of  general  officers 
was  reduced  to  one  brigadier-general.  Section  3,  act  of  March  16,  1802,  2  ibid.,  132. 

During  the  controversy  with  Great  Britain  which  culminated  in  the  war  of  1812, 
the  appointment  of  two  additional  brigadier-generals  was  authorized  by  section  3 
of  the  act  of  April  12,  1808  (2ibid.,  481);  by  the  act  of  December  24,  1811  (ibid.,  669), 
the  existing  military  establishment  was  ordered  to  be  immediately  completed,  and 
by  section  4  of  the  act  of  January  11,  1812  (ibid.,  671),  two  major-generals  and  four 
brigadier-generals  were  authorized.  By  the  act  of  February  24,  1813  (ibid.,  801), 
six  major-generals  and  six  brigadier-generals  were  authorized  in  addition  to  those 
already  in  service.  The  act  of  March  3, 1815  (3  ibid.,  224),  fixing  the  military  peace 
establishment,  reduced  the  number  of  major-generals  to  two  and  the  number  of 
brigadier-generals  to  four;  at  the  general  reduction  of  1821  these  numbers  were 
fixed  at  one  and  two,  respectively  (section  5,  act  of  March 2,  1821,  ibid.,  615),  at 
which  number  it  remained  until  the  outbreak  of  hostilities  with  Mexico  in  1846. 
The  act  of  May  13,  1846  (9  Stat.  L.,  9),  providing  for  the  prosecution  of  the  exist- 
ing war  with  Mexico,  authorized  the  acceptance  of  50,000  volunteers,  and  conferred 
power  upon  the  President  to  organize  the  forces  thus  provided  into  divisions  and 
brigades,  and  to  apportion  the  general  and  staff  officers  among  the  respective  States 
and  Territories  as  he  might  deem  proper.  One  major-general  and  two  brigadier- 
generals,  in  addition  to  those  already  authorized  by  law,  were  added  to  the  establish- 
ment by  the  act  of  June  13,  1846  (ibid.,  17),  with  the  proviso  that  the  number  of 
general  officers  was  to  be  reduced  to  that  existing  at  the  outbreak  of  hostilities  upon 
the  termination  of  the  war  "  by  a  definitive  treaty  of  peace."  With  a  view  to  deter- 
mine the  number  of  general  officers  to  be  appointed  under  the  act  of  May  13,  1846, 
it  was  provided  by  the  act  of  June  26,  1846  (ibid.,  20),  that  brigades  of  volunteer 
troops  should  consist  of  not  less  than  three  regiments  and  divisions  of  not  less  than 
two  brigades;  and  any  reduction  in  the  strength  of  the  volunteer  forces  was  to  involve 
a  corresponding  reduction  in  the  number  of  general  officers,  all  of  whom  were  to 
be  mustered  out  at  the  close  of  the  war.  By  the  act  of  March  3,  1847  (ibid.,  184) 
two  major-generals  and  three  brigadier-generals  were  authorized  for  the  period  of 
the  war.  The  reduction  at  the  close  of  the  war  was  accomplished  by  a  proviso 
in  the  act  of  July  19,  1848  (ibid.,  247),  which  required  that  vacancies  occurring  in 
the  grade  of  general  officer,  should  not  be  filled  until  the  numbers  of  major  and 
brigadier  general  had  been  reduced  to  one  and  two,  respectively. 

At  the  outbreak  of  the  war  of  the  rebellion  the  President,  by  proclamations,  dated 
April  15,  1861  (12  Stat.  L.,  1258),  and  May  3,  1861  (ibid.,  1260),  called  forth  a  force 
of  75,000  militia  and  42,034  volunteers;  and  Congress,  by  the  act  of  July  22,  1861 
(ibid.  268),  authorized  the  enlistment  of  500,000  volunteers,  and  made  provision  for 
their  organization  into  brigades  and  divisions,  and  for  the  appointment  of  such  num- 
bers of  general  officers  as  were  necessary  to  their  command.  By  section  4  of  the 
same  act  the  President  was  authorized  to  select  six  major-generals  and  eighteen  brig- 
adier-generals from  the  line  or  staff  of  the  Army,  and  the  officers  so  appointed  were 
allowed  to  retain  their  army  rank.  The  number  of  general  officers  of  volunteers  was 
fixed  by  the  act  of  July  5, 1862  (ibid.,  506),  which  restricted  the  number  of  major-gen- 
erals to  forty  and  the  number  of  brigadier-generals  to  two  hundred.  By  section  9  of 
the  act  of  July  28, 1866  ( 14  ibid. ,  333 ) ,  the  number  of  major-generals  in  the  regular  estab- 
lishment was  fixed  at  five  and  that  of  brigadier-generals  at  ten ;  by  section  3  of  the  act  of 
March  3,  1869  (15  ibid.,  318),  the  number  of  brigadier-generals  was  reduced  to  eight; 
and  by  section  8  of  the  act  of  July  15,  1870  ( 16  ibid. ,  318) ,  the  number  was  still  further 
reduced  to  six  and  that  of  major-generals  to  three. 


CHAPTER  XII. 


GENERAL  OFFICERS,  AIDS,  AND  MILITARY  SECRETARIES. 


Par. 

558.  Discontinuance  of  the  office  of  Gen- 

eral. 

559.  Appointment  of  general  officers. 

560.  The  same. 


1866,  c.  299,  s.  9, 
v.  14,  p.  333;  Feb. 
Sec.  1097,  R.  S. 


ISGI  c 


Par. 

555.  General  officers. 

556.  Aids  to  the  Lieutenant-General. 

557.  Aids  to  major-generals  and  to  brig- 

adier-generals. 


555.  From  and  after  the  approval  of  this  act  the  Army 
of  the   United   States   shall  consist  of  one   Lieutenant-  81 
General,  six   major-generals,    fifteen   brigadier-generals. 
Act  of  February  2,  1901  (31  Stat.  Z.,  748). 

556.  The  Lieutenant-General  may  select  from  the  Army  G 
two  aids  and  one  military  secretary,  who  [shall]  have 

rank  of  lieutenant-colonel  of  cavalry  while  serving  on  his  H:  s 

Staff.  l 

27,  1877,  c.  69,  v.  19,  p.  241. 

557.  Each  major-general  shall  have  three  aids,  who  may 
be  selected  by  him  from  captains  or  lieutenants  of 
Army,  and  each  brigadier-general  shall  have  two  aids,  who  llo- 

may  be  selected  by  him  from  lieutenants  of  the  Army.2     c-  1||'  *•  9>v-  14- 

"Sec.'l098,  B.S. 

1  The  personal  staff  of  the  Lieutenant-General  was  established  by  section  5  of  the 
act  of  May  28,  1798  (1  Stat.  L.,  558),  and  consisted  of  four  aids  and  two  military 
secretaries,  each  of  whom  was  to  have  the  rank,  pay,  and  emoluments  of  a  lieutenant- 
colonel;  the  same  establishment  was  allowed  to  General  Scott  when  the  grade  of 
Lieutenant-General  was  revived  and  conferred,  by  brevet,  upon  that  officer  under 
the  authority  contained  in  joint  resolution  No.  9,  of  February  15,  1855  (10  ibid., 
723).     By  section  16  of  the  act  of  March  3,  1857  (11  ibid.,  205),  the  number  of 
officers  on  the  personal  staff  of  the  Lieutenant-General  in  time  of  peace  was  restricted 
to  two  aids  and  one  military  secretary,  with  the  rank  and  pay  of  lieutenant-colonels 
of  cavalry.     When  the  grade  of  Lieutenant-General   was  revived  by  the  act  of 
February  29,  1864  (13  ibid.,  11),  the  personal  staff  as  established  by  the  act  of  May 
28,  1798,  was  authorized;  by  section  2  of  the  act  of  July  28,  1866  (14  ibid.,  223),  the 
staff  of  that  officer  was  fixed  at  two  aids  and  a  military  secretary.     These  officers 
were  to  be  selected  by  detail  from  the  Army  and  were  to  have,  while  so  detailed, 
the  rank,  pay,  and  emoluments  of  lieutenant-colonels  of  cavalry. 

2  Section  5  of  the  act  of  March  2,  1821  (3  Stat.  L.,  615),  contained  the  require- 
ment that  aids  to  major  and  brigadier  generals  should  be  appointed,  by  selection, 
from  the  subalterns  of  the  Army.     By  section  8  of  the  act  of  June  18,  1846  (9  ibid.  ,  17)  , 
captains  were  made  eligible  for  selection  as  aids  to  major-generals.     A  major-gen- 
eral is  allowed  by  law  three  aids,  to  be  taken  from  captains  or  lieutenants  of  the 
Army.     A  brigadier-general  is  allowed  two,  to  be  taken  from  the  lieutenants  of 
the  Army.     An  officer  assigned  to  duty  in  accordance  with  his  brevet  rank  as  major- 
general  or  brigadier-general  may,  with  the  special  sanction  of  the  War  Department, 
be  allowed  the  aids  of  the  grade.     General  officers  may  select  their  aids  from  officers 

205 


206  MILITARY    LAWS    OF   THE   UNITED   STATES. 

an^escofnoffic£     558-  When  a  vacancy  occurs  in  the  office  of  General1 
LieSeSlrnt-Gennd-  *     *     *     such  office  shall  cease  and  all  enactments  creating 
er|ec.i2i7,R.s.  or  regulating  such  office  shall     *     *     *     be  held  to  be 
repealed.2 

serving  in  their  commands,  subject  to  the  restrictions  herein  prescribed,  but  appoint- 
ments as  aids  of  officers  serving  without  such  limits  must  receive  the  approval  of  the 
Secretary  of  War.  An  officer  will  be  appointed  aid  to  a  general  officer  only  after  he 
shall  have  actually  served  with  troops  for  at  least  three  of  the  five  years  immediately 
preceding  such  appointment.  He  will  hold  such  appointment  for  no  longer  a  period 
than  four  years,  except  that,  upon  the  request  of  a  general  officer  whose  retirement 
by  reason  of  age  will  occur  within  one  year,  the  tour  of  four  years  may  be  extended 
by  the  Secretary  of  War  to  the  date  of  such  retirement.  Par.  33,  A.  R.,  1895. 

For  statutory  provisions  and  executive  regulations  respecting  the  staffs  of  general 
officers  when  assigned  to  commands  see  the  chapter  entitled  RANK  AND  COMMAND — 
TACTICAL  AND  TERRITORIAL  ORGANIZATIONS. 

JThe  grade  of  "  General  of  the  Armies  of  the  United.  States  "  was  created  by  sec- 
tion 9  of  the  act  of  March  3, 1799  (1  Stat.  L.,  752).  The  office,  though  not  expressly 
referred  to  in  any  of  the  acts  for  the  reduction  or  disbandment  of  the  forces  raised 
in  contemplation  of  war  with  France,  ceased  to  exist  in  1802,  not  having  been  men- 
tioned in  the  act  of  March  16,  1802  (2  ibid.,  132),  which  determined  the  military 
peace  establishment.  The  grade  was  revived  under  the  title  of  "General  of  the 
Army  of  the  United  States,"  by  the  act  of  July  25,  1866  (14 ibid.,  223),  and  was  con- 
ferred upon  Lieutenant-General  Grant;  and  was  recognized  and  continued  by  sec- 
tion 9  of  the  act  of  July  28,  1866  (ibid.,  333).  Section  6  of  the  act  of  July  15,  1870 
(16  ibid.,  318) ,  contained  the  requirement,  however,  that  "the  offices  of  General  and 
Lieutenant-General  shall  continue  until  a  vacancy  shall  exist  in  the  same,  and  no 
longer,  and  when  such  vacancy  shall  occur  in  either  of  said  offices  immediately 
thereupon  all  laws  and  parts  of  laws  creating  said  office  shall  become  inoperative, 
and  shall,  by  virtue  of  this  act,  from  thenceforward  be  held  to  be  repealed."  The 
office  ceased  to  exist,  as  a  grade  of  military  rank,  at  the  death  of  Gen.  W.  T.  Sher- 
man on  February  14,  1891.  The  act  of  March  3,  1885  (23  ibid.,  434),  authorized  the 
appointment  of  a  "General  of  the  Army  on  the  Retired  List,"  which  was  conferred 
upon  Gen.  Ulysses  S.  Grant,  and  expired  on  the  death  of  that  officer  on  July  23, 
1885.  By  the  act  of  June  1,  1888  (25  ibid. ,  165) ,  the  grade  of  Lieutenant-General  was 
discontinued  and  merged  in  that  of  General  of  the  Army,  which  was  conferred  upon 
Lieut.  Gen.  P.  H.  Sheridan,  and  ceased  to  exist  at  the  death  of  that  officer  on  August 
5, 1888. 

CHIEF  OP  STAFF.— By  the  act  of  March  3,  1865  (13  Stat.  L.,  500),  the  office  of  chief 
of  staff,  with  the  rank  of  brigadier-general,  was  provided  for  the  Lieutenant-General 
commanding  the  Army.  By  section  2  of  the  act  of  July  25, 1866  (14  ibid.,  223),  that 
officer  was  transferred  to  the  staff  of  the  General.  The  office  was  abolished  by  the 
act  of  April  3,  1869  (16  ibid.,  6) . 

2  The  grade  of  Lieutenant-General  was  first  established  by  the  act  of  May  28,  1798 
(1  Stat.  L.,  558);  it  was  abolished,  however,  by  section  9  of  the  act  of  March  3,  1799 
(ibid.,  752),  and  the  command  of  the  forces  authorized  to  be  raised,  in  contemplation 
of  war  with  France,  was  vested  in  the  "General  of  the  Armies  of  the  United  States" 
authorized  by  that  statute.  The  grade  was  revived  by  joint  resolution  No.  9  of  Feb- 
ruary 15,  1855  (10  ibid.,  723),  and  the  rank  was  conferred  by  brevet  on  Maj.  Gen. 
Winfield  Scott;  the  office  thus  created  ceased  to  exist  at  the  death  of  that  officer  on  May 
29, 1866.  The  grade  was  again  revived  by  the  act  of  February  29,  1864  (13  ibid.,  11), 
and  conferred  upon  Maj.  Gen.  Ulysses  S.*  Grant,  and  the  office  was  recognized  and 
continued  by  section  9  of  the  act  of  July  28,  1866  (14  ibid.,  333) ,  but  was  to  cease  to 
exist  upon  the  occurrence  of  a  vacancy,  under  the  restriction  imposed  by  section  6  of 
the  act  of  July  15,  1870  (16  ibid.,  318).  The  office  was  vacated  and  merged  in  that 
of  General  of  the  Army  upon  the  promotion  of  Lieutenant-General  Sheridan  to  that 
grade,  under  the  authority  conferred  by  the  act  of  June  1,  1888  (2o  ibid.,  165).  It 
was  revived  a  third  time  by  joint  resolution  No.  9  of  February  5, 1895  (28  ibid.,  968) , 
and  was  conferred,  subject  to  the  restriction  therein  contained,  upon  Maj.  Gen.  John 
M.  Schofield,  and  the  office  continues  to  exist  as  a  grade  of  military  rank  on  the 
retired  list.  The  rank,  pay,  and  allowances  of  Lieutenant-General  were  conferred 
upon  "the  senior  major-general  of  the  line  commanding  the  Army"  by  section  2  of 
the  act  of  June  6,  1900  (31  ibid.,  655);  the  office  was  revived  as  a  grade  of  military 
rank  by  section  1,  act  of  February  2,  1901  (31  Stat.  L.,  748). 


MILITARY    LAWS    OF   THE    UNITED    STATES.  207 

559.  The  President  of    the    United   States   is   hereby    xppomtment 
authorized  to  select  from  the  brigadier-generals  of  volun-  cLsgei 
teers  two  volunteer  officers,  without  regard  to  age,  and,  33,  v.  si,'  p.  756. s' 
by  and  with  the  advice  and  consent  of  the  Senate,  appoint 

them  brigadier-generals,  United  States  Army,  for  the 
purpose  of  placing  them  on  the  retired  list.  Sec.  33,  act 
of  February  2, 1901  (31  Stat.  L.,  756). 

560.  And  the  President  is   also  hereby  authorized  to    The  same, 
select  from  the  retired  list  of  the  Army  an  officer  not 

above  the  rank  of  brigadier-general  who  may  have  dis- 
tinguished himself  during  the  war  with  Spain,  in  com- 
mand of  a  separate  army,  and  to  appoint,  and,  by  and  with 
the  advice  and  consent  of  the  Senate,  the  officer  so  selected 
to  be  major-general,  United  States  Army,  with  the  pay 
and  allowances  established  by  law  for  officers  of  that  grade 
on  the  retired  list. .  Ibid. 


CHAPTER  XIII. 


RANK  AND  COMMAND— TACTICAL  AND  TERRITORIAL 
ORGANIZATIONS. 


Par. 

551.  Command,  detachments. 

562.  The  same,   regular    and  volunteer 

officers. 

563.  Officers  of  militia. 

564.  Relative  rank,  army  and  navy  offi- 

cers. 

565.  Relative  rank  of  officers,  rule. 

566.  Brevet  assignments. 


Par. 

567.  Engineer  officers. 

568.  Medical  officers,  restriction. 

569.  Pay  officers,  restriction. 

570.  Tactical  organizations. 

571.  The  same,  time  of  war. 

572.  Clerks  and  messengers. 

573.  The  same  assignment. 

574.  Military  headquarters. 


Command, 
when  different 


561.  If,  upon  marches,  guards,  or  in  quarters,  different 
joms  happen  to  corps  of  the  Army  happen  to  join  or  do  duty  together,  the 
122  Art.  war.  officer  highest  in  rank1  of  the  line  of  the  Army,  Marine 
Corps,  or  militia,  by  commission,  there  on  duty  or  in  quar- 
ters, shall  command2  the  whole,  and  give  orders  for  what 

*The  terms  "rank"  and  "command"  have  received  executive  interpretation  in 
paragraphs  7  and  13  of  the  Army  Regulations  of  1901. 

Military  rank  is  that  character  or  quality  bestowed  on  military  persons  which 
marks  their  station  and  confers  eligibility  to  exercise  command  or  authority  in  the 
military  service  within  the  limits  prescribed  by  law.  It  is  divided  into  degrees  or 
grades,  which  mark  the  relative  positions  and  powers  of  the  different  classes  of  per- 
sons possessing  it.  Par.  7,  A.  R.,  1901. 

Rank  is  generally  held  by  virtue  of  office  in  a  regiment,  corps,  or  department,  but 
may  be  conferred  independently  of  office,  as  in  the  case  of  retired  officers  and  of  those 
holding  it  by  brevet.  Par.  8,  A.  R.,  1901. 

A  determination  by  the  legislative  and  executive  branches  of  the  Government,  as 
to  the  relation  or  superior  authority  among  military  officers,  is  conclusive  upon  the 
judiciary.  De  Celis  v.  U.  S.,  13  Ct.  Cls.,  117. 

The  following  are  the  grades  of  rank  of  officers  and  noncommissioned  officers: 


1.  Lieutenant-general. 

2.  Major-general. 

3.  Brigadier-general. 

4.  Colonel. 

5.  Lieutenant-colonel. 

6.  Major. 

7.  Captain. 

8.  First  lieutenant. 

9.  Second  lieutenant. 

10.  Veterinarian,  cavalry  and  artillerv. 

11.  Cadet. 

12.  Sergeant-major,  regimental,  and  ser- 

geant-major, senior  grade,  artillery 
corps. 


13.  Quartermaster-sergeant,  regimental. 

14.  Commissary-sergeant  regimental. 

15.  Ordnance  sergeant,  post  commissary- 

sergeant,  post  quartermaster-ser- 
geant, electrician  sergeant,  hospital 
steward,  first-class  sergeant  Signal 
Corps,  chief  musician,  chief  trum- 
peter, and  principal  musician. 

16.  Squadron    and    battalion    sergeant- 

major  and  sergeant-major,  junior 
grade,  artilllery  corps. 

17.  First  sergeant  and  drum-major. 

18.  Sergeant  and  acting  hospital  steward. 

19.  Corporal. 


In  each  grade,  date  of  commission,  appointment,  or  warrant  determines  the  order 
of  precedence.  (Par.  9,  Army  Regulations  of  1901.) 

2  Command  is  exercised  by  virtue  of  office  and  the  special  assignment  of  officers 
holding  military  rank  who  are  eligible  by  law  to  exercise  command.  Without  orders 

208 


•     MILITARY    LAWS    OF   THE    UNITED   STATES.  209 

is  needful  to  the  service,  unless  otherwise  specially  directed 
b}^  the  President,  according  to  the  nature  of  the  case.  One 
hundred  and  twenty-second  article  of  war. 

562.  In  all  matters  relating  to  the  rank,  duties,  and  rights 

of  officers,  the  same  rules  and  regulations  shall  apply  to^ti°nng 
officers  of  the  Regular  Army  and  to  volunteers  commis-  ^a'r^'ise?  c 
sioned  in,  or  mustered  into  said  service,  under  the  laws  of  J|^8-2'  v-  14>  P- 
the  United  States,  for  a  limited  period.  One  hundred  and  123  Art-  War- 
twenty-third  article  of  war. 

563.  Officers  of  the  militia  of  the  several  States,  when 
called  into  the  service  of  the  United  States,  shall  on 
detachments,  courts-martial,  and  other  duty  wherein  they  f°Ma?'  2  ise?  c 
may  be  employed  in  conjunction  with  the  regular  or  volun-  JjjjJ1  s-  2>  v-  14>  p- 
teer  forces  of  the  United  States,  take  rank  next  after  all   124  Art*  War* 
officers  of  the  like  grade  in  said  regular  or  volunteer  forces, 
notwithstanding  the  commissions  of  such  militia  officers 

may  be  older  than  the  commissions  of  the  said  officers  of 
the  regular  or  volunteer  forces  of  the  United  States.  One 
hundred  and  twenty  -fourth  article  of  war. 

564.  The  relative  rank  between  officers  of  the  Navy, 
whether  on  the  active  or  retired  list,  and  officers  of  the 

Army  shall  be  as  follows,  lineal  rank  only  being  consid-  J||:  ^>  J  ^yj- 

c.  6,  s.i,  v.  is,  p.' 

420;  July  25,  1866, 

The  Vice-  Admiral  shall  rank  with  the  Lieutenant-Gen-  ^fVaJ.'l'isb?; 

'     C.174,s.l,v.i4,pp. 
515,  516;  Mar.  3, 

Rear-admirals  with  major-generals.  18SecVi466PE4?s' 


from  competent  authority  an  officer  can  not  put  himself  on  duty  by  virtue  of  his 
commission  alone,  except  as  contemplated  in  the  twenty-fourth  and  one  hundred 
and  twenty-second  articles  of  war.     Par.  13,  A.  R.,  1901. 
The  following  are  the  commands  appropriate  to  each  grade: 

1.  For  a  captain,  a  company. 

2.  For  a  major  or  lieutenant-colonel,  a  battalion  or  squadron. 

3.  For  a  colonel,  a  regiment. 

4.  For  a  brigadier-general,  two  regiments. 

5.  For  a  major-general,  four  regiments.     Par.  14,  A.  R.,  1901. 

The  functions  assigned  to  any  officer  in  these  regulations  by  title  of  office  devolve 
upon  the  officer  acting  in  his  place,  except  when  otherwise  specified.  An  officer  in 
temporary  command  shall  not,  except  in  urgent  cases,  alter  or  annul  the  standing 
orders  of  the  permanent  commander  without  authority  from  the  next  higher  com- 
mander. Par.  15,  A.  R.,  1901. 

An  officer  who  succeeds  to  any  command  or  duty  stands  in  regard  to  his  duties  in 
the  same  situation  as  his  predecessor.  The  officer  relieved  will  turn  over  to  his  suc- 
cessor all  orders  in  force  at  the  time  and  all  the  public  property  and  funds  pertaining 
to  his  command  or  duty,  and  will  receive  therefor  duplicate  receipts  showing  the 
condition  of  each  article.  Par.  16,  A.  R.,  1901. 

When  an  officer  is  charged  with  directing  an  expedition  or  making  a  reconnois- 
sance,  without  haying  command  of  the  escort,  the  commander  of  the  escort  will 
consult  him  touching  all  arrangements  necessary  to  secure  the  success  of  the  opera- 
tion. Par.  19,  A.  R.,  1901.  For  statutory  provisions  respecting  the  exercise  of  com- 
mand by  staff  officers  see  the  chapter  called  THE  STAFF  DEPARTMENTS.  See,  also,  para- 
graphs 17  and  18,  A.  R.,  1901. 

22924—08  -  14 


210  MILITARY    LAWS    OF    THE    UNITED    STATES. 

Commodores  1  with  brigadier-generals. 
Captains  with  colonels. 
Commanders  with  lieutenant-colonels. 
Lieutenant-commanders  with  majors. 
Lieutenants  with  captains. 

Lieutenants,  junior  grade,  with  first  lieutenants.2 
Ensigns  with  second  lieutenants. 
Relative  rank,      565.  In  fixing  relative  rank8  between  officers  of  the  same 

howdetermmed. 

MM.  2,  we?,  c.  grade  and  date  of  appointment  and  commission,  the  time 


1219  B  s  eacn  mav  nave  actually  served  as  a  commissioned 

officer  of  the  United  States,  whether  continuously  or  at 
different  periods,  shall  be  taken  into  account.  And  in 
computing  such  time,  no  distinction  shall  be  made  between 
service  as  a  commissioned  officer  in  the  Regular  Army  and 
service  since  the  19th  day  of  April,  1861,  in  the  volunteer 
forces,  whether  under  appointment  or  commission  from  the 
President  or  from  the  governor  of  a  State. 

566>  Omcers  may  be  assigned  to  duty  or  command  accord- 
tosec?  ill™  i£s.  *n£  to  fckeir  brevet  rank  by  special  assignment  of  the  Pres- 
ident;  and  brevet  rank  shall   not  entitle   an   officer  to 
precedence  or  command  except  when  so  assigned. 
wri8  transfer6  ^f     ^'  Engineers  shall  not  assume  nor  be  ordered  on  any 
ei^reio8i806  c  duty  beyond  the  line  of  their  immediate  profession,  except 
20^art.  63,  v.  2,'  p.  ^y  the  Special  order  of  the  President.*     They  may,  at  the 
sec.  1108,  B.S.  discretion  of  the  President,  be  transferred  from  one  corps 
to  another,  regard  being  paid  to  rank. 

1  The  office  of  commodore,  as  a  grade  of  rank  on  the  active  list  of  the  Navy,  was 
abolished  by  section  7  of  the  act  of  March  3,  1899  (30Stat.  L.,  1005);  that  statute 
also  contained  the  requirement  that  '  *  each  rear-admiral  embraced  in  the  nine  lower 
numbers  of  the  grade  shall  receive  the  same  pay  and  allowance  as  are  now  allowed  a 
brigadier-general  in  the  Army." 

2  The  office  of  lieutenant,  junior  grade,  was  created  by  the  act  of  March  3,  1883 
(22  Stat.  L.,  442),  replacing  that  of  master  in  the  Navy,  which  was  discontinued  by 
that  statute. 

3  Officers  of  the  Regular  Army,  Marine  Corps,  and  volunteers  when  commissioned 
or  mustered  into  the  service  of  the  United  States,  being  upon  equal  footing,  take  pre- 
cedence in  each  grade  by  date  of  commission  or  appointment.     Militia  officers,  when 
employed  with  the  regular  or  volunteer  forces  of  the  United  States,  take  rank  next 
after  all  officers  of  like  grade  in  those  forces.     Par.  10,  A.  R.,  1901. 

Between  officers  of  the  same  grade  and  date  of  appointment  or  commission,  other 
than  through  promotion  by  seniority,  relative  rank  is  determined  by  length  of  serv- 
ice, continuous  or  otherwise,  as  a  commissioned  officer  of  the  United  States,  either  in 
the  Regular  Army  or,  since  April  19,  1861,  in  the  volunteer  forces.  When  periods 
of  service  are  equal,  precedence  will,  except  when  fixed  by  order  of  merit  on  exam- 
ination, be  determined,  first,  by  rank  in  service  when  appointed;  second,  by  former 
rank  in  the  Army  or  Marine  Corps;  third,  by  lot,  among  such  as  have  not  been  in 
the  military  service  of  the  United  States.  Par.  11,  A.  R.,  1901. 

4  An  officer  of  engineers  or  ordnance,  or  of  the  Adjutant-General's,  Inspector- 
General's,  Judge-  Advocate-General's,  Quartermaster's,  or  Subsistence  Department, 
or  of  the  Signal  Corps,  though  eligible  to  command,  according  to  his  rank,  shall  not 
assume  command  of  troops  unless  put  on  duty  under  orders  which  specially  so  direct, 
byauthority  of  the  President.     Par.  17,  A.  R.,  1901. 


MILITAEY   LAWS    OF   THE   UNITED   STATES.  211 

568.  Officers  of  the  Medical  Department  of  the 
all  not  be  entitled,  in  virtue  of 
in  the  line  or  in  other  staff  corps.1 


shall  not  be  entitled,  in  virtue  of  their  rank,  to  command  P18^  in  line  or 

in  other  staff  de- 


B  s 

569.  Officers  of  the  Pay  Department  shall  not  be  entitled,  tommatdTn 
in  virtue  of  their  rank,  to  command  in  the  line  or  in  other  li,ne-orjln  otner 

staff    depart- 

staff  corps.1  mfenc?im,B.S. 

TACTICAL  ORGANIZATIONS. 

570.  In  the  ordinary  arrangement  of  the  Army  two  regi 
ments  of  infantry  or  of  cavalry  shall  constitute  a  brigade, 

and  shall  be  the  command  of  a  brigadier-general,  and  two  £P^>  ]$98>  s-  9« 
brigades  shall  constitute  a  division,  and  shall  be  the  com-   Sec.  1114,  R.S. 
mand  of  a  major-general;  but  it  shall  be  in  the  discretion 
of  the  commanding  general  to  vary^  this  disposition  when- 
ever he  may  deem  it  proper  to  do  so.2 

571.  In  time  of  war,  or  when  war  is  imminent,  the  troops  ti^ar  or?aniza- 
in  the  service  of  the  United  States,  whether  belonging  to9  vP3b^'  3628'8' 
the  Regular  or  Volunteer  Army  or  to  the  militia,  shall  be 
organized,  as  far  as  practicable,  into  divisions  of  three 
brigades,  each  brigade  to  be  composed  of  three  or  more 
regiments;    and  whenever   three   or  more   divisions  are 
assembled  in  the  same  army  the  President  is  authorized  to 
organize  them  into  army  corps,  each  corps  to  consist  of 

not  more  than  three  divisions.     Sec.  9,  act  of  April  22, 
1898(30  Stat.  L.,362). 

CLERKS   AND   MESSENGERS.3 

572.  For  pay  to  clerks  and  messengers:     *     *     *     Five 
clerks  at  one  thousand  eight  hundred  dollars  each   per  31Mpar89| 
annum.  *     Ten  clerks  at  one  thousand  six  hun- 

1  An  officer  of  the  Pay  or  Medical  Department  can  not  exercise  command,  except 
in   his  own  department;  but  by  virtue  of  his  commission  he  may  command  all 
enlisted  men  like  other  commissioned  officers.     (Par.  18,  A.  R.,  1901.) 

2  Paragraph  189  of  the  Army  Regulations  of  1895  contains  the  provision  that,  in  time 
of  peace,  army  corps,  divisions,  and  brigades  will  not  be  formed  except  for  purposes 
of  instruction.     Section  9  of  the  act  of  July  17,  1862  (12  Stat.  L.,  594),  authorized 
the  President  to  establish  and  organize  army  corps  according  to  his  discretion.     Sec- 
tion 10  of  the  same  act  provided  for  the  staff  of  an  army  corps.     Such  legislation  was 
not  necessary,  however,  the  organization  of  separate  armies,  army  corps,  grand  divi- 
sions, wings,  reserves,  and  the  like,  in  time  of  war,  being  a  matter  within  the  discre- 
tion of  the  President  as  the  Commander  in  Chief.     For  regulations  respecting  the 
organization  of  armies  in  the  field  in  time  of  war,  see  the  volume  entitled  TROOPS  IN 
CAMPAIGN;  see,  also,  Scott's  Dig.,  pp.  244,  245.     For  the  war  organization  of  the 
military  forces  of  the  United  States,  see  next  paragiaph. 

3  The  clerks  and  messengers  above  referred  to  and  provided  for  were  first  author- 
ized by  the  Act  of  August  6,  1894  (28  Stat.  L.,  236);  they  replace  the  force  of  "Gen- 
eral service  clerks  and  messengers"  created  by  the  act  of  July  29,  1886  (24  Stat.  L., 
167)  ,  but  discontinued  by  the  act  of  August  6,  1894  (28  Stat.  L.,  233).     Their  num- 
bers and  compensation  are  determined  in  the  annual  acts  of  appropriation  for  the 
support  of  the  Army. 


212  MILITARY    LAWS    OF   THE   UNITED    STATES. 

dred  dollars  each  per  annum.  *  *  *  Twenty-five 
clerks  at  one  thousand  four  hundred  dollars  each  per 
annum.  Sixty-five  clerks  at  one  thousand  two 

hundred  dollars  each  per  annum.     *     *     *     Eighty-six 
clerks  at  one  thousand  dollars  each  per  annum.     Sixty- 
eight  messengers  at  seven  hundred  and  twenty  dollars  each 
per  annum.     Act  of  March  2,  1901  (31  Stat.  L.,  899). 
Employment     573.  And  said  clerks  and  messengers  shall  be  emploved 

ana  assignment.  °  * 

and  assigned  by  the  Secretary  of  War  to  the  offices  and 
positions  in  which  they  are  to  serve.  Ibid. 

MILITARY    HEADQUARTERS. 


quarters7  head~     ^4<  When  ^e  economy  of  the  service  requires,   the 

v  J2ine  35'  1879>  ^ecre^ary  °f  War  shall  direct  the  establishment  of  military 

headquarters  at  points  where  suitable  buildings  are  owned 

by  the  Government.1     Act  of  June  %3,  1879  (21   Stat. 

L.,  35). 

TERRITORIAL  COMMANDS. 

In  time  of  peace  our  army  has  been  habitually  distributed  into  geographical  com- 
mands, styled,  respectively,  military  divisions,  departments,  and  districts  —  the  dis- 
tricts, as  organized  prior  to  1815,  corresponding  to  the  commands  now  designated  as 
departments.  These  divisions  and  departments  can  be  established  only  by  the 
President;  but,  within  their  respective  departments,  commanding  generals  have  from 
time  to  tune  grouped  adjacent  posts  into  temporary  commands,  which  are  now 
known  as  districts. 

Military  divisions,  each  embracing  two  or  more  departments,  have  obtained  from 
May  17,  1815,  to  June  1,  1821;  from  May  19,  1837,  to  July  12,  1842;  from  April  20, 
1844,  to  October  31,  1853;  from  July  25  to  August  17,  1861;  and  from  October  13, 
1863,  to  July  2,  1891. 

Department  organizations  have  been  continuous  since  1815.  (  o)     Scott'  s  Dig.  ,  p.  244. 

THE  COMMANDING  GENERAL  OF  THE  ARMY. 

The  command  exercised  by  the  commanding  general  of  the  Army,  not  having 
been  'made  the  subject  of  statutory  regulation,  is  determined  by  the  order  of  assign- 
ment. It  has  been  habitually  composed  of  the  aggregate  of  the  several  territorial 
commands  that  have  been  or  may  be  created  by  the  President. 

The  military  establishment  is  under  the  orders  of  the  commanding  general  of  the 
Army  in  that  which  pertains  to  its  discipline  and  military  control.  The  fiscal  affairs 
of  the  Army  are  conducted  by  the  Secretary  of  War,  through  the  several  staff  depart- 
ments. Par.  205,  A.  R.,  1901. 

All  orders  and  instructions  from  the  President  or  Secretary  of  War  relating  to 
military  operations  or  affecting  the  military  control  and  discipline  of  the  Army  will 
be  promulgated  through  the  commanding  general.  Par.  206,  A.  R.,  1901.  See, 
also,  paragraph  11,  ante. 

TERRITORIAL   DEPARTMENTS. 

Territorial  departments  are  established  and  their  commanders  assigned  by  direc- 
tion of  the  President.  In  time  of  peace,  army  corps,  divisions,  or  brigades  will  not 
be  formed  except  for  purposes  of  instruction.  Par.  189,  A.  R.,  1895. 

The  commander  of  a  department  commands  all  the  military  forces  of  the  Govern- 
ment within  its  limits,  whether  of  the  line  or  staff,  which  are  not  specially  excepted 

a  Section  6  of  the  act  of  June  18,  1878  (2u  Stat.  L.,  150),  contained  the  requirement  that  thereafter, 
"in  time  of  peace,  all  military  headquarters,  except  Army  headquarters,  shall  be  established  and 
maintained  at  points  where  the  Government  own  buildings  or  barracks,  within  the  several  depart- 
ments and  divisions,  and  in  such  buildings  or  barracks,  and  not  otherwise,  unless  the  Secretary  of 
War  shall,  by  an  order  in  writing,  otherwise  direct."  This  requirement  was  expressly  repealed  by 
the  act  of  June  23,  1879  (21  Stat.  L.,  35). 


MILITARY    LAWS    OF    THE   UNITED   STATES.  213 

from  his  control  by  the  War  Department.  The  infantry  and  cavalry  school  at  Fort 
Leaven  worth,  Kans.,  and  the  cavalry  and  light  artillery  school  at  Fort  Riley,  Kans., 
in  matters  pertaining  to  the  courses  of  instruction;  the  Military  Academy;  the  artil- 
lery school;  the  engineer  establishment  at  Willets  Point;  the  arsenals;  the  general 
depots  of  supply;  the  general-service  recruiting  stations;  such  permanent  fortifica- 
tions as  may  be  in  process  of  construction  or  repair,  and  officers  employed  on  special 
duty  under  the  Secretary  of  War,  are  exempted  from  the  supervision  of  department 
commanders.  But  when  an  emergency  demands  it,  all  military  men  and  material 
within  the  limits  of  their  jurisdiction  come  under  their  control.  Par.  208,  A.  R., 
1901. 

Purchasing  commissaries,  officers  on  duty  at  general  depots  of  supply,  and  others 
indicated  in  the  preceding  paragraph,  whether  reporting  by  letter  to  department 
commanders  or  not,  are  subject  to  their  orders  for  court-martial  or  other  duty  in  an 
emergency  only;  and  officers  on  duty  with  the  commands  at  Fort  Leavenworth,  Fort 
Monroe,  and  Fort  Riley  will  not  be  detached  without  the  orders  of  the  Secretary  of 
War  or  the  commanding  general  of  the  Army.  Par.  209,  A.  R.,  1901. 

A  department  commander  is  charged  with  the  administration  of  all  the  military 
affairs  of  his  department,  and  the  execution  of  all  orders  from  higher  authority.  He 
will  report  to  the  commanding  general  of  the  Army  all  matters  relating  to  the  gen- 
eral welfare  of  his  command,  including  such  change  of  station  of  troops  as  he  may 
deem  desirable,  but  will  obtain  the  approval  of  the  commanding  general  of  the  Army 
before  ordering  the  movement.  If  it  be  necessary  to  move  troops  to  meet  emergen- 
cies, such  movements  and  all  the  circumstances  will  be  reported  at  the  earliest 
possible  moment.  Par.  210,  A.  R.,  1901. 

Each  department  commander  will  inspect  the  troops  under  his  command  at  least 
once  each  year,  and  for  this  purpose  he  may  be  accompanied  by  one  officer  of  his  per- 
sonal or  the  department  staff.  He  will  assure  himself  by  personal  examination  and 
observation  that  all  officers  and  men  under  his  control  are  efficient  in  the  performance 
of  duty,  that  the  troops  are  thoroughly  drilled  and  instructed  in  their  field  duties 
and  tactical  exercises,  that  supplies  are  properly  distributed,  that  proper  care  is 
exercised  in  the  purchase  and  preservation  of  public  property,  and  that  strict  econ- 
omy is  exercised  in  all  public  expenditures.  In  his  annual  report  the  results  of  these 
inspections  will  be  summarized.  From  time  to  time  he  will  report,  for  the  informa- 
tion of  the  commanding  general  of  the  Army  and  the  Secretary  of  War,  the  names 
of  any  and  all  officers  belonging  to  his  command  who  are  believed  to  be  incompetent 
or  permanently  unable,  from  any  cause,  to  perform  all  the  duties  of  their  several 
grades,  both  in  garrison  and  in  active  service;  he  will  also  report  any  errors,  irregu- 
larities, or  abuses  requiring  the  action  of  higher  authority.  Par.  211,  A.  R.,  1901. 

Department  commanders  are  expected  to  determine  controversies  arising  within  the 
limits  of  their  jurisdiction  and  decide  questions  referred  to  them  on  appeal.  Par. 
212,  A.  R.,  1901. 

Although  a  department  commander  may  continue  to  discharge  the  more  important 
functions  of  his  command  while  beyond  its  territorial  limits,  his  absence  therefrom 
requires  the  sanction  of  the  Secretary  of  War,  and  if  intending  to  leave  his  headquar- 
ters for  an  absence  within  his  department,  he  will  report  to  the  Adjutant-General  of 
the  Army  his  intention,  the  duration  of,  and  his  address  during,  his  proposed  absence. 
Par.  195,  A.  R.,  1895. 

STAFF   OF   DEPARTMENT   COMMANDERS. 

The  personal  staff  of  a  department  commander  will  consist  of  the  authorized  aids. 
The  department  staff  will  be  limited  to  the  officers  detailed  by  the  Secretary  of  War 
from  appropriate  staff  departments  or  corps,  or  of  officers  of  the  line  detailed  by  the 
same  authority  to  act  in  their  stead,  and  their  official  designations  will  be  as  follows: 
Adjutant-general,  chief  quartermaster,  chief  commissary,  chief  surgeon,  chief  pay- 
master, judge-advocate,  and  artillery  inspector,  the  last  appointed  as  prescribed  in 
paragraph  350;  also,  when  necessary,  an  engineer  officer,  an  ordnance  officer,  and  a 
signal  officer,  each  detailed  from  his  corps;  but  when  any  of  these  officers  are  not 
assigned,  or  when  any  department  staff  officer  is  temporarily  absent  or  disabled,  the 
duties  of  his  position  will  be  performed  by  other  members  of  the  department  or  per- 
sonal staff.  The  chief  quartermaster  and  chief  commissary  will  each  have  charge  of 
the  depot  of  his  department,  at  the  place  where  headquarters  are  located,  and  will, 
when  practicable,  make  purchases.  The  chief  surgeon  will,  when  practicable,  per- 
form the  duty  of  attending  surgeon.  The  chief  paymaster  will  make  a  proportion  of 
the  payments  in  the  command.  The  duties  prescribed  in  Small-Arms  Firing  Regula- 
tions for  the  inspector  of  small-arms  practice  will  be  performed  by  an  aid  or  by  the 
adjutant-general.  Par.  214,  A.  R.,  1901. 


UNIVERSITY  ) 

OF 


CHAPTER    XIV. 


THE  STAFF  DEPARTMENTS— GENERAL  PROVISIONS— DIS- 
BURSING OFFICERS. 


Par. 

575-577.  Heads  of  departments,  appoint- 
ment and  detail. 
578.  Appointments  to  the  staff. 
579-582.  Details  to  the  staff;  promotions. 
583-588.  Examinations  for  promotion. 
589-590.  Transfers  to  the  staff. 
591.  Promotion  after  fourteen  years  serv- 
ice. 

592-605.  Disbursing  officers;  bonds. 
606-610.  Deposit    and    safe-keeping    of 

public  moneys. 
611-616.  Proceeds  of  sales. 
617-624.  Disbursements. 
625-626.  Inspection  of  disbursements. 


Par. 

627.  Decision  by  Comptroller  in  advance 

of  payment. 

628.  Assignment  of  claims;    powers    of 

attorney. 

629.  Counterfeit  money. 

630.  Presentation  of  drafts. 

631.  Lost  checks,  duplicate  checks. 
632-635.  Accounts  and  accounting. 
636-641.  Rendition  of  accounts. 

642.  Revision  of  accounts. 

643.  Suits  for  the  recovery  of  money. 
644-661.  Miscellaneous  offenses  in  con- 
nection with  public  money. 


HEADS   OF   DEPARTMENTS;1    APPOINTMENTS   AND   DETAILS. 


Vacancies.how 
filled. 

Feb.  2,  1901,  s. 
26,  v.  31,  p.  755. 


The  same,  re- 
striction. 
Ibid. 


The  same,  re- 
tirement. 
Ibid. 


575.  When  vacancies  shall  occur  in  the  position  of  chief 
of  any  staff  corps  or  department  the  President  may  appoint 
to  such  vacancies,  by  and  with  the  advice  and  consent  of 
the  Senate,  officers  of  the  Army  at  large  not  below  the 
rank  of  lieutenant-colonel,  and  who  shall  hold  office  for 
terms  of  four  years.     When  a  vacancy  in  the  position  of 
chief  of  any  staff  corps  or  department  is  filled  by  the 
appointment  of  any  officer  below  the  rank  now  provided 
by  law  for  said  office,  said  chief  shall,  while  so  serving, 
have  the  same  rank,  pay,  and  allowances  now  provided 
for  the  chief  of  such  corps  or  department.     Sec.  ##,  act 
of  February  2,  1901  (31  Stat.  Z.,  755). 

576.  So  long  as  there  remain  in  service  officers  of  any 
staff  corps  or  department   holding   permanent  appoint- 
ments, the  chief  of  such  staff  corps  or  department  shall 
be  selected  from  the  officers  so  remaining  therein.     IMd. 

577.  Any  officer  now  holding  office  in  any  corps  or  de- 
partment, who   shall  hereafter  serve  as  chief  of  a  staff 


*For  the  requirement  of  section  1132  of  the  Revised  Statutes,  authorizing  the  Presi- 
dent to  designate  officers  of  the  several  staff  departments  to  perform  the  duties  of 
chiefs  of  department  during  the  absence  of  the  heads  thereof,  see  paragraph  121,  ante. 

214 


MILITARY    LAWS    OF    THE    UNITED    STATES.  215 

corps  or  department  and  shall  subsequently  be  retired, 
shall  be  retired  with  the  rank,  pay,  and  allowances  author- 
ized by  law  for  the  retirement  of  such  corps  or  depart- 
ment chief.  Ibid. 

APPOINTMENTS. 

578.  Appointments  to  fill  original  vacancies  in  the  low-    Ma??hnt2mi9oi' 
est  grade    in   the  Adjutant-General's    Department,   the v-  81»  P»  90^>- 
Inspector-General's   Department,   and  Judge  Advocate- 
General's  Department,  and  in  the  grade  of  captain  in  the 
Quartermaster's    Department,    Subsistence  Department, 

and  Pay  Department  may  be  made  from  officers  of  vol- 
unteers commissioned  since  April  twenty-first,  eighteen 
hundred  and  ninety-eight,  and  the  age  limit  prescribed  as 
to  chaplains  shall  not  apply  to  persons  who  served  as 
chaplains  of  volunteers  after  said  date  who  were  under 
forty-two  years  of  age  when  originally  appointed.  Act 
of  March  0,  1901  (31  Stat.  Z.,  900). 

DETAILS   TO   THE   STAFF;   PROMOTIONS. 

579.  That  so  long  as  there  remain  any  officers  holding    yebm2tii9oi  a 
permanent  appointments  in   the  Adjutant-General's  De- 26>  v-  31» p>  755- 
partment,  the  Inspector-General's  Department,  the  Quar- 
termaster's Department,  the  Subsistence  Department,  the 

Pay  Department,  the  Ordnance  Department,  and  the  Sig- 
nal Corps,  including  those  appointed  to  original  vacancies 
in  the  grades  of  captain  and  first  lieutenant  under  the  pro- 
visions of  sections  sixteen,  seventeen,  twenty-one,  and 
twenty-four  of  this  act,  they  shall  be  promoted  according 
to  seniority  in  the  several  grades,  as  now  provided  by  law, 
and  nothing  herein  contained  shall  be  deemed  to  apply  to 
vacancies  which  can  be  filled  by  such  promotions  or  to  the 
periods  for  which  the  officers  so  promoted  shall  hold  their 
appointments.  Sec.  26,  act  of  February  2,  1901  (31  Stat. 
Z.,  755). 

580.  When  any  vacancy,  except  that  of  the  chief  of  the 
department  or  corps,  shall  occur  which  can  not  be  filled 
by  promotion  as  provided  in  this  section,  it  shall  be  filled 
by  detail  from  the  line  of  the  Army,  and  no  more  perma- 
nent appointments  shall  be  made  in  those  departments  or 
corps  after  the  original  vacancies  created  by  this  act  shall 
have  been  filled.     Such  details  shall  be  made  from  the 
grade  in  which  the  vacancies  exist,  under  such  system  of 
examination  as  the  President  may  from  time  to  time  pre- 
scribe.    Ibid. 


216 


MILITARY   LAWS    OF   THE    UNITED    STATES. 


Vacancies    in 
line. 


581.  All  officers  so  detailed  shall  serve  for  a  period  of 
four  years,  at  the  expiration  of  which  time  they  shall  re- 
turn to  duty  with  the  line,  and  officers  below  the  rank  of 
lieutenant-colonel  shall  not  again  be  eligible  for  selection 
in  any  staff  department  until  they  shall  have  served  two 
years  with  the  line.     Ibid. 

582.  Each  position  vacated  by  officers  of  the  line  trans- 
sec.  27,  ibid,     f erred  to  any  department  of  the  staff  for  tours  of  service 

under  this  act  shall  be  filled  by  promotion  in  the  line  until 
the  total  number  detailed  equals  the  number  authorized  for 
duty  in  such  department.  Thereafter  vacancies  caused  by 
details  from  the  line  to  the  staff  shall  be  filled  by  officers 
returning  from  tours  of  staff  duty.  If  under  the  opera- 
tion of  this  act  the  number  of  officers  returned  to  any  par- 
ticular arm  of  the  service  at  any  time  exceeds  the  number 
authorized  by  law  in  any  grade,  promotions  to  that  grade 
shall  cease  until  the  number  has  been  reduced  to  that 
authorized.  Sec.  27,  ibid. 

EXAMINATIONS   FOR  PROMOTION.1 


Par. 

583.  Examinations. 

584.  Failure  to  pass. 

585.  Examination    of    appointees    from 

civil  life. 


Par. 


586.  The  same,  waiver  of  privilege. 

587.  Examination  of  engineer  and  ord- 

nance officers. 

588.  Promotion  of  absent  officer. 


forEprao^oUonns     583'  That  the  President  be,  and  he  is  hereby,  authorized 

v  ^ p' 562°' s' 3>  t°  prescribe  a  system  of  examination  of  all  officers  of  the 

Army  below  the  rank  of  major  to  determine  their  fitness 

^ee,  also,  section  1  of  the  act  of  October  1,  1890  (26  Stat.  L.,  252).  So  much  of 
section  1194,  Revised  Statutes,  as  prohibited  appointments  and  promotions  in  the 
Adjutant-General's,  Inspector-General's,  Pay,  Quartermaster's,  Subsistence,  Ord- 
nance, and  Medical  Departments  was  repealed;  as  to  the  Adjutant-General's  Depart- 
ment, by  the  act  of  March  3,  1875  (18  Stat.  L.,  478);  as  to  the  Inspector-General's 
Department,  by  the  act  of  June  23,  1874  (18  Stat.  L.,  244);  as  to  the  grade  of  major 
in  the  Pay  Department,  by  the  act  of  March  3,  1875  (18  Stat.  L.,  524),  and  the  act 
of  March  3,  1877  (19  Stat.  L.,  270);  as  to  the  Quartermaster's  Department,  by  the 
act  of  March  3,  1875  (18  Stat.  L.,  338);  as  to  the  Ordnance,  Subsistence,  and  Medical 
Departments,  by  section  8  of  the  act  of  June  23,  1874  (18  Stat.  L.,  245).  The  act  of 
March  3,  1877  (19  Stat,  L.,  270),  declared  that  this  section  "now  applying  only  to 
the  grades  in  the  Pay  Department  of  the  Army  above  the  rank  of  major  is  hereby 
repealed"  (19  Stat.  L.,  270). 

The  act  of  June  23,  1874,  contained  the  provision  that  as  vacancies  shall  occur  in 
any  of  the  grades  of  the  Ordnance  and  Medical  Departments,  no  appointments  shall 
be  made  to  fill  the  same  until  the  numbers  in  such  grade  shall  be  reduced  to  the 
numbers  which  are  fixed  for  permanent  appointments  by  the  provisions  of  this  act; 
and  thereafter  the  number  of  permanent  officers  in  said  grades  shall  continue  to  con- 
form to  said  reduced  numbers,  and  all  other  grades  in  said  Ordnance  and  Medical 
Departments  than  those  authorized  by  the  provisions  of  this  act  shall  cease  to  exist 
as  soon  as  the  same  shall  become  vacant  by  death,  resignation,  or  otherwise;  and  no 
appointment  or  promotion  shall  hereafter  be  made  to  fill  any  vacancy  which  may 
occur  therein. 

The  same  statute  also  provided  that  no  officer  now  in  the  service  shall  be  reduced 
in  rank  or  mustered  out  by  reason  of  any  provision  of  law  herein  made  reducing  the 
number  of  officers  in  any  department  or  corps  of  the  staff. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  217 

for  promotion,  such  an  examination  to  be  conducted  at 
such  times  anterior  to  the  accruing  of  the  right  to  promo- 
tion as  may  be  best  for  the  interests  of  the  service:  Pro- 
vided^ That  the  President  may  waive  the  examination  for 
promotion  to  any  grade  in  the  case  of  any  officer  who  in 
pursuance  of  existing  law  has  passed  a  satisfactory  exami- 
nation for  such  grade  prior  to  the  passage  of  this  act.  Sec. 
3,. act  of  October  1,  1890  (26  Stat.  Z.,  662). 

584.  If  any  officer  fails  to  pass  a  satisfactory  examina-    Retirement  on 
tion  and  is  reported  unfit  for  promotion,  the  officer  next  dueUto 
below  him  in  rank,  having  passed  said  examination,  shall 

receive  the  promotion:  And  provided,  That  should  the duoct.  i,  isoo,  s. 
officer  fail  in  his  physical  examination  and  be  found  inca- 8>  v>  26>  p' 562' 
pacitated  for  service  by  reason  of  physical  disability  con- 
tracted in  line  of  duty  he  shall  be  retired  with  the  rank  to    Failure    for 
which  his  seniority  entitled  him  to  be  promoted;  but  if  he  ° 
should  fail  for  any  other  reason  he  shall  be  suspended  from 
promotion  for  one  year,  when  he  shall  be  reexamined,  and 
in  case  of  failure  on  such  reexamination  he  shall  be  honor-    Failure  on  re- 

exammation. 

ably  discharged  with  one  year  s  pay  from  the  Army. 

585.  The  examination  of  officers  appointed  in  the  Army    Examination 

,»  •    •*   i*«  tf       rr>  i  rr>  /.         i          of  officers  ap- 

irom  civil  lite,  or  or  omcers  who  were  officers  ot  volun-  pointed  from 
teers  only,  or  where  officers  of  the  militia  of  the  several .  sec.  s,  V&«." 
States  called  into  the  service  of  the  United  States,  or  were 
enlisted  men  in  the  regular  or  volunteer  service,  either  in 
the  Army,  Navy,  or  Marine  Corps,  during  the  war  of  the 
rebellion,  shall  be  conducted  by  boards  composed  entirely    composition  of 
of  officers  who  were  appointed  from  civil  life  or  of  officers 
who  were  officers  of  volunteers  only  during  said  war,  and 
such  examination  shall  relate  to  fitness  for  practical  service 
and  not  to  technical  and  scientific  knowledge:  and  in  case 
of  failure  of  any  such  officer  in  the  reexamination  herein-    Failure- 
before  provided  for,  he  shall  be  placed  upon  the  retired 
list  of  the  Army;  and  no  act  now  in  force  shall  be  so  con- 
strued as  to  limit  or  restrict  the  retirement  of  officers  as 
herein  provided  for.     Sec.  3,  act  of  October  1,  1890  (26 
Stat.  Z.,  562). 

586.  Officers  entitled  by  this  section  to  examination  by    officers  ap- 

,  i  j         ,.      ,  «.  •    ,    ~,  pointed  from 

a  board  composed  entirely  of  officers  who  were  appointed  civil   life  may 

j,  •    i   i5  waive   board  of 

rrom  civil  lire,  or  who  were  omcers  or  volunteers  only  similar  charac- 
during  the  war,  may,  by  written  waiver  filed  with  the    July  27, 1392,  v. 
War  Department,  relinquish  such  right,  in  which  case  the 
examination  of  such  officers  shall  be  conducted  by  boards 
composed  as  shall  be  directed  by  the  Secretary  of  War. 
Act  of  July  27,  1892  (27  Stat.  Z.,  276). 


218  MILITAEY   LAWS    OF   THE   UNITED   STATES. 


587.  The  examination  of  officers  of  the  Corps  of  Engi- 
neers and  Ordnance  Department,  who  were   officers   or 

I892,cv227,upy276:  enlisted  men  in  the  regular  or  volunteer  service,  either  in 
the  Army,  Navy,  or  the  Marine  Corps,  during  the  war 
of  the  rebellion,  shall  be  conducted  by  boards  composed  in 
the  same  manner  as  for  the  examination  of  other  officers 
of  their  respective  corps  or  department;  and  the  examina- 
tions shall  embrace  the  same  subjects  prescribed  for  all 
other  officers  of  similar  grades  in  the  Corps  of  Engineers 
and  Ordnance  Department,  respectively.  Sec.  2,  act  of 
July  27,  1892  (27  Stat.  Z.,  276). 

588.  When  the  exigencies  of  the  service  of  any  officer 
vould  be  entitled   to  promotion  upon  examination 

require  him  to  remain  absent  from  any  place  where  an 
examining  board  could  be  convened,  the  President  is 
hereby  authorized  to  promote  such  officer,  subject  to 
examination,  and  the  examination  shall  take  place  as  soon 
thereafter  as  practicable.  If  upon  examination  the  offi- 
cer be  found  disqualified  for  promotion,  he  shall,  upon  the 
approval  of  the  proceedings  by  the  Secretary  of  War,  be 
treated  in  the  same  manner  as  if  he  had  been  examined 
prior  to  promotion.  Sec.  32,  act  of  February  2,  1901  (31 
Stat.  Z.,  756). 

TRANSFERS   TO   THE    STAFF. 

J55     589.  Officers  may  be  transferred  from  the  line  to  the 
3  1812  s^a^  °^  the  Army  without  prejudice  to  their  rank  or  pro- 
8'  APT. If  isle,  s.  m°tion  in  the  line;  but  no  officer  shall  hold,  at  the  same 
9>juneiM846>8.  time>  an  appointment  in  the  line  and  an  appointment  in 
7>see9.'Fao6,B.s.  *ke  staff  which  confer  equal  rank  in  the  Army.     When 
any  officer  so  transferred  has,  in  virtue  of  seniority,  ob- 
tained, or  become  entitled   to,  a  grade  in  his  regiment 
equal  to  the  grade  of  his  commission  in  the  staff,  he  shall 
vacate  either  his  commission  in  the  line  or  his  commission 
in  the  staff.1 

590.  Engineers  shall  not  assume  nor  be  ordered  on  any 
duty  beyond  the  line  of  their  immediate  profession,  except 
Sec.ii58;n.s.  ^y  the  special  order  of  the  President.     They  may,  at  the 
discretion  of  the  President,  be  transferred  from  one  corps 
to  another,  regard  being  paid  to  rank. 

lrThe  requirements  of  this  section,  since  the  approval  of  the  act  of  February  2,  1901 
(31  Stat.  L.,  748),  apply  only  to  transfers  between  officers  of  the  line  and  officers 
holding  permanent  appointments  in  the  several  departments  or  branches  of  the  staff. 


tween 
staff. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  219 


591.  When  any  lieutenant  of  the  Corps  of  Engineers  or 
Ordnance  Corps  or  Signal  Corps  has  served  fourteen  years'  983  sMgr  y18^3 
continuous  service  as  lieutenant,  he  shall  be  promoted  to  21J  M 

6  Mar.,  lobd,  c. 

the  rank  of  captain,  on  passing  the  examination  provided^ss-3'4>v-12'P 
by  the  preceding  section,  but  such  promotion  shall  not^2*,-^^7' c- 
authorize  an  appointment  to  fill  any  vacancy,  when  such  v  ^Velf90'8'7 
appointment  would  increase  the  whole  number  of  officers 
in  the  corps  beyond  the  number  fixed  by  law;  nor  shall 
any  officer  be  promoted  before  officers  of  the  same  grade 
who  rank  him  in  his  corps.     Sec.  7,  act  of  October  1,  1890  ' 
(26  Stat.  Z., 


Par. 


DISBURSING   OFFICERS. 

BONDS. 

Par. 


604.  Liability  of  sureties. 

605.  Release  of  sureties. 


592.  Bonds,  by  whom  given. 

593.  Increase  of  bonds. 

594-601.  Security  companies  as  sureties. 
602,603.  Examination    and    renewal    of 
bonds. 

592.  All  officers  of  the  Quartermaster's,  Subsistence,  and 
Pay  Departments,  the  chief  medical  purveyor  and  assist- 
ant medical  purveyors,  and  all  store-keepers  shall,  before^, 
entering  upon  the  duties  of  their  respective  offices,  give^J 
good  and  sufficient  bonds  to  the  United  States,  in  such^> 
sums  as  the  Secretary  of  War  may  direct,  faithfully  tojfjj: 
account  for  all  public  moneys  and  property-  which  they  may  £•  2|34.  M 
receive.     The  President  may,  at  any  time,  increase  theW^'JjJJJJ, 
sums  so  prescribed. l     But  the  Quartermaster-General  shall  ^  £•  jgj-.  *Feb 
not  be  liable  for  any  money  or  property  that  may  come  into  |^  1877>  v- 19>  p- 
the  hands  of  the  subordinate  officers  of  his  department.2      sec.  1191,  B. s. 

1  For  statutory  requirements  respecting  bonds  and  sureties,  in  addition  to  those 
cited  in  this  chapter,  see  the  chapters  entitled  THE  TREASURY  DEPARTMENT,  THE 
COURT  OP  CLAIMS,  THE  QUARTERMASTER'S  DEPARTMENT,  THE  SUBSISTENCE  DEPART- 
MENT, THE  PAY  DEPARTMENT,  THE  MEDICAL  DEPARTMENT,  and  CONTRACTS  AND  PUR- 
CHASES.    Officers  of  the  Army  and  Navy  are  excepted  from  the  provisions  of  section 
3614,  Revised  Statutes,  which  require  all  special  agents  employed  by  the  heads  of 
the  several  Executive  Departments  in  the  disbursement  of  the  public  moneys  to  give 
bonds  in  such  form  and  with  such  security  as  such  heads  of  Departments  may 
approve.     This  section  does  not  apply  to  all  commissioned  officers  of  the  Army  who 
may  be  required  to  act  as  disbursing  officers,  but  to  such  only  as  are  regularly 
appointed  disbursing  officers  and  who  are  required,  as  such,  to  give  bonds.     Ex  parte 
Randolph,  2  Brockenbrough,  447.     See  also  U.  S.  v.  Kirkpatrick,  9  Wh.,  720;  U.  S. 
Van  Zandt,  11  Wh.,  184;   Dox  v.  Postmaster-General,  1  Pet.,  325;   U.  S.  v.  Linn,  15 
Pet.,  290. 

2  A  bond  to  the  United  States,  conditioned  that  a  property  and  disbursing  officer 
of  the  War  Department  shall  faithfully  discharge  his  duties  and  faithfully  account 
for  public  money  and  property  committed  to  his  charge,  takes  effect  on  the  day 


220  MILITARY   LAWS   OF   THE   UNITED   STATES. 

bonds rease  °f  593t  The  President  is  authorized,  if  in  his  opinion  the 
90ASU6',  v.98t>66o';interest  °^  the  United  States  requires  the  same,  to  regulate 
sU7yv'1i8o52pC'i2:an(^  increase  the  sums  for  which  bonds  are,  or  maybe, 

when  it  is  accepted  by  the  Government,  and  is  to  be  regarded  as  of  that  date.  Moses 
v.  U.  S.,  166  U.  S.,  571.  A  surety  on  the  bond  of  one  in  official  relation  with  the 
Government  is  himself  in  contract  relation  with  it,  and,  as  he  is  liable  to  be  sued 
by  it,  he  has  the  right  to  sue  it  whenever  a  balance  is  due  from  it  to  which,  on  the 
principle  of  subrogation,  he  will  ultimately  be  entitled.  Shwarz  v.  U.  S.,  35  Ct.  Cls., 
303;  Behan  v.  U.  S.,  18  ibid.,  687,  110  U.  S.,  338;  Hitchcock  v.  U.  S.,  27  Ct.  Cls.,  185, 
164  U.  S.,  227;  Pope  v.  U.  S.,  14  ibid.,  446.  No  jurisdiction  is  conferred  upon  the 
Comptroller  of  the  Treasury  to  render  a  decision,  at  the  request  of  the  head  of  a 
Department,  upon  the  question  whether  the  filing  of  a  new  bond  relieves  the  sureties 
on  a  prior  bond  of  the  same  official  from  liability  after  the  date  of  the  new  bond, 
such  a  question  not  involving  a  payment  to  be  made  under  the  head  of  the  Depart- 
ment. Section  8,  act  of  July  31,  1894  (28  Stat.  L.,  20). 

The  giving  of  bond  is  not  necessary  to  entitle  persons  appointed  to  office  in  the 
Army  requiring  the  disbursement  of  money,  to  begin  to  receive  pay;  they  are  entitled, 
like  other  officers,  to  be  paid  upon  the  acceptance  of  their  appointments,  according 
to  par.  1448,  Army  Regulations,  whether  they  have  at  that  time  furnished  their 
bonds  or  not.  XVI  Op.  Att.  Gen.,  38.  The  expense  incurred  by  an  officer  in 
furnishing  the  bond  required  by  law  of  all  disbursing  officers  of  the  Government,  is 
not  a  proper  charge  against  the  Government,  even  though  the  officer  serves  without 
compensation.  II  Compt.  Dec.,  262;  U.  S.  v.  Van  Duzee  140  U.  S.,  171. 

Section  1191,  Revised  Statutes,  requires  bonds  only  of  certain  disbursing  officers 
specifically  named.  In  the  absence  of  any  express  provision  of  law,  prescribing  that 
bonds  shall  be  furnished  by  other  disbursing  officers,  the  President,  in  his  discretion, 
and  for  the  better  security  of  the  public  funds,  may,  through  the  head  of  the  proper 
department,  require  such  bonds  to  be  furnished,  (a)  Dig.  Opin.  J.  A.  G.,  par.  544. 

A  bond  can  not  be  extended  beyond  the  period  of  the  original  obligation  so  as  to 
continue  to  bind  the  sureties,  without  their  consent.  Nor  can  an  expired  bond  be 
revived  so  as  to  bind  the  sureties  without  their  consent.  The  Secretary  of  War  (or 
President)  has  no  power  to  release  the  sureties  in  an  official  bond  from  their  liability 
to  the  United  States.  (6)  A  neglect  by  the  Government  to  institute  suit  on  a  bond  does 
not  discharge  the  sureties;  ladies  not  being  in  such  cases  imputable  to  the  United 
States.  («)  Ibid.,  par.  549. 

One  of  two  (or  several)  sureties  can  not  withdraw  independently  from  his  obliga- 
tion; and  if  allowed  to  do  so  by  the  obligee,  the  other  surety  (or  sureties)  will  be 
released  as  to  him.  But  the  Secretary  of  War  is  not  empowered  to  release  the  sure- 
ties on  a  disbursing  officer's  bond.  Ibid.,  par.  554. 

The  law  of  the  place  at  which  a  contract  is  made  governs  as  to  its  interpretation, 
except  where  the  contract  is  to  be  performed  elsewhere,  in  which  case  the  law  that 
governs  in  this  respect  is  the  law  of  the  place  of  performance.  An  official  bond, 
made  to  the  United  States,  wherever  actually  signed,  is — as  has  been  held  by  the 
Supreme  Court  (a) — a  contract  made  and  to  be  performed  at  Washington ;  and  by  the 
laws  of  the  District  of  Columbia  the  contract  of  a  married  woman  as  surety  is  not 
binding.  Moreover,  it  is  not  the  practice  of  the  War  Department  to  accept  a  feme 
covert  as  a  surety,  and  before  a  female  surety  will  be  accepted  she  is  required  to  make 
oath  that  she  is  single  in  addition  to  justifying  as  required  of  other  sureties.  Ibid., 
par.  550. 

If  after  the  execution  of  a  bond  a  material  change  be  made  in  the  name  or  descrip- 
tion of  the  principal,  by  erasure,  interlineation,  or  otherwise,  without  the  assent  of 
the  sureties  or  a  surety,  even  though  such  change  be  made  to  correct  a  mistake,  the 
surety  or  sureties  not  consenting  will  be  released.  In  a  case  of  such  an  alteration, 
recommended  that  &  new  bond  be  required.  Ibid.,  par.  555.  See,  also,  ibid.,  para- 
graphs 554-560. 

While  departmental  regulations  duly  promulgated  have  the  force  of  law,  in  a  lim- 
ited sense,  they  can  not  enlarge  or  restrict  the  liability  of  an  officer  on  his  bond. 
Meads ».  U.  S.,  81  Fed.  Rep.,  684. 

a  Bonds  may  be  required  by  the  Government  from  officers  appointed  to  places  of  trust,  though 
there  is  no  statutory  authority  to  take  such  bonds,  and  they  will  be  valid  as  common-law  obligations. 
In  a  bond  with  sureties,  given  by  an  officer  of  the  Government,  it  is  sufficient  to  make  the  bond  valid 
as  a  common-law  obligation  that  it  is  voluntarily  given  and  that  the  office  and  the  duties  assigned 
to  the  officer  and  covered  by  the  bond  are  duly  authorized  by  law.  U.  S.  v.  Tingey,  5  Pet.,  115;  U.  S. 
v.  Bradley,  10  id.,  343,  360;  U.  S.  v.  Rogers,  28  Fed.  Rep.,  607;  VI  Opins.  At.  Gen.,  24. 

ftVIIOpins.  At.  Gen.,  62. 

cU.  S.  v.  Kirkpatrick,  9  Wheaton,  720. 


MILITARY   LAWS    OF   THE   UNITED   STATES.  221 

required  by  law,  of  all  district  attorneys,  collectors  of  JJjr.g  \  ^  % 
customs,  naval  officers,  and  surveyors  of  customs,  navy  249^P£2^,i&2, 
agents,  receivers  and  registers  of  public  lands,  pay  masters  jffg^'v'il'63' 
in  the  Army,  Commissary -General,  and  by  all  other  officers  JfJij 
employed  in  the  disbursement  of  the  public  moneys,  under  jf^ 
the  direction  of  the  War  or  Navy  Departments.1  2^c  3639  B'g 

SECURITY   COMPANIES   AS   SURETIES. 


594.  Whenever  any  recognizance,  stipulation,  bond,  or  pane£srias  Csure- 
undertaking  conditioned  for  the  faithful  performance  of  tie£ug  13 1894  v 
any  duty,  or  for  doing  or  refraining  from  doing  anything 28>  p- 279- 
in  such  recognizance,  stipulation,  bond,  or  undertaking 
specified,  is  by  the  laws  of  the  United  States  required  or 
permitted  to  be  given  with  one  surety  or  with  two  or  more 
sureties,  the  execution  of  the  same  or  the  guaranteeing  of 
the  performance  of  the  condition  thereof  shall  be  sufficient 
when  executed  or  guaranteed  solely  by  a  corporation  incor- 
porated under  the  laws  of  the  United  States  or  of  any 
State  having  power  to  guarantee  the  fidelity  of  persons 
holding  positions  of  public  or  private  trust,  and  to  execute 
and  guarantee  bonds  and  undertakings  in  judicial  pro. 
ceedings:  Provided,  That  such  recognizance,  stipulation, 
bond,  or  undertaking  be  approved  by  the  head  of  depart- 
ment, court,  judge,  officer,  board,  or  body  executive,  legis. 
lative,  or  judicial  required  to  approve  or  accept  the  same. 
But  no  officer  or  person  having  the  approval  of  any  bond 
shall  exact  that  it  shall  be  furnished  by  a  guarantee  com- 
pany or. by  any  particular  guarantee  company.2  Act  of 
August  13,  1894  (%$  Stat.  L.,  279). 

1  The  Government  has  the  power,  through  the  head  of  a  department,  to  take  a 
bond  from  a  disbursing  officer,  though  there  is  no  law  or  general  regulation  requiring 
it;  and  a  bond  is  none  the  less  a  voluntary  bond  because  demanded  by  the  superior 
officer,  if  not  illegally  extorted.     Moses  v.  U.  S.,  166  U.  S.,  571. 

2  Execution,   sealing,   etc. — The  bond  should  of  course  be  executed  by  all    the 
parties — obligor  and  sureties.     It  has  been  held  by  the  U.  S.  Supreme  Court  that 
an  official  bond,  though  without  seals,  may  be  good  as  a  contract  at  common  law. 
To  avoid,  however,  any  questions  that  might  arise  from  the  absence  of  a  seal,  advised 
(February,  1868)  that  formal  seals  "of  wax  or  other  adhesive  substance,"  be  in  all 
cases  required  to  be  affixed  by  the  subscribing  parties.     Dig.  Opin.,  J.  A.  G.,  par.  534. 

A  bond  given  by  a  disbursing  officer  of  the  Army  (or  any  bond  required  by  the 
War  Department)  wherein  the  Secretary  of  'War  is  made  the  obligee,  is  in  incorrect 
form.  The  obligee  should  be— The  United  States  of  America.  Ibid.,  par.  542. 

A  bond  should  of  course  be  dated,  but  the  omission  of  the  date  will  not  affect  the 
validity  of  the  instrument,  as  the  true  date  of  execution  can  be  proved  aliunde,  in  the 
event  of  a  suit  on  the  bond.  Ibid.,  par.  543. 

The  seal  of  both  obligor  and  sureties  must  be  a  formal  one,  of  wafer,  wax,  or 
other  adhesive  substance.  A  mere  scroll  made  with  the  pen  is  not  accepted  as  a  sub- 
stitute for  a  seal  in  the  War  Department.  A  corporation  obligor  should  affix  its 
corporate  seal  if  it  has  one.  But  the  fact  that  a  corporation  has  not  adopted  a  cor- 
porate seal  will  not  affect  the  validity  of  its  execution  of  a  bond  in  which  it  is 
principal  or  surety,  provided  some  form  of  seal  be  added  to  its  signature.  A  cor- 


222  MILITARY    LAWS    OF    THE    UNITED    STATES. 

in  j  u6-     595.  No  such  company  shall  do  business  under  the  pro- 
surety1  cis  visions  of  thisact  beyond  the  limits  of  the  State  or  Territory 


surety 

UIsecr<2  *S  under  whose  laws  it  was  incorporated  and  in  which  its 
principal  office  is  located  nor  beyond  the  limits  of  the  Dis- 
trict of  Columbia,  when  such  company  was  incorporated 
under  its  laws  or  the  laws  of  the  United  States  and  its 
principal  office  is  located  in  said  District,  until  it  shall,  by 

poration  may  make  and  use  any  seal,  in  its  discretion,  in  the  same  manner  as  a 
private  individual.     Ibid.,  par.  544. 

Justification  of  sureties.  —  Of  two  or  more  sureties  to  an  official  bond,  each,  according 
to  the  regulation,  should  justify  separately;  a  justification  in  joint  form  is  irregular 
and  improper.  An  affidavit  of  justification  should  properly  be  expressed  in  the  first 
person;  not  in  the  third.  Ibid.,  par.  540. 

The  affidavit  of  justification  of  a  surety  should  be  dated,  so  that  it  may  appear  when 
he  was  worth  the  amount  specified.  The  names  of  the  sureties  in  the  justifications 
should  be  identical  with  those  inserted  in  the  body  of  the  bond.  Their  names  should 
not  be  omitted  to  be  recited  in  the  bond  with  the  name  of  the  principal.  Ibid., 
par.  551. 

"The  affidavit  of  justification  should  be  taken  before  some  officer,  like  a  notary  pub- 
lic, having  authority  to  administer  oaths  for  general  purposes  and  whose  official 
character  is  authenticated  by  his  seal,  (a)  But  as  the  justification  is  no  part  of  the 
bond,  and  the  administration  of  the  oath  by  an  official  not  competent  to  administer 
it  does  not  affect  the  validity  of  the  bond,  the  irregularity  of  the  justification,  where 
there  is  nothing  to  show  that  the  oath  was  not  taken  in  good  faith  by  the  surety, 
may  be  waived  by  the  Secretary  of  War,  and  in  practice  it  is  now  (May,  1893) 
waived,  and  the  bond  accepted  if  otherwise  valid.  And  in  case  where  the  seal  of  the 
notary  was  omitted,  recommended  that  the  instrument  be  returned  to  have  the  seal 
impressed  upon  the  certificate,  for  the  purpose  of  such  authentication,  which  would 
be  wanting  without  it.  Ibid.,  par.  553. 

Sureties.  —  The  obligation  of  each  surety  must  be  for  the  whole  amount  of  the 
penalty;  the  regulation  requiring  that  the  sureties  "shall  be  jointly  and  severally 
bound  for  the  whole  amount  of  the  bond."  So,  where  the  penalty  in  a  quartermas- 
ter's joint  and  several  official  bond  was  $10,000,  and  the  sureties,  in  executing  the 
same,  assumed  to  be  bound  only  in  the  sum  of  $5,000  each,  the  words  "for  five  thou- 
sand dollars"  being  written  under  each  signature  —  held  that,  the  instrument  was  con 
tradictory,  did  not  conform  to  the  regulations,  and  should  not  be  accepted.  And 
similarly  held  in  a  case  of  a  bond  with  a  penalty  of  $40,000,  where  the  sureties  wrote 
opposite  their  signatures,  respectively,  '  '  for  $35,  000,  "  "for  $5,  000.  '  '  Sureties  can  not 
qualify  their  obligation  by  thus  limiting  their  personal  liabilities.  Ibid.,  par.  535. 

There  is  no  statute  or  regulation  prohibiting  an  officer  of  the  Army  from  acting  as 
a  surety  on  the  official  bond  of  another  officer.  Such  a  relation,  however,  is  not  one 
to  be  favored.  Ibid.,  par.  536. 

Par.  572  of  the  Regulations  contemplates  plural  sureties  with  bonds  of  disbursing 
officers.  A  justification  of  a  surety,  however,  is  no  part  of  the  bond,  and  as  the 
object  of  the  justification  is  to  satisfy  the  Secretary  of  War  that  the  surety  is  good  for 
double  the  penalty,  the  Secretary,  where  amply  satisfied  that  one  certain  person 
offered  or  executing  as  surety  is  pecuniarily  sufficient  for  such  amount,  would  be 
authorized  to  accept  him  (on  his  properly  justifying)  as  sole  surety,  and  to  waive 
any  further  surety  or  sureties  with  the  instrument.  A  subordinate  of  course  can 
have  no  such  authority.  In  view,  however,  of  the  terms  of  the  regulation  and  of 
the  practice  under  it,  this  authority  would  of  course  most  rarely  be  exercised  in  cases 
of  disbursing  officers'  bonds.  Ibid.,  par.  537. 

A  captain  of  the  commissary  department  having  given  bond  in  a  penalty  of  $12,000, 
one  of  his  sureties  deceased.  Par.  563,  Army  Regulations,  1895,  prescribes  that 
"the  sureties  to  bonds  given  by  disbursing  officers  shall  be  bound  jointly  and  sever- 
ally." The  officer  offered  a  new  bond  with  one  surety  in  a  penalty  of  $6,000.  Held 
that  such  security  would  not  be  legally  -sufficient,  but  that  a  new  joint  and  several 
bond  in  the  penalty  of  $12,000  would  be  required.  Ibid.,  par.  552. 

For  opinions  respecting  security  companies  as  sureties  see  Dig.  Opin.,  J.  A.  G., 
pars.  596-602. 

a  Under  section  19  of  act  of  Congress  of  May  28,  1896  (29  Stat.  L.,  184),  United  States  commissioners 
and  all  clerks  of  United  States  courts  are  authorized  to  administer  oaths  generally.  3  Comp. 
Pec.,  65. 


MILITAEY   LAWS   OF  THE   UNITED   STATES.  223 

a  written  power  of  attorney,  appoint  some  person  residing 
within  the  jurisdiction  of  the  court  for  the  judicial  district 
wherein  such  suretyship  is  to  be  undertaken,  who  shall  be 
a  citizen  of  the  State,  Territory,  or  District  of  Columbia, 
wherein  such  court  is  held,  as  its  agent,  upon  whom  may 
be  served  all  lawful  process  against  such  company,  and 
who  shall  be  authorized  to  enter  an  appearance  in  its  behalf. 
A  copy  of  such  power  of  attorney,  duly  certified  and  authen- 
ticated, shall  be  filed  with  the  clerk  of  the  district  court  of 
the  United  States  for  such  district  at  each  place  where  a 
term  of  such  court  is  or  may  be  held,  which  copy,  or  a  cer- 
tified copy  thereof,  shall  be  legal  evidence  in  all  controver- 
sies arising  under  this  act.  If  any  such  agent  shall  be 
removed,  resign,  or  die,  become  insane,  or  otherwise  inca- 
pable of  acting,  it  shall  be  the  duty  of  such  company  to 
appoint  another  agent  in  his  place,  as  hereinbefore  pre- 
scribed, and  until  such  appointment  shall  have  been  made, 
or  during  the  absence  of  any  agent  of  such  company  from 
such  district,  service  of  process  may  be  upon  the  clerk  of 
the  court  wherein  such  suit  is  brought,  with  like  effect  as 
upon  an  agent  appointed  by  the  company.  The  officer 
executing  such  process  upon  such  clerk  shall  immediately 
transmit  a  copy  thereof  by  mail  to  the  company,  and  state 
such  fact  in  his  return.  A  judgment,  decree,  or  order  of  a 
court  entered  or  made  after  service  of  process  as  aforesaid 
shall  be  as  valid  and  binding  on  such  company  as  if  served 
with  process  in  said  district.  Sec.  #,  ibid. 

596.  Every  company  before  transacting  any  business    copy  of  char- 
under  this  act  shall  deposit  with  the  Attorney-General  of  with   Attomey- 
the  United  States  a  copy  of  its  charter  or  articles  of  incor-    sec.  8,'<wd. 
poration,  and  a  statement  signed  and  sworn  to  by  its  presi- 
dent and  secretary  showing  its  assets  and  liabilities.     If 

the   said   Attorney-General   shall  be  satisfied   that  such    Attomey-Gen- 

,        .  111.    eral  to  grant  au- 

compan}^  has  authority  under  its  charter  to  do  the  busi-  thority  to  act. 

,  Sec,  3?  w)i(z. 

ness  provided  for  in  this  act,  and  that  it  has  a  paid-up 
capital  of  not  less  than  two  hundred  and  fifty  thousand 
dollars,  in  cash  or  its  equivalent,  and  is  able  to  keep  and 
perform  its  contracts,  he  shall  grant  authority  in  writing  to 
such  company  to  do  business  under  this  act.  Sec.  3,  ibid. 

597.  E^ery  such  company  shall,  in  the  months  of  Janu-  P9?Sart|riyp  /£ 
ary,  April,  July,  and  October  of  each  year,  file  with  the  ATtr0yrpn°^Gen- 
said  Attorney-General  a  statement,  signed  and  sworn  toer^-c  4  md 
by  its  president  and  secretary,  showing  its  assets  and  lia- 
bilities, as  is  required  by  section  three  of  this  act.     And 

the  said  Attorney-General  shall  have  the  power,  and  it 


224  MILITARY    LAWS    OF    THE    UNITED   STATES. 

shall  be  his  duty,  to  revoke  the  authority  of  any  such  com- 
pany to  transact  any  new  business  under  this  act  whenever 
in  his  judgment  such  company  is  not  solvent  or  is  conduct- 
ing its  business  in  violation  of  this  act.  He  may  institute 
inquiry  at  any  time  into  the  solvency  of  said  company  and 
may  require  that  additional  security  be  given  at  any  time 
by  any  principal  when  he  deems  such  company  no  longer 
sufficient  security.  Sec.  h  ibid. 

°s  ^^'  ^ny  surety  company  doing  business  under  the  pro- 
visions  of  this  act  may  be  sued  in  respect  thereof  in  any 
court  of  the  United  States  which  has  now  or  hereafter 
may  have  jurisdiction  of  actions  or  suits  upon  such  recog- 
nizance, stipulation,  bond,  or  undertaking  in  the  district 
in  which  such  recognizance,  stipulation,  bond,  or  under- 
taking was  made  or  guaranteed,  or  in  the  district  in  which 
the  principal  office  of  such  company  is  located.  And  for 
the  purposes  of  this  act  such  recognizance,  stipulation  , 
bond,  or  undertaking  shall  be  treated  as  made  or  guaran- 
teed in  the  district  in  which  the  office  is  located,  to  which 
it  is  returnable,  or  in  which  it  is  filed,  or  in  the  district  in 
which  the  principal  in  such  recognizance,  stipulation, 
bond,  or  undertaking  resided  when  it  was  made  or  guaran- 
teed. Sec.  5,  ibid. 

Forfeiture   o  f     599.  If  any  such  company  shall  neglect  or  refuse  to  pay 
a  yn  fu$£-  any  final  judgment  or  decree  rendered  against  it  upon  any 

sec!6,  ibid,  such  recognizance,  stipulation,  bond,  or  undertaking  made 
or  guaranteed  by  it  under  the  provisions  of  this  act,  from 
which  no  appeal,  writ  of  error,  or  supersedeas  has  been 
taken  for  thirty  days  after  the  rendition  of  such  judg- 
ment or  decree,  it  shall  forfeit  all  right  to  do  business 
under  this  act.  Sec.  6,  ibid. 

companies  es-     600.  Any  company  which  shall  execute  or  guarantee  any 

topped  from  de-  .  .  .       ,    .  .          ,         ,  ,      ,    ,  ,  1,1 

nying  power,     recognizance,  stipulation,  bond,  or  undertaking"  under  tne 

Sec  f.  7,  ibid.  °  .  ,  '        .F  ,     .  , 

provisions  of  this  act  shall  be  estopped,  in  any  proceed- 

ing to  enforce  the  liability  which  it  shall  have  assumed  to 

incur,  to  deny  its  corporate  power  to  execute  or  guarantee 

such  instrument  or  assume  such  liability.     Sec.  7,  ibid. 

penalty  for     601.  Any  company  doing  business  under  the  provisions 

ply  with°  provi-  of  this  act  which  shall  fail  to  comply  with  any  of  its  pro- 

81  Bee.  s,  ibid,      visions  shall  forfeit  to  the  United  States  for  every  such 

failure  not  less  than  five  hundred  dollars  nor  more  than 

five  thousand  dollars,  to  be  recovered  by  suit  in  the  name 

of  the  United  States  in  the  same  courts  in  which  suit  may 

be  brought  against  such  company  under  the  provisions  of 

this  act,  and  such  failure  shall  not  affect  the  validity  of 

any  contract  entered  into  by  such  company.    Sec.  #,  ibid. 


m 


MILITAEY    LAWS    OF    THE    UNITED    STATES  225 


EXAMINATION    AND    RENEWAL    OF    BONDS. 

602.  Hereafter  every  officer  required  by  law  to  take  and 
approve  official  bonds  shall  cause  the  same  to  be  examined          5  Mar  2 
at  least  once  every  two  years  for  the  purpose  of  ascertain- 1895>  v.^.p.so?.' 
ing  the  sufficiency  of  the  sureties  thereon ;  and  every  officer 

having  power  to  fix  the  amount  of  an  official  bond  shall 
examine  it  to  ascertain  the  sufficiency  of  the  amount 
thereof  and  approve  or  fix  said  amount  at  least  once  in 
two  years  and  as  much  oftener  as  he  may  deem  it  neces- 
sary.1 Sec.  5,  act  of  March  2,  1895  (28  Stat.  L.,  807). 

Hereafter  every  officer  whose  duty  it  is  to  take  and  j£?fwals- 
approve  official  bonds  shall  cause  all  such  bonds  to  be 
renewed  every  four  years  after  their  dates,  but  he  may 
require  such  bonds  to  be  renewed  or  strengthened  oftener 
if  he  deem  such  action  necessary.  In  the  discretion  of 
such  officer  the  requirement  of  a  new  bond  may  be  waived 
for  the  period  of  service  of  a  bonded  officer  after  the 
expiration  of  a  four-year  term  of  service  pending  the 
appointment  and  qualification  of  his  successor.2  Ibid. 

603.  The  nonperformance  of  any  requirement  of  this  sec-  Suret?esility  °f 
tion  on  the  part  of  any  official  of  the  Government  shall    Ibid- 

not  be  held  to  affect  in  any  respect  the  liability  of  principal 
or  sureties  on  any  bond  made  or  to  be  made  to  the  United 
States:  Provided  further,  That  the  liability  of  the  principal 
and  sureties  on  all  official  bonds  shall  continue  and  cover 
the  period  of  service  ensuing  until  the  appointment  and 
qualification  of  the  successor  of  the  principal:  And  pro- 
vided further,  That  nothing  in  this  section  shall  be  con- 
strued to  repeal  or  modify  section  thirty-eight  hundred 
and  thirty-six  of  the  Revised  Statutes  of  the  United  States, 
Ibid. 

LIABILITY   OF   SURETIES;    RELEASE. 

604.  Hereafter,  whenever  any  deficiency  shall  be  dis-   sureties  on  offl- 
covered  in  the  accounts  of  any  official  of  the  United  States,    Notice  of  pnn- 

J  'cipal's    defi- 

or  ot  any  officer  disbursing  or  chargeable  with  public ciency  to  be 

communicated 

money,  it  shall  be  the  duty  of   the  accounting  officers  to  secuntie^ 
making  such  discovery  to  at  once  notify  the  head  of  the  25,  p. 237.' 
Department  having  control  over  the  affairs  of  said  officer 

1  United  States  district  attorneys  are  not  required  or  authorized  to  make  the 
examination  into  the  sufficiency  of  the  sureties  on  official  bonds  required  by  section 
5  of  the  act  of  March  2,  1895  (28  Stat.  L.,  807). 

2  The  expenses  incurred  by  an  officer  in  furnishing  the  bond  required  by  law  of  all 
disbursing  officers  of  the  Government  is  not  a  proper  charge  against  the  Government, 
even  though  the  officer  serves  without  compensation.     II  Compt.  Dec.,  262. 

22924—08 15 


226 


MILITARY    LAWS    OF    THE    UNITED    STATES. 


ieasedeafter  five 
years  without  of 


of  the  nature  and  amount  of  said  deficiency,  and  it  shall  be 
the  immediate  duty  of  said  head  of  Department  to  at  once 
notify  all  obligors  upon  the  bond  or  bonds  of  such  official 
of  the  nature  of  such  deficiency  and  the  amount  thereof. 
Said  notification  shall  be  deemed  sufficient  if  mailed  at  the 
post-office  in  the  city  of  Washington,  District  of  Columbia, 
addressed  to  said  sureties  respectively,  and  directed  to  the 
respective  post-offices  where  said  obligors  may  reside,  if 
known;  but  a  failure  to  give  or  mail  such  notice  shall  not 
discharge  the  surety  or  sureties  upon  such  bond.1  Act  of 
August  8,  1888  (25  Stat.  L.,  387). 

^05.  If,  upon  the  statement  of  the  account  of  any  official 
United  States,  or  of  any  officer  disbursing  or  charge- 
able with  public  money,  by  the  accounting  officers  of  the 
Treasury,  it  shall  thereby  appear  that  he  is  indebted  to 
the  United  States,  and  suit  therefor  shall  not  be  instituted 
within  five  years  after  such  statement  of  said  account,  the 
sureties  on  his  bond  shall  not  be  liable  for  such  indebted- 
ness.2 Sec.  #,  ibid. 


DEPOSIT   AND    SAFE-KEEPING    OF    THE    PUBLIC    MONEY. 


Par. 

606.  Duty  of  disbursing  officer. 

607.  Penalty  for  failure  to  deposit. 

608.  Duties  of  disbursing  officers  as  cus- 

todians. 


°offidcere 


Par. 

609.  Exchanging  of  funds. 

610.  Premiums  on  exchanges  to  be  ac- 

counted for. 


606'  Jt  sha11  be  the  duty  of  ever.Y  disbursing  officer  hav- 
mone°  public  mg  any  public  money  intrusted  to  him  for  disbursement  to 
i22U?  W8i46'  c'  deposit  t°e  same  with  the  Treasurer  or  some  one  of  the 
c4^9F?bi97'  lm'  assis^ant  treasurers  of  the  United  States,  and  to  draw  for 
Sec.  3620,  R.S.  the  same  only  as  it  may  be  required  for  payments  to  be 
made  by  him  in  pursuance  of  law  [and  draw  for  the  same 
only  in  favor  of  the  persons  to  whom  payment  is  made];  and 
all  transfers  from  the  Treasurer  of  the  United  States  to  a 
disbursing  officer  shall  be  by  draft  or  warrant  on  the  Treas- 

1  For  instructions  respecting  the  recovery  of  balances  due  the  United  States  on  final 
settlements  of  bonded  officers,  see  Vol.  V,  Comptrollers'  Decisions,  pp.  988-990;  for 
methods  of  keeping  and  rendering  accounts  by  disbursing  officers  not  under  bond, 
eee  ibid,  pp.  990-991. 

The  regulations  of  the  Treasury  Department  are  imperative,  and  expressly  prohibit 
the  transfer  of  funds  of  any  character  for  which  an  officer  is  accountable  from  one 
bond  to  another,  and  when  this  regulation  is  violated  it  becomes  necessary  for  the 
officer  to  deposit  the  sum  transferred  as  a  credit  to  his  first  bond,  or  else  procure 
the  admission  of  the  sureties  on  the  second  bond  that  the  officer  actually  had  the 
sum  in  hand  when  it  was  executed,  and  that  they  are  liable  on  said  bond  for  the 
same.  3  Dig.  Compt.  Dec.,  13.  See  also  U.  S.  v.  McLane,  74  Fed.  Rep.,  153;  U.  S.  v. 
Wade,  75  ibid,  261. 

8  For  statutory  provisions  respecting  distress  warrants,  see  the  chapter  entitled 
THE  TREASURY  DEPARTMENT. 


MILITARY    LAWS    OF    THE    UNITED   STATES.  227 

ury  or  an  assistant  treasurer  of  the  United  States.  In 
places,  however,  where  there  is  no  treasurer  or  assistant 
treasurer,  the  Secretary  of  the  Treasury  may,  when  he 
deems  it  essential  to  the  public  interest,  specially  authorize 
in  writing  the  deposit  of  such  public  money  in  any  other 
public  depository,  or,  in  writing,  authorize  the  same  to  be 
kept  in  any  other  manner,  and  under  such  rules  and  regu- 
lations as  he  may  deem  most  safe  and  effectual  to  facilitate 
the  payments  to  public  creditors.1  (See  sec.  5488,  E.  8.) 

607.  Every  person  who  shall  have  moneys  of  the  United  faj  *£ aity  jor 
States  in  his  hands  or  possession,  and  disbursing  officers  nf  g1"'3'^85^  c 
having  moneys  in  their  possession  not  required  for  current  24|'ec  6'  May  28 
expenditure,  shall  pay  the  same  to  the  Treasurer,  an  assist-  ^^jg'A1^ 

><'•'.  »I»J1,  H.  N. 

ant  treasurer,  or  some  public  depositary  of  the  United 
States,  without  delay,  and  in  all  cases  within  thirty  days  of 
their  receipt.  And  the  Treasurer,  the  assistant  treasurer, 
or  the  public  depositary  shall  issue  duplicate  receipts  for 
the  moneys  so  paid,  transmitting  forthwith  the  original  to 
the  Secretary  of  the  Treasury,  and  delivering  the  duplicate 
tc  the  depositor:  Provided,  That  postal  revenue  and  debts 
due  to  the  Post-Office  Department  shall  be  paid  into  the 
Treasury  in  the  manner  now  required  by  law.2 

1  For  penalty  for  unlawfully  depositing,  loaning,  converting,  or  transferring  public 
money  see  section  5488,  Revised  Statutes,  paragraph  645,  post. 

*  In  accordance  with  the  pro  visions  of  the  above  sections  any  public  money  advanced 
to  disbursing  officers  of  the  United  States  must  be  deposited  immediately  to  their 
respective  credits,  with  either  the  United  States  Treasurer,  some  assistant  treasurer, 
or  by  special  direction  of  the  Secretary  of  the  Treasury  with  a  national  bank  deposi- 
tary nearest  or  most  convenient,  except — 

(1)  Any  disbursing  officer  of  the  War  Department  specially  authorized  by  the  Sec- 
retary of  War,  when  stationed  on  the  extreme  frontier  or  at  places  far  remote  from 
such  depositaries,  may  keep,  at  his  own  risk,  such  moneys  as  may  be  intrusted  to 
him  for  disbursement. 

(2)  Any  officer  receiving  money  remitted  to  him  upon  specific  estimates  may  dis- 
burse it  accordingly,  without  waiting  to  place  it  in  a  depositary,  provided  the  pay- 
ments are  due  and  he  prefers  this  method  to  that  of  drawing  checks.     Treas.  Circ.  of 
1898.     G.  O.  59,  A.  G.  O.,  1897. 

Every  disbursing  officer,  when  opening  his  first  account,  before  issuing  any  checks, 
will  furnish  the  depositary  on  whom  checks  are  drawn  with  his  official  signature 
duly  verified  by  some  officer  whose  signature  is  known  to  the  depositary.  Ibid. 

Any  check  drawn  by  a  disbursing  officer  upon  moneys  thus  deposited  must  be  in 
favor  of  the  party,  by  name,  to  whom  the  payment  is  to  be  made,  and  payable  to 
"order,"  or  "bearer,"  with  these  exceptions: 

(1)  To  make  payments  of  individual  pensions,  checks  for  which  must  be  made 
payable  to  "order,"  (2)  to  make  payments  of  amounts  not  exceeding  twenty  dol- 
lars, (3)  to  make  payments  at  a  distance  from  a  depositarv,  and  (4)  to  make  pay- 
ments of  fixed  salaries  due  at  a  certain  period;  in  either  of  which  cases  except  the 
first,  any  disbursing  officer  may  draw  his  check  in  favor  of  himself,  or  "order,"  or 
"bearer,"  for  such  amount  as  may  be  necessary  for  such  payment,  but  in  the  last- 
named  case  the  check  must  be  drawn  not  more  than  two  days  before  the  salaries 
become  due. 

Any  disbursing  officer  or  agent  drawing  checks  on  moneys  deposited  to  his  official 
credit,  must  state  on  the  face  or  back  of  each  check  the  object  or  purpose  to  which 
the  avails  are  to  be  applied,  except  upon  checks  issued  in  payment  of  individual  pen- 
sions, the  special  form  of  such  checks  indicating  sufficiently  the  character  of  disburse- 
ment. If  the  object  or  purpose  for  which  any  check  of  a  public  disbursing  officer  is 


228  MILITARY    LAWS    OF    THE    UNITED    STATES. 


bi£3S?  offlc^  608-  The  Treasurer  of  the  United  States,  all  assistant 
pubHcmdJneys0ftreasurers?  and  those  performing  the  duties  of  assistant 
9oA"l,'v.98p6>6o';treasurer5  a^  collectors  of  the  customs,  all  surveyors  of 
n4,r's.  2,  v.8!!1,  p!  the  customs,  acting  also  as  collectors,  all  receivers  of  pub- 
^M/S^  v.'io^p!  l*c  moneys  at  the  several  land-offices,  all  postmasters,  and 
SjaAv.ttjt^H  public  officers  of  whatsoever  character,  are  required  to 
c72i,J^v.'i38^:^eeP  safely?  without  loaning,  using,  depositing  in  banks, 
p!  or  exchanging  for  other  funds  than  as  specially  allowed  by 
&  s4,'  v8.'i58!6p.'  law>  ftN  t^e  Public  money  collected  by  them,  or  otherwise 
27Lc.3639,R.s.  a^  any  time  placed  in  their  possession  and  custody,  till  the 
same  is  ordered,  by  the  proper  Department  or  officer  of 

drawn  is  not  stated  thereon,  as  required,  or  if  any  reason  exists  for  suspecting  fraud, 
the  office  or  bank  on  which  such  check  is  drawn  will  refuse  its  payment. 

Such  statement  may  be  made  in  brief  form,  but  must  clearly  indicate  the  object  of 
the  expenditure,  as,  for  instance,  "pay,"  "pay  roll,"  or  "payment  of  troops," 
adding  the  fort  or  station;  "purchase  of  subsistence"  or  other  supplies;  "on  account 
of  construction,"  mentioning  the  fortification  or  other  public  work  for  which  the 
payment  is  made;  "payments  under  $20,"  etc. 

Checks  will  not  be  returned  to  the  drawer  after  their  payment,  but  the  depositary 
with  whom  the  account  is  kept  shall  furnish  the  officer  with  a  monthly  statement  of 
his  deposit  account.  Ibid. 

No  allowance  will  be  made  to  any  disbursing  officer  for  expenses  charged  for  col- 
lecting money  on  checks. 

Whenever  any  disbursing  officer  of  the  United  States  shall  cease  to  act  in  that 
capacity  he  will  at  once  inform  the  Secretary  of  the  Treasury  whether  he  has  any 
public  funds  to  his  credit  in  any  office  or  bank,  and,  if  so,  what  checks,  if  any,  he 
nas  drawn  against  the  same,  which  are  still  outstanding  and  unpaid.  Until  satisfac- 
tory information  of  this  character  shall  have  been  furnished,  the  whole  amount  of 
such  moneys  will  be  held  to  meet  the  payment  of  his  checks  properly  payable 
therefrom. 

In  case  of  the  death,  resignation,  or  removal  of  any  disbursing  officer,  checks  previ- 
ously drawn  by  him  will  be  paid  from  the  funds  to  his  credit,  unless  such  checks  have 
been  drawn  more  than  four  months  before  their  presentation,  or  reasons  exist  for 
suspecting  fraud.  Any  check  previously  drawn  by  him  and  not  presented  forvpay- 
ment  within  four  months  of  its  date  will  not  be  paid  until  its  correctness  shall  have 
been  attested  by  the  Secretary  or  Assistant  Secretary  of  the  Treasury.  Ibid. 

Deposits  to  the  credit  of  the  Treasurer  of  the  United  States  on  account  of  repay- 
ment of  disbursing  funds  must  be  made  with  the  office  or  bank  in  which  such  funds 
are  to  the  credit  of  the  disbursing  officer.  Ibid. 

For  every  deposit  made  by  a  disbursing  officer,  to  his  official  credit,  a  receipt  in 
form  as  below  shall  be  given,  setting  forth  its  serial  number  and  the  place  an.d  date 
of  issue;  the  title  of  each  officer  shall  be  expressed,  and  the  title  of  the  disbursing 
account  shall  also  show  for  what  branch  of  the  public  service  the  account  is  kept,  as 
it  is  essential  for  the  proper  transaction  of  departmental  business  that  accounts  of 
moneys  advanced  from  different  bureaus  to  a  disbursing  officer  serving  in  two  or  more 
distinct  capacities  be  kept  separate  and  distinct  from  each  other,  and  be  so  reported 
to  the  Department  both  by  the  officer  and  the  depositary,  the  receipt  to  be  retained 
by  the  officer  in  whose  favor  it  is  issued. 

No.  -  .  Office  of  the  U.  S.  (Assistant  Treasurer  or  Depositary), 

_    _    1  bq 

,    "~~  ,     J-O«7          . 

Received  of  -  ,  -  dollars,  consisting  of  --  ,  to  be  placed  to  his  credit 
as  -  ,  and  subject  only  to  his  check  in  that  official  capacity. 

United  States  (Assistant  Treasurer  or  Depositary.) 

These  regulations  are  intended  to  supersede  those  of  August  24,  1876.  Ibid.  (See 
G.  0.59,  A.G.O.,  1897.) 

A  disbursing  officer  who  deposits  money  in  a  bank,  not  designated  as  a  depository 
in  accordance  with  the  requirements  of  sections  3620  and  3639  of  the  Revised  Stat- 
utes, is  liable,  with  his  sureties,  for  any  loss  that  may  arise  from  the  failure  of  said 
bank.  '  XX  Opiri.  Att.  Gen.}  24, 


MILITARY    LAWS    OF    THE    UNITED    STATES.  229 

the  Government,  to  be  transferred  or  paid  out;  and  when 
such  orders  for  transfer  or  payment  are  received,  faithfully 
and  promptly  to  make  the  same  as  directed,  and  to  do  and 
perform  all  other  duties  as  fiscal  agents  of  the  Govern- 
ment which  may  be  imposed  by  any  law,  or  by  any  regu- 
lation of  the  Treasury  Department  made  in  conformity  to 
law.  The  President  is  authorized,  if  in  his  opinion  the 
interest  of  the  United  States  requires  the  same,  to  regulate 
and  increase  the  sums  for  which  bonds  are,  or  may  be,  re- 
quired by  law,  of  all  district  attorneys,  collectors  of  cus- 
toms, naval  officers,  and  surveyors  of  customs,  navy  agents, 
receivers  and  registers  of  public  lands,  paymasters  in  the 
Army,  commissary-general,  and  by  all  other  officers  em- 
ployed in  the  disbursement  of  the  public  moneys,  under 
the  direction  of  the  War  or  Navy  Departments. 

EXCHANGES    OF    FUNDS. 

609.  No  exchange  of  funds  shall  be  made  by  any  dis-    Exchange    of 

.   J         J  funds  restricted. 

bursingf  omcer  or  agent  01  the  Government,  or  anv  srrade    Aug.  6, i846,  c. 

*71  &         ,90,  s.  20,  v.  9,  p.  64; 

or  denomination  whatsoever,  or  connected  with  any  branch  Feb. 22,1862,0.33, 

8    1     V    12     D     S45* 

of  the  public  service,  other  than  an  exchange  for  gold,  sil-  July  ii,  '1862,  c! 
ver,  United  States  notes,  and  national-bank  notes;  and 532-  Mar.  3,  im, 
every  such  disbursing  officer,  when  the  means  for  his  dis-  7io;  June  3,  im, 

,.  .       ,  c.  106,  s.  23,  v.  13, 

bursements  are  furnished  to  him  in  gold,  silver,  United  p.  ioe. 
States  notes,  or  national-bank  notes,  shall  make  his  pay- 
ments in  the  money  so  furnished;  or  when  they  are  fur- 
nished to  him  in  drafts,  shall  cause  those  drafts  to  be 
presented  at  their  place  of  payment,  and  properly  paid 
according  to  law,  and  shall  make  his  payments  in  the 
money  so  received  for  the  drafts  furnished,  unless,  in  either 
case,  he  can  exchange  the  means  in  his  hands  for  gold  and 
silver  at  par.  And  it  shall  be  the  duty  of  the  head  of 
the  proper  Department  immediately  to  suspend  from  duty 
any  disbursing  officer  or  agent  who  violates  the  provi- 
sions of  this  section,  and  forthwith  to  report  the  name  of 
the  officer  or  agent  to  the  President,  with  the  fact  of  the 
violation,  and  all  the  circumstances  accompanying  the 
same,  and  within  the  knowledge  of  the  Secretary,  to  the 
end  that  such  officer  or  agent  may  be  promptly  removed 
from  office  or  restored  to  his  trust  and  the  performance  of 
his  duties,  as  the  President  m&y  deem  just  and  proper. 

610.  No  officer  of  the  United  States  shall,  either  directly  Je^T^ubiic 
or  indirectly,  sell  or  dispose  of  to  any  person,  for  a  pre- ^neys  to  be  ac- 
mium,  any  Treasury  note,  draft,  warrant,  or  other  public  g^ji^ .if?'®! 
security,  not  his  private  property,  or  sell  or  dispose  of  the  sec.sesjs,  B.S. 


230 


MILITARY    LAWS    OF    THE    UUTTED    STATES. 


avails  or  proceeds  of  such  note,  draft,  warrant,  or  security, 
in  his  hands  for  disbursement,  without  making  return  of 
such  premium,  and  accounting  therefor  by  charging  the 
same  in  his  accounts  to  the  credit  of  the  United  States; 
and  any  officer  violating  this  section  shall  be  forthwith 
dismissed  from  office. 

PROCEEDS   OF    SALES. 


Par. 

615.  The  same,  subsistence  funds. 

616.  Expenses  of  sales. 


Par. 

611.  Gross  proceeds  to  be  deposited  in  the 

Treasury. 

612.  The  same,  exceptions. 

613.  614.  The  same,  application  of   pro- 

ceeds. 

safes  °o  be  depo's-     611.  The  gross  amount  of  all  moneys  received  from  what- 
d£ctionthout  de" ever  source  for  the  use  of  the  United  States,  except  as 
no'T'i3'  v84^'  p'  otherwise  provided  in  the  next  section,  shall  be  paid  by  the 
398=gsept^ 28, 1850,  officer  or  agent  receiving  the  same  into  the  Treasury,  at 
^sec.  3617,  R.  s.  as  early  a  day  as  practicable,  without  any  abatement  or 
deduction  on  account  of  salary,  fees,  costs,  charges,  ex- 
penses, or  claim  of  any  description  whatever. 1    But  nothing 
herein  shall  affect  any  provision  relating  to  the  revenues  of 
the  Post-Office  Department, 
proceeds  of     612.  All  proceeds  of  sales  of  old  material,  condemned 

sales  of    mate-  "t 

riMa  3  1872  c  s^ores?  supplies,  or  other  public  property  of  any  kind,  ex- 
is0' Apr5'  20  ^s'ee'  ceP*  ^e  proceeds  of  the  sale  or  leasing  of  marine  hospitals, 
c'^4o^'  ^taJ'1^'  or  °^  ^e  sales  of  revenue-cutters,  or  of  the  sales  of  com- 
1847,  ^M-ji.^v'  missary  stores  to  the  officers  and  enlisted  men  of  the  Army, 
vHt'  c<  IK?-'  June  or  °^  materials,  stores,  or  supplies  sold  to  officers  or  sol- 
17  ^'ssV-^Feb'^618  °^   ^e  Army,  or  0^  ^e  sa^e  O*   condemned  Navy 
Ik 1877>  v' 19>  p> clothing,  or  of  sales  of  materials,  stores,  or  supplies  to 
sec.  3618,  B.  s.  any  exploring  or  surveying  expedition  authorized  by  law, 
shall  be  deposited  and  covered  into  the  Treasury  as  mis- 
cellaneous receipts,  on  account  of  "  proceeds  of  Govern- 
ment property,"  and  shall  not  be  withdrawn  or  applied, 
except  in  consequence  of  a  subsequent  appropriation  made 
by  law.1 

1  Under  section  3618  of  the  Revised  Statutes,  all  proceeds  of  sales  of  old  material, 
condemned  stores,  supplies,  or  other  public  property  of  any  kind,  with  certain 
specified  exceptions,  are  to  be  deposited  and  covered  into  the  Treasury  as  miscel- 
laneous receipts  on  account  of  "proceeds  of  Government  property,"  and  are  not 
to  be  withdrawn  or  applied,  except  in  consequence  of  a  subsequent  appropriation 
made  by  law.  3  Dig.  2nd  Compt.  Dec.,  1249. 

All  proceeds  of  sales  of  public  property  covered  into  the  Treasury  as  miscellaneous 
receipts  should  be  charged  and  credited  on  account  of  "proceeds  of  Government 
property,"  as  contemplated  by  section  3618  of  the  Revised  Statutes.  Ibid.,  1255. 

The  proceeds  of  sales  of  all  public  property,  the  disposition  of  which  is  not  pro- 
vided for  by  the  preceding  paragraph,  after  the  expenses  of  sale  have  been  deducted, 
will  be  deposited  to  the  credit  of  the  Treasurer  of  the  United  States  as  ' '  Miscella- 


MILITARY    LAWS    OF    THE    UNITED    STATES.  231 


613.  All  moneys  received  from  the  leasing  or  sale  of. 
marine  hospitals,  or  the  sale  of  revenue  cutters,  or  f rom  majeria]-' 

Mar.  6, 1847,  c. 

the  sale  of  commissary  stores  to  the  officers  and  enlisted  Apr  ^'ikfe17?/ 
men  of  the  Army,  [or  from  the  sale  of  materials,  stores, 
or  supplies  sold  to  officers  and  soldiers  of  the  Army,]  or 
from  sales  of  condemned  clothing  of  the  Navy,  or  from  ™72> c 
sales  of  materials,  stores,  or  supplies  to  any  exploring  or18k,gc.34Vv.i7, 
surveying  expedition  authorized  by  law,  shall  respectively  J875^'  l^T- 1|' 
revert  to  that  appropriation  out  of  which  they  were  orig-  ^^jj: '* ^bv-  J8« 
inally  expended,  and  shall  be  applied  to  the  purposes  for^77,c.'69,v.i9,p! 
which  they  are  appropriated  by  law.1  See.  3692,  B.  s. 

614.  The  Secretary  of  the  Navy  is  authorized  to  dispose    sales  of  useless 
of  the  useless  ordnance  material  on  hand  at  public  sale,  ceeds  available 
according  to  law,  the  net  proceeds  of  which  shall  be  turned  new  material.  ° 

.     ,       ,,       %*  ..        ..        ..  ,     .        ,,  -,        ,          «     Ch.  130,  Mar. 3, 

into  the  Treasury;  and  in  the  case  of  sale  of  1375,  v.  is, p. 388. 

like  materials  in  the  War  Department,  the  proceeds  of 
which  shall  be  turned  into  the  Treasury,  an  amount  equal 
to  the  net  proceeds  of  such  sale  is  hereby  appropriated  for 
the  purpose  of  procuring  a  supply  of  material  adapted  in 
manufacture  and  caliber  to  the  present  wants  of  the  war 
service;  and  there  shall  be  expended  in  the  War  Depart- 
ment, under  this  provision,  not  more  than  seventy-five 
thousand  dollars  in  any  one  year.  Act  of  March  3,  1875 
(18  Stat.  L.,388). 

Hereafter  the  cost  to  the  Ordnance  Department  of  all  Anns  for  mmtia. 
ordnance  and  ordnance  stores  issued  to  the  States,  Terri-  25,  p.  sss. 
tories,  and  District  of  Columbia,  under  the  act  of  Febru- 
ary twelfth,  eighteen  hundred  and  eighty-seven,  shall  be 
credited  to  the  appropriation  for  "manufacture  of  arms 
at  national  armories,"  and  used  to  procure  like  ordnance 

neous  receipts  on  account  of  proceeds  of  Government  property,"  for  which  certificates 
of  deposit  will  issue,  showing  the  name,  rank,  regiment  or  corps  of  the  depositor,  the 
nature  of  the  deposit,  the  kind  of  property,  and  the  bureau  to  which  it  pertained. 
Par.  697,  A.  R.,  1901. 

The  transfer  of  public  property  from  one  bureau  or  Department  of  the  Government 
to  another  is  not  a  sale,  and  the  money  received  therefor  may  be  repaid  to  the  appro- 
priation from  which  it  was  originally  expended.  IV  Compt.  Dec.,  688. 

The  transfer  of  public  property  from  one  bureau  or  Department  to  another  is  not 
regarded  as  a  sale.  If  money  is  received  therefor,  it  may  be  used  to  replace  such 
stores  and  will  be  reported  accordingly.  Par.  698,  A.  R.,  1901. 

1  Moneys  received  for  stores,  materials,  or  supplies  (except^eubsistence  stores)  sold 
to  officers,  enlisted  men,  or  exploring  or  surveying  expeditions  authorized  by  law 
will  be  deposited  to  the  credit  of  the  Treasurer  of  the  United  States,  and  respectively 
revert  to  the  appropriation  out  of  which  originally  expended.  Proceeds  of  sales  of 
useless  ordnance  material  are  expended  under  conditions^  prescribed  by  law.  Pro- 
ceeds of  sales  of  subsistence  supplies  are  immediately  available  for  the  purchase  of 
fresh  supplies.  Par.  696,  A.  R.,  1901.  Under  section  3692  of  the  Revised  Statutes 
all  moneys  received  from  the  sale  of  materials,  stores,  or  supplies  to  officers  and  sol- 
diers of  the  Army  can  be  applied  to  the  liquidation  of  liabilities  against  the  appro- 
priation out  which  they  were  originally  expended,  only  during  the  fiscal  year  'n 
which  the  sale  was  made.  3  Dig.  2nd  Compt.  Dec.,  1246. 


232 


MILITAEY    LAWS    OF    THE    UNITED    STATES. 


nations 
istence 


1875, 


stores,  and  that  said  appropriation  shall  be  available  until 
exhausted,  not  exceeding  two  years.  Act  of  March  2, 
1889  (25  Stat.  Z.,  833). 

fof'subsistence  ^15.  So  much  of  the  appropriation  for  subsistence  of  the 
crasaeboff°srt??ers  Army  as  maybe  necessary  may  be  applied  to  the  purchase 
cerafetc. to  °&'  °^  subsistence  stores  for  sale  to  officers  for  the  use  of  them- 
sa^escavl?iab?ese^ves  an(*  their  families  and  to  commanders  of  companies 
chasesmilar  pur" or  other  organizations,  for  the  use  of  the  enlisted  men  of 
their  companies  or  organizations,  and  the  proceeds  of  all 
sales  of  subsistence  supplies  shall  hereafter  be  exempt 
from  being  covered  into  the  Treasury  and  shall  be  imme- 
diately available  for  the  purchase  of  fresh  supplies.  Act 
of  March  3,  1875  (18  Stat.  Z.,  410). 

Expenses  of  616.  From  the  proceeds  of  sales  of  old  material,  con- 
18%,  v.  demned  stores,  supplies,  or  other  public  property  of  any 
kind,  before  being  deposited  into  the  Treasury,  either  as 
miscellaneous  receipts  on  account  of  ' '  proceeds  of  Govern- 
ment property"  or  to  the  credit  of  the  appropriations  to 
which  such  proceeds  are  by  law  authorized  to  be  made, 
there  may  be  paid  the  expenses  of  such  sales,  as  approved 
by  the  accounting  officers  of  the  Treasury,  so  as  to  require 
only  the  net  proceeds  of  such  sales  to  be  deposited  into  the 
Treasury,  either  as  miscellaneous  receipts  or  to  the  credit 
of  such  appropriations,  as  the  case  may  be.1  Act  of  June 
8,1896(29  Stat.  Z., 


29,  p.  268. 


DISBURSEMENTS. 


Par. 

617,  618.  Advances. 

619.  No  expenditures  beyond  appropria- 

tions. 

620.  Application  of  appropriations. 

621.  Entry  of  receipts  and  disbursements. 


Par. 

622.  Accounting  by  items. 

623.  Amount  of  appropriation,  how  de- 

termined. 

624.  Disposition  of  balances. 


pulwte^money     617>  -^o  advance  of  public  money  shall  be  made  in  any 

P™anb3M823,  v.  case  whatever.     And  in  all  cases  of  contracts  for  the  per- 

3'sec.7ll'48,  it  s  f°rmance  of  any  service,  or  the  delivery  of  articles  of  any 

description,  for  the  use  of  the  United  States,  payment 

shall  net  exceed  the  value  of  the  service  rendered,  or  of 

JThe  act  of  June  8,  1896,  authorizing  the  payment  of  expenses,  "as  approved  by 
the  accounting  officers  of  the  Treasury,"  incurred  in  the  sale  of  old  material,  etc., 
from  the  gross  proceeds  thereof,  and  the  payment  into  the  Treasury  of  the  net  proceeds 
only,  does  not  require  that  such  expenses  shall  be  so  approved  before  payment,  but 
simply  that  an  itemized  account  thereof  shall  be  rendered  to  the  accounting  officers 
for  settlement  as  any  other  item  of  expenditure  of  Government  funds.  Ill  Compt. 
Dec.,  149.  The  course  authorized  by  the  act  of  June  8, 1896,  in  the  payment  of  expenses 
of  sales  of  old  materials  from  the  proceeds  thereof,  and  the  deposit  in  the  Treasury  of 
the  net  proceeds  only,  should  be  adopted  in  all  cases,  although  there  may  be  an 
appropriation  available  for  the  payment  of  expenses  incurred  in  such  sales.  Ibid. ,  190. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  233 

the  articles  delivered  previously  to  such  payment.1  It 
shall,  however,  be  lawful,  under  the  special  direction  of  the 
President,  to  make  such  advances  to  the  disbursing  officers 
of  the  Government  as  may  be  necessary  to  the  faithful  and 
prompt  discharge  of  their  respective  duties,  and  to  the 
f  ul  tillment  of  the  public  engagements.  The  President  may 
also  direct  such  advances  as  he  ma}^  deem  necessary  and 
proper  to  persons  in  the  military  and  naval  service  em- 
plo}7ed  on  distant  stations,  where  the  discharge  of  the  pay 
and  emoluments  to  which  they  are  entitled  can  not  be  reg- 
ularly effected. 

618.  Troops  about  to  embark  for  service  in  the  Philip-  t^g™  embark 
pine  Islands  may,  in  the  discretion  of  the  Secretary  of  War,  ig[and^hilippine 
be  paid  one  month's  wages  in  advance  prior  to  embarkation.  goJul^«J  1898>  v> 
Act  of  July  7,  1898  (30  Stat.  Z.,  721}. 

619.  No  Department  of  the  Government  shall  expend,  in    NO  expendi- 

r>        !  .  ,,  ...          tures  beyond  ap- 

any  one  fiscal  year,  anv  sum  in  excess  of  appropriations  propnations. 

J      U     ^  /       *1     tT%c        i  lu     t*  July  12,  1870,  c. 

made  by  Congress  ior  that  fiscal  year,  or  involve  the  Gov-  251,  s.  7,  \.  16,  p. 
eminent  in  any  contract  for  the  future  payment  of  money  sec.  8679,  it.  s. 
in  excess  of  such  appropriations. 

620.  All  sums  appropriated  fo 

*  *        * 

expenditure  in  the  public  service 

the  objects  for  which  they  are  respectively  made  and  foi'2Veb 


620.  All  sums  appropriated  for  the  various  branches  of   Applications  of 

*  *       *  moneys  appro- 

expenditure  in  the  public  service  shall  be  applied  solely  to  prj£ard3  1309  c 


1  In  the  case  of  disbursing  officers  the  policy  of  the  Government  has  been  to 
acknowledge  no  payments  as  made  on  its  behalf  save  those  which  are  authorized  by 
law.     Tf  an  officer  makes  a  mistake  of  law  the  payment  is  disallowed  when  his 
accounts  come  in  for  settlement  and  charged  to  him  as  if  the  money  were  still  in  his 
hands.     McKim  v.  U.  S.,  12  Ct.  Cls.,  504,  532.     Such  officers  are  special  agents 
with  very  limited  authority.     Their  duties  are  ministerial;  they  are  to  pay  the  money 
according  to  the  law  and  the  facts  in  each  case,  and  if  they  make  mistakes  in  either 
they  are  personally  liable  themselves,  and  the  Government  may  also,  without  doubt, 
maintain  an  action  to  recover  back  the  money  from  the  person  wrongfully  receiving 
it.     No  discretion  or  authority  to  decide  controverted  questions  of  law  is  intrusted  to 
such  officers.     See  dissenting  opinion  of  Eichardson,  J.,  in  McKee  v.  IT.  S.,  12  Ct.  Cls., 
504,  551. 

A  disbursing  officer  is  prohibited  by  section  3648,  Revised  Statutes,  from  paying 
more  than  a  proper  proportion  of  the  entire  contract  price  agreed  upon  for  the  trans- 
portation of  public  property  when  only  a  portion  of  the  property  has  been  delivered. 
Ill  Compt.  Dec.,  221.  See,  also,  ibid.,  187. 

An  advance  of  public  money  made  by  a  paymaster  of  the  Army  to  an  officer 
ordered  to  a  distant  station,  when  made  by  direction  of  the  President  as  provided  by 
section  3648  of  the  Revised  Statutes,  to  provide  for  the  pay  of  such  officer  for  a  future 
period,  is  not  a  payment  for  services  for  the  correctness  of  which  the  paymaster  is 
responsible,  but  an  advance  of  public  money  to  the  officer  in  question  for  which  he, 
and  not  the  paymaster,  is  accountable  to  the  United  States.  IV  ibid.,  250. 

The  payment  of  express  charges  in  advance  is  prohibited  by  this  section.    Ibid,  544. 

2  When  an  appropriation  found  in  an  annual  appropriation  act  is  made  for  the  pur- 
pose of  carrying  out  the  provisions  of  another  law  requiring  immediate  action,  such 
appropriation  is  available  prior  to  the  beginning  of  the  fiscal  year  for  the  service  of 
which  the  other  appropriations  made  in  the  act  are  intended.-   I  Compt.  Dec.  ,  329. 
See,  also,  ibid.,  487. 

3  When  Congress  makes  an  appropriation  for  a  particular  object,  that  appropriation 
is  exclusive,    and  another  appropriation  which   but  for  the  specific  appropriation 


234  MILITARY    LAWS    OF    THE    UNITED    STATES. 

621-  A11  persons  charged  by  law  with  the  safe  keeping, 
c  transfer,  and  disbursement  of  the  public  moneys,  other 
'  ^nan  those  connected  with  the  Post-Office  Department,  are 
required  to  keep  an  accurate  entry  of  each  sum  received 
and  of  each  payment  or  transfer. 

might  be  available  can  not  be  used.  I  Compt.  Dec.,  563.  When  one  appropriation 
is  available  for  a  specific  object  a  second  appropriation  can  not  be  used  fdr  the  same 
work,  unless  from  the  second  appropriation  it  clearly  appears  that  it  was  the  inten- 
tion of  Congress  that  such  second  appropriation  should  be  available  in  addition  to  the 
specific  appropriation.  Ibid.,  417.  When  an  appropriation  to  which  an  expense 
is  properly  chargeable  is  exhausted,  another  appropriation  can  not  be  used.  (Ibid., 

PECUNIARY    RESPONSIBILITY    OF   OFFICERS. 

An  officer  will  have  credit  for  an  expenditure  of  money  made  in  obedience  to  the 
order  of  his  commanding  officer.  Every  order  issued  by  any  military  authority 
which  may  cause  an  expenditure  of  money  in  a  staff  department  will  be  given  in 
writing.  One  copy  thereof  will  be  forwarded  by  the  officer  receiving  it  to  the  head 
of  his  Department,  and  the  other  will  be  filed  by  the  disbursing  officer  with  his 
voucher  for  the  disbursement.  If  the  expenditure  be  disallowed  it  will  be  charged 
to  the  officer  who  ordered  it.  Par.  735,  A.  R.,  1901. 

Where  purchases  of  army  supplies  are  made  in  pursuance  of  an  order  issued  1  y 
competent  military  authority,  said  order,  or  a  certified  copy  thereof,  should  be  fil<  d 
with  the  first  voucher  on  which  payment  for  supplies  is  made  and  reference  be  made 
thereto  on  all  the  others.  3  Compt.  Dec.,  1,  287. 

Where  there  is  a  plain  direction  or  prohibition  spread  upon  the  statute  book,1-, 
which  is  as  well  known  to  the  inferior  as  to  a  superior  officer,  it  is  clearly  bindii'e; 
upon  both  officers,  and  unless  it  can  be  affirmatively  shown  that  the  inferior  call<  d 
the  attention  of  the  superior  to  the  infringement  of  law  in  the  order,  and  that  there- 
upon the  superior  renewed  the  order,  the  inferior  officer  must  be  held  liable.  Ill 
Dig.  Dec.  2d  Compt.,  9,  par.  3. 

If  a  payment  made  on  the  certificate  of  an  officer  as  to  the  facts  is  afterwards  dis- 
allowed for  error  of  fact  in  the  certificate,  it  will  pass  to  the  credit  of  the  disbursing 
officer  and  be  charged  to  the  officer  who  gave  the  certificate;  but  the  disbursing 
officer  can  not  protect  himself  in  an  erroneous  payment  made  without  due  care  by 
charging  lack  of  care  against  the  officer  who  gave  the  certificate.  Par.  736,  Army 
Regulations  of  1901. 

Paragraph  654  of  the  Army  Regulations  of  1895  provides  that  accounts  paid  on  a 
certificate  and  afterwards  disallowed  for  error  of  fact  in  the  certificate  shall  pass  to 
the  credit  of  the  disbursing  officer  and  be  charged  to  the  officer  who  gave  the  certifi- 
cate: Held,  That  it  is  the  duty,  however,  of  the  disbursing  officer  to  exercise  the 
utmost  care  and  vigilance  in  the  disbursement  of  the  public  funds  intrusted  to  him, 
and  it  is  his  imperative  duty  to  see  that  the  entire  amount  claimed  is  due  and  that 
payment  thereof  is  fully  warranted  from  the  data  given  on  the  muster  roll  or  final 
statement.  If  the  information  is  not  sufficient  he  must  seek  for  more.  He  can  not 
protect  himself,  in  an  erroneous  payment  made  without  due  care,  by  charging  a  simi- 
lar lack  of  care  against  the  officer  who  gave  the  certificate.  Ill  Dig.  2d  Compt. 
Dec.,  10,  par.  9. 

RULES   FOR   THE    PREPARATION    OK    VOUCHERS. 

1.  Vouchers  must  be  stated  in  the  name  of  the  person,  firm,  company,  or  corpora- 
tion rendering  the  service  or  furnishing  the  articles  for  which  payment  is  made. 

2.  If  the  payee  be  a  firm,  the  receipt  to  the  voucher  should  be  in  the  usual  firm 
signature,  signed  by  a  member  of  the  firm;  if  an  incorporated  or  unincorporated 
company,  the  receipt  should  be  in  the  company  name,  followed  by  the  autograph 
signature  of  the  officer  (with  his  title)  authorized  to  receive  the  money  and  receipt 
therefor. 

3.  Evidence  of  the  authority  of  the  officer  receipting  for  an  incorporated  or  unin- 
corporated company  must  accompany  the  voucher,  unless  the  payment  is  made  by  a 
check  drawn  on  a  United  States  depository  to  the  order  of  the  company,  and  that  fact, 
with  the  date  and  number  of  the  check  and  name  of  the  depository,  is  stated  in  the 
voucher. 

4.  When  a  disbursing  officer  is  satisfied  that  an  attorney  or  agent  is  authorized  to 
receipt  for  his  principal,  whether  an  individual  firm,  company,  or  corporation,  the 


MILITARY    LAWS    OF    THE    UNITED    STATES.  235 

622.  Hereafter  all   officers,    agents,   or   other   persons  ite^s°unting  ^ 
Deceiving  public  moneys  appropriated  by  this  or  any  sub-  2/ply1153' 1884>  v 
sequent  Army  appropriation  act  shall  account  for  the  dis- 
bursement thereof  according  to  the  several  and  distinct 
items  of   appropriation  expressed  in  such   act.     Act  of 
July  5,  1884  (23  Stat.  L.,  113). 

receipt  of  the  principal  by  the  attorney  or  agent  will  be  sufficient,  without  proof  oi 
authority  accompanying  the  voucher,  provided  that  payment  is  made  by  a  check 
drawn  on  a  United  States  depository  and  payable  to  the  order  of  the  principal,  and  the 
memorandum  required  in  the  preceding  paragraph  is  made  upon  the  voucher. 

5.  These  regulations  will  not  affect  any  additional  regulations  of  the  several  Depart- 
ments, but  are  intended  as  a  statement  of  all  that  is  required  by  the  accounting 
officers  as  proof  that  payments  are  made  to  the  proper  persons.  Regulations  of  the 
Comptroller  of  the  Treasury  of  May  20,  1896;  II  Compt.  Dec.,  666;  G.  0.  37,  A.  G.  0., 
1896. 

The  word  ' '  \  oucher ' '  can  not  be  construed  as  synonymous  with  the  word  ' '  receipt, ' ' 
it  having  a  far  broader  signification  in  law.  Any  written  evidence  which  estab- 
lishes facts  entitling  a  disbursing  officer  to  credit  is  a  voucher.  ' '  The  word  '  voucher ' 
would  seem  to  imply  evidence,  written  or  otherwise,  of  the  truth  of  a  fact. ' '  The 
People  v.  Green,  5  Daly,  N.  Y.,  194;  3  Compt.  Dec.,  378. 

MONEY    VOUCHERS,   (a) 

The  term  "voucher,"  when  used  in  connection  with  the  disbursement  of  moneys, 
implies  some  written  or  printed  instrument  in  the  nature  of  a  receipt,  note,  account, 
bill  of  particulars,  or  something  of  that  character,  which  shows  on  what  account  or 
by  what  authority  a  particular  payment  has  been  made,  and  which  may  be  kept  or 
filed  away,  by  the  party  receiving  it,  for  his  own  convenience  or  protection,  or  that 
of  the  public.  People  v.  Brinkerhoff  107,  111.,  495. 

The  presentation  by  a  disbursing  officer  of  a  voucher  properly  receipted  by  the 
person  entitled  to  payment  is  but  prima  facie  evidence  of  actual  payment  by  him,  and 
will  not  entitle  him  to  credit  unless  the  amount  has  been  actually  paid  to  the  proper 
person  or  his  representative.  I  Compt.  Dec.,  228.  The  receipt  of  a  witness  to  a 
pay  roll  is  valid  although  written  with  a  pencil,  and  not  with  ink,  as  required  by 
the  regulations  and  practice  of  the  Department.  Ibid. ,  419. 

What  shall  be  considered  proper  vouchers  and  the  extent  and  character  of  the 
evidence  necessary  to  support  a  claim  must,  of  course,  depend  upon  the  circum- 
stances of  each  case.  I  think,  however,  that  the  term  "proper  vouchers"  must  be 
construed  to  mean  the  vouchers  ordinarily  required  in  the  transaction  of  business  of 
this  character.  Presumptions  should  not  be  accepted  in  the  place  of  proof  where 
the  latter  can  be  procured.  V  Compt.  Dec.,  140.  See,  also,  VI  ibid.,  14,  97. 

Every  voucher  signed  on  behalf  of  any  person,  firm,  or  corporation  by  an  agent 
or  attorney  should  bear  the  name  of  the  proper  firm,  person,  or  corporation,  followed 
by  the  name  of  the  agent  or  attorney.  3  Dig.  2d  Compt.  Dec.,  379. 

Under  a  resolution  of  the  executive  committee  of  the  Western  Union  Telegraph 
Company  passed  November  24,  1886,  any  person  in  charge  of  any  office  of  said  com- 
pany is  authorized  to  receive  and  receipt  for  payments  to  said  company,  and  receipt* 
by  such  persons  for  such  payments  are  to  be  held  as  binding  upon  said  company. 
Ibid. 

Section  3477  of  the  Revised  Statutes  does  not  prohibit  a  disbursing  officer  from 
accepting  the  receipt  of  an  agent  or  attorney  of  an  individual,  firm,  or  corporation, 
and  receiving  credit  for  a  voucher  so  receipted,  provided  it  appears  thereon  that  the 
check  issued  in  payment  was  made  payable  to  the  order  of  the  individual,  firm,  or 
corporation.  2  Compt.  Dec.,  295. 

An  order  from  the  court  appointing  a  receiver  and  showing  his  authority  to  act  as 
such  should  be  filed  with  or  referred  to  in  every  voucher  or  claim  presented  by  him 
for  payment.  3  Dig.  2d  Compt.  Dec.,  378. 

Receipts  for  small  amounts  for  occasional  service  paid  to  corporations,  such  as 
railroad,   telegraph,  turnpike,   transfer,  express,   steamboat,  hotel,  newspaper,  and 
ice  companies,  may  be  signed  by  the  local  agent  in  charge  of  the  business  of  t 
company  at  the  place  where  the  service  is  rendered,  or  where  it  begins  or  terminates, 

a  For  provisions  of  Army  Regulations  in  respect  to  the  preparation  and  execution  of  vouchers,  se 
paragraphs  631-652,  Army  Regulations  of  1895. 


236  MILITARY    LAWS    OF    THE    UNITED    STATES. 


623-  Hereafter  the  total   amount  appropriated  in  the 
various  paragraphs  of  an  appropriation  act  shall  be  de- 
29,  p.  148.  termined  by  the  correct  footing  up  of  the  specific  sums  or 

rates  appropriated  in  such  paragraph  contained  therein 
unless  otherwise  expressly  provided.  Act  of  May  Jrt. 
1896  (29  Stat.  •£.,  HO,  IJfi). 

^24.  ^11   balances  of   appropriations   contained   in  the 
pr?2P?ufyT8S7o  c  annual  appropriation  bills  and  made  specifically  for  the 
25is.  5,  v.  16,  p.  service  of  any  fiscal  year  shall  only  be  applied  to  the  pay- 
Sec.86»oB.  s.  ment  of  expenses  properly  incurred  during  that  year,  or 
to  the  fulfillment  of  contracts  property  made  within  that 
year;  and  balances  not  needed  for  such  purposes  shall  be 

and  the  certificate  of  the  officer  making  payment  that  the  person  to  whom  payment 
was  thus  made  was  then  the  local  agent  of  the  company,  in  charge  of  its  business  at 
the  place  designated,  will  be  sufficient  evidence  of  the*  agent's  authority  to  receive 
and  receipt  for  the  money  paid.  Ibid. 

The  term  "small  amounts,"  as  used  in  the  Second  Comptroller's  decision  of  March 
14,  1887,  applies  only  to  occasional  payments  of  amounts  deemed  too  insignificant  to 
justify  the  Government  in  demanding  written  evidence  of  an  agent's  authority  to 
receive  and  receipt  for  moneys,  in  accordance  with  the  general  rule.  Ibid. 

All  vouchers  in  support  of  payments  of  percentages  retained  under  contracts  musj 
be  accompanied,  as  contemplated  by  section  277  of  the  Revised  Statutes,  by  satisfac- 
tory evidence,  either  primary  or  secondary,  that  the  several  amounts  thereon  paid 
have  been  retained,  have  since  become  pavable,  and  have  not  previously  been  paid.- 
Ibid.,  379. 

Hereafter  vouchers  in  support  of  partial  payments,  cr  vouchers  on  which  the  reten- 
tion of  percentages  are  noted,  must  be  made  in  triplicate  instead  of  duplicate.  One 
of  said  vouchers  is  to  be  retained  by  the  disbursing  officer  and  the  other  two  to  be 
transmitted  with  his  accounts  to  the  accounting  officers.  The  two  vouchers  so  trans- 
mitted are  to  be  examined  and  compared  ,v  hen  the  officer's  accounts  are  adjusted 
and  settled,  one  of  them  to  be  subsequently  withdrawn  by  the  Auditor  and  filed  as  a 
subvoucher  with  and  in  support  of  the  voucher  on  which  the  final  pavment  is  made. 
Ibid. 

It  will  be  deemed  a  sufficient  compliance  with  the  requirement  as  to  vouchers  in 
support  of  partial  payments,  including  those  on  which  percentages  are  retained,  if 
the  vouchers  intended  to  be  withdrawn  by  the  Third  Auditor,  after  the  necessary 
action  of  the  accounting  officers  thereon  and  filed  as  subvouchers  with  the  proper 
vouchers  in  support  of  final  payments,  be  made  without  receipts  and  without  copies 
of  any  subvouchers  which  may  be  filed  with  the  original  vouchers,  but  complete  in 
all  other  respects  and  certified  to  by  the  proper  officers.  Ibid. 

Vouchers  on  which  percentages  are  retained,  and  which  might  otherwise  be  sus- 
pended under  the  decisions  relating  to  such  vouchers,  may  be  passed  to  the  credit  of 
the  disbursing  officer  or  agent  rendering  them  when  the  vouchers  on  which  the 
retained  percentages  are  paid  are  embraced  in  the  same  settlement  with  those  on  which 
the  percentages  are  retained.  Ibid.,  380. 

When  a  payment  has  been  made  to  correct  an  error  appearing  in  a  previous  voucher, 
the  voucher  on  which  the  error  was  made,  or  other  sufficient  evidence  of  the  error, 
should  be  transmitted  with  the  accounts  in  which  the  disbursing  officer  claims  credit. 
Ibid. 

It  is  within  the  power  of  the  accounting  officers,  in  the  settling  of  accounts  of 
disbursing  officers,  where  it  appears  that  an  expenditure  has  been  made  from  the 
wrong  appropriation,  if  the  expenditure  be  right  in  itself  and  correct  otherwise,  to 
charge  the  amount  to  the  appropriation  for  which  the  expenditure  is  liable.  If  at 
the  time  of  the  settlement  the  appropriation  to  which  the  expenditure  is  chargeable  is 
exhausted,  the  amount  should  be  disallowed  against  the  disbursing  officer,  and  he 
should  be  required  to  apply  to  Congress  for  relief.  3  ibid.,  36. 

Where  one  Department  receives  from  another  Department  supplies  which  are  within 
the  scope  of  appropriations  belonging  to  each  a  reimbursement  of  the  appropriation 
of  the  one  from  the  appropriation  of  the  other,  of  the  cost  of  the  supplies,  is  not  a  vio- 
lation of  section  3678,  Revised  Statutes;  nor  do  the  provisions  of  section  3618,  Revised 
Statutes,  apply  to  such  case.  XVII  Opin.  Att.  Gen.,  480. 


MILITAEY    LAWS    OF    THE    UNITED    STATES.  237 

carried  to  the  surplus  fund.  This  section,  however,  shall 
not  apply  to  appropriations  known  as  permanent  or  indefi- 
nite appropriations.1 


Par. 


INSPECTION    OF    DISBURSEMENTS. 


Par. 


625.  Method  and  scope  of  inspection.          626.  Reports  to  Congress. 

625.  It  shall  be  the  duty  of  the  Secretary  of  War  to  ^g^tion^  of 
cause  frequent  inquiries  to  be  made  as  to  the  necessity,  18Ap go20' 1874' v- 
economy,  and  propriety  of  all  disbursements  made  by  dis- 
bursing officers  of  the  Army,  and  as  to  their  strict  con- 
formity to  the  law  appropriating  the  money;  also  to  ascer- 
tain whether  the  disbursing  officers  of  the  Army  comply 

with  the  law  in  keeping  their  accounts  and  making  their 
deposits;  such  inquiries  to  be  made  by  officers  of  the  in- 
spection department  of  the  Army,  or  others  detailed  for 
that  purpose:  Provided,  That  no  officer  so  detailed  shall 
be  in  any  way  connected  with  the  department  or  corps 
making  the  disbursement.2  Act  of  April  W,  IS? %  (18 
Stat.  L.,  33.} 

626.  That  the  reports  of  such  inspections  shall  be  made  toTc00S|ree8?°rted 
out  and  forwarded  to  Congress  with  the  annual  report  of    sec.2,**u 
the  Secretary  of  War.      Sec.  8,  ibid. 

DECISIONS   BY    COMPTROLLER    IN    ADVANCE    OF    PAYMENT. 

627.  Disbursing  officers,  or  the  head  of  any  Executive  s>£vsan^  dte^e 
Department,  or  other  establishment  not  under  any  of 

Executive  Departments,  may  apply  for,  and  the  Comp- 
troller  shall  render,  his  decision  upon  any  question  involv- 
ing a  payment  to  be  made  by  them  or  under  them,  which 
decision,  when  rendered,  shall  govern  the  Auditor  and  the 
Comptroller  of  the  Treasury  in  passing  upon  the  account 
containing  said  disbursement.3  Sec.  8,  act  ofJuiySl,  1894 
(28  Stat.  Z., 


1 A  proposal  in  writing  to  furnish  supplies  and  a  written  acceptance  by  the  author- 
ized agent  of  the  Government  constitute  a  contract  within  the  meaning  of  section 
3690  of  the  Revised  Statutes,  so  as  to  authorize  the  use  of  an  appropriation  for  the 
fiscal  year  in  which  the  contract  is  made  in  paying  for  such  portion  of  the  supplies  as 
are  delivered  under  the  contract  after  the  expiration  of  the  fiscal  year.  II  Compt. 
Dec.,  248. 

2  See  paragraphs  977  and  978,  Army  Regulations  of  1901. 

3  Paragraph  6,  section  8,  of  the  act  of  July  31 ,  1894,  does  not  authorize  the  Comp- 
troller to  render  a  decision  in  advance  of  the  settlement  of  accounts,  except  upon 
questions  presented  by  disbursing  officers  or  the  heads  of  Executive  Departments  involv- 
ing payments  to  be  made  by  them!     1  Compt.  Dec.,  1;  see  also  ibid.,  p.  87;  139,  411, 
431,  500;  III  ibid.,  529;  IV  ibid.,  332.     Nor  is  the  Comptroller  authorized  to  render 
such  advance  decision  until  the  head  of  a  Department,  having  control  of  an  appro- 
priation, determines  to  apply  it  to  a  particular  purpose.     1  ibid.,  89.     The  Comp- 
troller has  no  jurisdiction  to  "entertain  such  an  application  when  made  by  the  heafl 


238  MILITARY    LAWS    OF    THE    UNITED    STATES. 

ASSIGNMENTS   OF   CLAIMS,  POWERS  OF   ATTORNEY. 

eijdmfvSdntun-  ^28.  All  transfers  and  assignments  made  of  any  claim 
^Feb^'e  1853  c  uPon  the  United  States,  or_of  any  part  or  share  thereof, 
So-8  Joivz^ikS  T)r  interest  therein,  whether  absolute  or  conditional,  and 
c's«c  !{497'7pR41y  whatever  may  be  the  consideration  therefor,  and  all  powers 
of  attorney,  orders,  or  other  authorities  for  receiving  pay- 
ment of  any  such  claim,  or  of  any  part  or  share  thereof, 
shall  be  absolutely  null  and  void,  unless  they  are  freely 
toade  and  executed  in  the  presence  of  at  least  two  attest- 
ing witnesses,  after  the  allowance  of  such  a  claim,  the 
ascertainment  of  the  amount  due,  and  the  issuing  of  a 
warrant  for  the  payment  thereof.  Such  transfers,  assign- 
ments, and  powers  of  attorney  must  recite  the  warrant 
for  payment,  and  must  be  acknowledged, by  the  person 
making  them,  before  an  officer  having  authority  to  take 
acknowledgments  of  deeds,  and  shall  be  certified  by  the 
officer;  and  it  must  appear  by  the  certificate  that  the 
officer,  at  the  time  of  the  acknowledgment,  read  and  fully 
explained  the  transfer,  assignment,  or  warrant  of  attorney 
to  the  person  acknowledging  the  same.1 

of  a  bureau  in  an  Executive  Department.  1  ibid.,  199.  Nor  when  the  request  comes 
from  the  head  of  one  Executive  Department  in  respect  to  an  appropriation  under  the 
head  of  another  Executive  Department.  1  ibid.,  317. 

Requests  for  the  decision  of  the  Comptroller,  under  section  8  of  the  act  of  July  31, 
1894,  must  be  made  by  the  disbursing  officer  himself  and  not  by  an  attorney  authoi*- 
ized  to  represent  him  in  the  settlement  of  his  accounts.  I  ibid.,  502. 

When  an  expense  has  not  yet  been  incurred,  and  a  decision  of  the  Comptroller  is 
desired  for  the  guidance  of  a  Department,  the  request  therefor  should  be  presented 
by  the  head  of  the  Department  having  control  of  the  appropriation,  and  not  by  the 
disbursing  officer.  I  ibid.,  500. 

The  Comptroller  of  the  Treasury  is  not  authorized  to  render  decisions  to  disbursing 
officers  upon  questions  of  law  pertaining  to  payments  which  have  been  made  by 
them.  V  Comp.  Dec.,  727. 

The  Comptroller  of  the  Treasury  is  not  authorized  to  render  to  the  heads  of  Depart- 
ments advisory  opinions  upon  questions  of  law  not  involving  payments  to  be  made 
by  or  under  them.  Ibid.,  653. 

A  statement  by  the  Comptroller  of  the  Treasury  in  an  advance  decision,  upon  a 
statement  of  facts  submitted  by  a  disbursing  officer,  which  is  broader  than  the  facts 
stated  rendered  necessary,  is  a  mere  dictum  and  is  not  binding  upon  the  Auditor  or  the 
Comptroller  in  the  settlement  of  the  account  of  the  disbursing  officer.  V  ibid.,  562. 

Under  the  act  of  July  31,  1894,  the  Auditors  of  the  Treasury  are  not  authorized  to 
render  decisions  in  advance  of  the  settlement  of  accounts,  such  authority  being,  by 
section  8  of  said  act,  granted  only  to  the  Comptroller  of  the  Treasury.  I  ibid.,  94. 

1  The  accounting  officers  of  the  Treasury  will  not  approve  powers  of  attorney  to 
demand  and  receive  moneys  due  upon  claims  against  the  United  States  when  such 
powers  are  not  executed  in  accordance  with  the  provisions  of  section  3477  of  the 
Revised  Statutes.  1  Compt,  Dec.,  142.  Section  3477  of  the  Revised  Statutes,  mak- 
ing null  and  void  all  assignments  and  powers  of  attorney  to  collect  any  claim  or 
demand  against  the  Government  (unless  the  power  of  attorney  is  given  after  the 
settlement  of  the  claim  and  the  issuance  of  the  warrant  in  payment)  applies  to  liqui- 
dated, certain,  and  undisputed  demands  as  well  as  to  those  which  are  unliquidated, 
uncertain,  or  disputed.  Ibid.,  276.  Und^rthe  decisions  of  the  courts  the  account- 
ing officers  are  required,  notwithstanding  the  pro  visions  of  section  3477  of  the  Revised 
Statutes,  to  credit  disbursing  officers  with  payments  actually  made  by  them  under 
powers  of  attorney,  provided  it  is  shown  that,  at  the  time  of  such  payment,  such 


MILITARY    LAWS    OF    THE    UNITED    STATES.  239 

COUNTERFEIT    MONEY. 

629.  All  United  States  officers  charged  with  the  receipt  n^e8udtUolebe 
or  disbursement   of   public   moneys,   and  all   officers  of?,t*m?e<?    ,,as 
national  banks,  shall  stamp  or  write  in  plain  letters  the,j£c-5jJune3°' 

7  »  1876,  V.  19,  p.  64. 

word  "counterfeit,"  ''altered,"  or  "worthless"  upon  all 
fraudulent  notes  issued  in  the  form  of  and  intended  to  cir- 
culate as  money  which  shall  be  presented  at  their  places 
of  business;  and  if  such  officers  shall  wrongfully  stamp 
any  genuine  note  of  the  United  States,  or  of  the  national 
banks,  they  shall,  upon  presentation,  redeem  such  notes  at 
the  face  value  thereof.  Sec.  5,  act  of  June  30,  1876  (19 
Stat.  Z.,  64). 

PRESENTATION    OF    DRAFTS. 

630.  It  shall  be  the  duty  of  the  Secretary  of  the  Treasury  ^££$££Z 
to  issue  and  publish  regulations  to  enforce  the  speedy  pres-  of^ftg'31    <$ 
entation  of  all  Government  drafts,  for  payment,  at  the  sec.  seis,  B.  s. 
place  where  payable,  and  to  prescribe  the  time,  according 

to  the  different  distances  of  the  depositaries  from  the  seat 
of  government,  within  which  all  drafts  upon  them,  respec- 
tively, shall  be  presented  for  payment,  and,  in  default  of 
such  presentation,  to  direct  any  other  modj  and  place  of 
payment  which  he  may  deem  proper;  but,  in  all  these  regu- 
lations and  directions,  it  shall  be  his  duty  to  guard,  as  far 

powers  are  undisputed  and  have  not  been  revoked,  either  by  the  voluntary  action  of 
the  principal  or  by  his  death.  Ibid.,  142,  431. 

The  assignment  of  a  quartermaster's  voucher,  unless  made  " after  the  allowance  of 
such  a  claim"  and  in  conformity  with  all  the  other  requirements  of  section  3477  of 
the  Revised  Statutes,  is  "absolutely  null  and  void."  The  exigencies  of  the  war  and 
of  the  Government  service  immediately  after  the  war,  which  at  one  time  were  relied 
upon  to  support  the  practice  of  paying  the  assignees  of  such  vouchers,  can  not  be 
made  available  in  deciding  cases  now  arising.  3  Dig.  2nd  Compt.  Dec.,  156. 

Transfers  and  assignments  of  claims. — The  restrictions  of  the  Comptroller  of  the 
Treasury  in  regard  to  the  allowance  of  credits  to  disbursing  officers  for  payments 
made  by  them  on  powers  of  attorney  or  other  forms  of  transfer  or  assignment  being 
so  great  as  to  amount  practically  to  a  prohibition  of  such  payments,  disbursing  offi- 
cers will  refuse  to  pay  the  assignee  of  any  claim,  except  as  to  assignments  authorized 
by  paragraphs  1300  and  1388  of  the  Army  Regulations  of  1895. 

When  claims  or  vouchers  which  have  been  assigned  are  presented  for  payment, 
the  holders  will  be  informed  that  disbursing  officers  have  no  authority  to  make  pay- 
ments to  them  as  assignees,  and  that  payments  can  only  be  made  to  the  original 
persons  to  whom  the  money  is  due.  Decision  Asst.  Sec.  War,  Nov.  7,  95 — 27033, 
A.  G.  O.,  95.  Circ.  13,  A.  G.  0.,  1895. 

Assignments  of, pay  by  officers  and  enlisted  men. — The  assignment  of  their  pay  accounts 
by  any  officers,  after  the  same  become  due,  is  authorized  by  paragraph  1300,  Army 
Regulations  of  1895, and  is  legal.  Ill  Second  Compt.  Dec.,  45;  ibid.,  47.  Such 
transfers  are  accomplished  in  accordance  with  paragraphs  1300  and  1388,  Army  Regu- 
lations of  1895.  For  a  full  discussion  of  the  subject  of  assignments  see  notes  to  para- 
graph 196  ante. 

Attachments. — An  attachment  can  not  be  enforced  against  public  money  in  the 
hands  of  a  disbursing  officer  of  the  Government,  and  he  is  authorized  to  pay  the 
Government's  creditor  without  regard  to  such  attempted  levy.  I  Compt.  Dec.,  171; 
Buchanan  v.  Alexander,  4  How.,  20. 


240 


MILITARY    LAWS    OF    THE    UNITED    STATES. 


as  may  be,  against  those  drafts  being  used  or  thrown  into 
circulation  as  a  paper  currency  or  a  medium  of  exchange. 

(See  sees.  5495,  5496,  E.  8.} 


LOST  CHECKS  —  DUPLICATE  CHECKS. 

sto?eenkor10de-  631<  Whenever  any  original  check  is  lost,  stolen,  or 
t^estroye(^'  disbursing  officers  and  agents  of  the  United 
"  States  are  authorized,  after  the  expiration  of  six  months, 

oo™'  1885>  v*  and  within  three  years  from  the  date  of  such  check,  to 

^o,  p.  oUo* 

Sec.  3646,  K.  s.  issue  a  duplicate  check;  and  the  Treasurer,  assistant  treas- 
urers, and  designated  depositaries  of  the  United  States 
are  directed  to  pay  such  duplicate  checks,  upon  notice  and 
proof  of  the  loss  of  the  original  checks,  under  such  regu- 
lations in  regard  to  their  issue  and  payment,  and  upon  the 
execution  of  such  bonds,  with  sureties,  to  indemnify  the 
United  States,  as  the  Secretary  of  the  Treasury  shall  pre- 
scribe. This  section  shall  not  apply  to  any  check  exceed- 
ing in  amount  the  sum  of  twenty  -five  hundred  dollars.1 
Act  of  February  16.  1895  (23  Stat.  Z.,  306). 

case  ^ne  disbursing  officer  or  agent  by  whom  such 
>  destroyed,  or  stolen  original  check  was  issued  is  dead, 
or  no  longer  in  the  service  of  the  United  States,  it  shall 
be  the  duty  of  the  proper  accounting  officer,  under  such 
regulations  as  the  Secretary  of  the  Treasury  shall  pre- 
scribe, to  state  an  account  in  favor  of  the  owner  of  such 
original  check  for  the  amount  thereof,  and  to  charge  such 
amount  to  the  account  of  such  officer  or  agent.1 


ceFebd7a<i872  c 
'' 


ACCOUNTS   AND    ACCOUNTING. 


Par. 

632.  Accounts  settled  in  the  Treasury. 

633.  Forms  of  accounts. 


Par. 


634.  Rules  by  heads  of  departments. 

635.  The  fiscal  year. 


settiSHn  tothe      632<  A11  claims  and  demands  whatever  by  the  United 
Ts>cSU236  K  s  States  or  against  them,  and  all  accounts  whatever  in  which 

aThe  following  paragraph  of  the  Army  Regulations  of  1901  prescribes  a  method  of 
procedure  in  the  case  of  a  check  which  has  been  lost  or  destroyed: 

"When  an  original  check  of  a  disbursing  officer,  not  exceeding  $2,500  in  amount, 
has  been  lost  or  destroyed,  a  duplicate  check  may  be  issued  by  him,  after  six  months 
and  within  three  years  of  the  date  of  the  original,  upon  the  owner  filing  with  him 
the  notice  and  proof  of  loss  and  the  indemnity  bond  required  by  sections  3646  and 
3647,  Revised  Statutes,  and  act  of  February  16,  1885.  In  case  the  disbursing  officer 
who  issued  the  original  check  is  no  longer  in  the  service,  the  notice  and  proof  of  loss 
and  the  indemnity  bond  will  be  sent  to  the  Secretary  of  the  Treasury  prior  to  the 
issue  of  a  duplicate  check.  The  proper  accounting  officer  of  the  Treasury  will  state 
an  account  in  favor  of  the  owner  of  said  check  and  charge  the  amount  thereof  to  the 
account  of  such  officer.  Instructions  for  the  execution  and  use  of  the  affidavit  and 
bond,  and  the  issue  of  the  duplicate  check,  accompany  the  blank  form  furnished  by 
the  Treasury  Department."  Par.  681. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  241 

the  United  States  are  concerned,  either  as  debtors  or  as 
creditors,  shall  be  settled  and  adjusted  in  the  Department 
of  the  Treasury. 

FORMS    OF    KEEPING   AND    RENDERING    ACCOUNTS. 


633.  The  Comptroller  of  the  Treasury  shall,  under 
direction  of  the  Secretary  of  the  Treasury,  prescribe  theet5^ly31  im  s 
forms   of   keeping-    and    rendering    all    public   accounts,  5>  v-  M'  P-  206- 
except  those  relating  to  the  postal  revenues  and  expend- 
itures therefrorp-1     Sec.  5,  act  of  July  31,  1894  (%$  Stat. 


634.  It  shall  also  be  the  duty  of  the  heads  of  the  several 
Executive  Departments,  and  of  the  proper  officers  of  other 
Government  establishments  not  within  the  jurisdiction  of22-  v-  28'1'-  L>06- 
any  Executive  Department,  to  make  appropriate  rules  and 
regulations  to  secure  a  proper  administrative  examination 
of  all  accounts  sent  to  them,  as  required  by  section  twelve 
of  this  act,  before  the  transmission  to  the  Auditors,  and 
for  the  execution  of  other  requirements  of  this  act  in  so 
far  as  the  same  relate  to  the  several  Departments  or  estab- 
lishments. 2  Sec.  2°2,  act  of  July  31,  189  Jf  (28  Stat.  L.  , 


635.  The  fiscal  year  of  the  Treasury  of  the  United  States    commence- 

^  ment     of     fiscal 

in    all  matters  of  accounts,  receipts,  expenditures,  esti-yegj;   l 

mates,  and  appropriations,  except  accounts  of  the  Secre-  9>  J;26'^6^'  s 

tary  of  the  Senate  for  compensation  and  traveling  expenses 

of  Senators,  and  accounts  of  the  Sergeant-at-Arms  of  the 

House  of  Representatives  for  compensation  and  mileage 

of  Members  and  Delegates,  shall  commence  on  the  first  day 

of   July  in  each  year;  and  all  accounts  of  receipts  and 

JFor  other  statutory  provisions  in  respect  to  accounts,  see  the  titles  "  The  Comp- 
troller of  the  Treasury"  and  "  The  Auditors  of  the  Treasury,"  in  the  chapter  entitled  THE 
DEPARTMENT  OF  THE  TREASURY. 

Public  accounts,  within  the  meaning  of  section  5  of  the  act  of  July  31,  1894,  which 
provides  that  the  Comptroller  of  the  Treasury  shall  "prescribe  the  form  of  keeping 
and  rendering  aii  public  accounts?,"  are  accounts  in.  which  the  United  States  is  con- 
cerned either  as  debtor  or  creditor.  VI  Compt.  Dec.,  35. 

Our  scheme  or  government  includes  an  accounting  system,  with  proper  officers 
thereof,  and  it  seems  reasonable  to  conclude  that  when  the  law  provides  for  an 
accounting,  and  makes  no  special  provision  therefor,  it  was  the  legislative  intent 
that  the  accounting  should  be  done  in  the  usual  manner — that  is,  by  the  accounting 
officers  of  the  Treasury  Department.  Ibid.,  283,  284. 

The  act  of  July  31,  1894,  specifically  devolves  upon  the  accounting  officers  of  the 
Treasury  the  particular  duties  of  examining  the  public  accounts  and  certifying  bal- 
ances arising  thereon;  and  their  exercise  of  those  duties,  including  the  weighing  of 
evidence,  the  construction  of  statutes,  and  the  application  of  general  principles  of 
law  in  connection  therewith,  is  exclusive.  V  Ibid.,  410. 

All  accounts  for  the  expenditure  of  public  moneys  should  be  itemized  so  far  as 
practicable,  and  a  discretion  given  to  the  officer  having  control  of  an  appropriation 
does  not  dispense  with  this  requirement.  IV  Ibid.,  159. 

2  For  regulations  respecting  the  administrative  examination  of  money  accounts  in 
the  War  Department,  see  paragraphs  737,  738,  Army  Regulations  of  1901. 

22924—08 16 


242  MILITARY    LAWS    OF    THE    UNITED    STATES. 

expenditures  required  by  law  to  be  published  annually 
shall  be  prepared  and  published  for  the  fiscal  year,  as  thus 
established.  The  fiscal  year  for  the  adjustment  of  the 
accounts  of  Secretary  of  the  Senate  for  compensation  and 
traveling  expenses  of  Senators,  and  of  the  Sergeant-at- 
Arms  of  the  House  of  Representatives  for  compensation 
and  mileage  of  Members  and  Delegates,  shall  extend  to  and 
include  the  third  day  of  July.  Sec.  9,  act  of  Octobw  1, 
1890(26  Stat.  Z.,  646). 

RENDITION   OF   ACCOUNTS. 

Par.  Par. 

636.  Monthly  accounts  required.  638-640.  Transmission  of  accounts;  rules; 

637.  Distinct    accounts    under    separate  delays. 

heads  of  appropriation.  641.  Report  of  delinquents. 

Accounts.  636.  Every  officer  or  aerent  of  the  United  States  who 

July  17, 1862,  c.  \ . 

199,  s.  i,  v.  12,  p.  receives  public  money  which  he  is  not  authorized  to  retain 

593:  Mar.  2,  1867,  -  . 

res.  48,  v.  14,  p.  as  salary,  pay,  or  emolument  shall  render  his  accounts 

571;  July  15, 1870,  •      *•    *W;     •  •   i  i 

c.  295,  s.  15,  v.ie,  monthly.      Such  accounts,  with  the  vouchers  necessary  to 
1877,  c.'  69,  v!  19!  the  correct  and  prompt  settlement  thereof,  shall  be  sent 

p.    249;  July   81,,  .,  .     J  '  .    ,      ,, 

1894,  v.  28,  p.  206.  by  mail,  or  otherwise,  to  the  bureau  to  which  they  per- 

Sec.3622,H.S.      J.  J    J 

tain  within  ten  days  after  the  expiration  of  each  succes- 
sive month,  and,  after  examination  there,  shall  be  passed 
to  the  proper  accounting  officer  of  the  Treasury  for  settle- 
ment.2 

*  •*  *  -X-  * 

In  case  of  the  nonreceipt  at  the  Treasury  or  proper 
bureau  of  any  accounts  within  a  reasonable  and  proper 
time  thereafter,  the  officer  whose  accounts  are  in  default 


1  The  forms  for  the  rendition  of  accounts  are  prescribed  by  the  Comptroller  of  the 
Treasury.     See,  also,  section  4  of  the  act  of  August  30,  1890(26  Stat,  L.,  413),  which 
required  such  accounts  to  be  rendered  quarterly.     The  requirement  of  section  4, 
act  of  August  30,  1890  (26  Stat.  L.,  413),  that  accounts  opened  thereafter  be  rendered 
quarterly,  was  repealed  by  section  6  of  the  act  of  July  31,  1894  (28  Stat,  L.,  206) . 

2  An  account  is  something  which  may  be  adjusted  and  liquidated  by  an  arithmet- 
ical computation.     One  set  of  Treasury  officers  examine  and  audit  the  accounts; 
another  set  is  intrusted  with  the  power  of  reviewing  that  examination  and  with  the 
further  power  of  determining  whether  the  laws  authorize  the  payment  of  the 
account  when  liquidated.     But  no  law  authorizes  Treasury  officials  *to  allow  and 
pass  in  accounts  a  number  not  the  result  of  arithmetical  computation  upon  a  sub- 
ject within  the  operation  of  the  mutual  part  of  a  contract,     rower  v.  U.  S.,  18  Ct. 
Cls.,  263,  275.     A  voucher  given  by  an  officer  of  the  Government,  in  the  regular 
and  ordinary  course  of  his  business,  for  services  rendered  or  articles  purchased  for 
the  public  service,  within  the  scope  of  his  authority  and  the  line  of  his  duty 
unimpeached,  is  prima  facie  evidence  of  indebtedness  on  the  part  of  the  United 
States,  as  therein  stated.      Parish  v.  U.  S.,  2  Ct.  Cls.,  341;   Solomon  /•.  U.  S.,  19 
Wall.,  17,  and  9  Ct.   Cls.,  54.      In  this  respect  the  executive  officers  who  are 
authorized  to  make  contracts,  employ  services,  or  purchase  property  for  the  public 
service,  and  whose  duty  it  is  to  see  to  it  that  the  money  certified  by  them  to  be  due 
has  been  actually  and  fairly  earned,  within  their  own  knowledge,  while  acting  in 
their  official  capacity,  differ  from  the  certified  balances  of  the  accounting  officers. 


MILITAEY    LAWS    OF   THE    UNITED   STATES.  243 

shall  be  required  to  furnish  satisfactory  evidence  of  hav- 
ing complied  with  the  provisions  of  this  section.  Nothing 
herein  contained  shall,  however,  be  construed  to  restrain 
the  heads  of  any  of  the  Departments  from  requiring  such 
other  returns  or  reports  from  the  officer  or  agent,  subject 
to  the  control  of  such  heads  of  Departments,  as  the  public- 
interest  may  require. 

637.  All  officers,  agents,  or  other  persons  receiving  pub-    Distinct  ac- 

'  .  r ,        counts   required 

lie  monevs  shall  render  distinct  accounts  of  the  application  under   separate 

•*  .      .  heads  of  appro- 

thereof ,  according  to  the  appropriation  under  which  the  pnation. 

r  Mar.  3,  1809,  c. 

same  may  have  been  advanced  to  them.  •  28,  s.  i,  v.  2,  P. 

638.  All  monthly  accounts  shall  be  mailed  or  otherwise    Transmission 

of  monthly,  etc., 

sent  to  the  proper  officer  at  n  ashington  within  ten  days  accounts. 
after  the  end  of  the  month  to  which  they  relate,  and  quar- 1894,  v.  28,  p.  209! 

,   .  ^  M&r«  2,  1901,  v. 

terly  and  other  accounts  within  twenty  days  after  the^i,  P.  910. 
period  to  which  they  relate,  and  shall  be  transmitted  to  and 
received  by  the  Auditors  within  sixty  days  of  their  actual 
receipt  at  the  proper  office  in  Washington  in  the  case  of 
monthly,  and  sixty  days  in  the  case  of  quarterly  and  other 
accounts.  Should  there  be  any  delinquency  in  this  regard 
at  the  time  of  the  receipt  by  the  Auditor  of  a  requisition 
for  an  advance  of  money,  he  shall  disapprove  the  requisi- 
tion, which  he  may  also  do  for  other  reasons  arising  out  of 
the  condition  of  the  officer's  accounts  for  whom  the  ad- 
vance is  requested;  but  the  Secretary  of  the  Treasury  may 
overrule  the  Auditor's  decision  as  to  the  sufficiency  of  these 
latter  reasons.  Sec.  1%,  act  of  July  31,  1894  (28  Stat.  L.. 
209);  act  of  March  2,  1901  (31  ibid.,  910). 

In  the  examination  of  claims  in  the  Treasury  Department  these  accounting  officers 
act  wholly  upon  the  evidence  presented  to  them  by  others,  and  have  themselves  no 
personal  knowedge  of  the  facts  upon  which  the  claims  are  founded.  It  is  one  of  the 
fundamental  principles  upon  which  that  Department  is  established — and  a  useful  and 
nice  one  it  is — that  the  executive  officers  who  pass  upon  public  accounts  shall  be 
different  from  those  who  are  authorized  to  make  contracts  and  incur  liabilities  in 
the  expenditure  of  public  money.  McCann  v.  U.  S.,  18  Ct.  Cls.  445,  447.  The 
accounts  under  a  contract  remain  open  so  long  as  anything  remains  to  be  adjusted 
or  paid.  Parker  v.  U.  S.,  26  Ct.  Cls.  344. 

The  first  clause  of  section  3622  of  the  Revised  Statutes,  which  requires  the  rendi- 
tion of  accounts  monthly,  is  applicable  to  every  officer  who  receives  advances  of 
public  money  to  be  disbursed,  and  also  to  every  officer  who  collects  and  receives 
fees  and  revenues  which  it  is  his  duty  to  account  for.  XIX  Opin.  Att.  Gen.,  557. 

The  requirement  that  officers  render  their  accounts  monthly  is  not  subject  to  the 
direction  of  the  Secretary  of  the  Treasury,  excepting  in  extraordinary  cases,  where 
he  shall  be  of  opinion  that  the  statutory  period  ought  to  be  enlarged  to  meet  the 
special  circumstances  of  such  cases.  XIX  Opin.  Att.  Gen.,  557. 

For  other  statutory  regulations  in  respect  to  the  disbursement  of  and  accounting 
for  the  public  moneys,  see  sections  3643,  3648,  3678,  and  3679  of  the  Revised  Statutes, 
paragraphs  617,  619,  620,  and  621  ante;  see,  also,  the  acts  of  July  5,  1884  (23  Stat.  L., 
113) ,  and  May  28, 1896  (29  ibid.,  148),  paragraphs  622,  and  623  ante.  For  a  definition 
of  the  term  "account"  as  used  in  connection  with  the  receipt  and  disbursement  of 
the  public  money,  see  note  3,  supra. 


244  MILITARY    LAWS    OF    THE    UNITED    STATES. 


639«  The  Secretary  of  the  Treasury  shall  prescribe  suit- 
rules  anc^  regulations,  and  may  make  orders  in  par- 
counts.  ticular  cases  relaxing  the  requirement  of  mailing  or  other- 

wise sending  accounts  as  aforesaid  within  ten  or  twenty 
days,  or  waiving  delinquency,  in  such  cases  only  in  which 
there  is,  or  is  likely  to  be,  a  manifest  physical  difficulty 
in  complying  with  the  same,  it  being  the  purpose  of  this 
provision  to  require  the  prompt  rendition  of  accounts 
without  regard  to  the  mere  convenience  of  the  officers, 
and  to  forbid  the  advance  of  money  to  those  delinquent 
in  rendering  them.  Ibid. 

m?  ftlVg  sac-     640<  Should  there   be  a  delay   by   the   administrative 
counts.  Departments  beyond  the  aforesaid  twenty  or  sixty  days  in 

transmitting  accounts,  an  order  of  the  President  [or,  in 
the  event  of  the  absence  from  the  seat  of  government  or 
sickness  of  the  President,  an  orcfer  of  the  Secretary  of  the 
Treasury]  in  the  particular  case  shall  be  necessary  to  author- 
ize the  advance  of  money  requested  :  And  provided  further^ 
That  this  section  shall  not  apply  to  accounts  of  the  postal 
revenue  and  expenditures  therefrom,  which  shall  be  ren- 
dered as  now  required  by  law.1  Ibid. 

1  Amended  by  the  insertion  of  the  clause  in  brackets  by  section  4  of  the  act  of 
March  2,  1895  (28  Stat.  L.,  807). 

Under  the  authority  vested  in  him  by  this  statute,  the  Secretary  of  the  Treasury 
relaxed  the  requirements  in  respect  to  the  mailing  of  accounts  by  extending  the 
time  of  mailing  the  accounts  of  disbursing  officers  as  set  forth  therein. 

Such  period  of  relaxation  was  still  further  extended  to  December  31,  1900  (see  Gen- 
eral Orders,  No.  211,  A.  G.  0.,  of  December  29,  1899,  and  the  orders  therein  cited  ). 
Under  this  permission  the  date  of  mailing  as  fixed  by  A.  R.  709,  has  been  tempo- 
rarily changed  to  the  20th  day  of  each  month  for  all  accounts,  whether  rendered  in 
this  country  or  in  the  island  possessions. 

The  exigency  which  required  this  temporary  change  having  now  ceased  in  the 
Subsistence  Department  at  all  depots,  posts,  and  stations  in  the  United  States, 
except  at  the  purchasing  depots  at  New  York,  Chicago,  and  San  Francisco,  the 
relaxation  of  the  law  as  to  time  of  rendition  of  accounts  is  hereby  withdrawn  to  take 
effect  May  1,  1900,  from  all  but  the  excepted  depots,  and  accounts  will  thereafter  be 
mailed  on  or  before  the  10th  day  of  the  month  as  required  by  A.  R.  627.  At  the 
excepted  depots  the  mailing  of  accounts  may  continue  to  be  delayed  until  the  20th 
day  of  the  month  until  further  orders,  or  until  December  31,  1900* 

In  the  island  possessions  of  Cuba,  Porto  Rico,  and  Hawaii  the  relaxation  is  hereby 
withdrawn  as  of  date  May  1,  1900,  from  all  officers  in  those  islands  engaged  in  the 
receipt  or  disbursement  of  subsistence  funds,  and  their  accounts  will  thereafter  be 
mailed  on  or  before  the  10th  day  of  the  month,  as  required  by  A.  R.  709. 

The  mailing  of  the  accounts  of  officers  receiving  and  disbursing  subsistence  funds  in 
the  Philippines  may  continue  to  be  delayed  until  the  20th  day  of  the  month  nntil 
further  orders,  or  until  December  31,  1900. 

Officers  receiving  and  disbursing  subsistence  funds  on  United  States  transports  will, 
after  May  1,  1900,  mail  their  accounts  and  returns  at  the  port  at  which  they  may  be 
when  the  ten  days'  limit  will  expire,  or,  if  they  should  be  at  sea  when  the  ten  days' 
limit  expires,  they  will  mail  their  accounts  and  returns  at  the  next  United  States  or 
island  port  at  which  a  stop  is  made. 

Returns  of  subsistence  stores  ana  subsistence  property  will  be  rendered  and  mailed 
at  all  places  concurrently  with  the  rendering  and  mailing  of  accounts  current  and 
vouchers. 

An  officer  delinquent  in  mailing  his  subsistence  account  current  and  vouchers  or 
his  returns  within  the  time  hereinabove  limited  will  transmit  with  them  at  the  time 


MILITARY    LAWS    OF    THE    UNITED    STATES.  245 

REPORT   OF    DELINQUENTS. 

641.  The  Secretary  of  the  Treasury  shall,  on  the  first  Trsecretary     of 
Monday  of  January  in  each  year,  make  report  to  Congress  p?«rt  delinquent 

IT.."  officers. 

o±  such  officers  and  administrative  departments  and  offices  18f JV-^m 
of  the  Government  as  were,  respectively,  at  any  time  dur- 
ing the  last  preceding  fiscal  year  delinquent  in  rendering 
or  transmitting  accounts  to  the  proper  offices  in  Washington 
and  the  cause  therefor,  and  in  each  case  indicating  whether 
the  delinquency  was  waived,  together  with  such  officers, 
including  postmasters  and  officers  of  the  Post-Office  De- 
partment, as  were  found  upon  final  settlement  of  their 
accounts  to  have  been  indebted  to  the  Government,  with 
the  amount  of  such  indebtedness  in  each  case,  and  who,  at 
the  date  of  making  report,  had  failed  to  pay  the  same  into 
the  Treasury  of  the  United  States. l  Sec.  4,  act  of  May  28, 
1896(29  Stat.  L.,  179). 

REVISION   OF   ACCOUNTS. 

642.  The  balances   which  may  from   time  to  time  be    Balances,  con- 
certified  by  the  Auditors  to  the  division  of  bookkeeping ter-  Revision  by 

,  Ai        TI  Comptroller. 

and  warrants,  or  to  the  Postmaster-General,  upon  the  July  31,  1394,  s. 
settlement  of  public  accounts,  shall  be  final  and  conclusive 
upon  the  executive  branch  of  the  Government,  except  that 
any  person  whose  accounts  have  been  settled,  the  head  of 
an  Executive  Department  to  which  the  account  pertains, 
or  the  Comptroller  of  the  Treasury,  may,  within  a  year, 
obtain  a  revision  of  the  said  account  by  the  Comptroller 
of  the  Treasury,  whose  decision  upon  such  revision  shall 
be  final  and  conclusive  upon  the  executive  branch  of  the 
Government:  Provided,  That  the  Secretary  of  the  Treas- 
ury may,  when  in  his  judgment  the  interests  of  the  Gov- 
ernment require  it,  suspend  payment  and  direct  the 
reexamination  of  any  account.2  Sec.  8,  act  of  July  31, 
1894(28  Stat.  Z.,  207). 

of  mailing  a  full  explanation  of  the  causes  of  delay  for  the  action  of  the  proper 
authorities.  G.  0.  42,  A.  G.  O.,  1900. 

The  time  for  examination  of  monthly  accounts  by  the  bureaus  and  offices  of  the 
War  Department  after  the  date  OA  actual  receipt  and  before  transmitting  the  same  to 
the  Auditor  for  the  War  Department  was  extended  from  twenty  to  sixty  days  for  the 
period  of  one  year  from  December  20,  1899,  by  the  act  of  December  20,  1899  (31 
Stat.  L.,  1.) 

'This  provision  replaces  the  requirement  of  section  12  of  the  act  of  July  31.  1894 
(28  Stat.  L.,  209),  that  "the  Secretary  of  the  Treasury  shall,  on  the  first  Monday  in 
January  in  each  year,  make  report  to  Congress  of  such  officers  as  are  then  delinquent 
in  the  rendering  of  their  accounts,  or  in  the  payment  of  balances  found  due  from 
them  for  the  last  preceding  fiscal  year." 

2  (1)  The  Auditor,  in  the  first  instance,  has  the  original  and  exclusive  jurisdiction 
to  receive,  examine,  and  settle  all  accounts. 

(2)  The  Comptroller  is  without  jurisdiction  to  entertain  any  claim  not  previously 


246  MILITARY    LAWS    OF    THE    UNITED    STATES. 

SUITS   FOR   RECOVERY    OF   MONEY, 

money torecover  643.  Whenever  any  person  accountable  for  public  money 
a^Y'v  "i"97^'  neglects  or  refuses  to  pay  into  the  Treasury  the  sum  or 
sec.  3624,  B.  s.  balance  reported  to  be  due  to  the  United  States  upon  the 
adjustment  of  his  account,  the  Comptroller  of  the  Treas- 
ury shall  institute  suit  for  the  recovery  of  the  same,  adding 
to  the  sum  stated  to  be  due  on  such  account  the  commis- 
sions of  the  delinquent,  which  shall  be  forfeited  in  every 
instance  where  suit  is  commenced  and  judgment  obtained 
thereon,  and  an  interest  of  six  per  centum  per  annum  from 
the  time  of  receiving  the  money  until  it  shall  be  repaid 
into  the  Treasury.1 

passed  upon  and  settled  by  the  Auditor,  and,  until  the  Auditor  has  settled  the 
account,  the  Comptroller  is  without  jurisdiction  to  revise  it. 

(3)  The  settlement  of  an  account  by  the  Auditor,  so  far  as  the  claimant's  right  or 
power  before  the  accounting  officers  is  concerned,  is  final  and  conclusive,  except  that 
any  person  whose  account  may  have  been  settled  by  the  Auditor  may,  within  a  year, 
obtain  a  revision  of  said  account  by  the  Comptroller. 

(4)  The  person  who  may  obtain  such  revision  is  the  person  whose  account  has  been 
settled  by  the  Auditor.     V  Compt.  Dec.,  333,  334. 

The  Comptroller  has  the  exclusive  right  to  reopen  an  account  which  has  been 
revised  by  himself  or  his  predecessors.  IV  Compt.  Dec.,  303.  After  the  expiration 
of  a  year  from  the  date  of  settlement  an  Auditor  has  the  exclusive  right  to  reopen  an 
account  settled  by  himself  or  his  predecessors.  Ibid.  Before  the  expiration  of  a 
year  the  right  of  revision  by  the  Comptroller  is  exclusive,  and  an  Auditor  can  not 
reopen  an  account  within  that  period.  Ibid.  After  the  expiration  of  six  months 
from  the  date  of  settlement  by  the  Second  Auditor,  under  the  act  of  July  1,1892  (27 
Stat.  L.,  194),  no  appeal  having  been  taken  within  that  period,  the  Auditor  fo  the 
War  Department  has  the  exclusive  right  to  reopen  the  settlement.  Ibid,  471. 

Section  8  of  the  act  of  July  31,  1894,  specifies  the  officers  and  persons  by  whom  the 
revision  of  accounts  by  the  Comptroller  may  be  obtained,  and  it  must  be  construed 
to  be  exclusive.  IV  Compt.  Dec.,  723.  Under  section  8  of  the  act  of  July  31,  1894, 
the  Comptroller  of  the  Treasury  is  authorized  to  revise,  upon  his  own  motion,  all 
items  embraced  in  an  account,  including  items  upon  which  payment  has  been 
accepted;  and  in  particular  instances,  where  justice  requires  it,  such  authority  may 
be  exercised  in  favor  of  a  claimant.  Ibid,  22. 

The  accounting  officers  are  not  authorized  to  reopen  accounts  which  have  been 
settled,  except  for  the  purpose  of  correcting  mistakes  of  fact  arising  from  errors  of 
calculation,  or  upon  the  production  of  newly  discovered  material  evidence.  VI 
Compt.  Dec.,  236.  The  accounting  officers  are  not  authorized  to  reopen  accounts  for 
the  purpose  of  correcting  decisions  upon  questions  of  law  subsequently  held  to  be 
erroneous.  Ibid,  91. 

The  right  of  the  accounting  officers  to  reopen  accounts  which  have  been  settled, 
either  by  themselves  or  their  predecessors,  for  the  purpose  of  correcting  mistakes  of 
fact  arising  from  errors  of  calculation,  or  upon  the  production  of  newly  discovered 
material  evidence,  or  for  fraud  or  collusion,  has  received  the  sanction  of  the  courts 
and  of  the  law-making  power.  The  actof  July  31, 1894,  does  not  take  away  or  modify 
that  right,  IV  Compt.  Dec.,  303. 

Where  the  Comptroller  has  made  a  final  settlement  of  a  claim  from  the  War 
Department,  an  order  of  the  Secretary  that  the  accounts  be  reexamined  has  no  validity. 
B.  &  O.  R,  R.  Co.  v.  U.  S.  31,  Ct.  Cls.,  484. 

1  For  other  statutory  provisions  respecting  the  recovery  of  debts  or  balances  due  the 
United  States,  see  the  titles  "The  Comptroller  of  the  Treasury"  and  "The  Auditors 
of  the  Treasury"  in  the  chapter  entitled  THE  TREASURY  DEPARTMENT,  and  the  title 
"Distress  Warrants"  in  the  chapter  entitled  THE  PUBLIC  MONEY.  See  also  U.  S.  v. 
Gaussen,  19  Wall.,  198. 


MILTTAEY    LAWS    OF    THE    UNITED    STATES. 


247 


MISCELLANEOUS     OFFENSES    IN     CONNECTION    WITH    THE     SAFE-KEEPING 
AND    DISBURSEMENT    OF   THE    PUBLIC    MONEY. 


Par. 

655.  The  same;  penalty. 

656.  Officers  not  to  be  interested  in  claims; 

penalty. 

657.  Accepting  bribe;  penalty. 

658.  The  same;  penalty. 

659.  Contracting  beyond   appropriation; 

penalty. 

660.  Embezzlement,  larceny,  etc.;  pen- 

alty. 

661 .  Receiving  em  bezzled  money  or  prop- 

erty; penalty. 


Par. 

644.  Short  payments. 

645.  Unlawful  depositing,  loaning,   con- 

version, etc. 

646.  Failure  to  safely  keep  public  money. 

647.  The  same. 

648.  Failure  to  render  accounts. 

649.  Failure  to  deposit  as  required. 

650.  The  same;  penalty. 

651.  Record  evidence  of  embezzlement. 

652.  Refusal  to  pay  draft. 

653.  Evidence  of  conversion. 

654.  Unlawfully     receiving    money    by 

banker,  etc. 

644.  Every  officer  charged  with  the  payment  of  any  of  re^e?ptingffor 
the  appropriations  made  by  any  act  of  Congress  who  pay  s 
to  any  clerk,  or  other  employee  -of  the  United  States,  a 
sum  less  than  that  provided  by  law,  and  requires  such23|ec  > 
employee  to  receipt  or  give  a  voucher  for  an  amount  greater 
than  that  actually  paid  to  and  received  by  him,  is  guilty 
of  embezzlement,  and  shall  be  fined  in  double  the  amount 
so  withheld  from  any  employee  of  the  Government,  and 
shall  be  imprisoned  at  hard  labor  for  the  term  of  two  years. 

EMBEZZLEMENT. 


10 


645.  Every  disbursing  officer  of  the  United  States 
deposits  any  public  money  intrusted  to  him  in  any  place 

or  in  any  manner  except  as  authorized  by  law,  or  converts  pubiicamofney.ng 
to  his  own  use  in  any  way  whatever,  or  loans  with  or  with-  122U"e2| Vuf'p! 
out  interest,  or  for  any  purpose  not  prescribed  by  law  64^ec .6488,B.s. 
withdraws  from  the  Treasurer  or  any-  assistant  treasurer 
or  any  authorized  depository,  or  for  any  purpose  not  pre- 
scribed by  law  transfers  or  applies  any  portion  of  the  public 
money  intrusted  to  him,  is,  in  every  such  act,  deemed  guilty 
of  an  embezzlement  of  the  money  so  deposited,  converted, 
loaned,  withdrawn,  transferred,  or  applied,  and  shall  be 
punished  by  imprisonment  with  hard  labor  for  a  term  not 
less  than  one  year  nor  more  than  ten  years,  or  by  a  fine  of 
not  more  than  the  amount  embezzled  or  less  than  one  thou- 
sand dollars,  or  by  both  such  fine  and  imprisonment.     (See 
sees.  3620,  5497,  R.  8.) 

646.  If  the  Treasurer  of  the  United  States,  or  any  assist 
ant  treasurer,  or  any  public  depositary,  fails  safely  to  keepjjj, 

all  moneys  deposited  by  any  disbursing  officer  or  disburs-  uJfSf'f  ^J  p.' 
ing  agent,  as  well  as  all  moneys  deposited  by  any  receiver,  24|ec>  5489,B.s. 


248  MILITARY    LAWS    OF    THE    UNITED    STATES. 

collector,  or  other  person  having  moneys  of  the  United 
States,  he  shall  be  deemed  guilty  of  embezzlement  of  the 
moneys  not  so  safely  kept,  and  shall  be  imprisoned  not  less 
than  six  months  nor  more  than  ten  years,  and  fined  in  a 
sum  equal  to  the  amount  of  money  so  embezzled.  (See  sec. 
3639,  It.  8.) 
custodians  of  647.  Every  officer  or  other  person  charged  by  any  act  of 

keeingwitifoeut^on^ress  w^  ^e  safe"keeping  of  the  public  moneys,  who 
loaning,  etc.       fails  to  safely  keep  the  same,  without  loaning,  using,  con- 

Aug.  6,  1846,  c.  .  J  ... 

90,  s.  16,  v.  9,  p.  verting  to  his  own  use,  depositing  in  banks,  or  exchanging 

Sec.  5490,  R.S.  for  other  funds  than  as  specially  allowed   by  law,  shall 

be  guilty  of  embezzlement  of  the  money  so  loaned,  used, 

converted,  deposited,  or  exchanged,  and  shall  be  imprisoned 

not  less  than  six  months  nor  more  than  ten  years,  and  fined 

in  a  sum  equal  to  the  amount  of  money  so  embezzled.1 

(See  sec.  3639,  R.  S.) 

Failure  of  offi-     648.  Every  officer  or  agent  of  the  United  States  who, 

cer  to  render  ac-  .  . ^  .  . 

counts,  etc.        navinsf  received  public  monev  which  he  is  not  authorized 

July  17, 1862,  c.  J 

199,  s.  i,  v.  12,  p.  to  retain  as  salary,  pay,  or  emolument,  fails  to  render  his 

593;  Mar.  2,  1867,  .       J  '    ^   J  ' 

Res.  48,  v.  14,  p.  accounts  for  the  same  as  provided  bv  law,  shall  be  deemed 

571;  July  15, 1870,  -  '     . 

c.  295,  s.  is,  v.  16,  guilty  of  embezzlement,  and  shall  be  fined  in  a  sum  equal 
1846,  c.  90,  s.'  iej  to  the  amount  of  the  money  embezzled,  and  shall  be  im- 
'sec.  549i,B.s.  prisoned  not  less  than  six  months  or  more  than  ten  years.2 
(See  sees.  3622,  3633,  E.  S.) 

649.  Every  person  who,  having  moneys  of  the  United 
ii   sv!,'  p!  States  in  his  hands  or  possession,  fails  to  make  deposit  of 
ySrtffiVop^8  same  with  the  Treasurer,  or  some  assistant  treasurer, 
^sec.  5492,R.s.  or  some  public  depositary  of  the  United  States,  when  re- 
quired so  to  do  by  the  Secretary  of  the  Treasury  or  the 
head  of  any  other  proper  Department,  or  b}^  the  account- 
ing officers  of  the  Treasury,  shall  be  deemed  guilty  of  em- 
bezzlement thereof,  and  shall  be  imprisoned  not  less  than 
six  months  nor  more  than  ten  years,  and  fined  in  a  sum 
equal  to  the  amount  of  money  embezzled. 

1  It  is  a  defense  to  a  charge  (under  the  62d  article)  of  the  embezzlement  defined 
in  section  5490  of  the  Revised  Statutes  as  consisting  in  a  failure  to  safely  keep  public 
moneys  by  an  officer  charged  with  the  safe-keeping  of  the  same  that  the  funds 
alleged  to  have  been  embezzled  were,  without  fault  on  the  part  of  the  accused,  lost  in 
transportation  or  fraudulently  or  feloniously  abstracted.    Dig.  Opin.  J.  A.  G.,  par.  155. 

2  In  view  of  the  injunction  and  definition  of  sections  3622  and  5491  of  the  Revised 
Statutes,  an  officer  who,  in  his  official  capacity,  receives  public  money  (not  pay  or 
allowances)  which  he  fails  duly  to  account  for  to  the  United  States  is  guilty  of  embez- 
zlement.    The  statute  makes  no  distinction  as  to  the  sources  from  which  the  money 
is  derived  or  the  circumstances  of  its  receipt.     Nor  is  it  material  whether  or  not  the 
officer  actually  converted  it  to  his  own  use  or  what  was  the  motive  of  his  disposition 
of  it.     So,  held,  that  an  officer  who,  having  claimed  and  exacted  certain  moneys  from 
Government  contractors  for  alleged  liabilities  on  their  part,  failed  to  pay  the  same 
into  the  Treasury  or  to  duly  account  therefor,  was  guilty  of  embezzlement  under  the 
ninth  paragraph  of  article  60.     Dig.  Opin.  J.  A.  G..  par.  156. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  249 


650.  The  provisions  of  the  five  preceding  sections 

be  construed  to  apply  to  all  persons  charged  with  the  saf  e- 
keeping,  transfer,  or  disbursement  of  the  public  money,  9oAgufg 
whether  such  persons  be  indicted  as  receivers  or  deposita-    sec.54<m,R.s. 
ries  of  the  same.     (See  sees.  3615-3652e,  R.  8.) 

651.  Upon  the  trial  of  any  indictment  against  any  per- 

son  for  embezzling  public  money  under  the  provisions  of  Zl^ent6  1846  c 

the  six  preceding  sections,  it  shall  be  sufficient  evidence, 

for  the  purpose  of  showing  a  balance  against  such  person, 

to  produce  a  transcript  from  the  books  and  proceedings  of 

the  Treasury,  as  required  in  civil  cases,  under  the  provi- 

sions for  the  settlement  of  accounts  between  the   United 

States  and  receivers  of  public  money.1     (See  sees.  36%5, 

3633,  E.  S.) 

652.  The  refusal  of  any  person  ,  whether  in  or  out  of  office,  drf  ff  prima^S 
charged  with  the  safe-keeping,  transfer,  or  disbursement  of  blzzfemenf  em 
the  public  money,  to  pay  any  draft,  order,  or  warrant  drawn    |e'?5495,R.s. 
upon  him  by  the  proper  accounting  officer  of  the  Treasury, 

for  any  public  money  in  his  hands  belonging  to  the  United 
States,  no  matter  in  what  capacity  the  same  may  have  been 
received  or  may  be  held,  or  to  transfer  or  disburse  any  such 
money  promptly,  upon  the  legal  requirement  of  any  author- 
ized officer,  shall  be  deemed,  upon  the  trial  of  any  indict- 
ment against  such  person  for  embezzlement,  as  prima  facie 
evidence  of  such  embezzlement.2  (See  sec.  3644,  R-  &) 

653.  If  any  officer  charged  with  the  disbursement  of  the  convSlfon6    °f 
public  moneys  accepts,  receives,  or  transmits  to  the  Treas-    see?5496,B.s. 
ury  Department,  to  be  allowed  in  his  favor,  any  receipt  or 

voucher  from  a  creditor  of  the  United  States,  without 
having  paid  to  such  creditor  in  such  funds  as  the  officer 
received  for  disbursement,  or  in  such  funds  as  he  may  be 
authorized  to  take  in  exchange,  the  full  amount  specified 
in  such  receipt  or  voucher,  every  such  act  is  an  act  of  con- 
version bv  such  officer  to  his  own  use  of  the  amount 
specified  in  such  receipt  or  voucher.  (See  sec.  365%,  R.  /S.) 

1  U.  S.  v.  Gaassen,  19  Wallace,  198. 

2  Section  5495  of  the  Revised  Statutes  provides  that  the  refusal  of  any  person  charged 
with  the  disbursement  of  public  moneys  promptly  to  transfer  or  disburse  the  funds 
in  his  hands,  "upon  the  legal  requirement  of  an  authorized  officer,  shall  be  deemed, 
upon  the  trial  of  any  indictment  against  such  person  for  embezzlement,  as  prima 
Jade  evidence  of  such  embezzlement."     Applying  this  rule  to  a  military  case,  it  is 
clear  that  in  the  event  of  such  a  refusal  by  a  disbursing  officer  of  the  Army  the 
burden  of  proof  would  be  upon  him  to  showr  that  his  proceeding  was  justified  and 
that  it  would  not  be  for  the  prosecution  to  show  what  had  become  of  the  funds.     So, 
where  an  acting  commissary  of  subsistence,  on  being  relieved,  failed  to  turn  over  the 
public  moneys  to  his  successor,  or  to  his  post  commander,  when  ordered  to  do  so,  or 
to  produce  such  moneys,  exhibit  vouchers  for  the  same,  or  otherwise  account  for 
their  use,  when  required  to  do  so  by  the  department  commander,  held,  that  he  was 
properly  chargeable  with  and  convicted  of  embezzlement  under  this  article  (sixtieth 
article  of  war).     Dig.  Opin.  J.  A.  G.,  par.  114. 


250  MILITARY    LAWS    OF    THE    UNITED    STATES. 


654>  Every  banker,  broker,  or  other  person  not  an  author- 
to^  benembezzice-  ^ze<^  depositary  of  public  moneys,  who  knowingly  receives 
mjune  14  1866  ^  rom  an}7  disbursing  officer,  or  collector  of  internal  revenue, 
P.  ef!  '  s'  3'  v'  H>  or  °ther  agent  of  the  United  States,  any  public  money  on 
Sec.  5497,  B.s.  deposit,  or  by  way  of  loan  or  accommodation,  with  or  with- 
out interest,  or  otherwise  than  in  payment  of  a  debt  against 
the  United  States,  or  who  uses,  transfers,  converts,  appro- 
priates, or  applies  any  portion  of  the  public  money  for  any 
purpose  not  prescribed  by  law,  and  every  president,  cash- 
ier, teller,  director,  or  other  officer  of  any  bank  or  banking 
association,  who  violates  any  of  the  provisions  of  this  sec- 
tion, is  guilty  of  an  act  of  embezzlement  of  the  public  money 
so  deposited,  loaned,  transferred,  used,  converted,  appro- 
priated, or  applied,  and  shall  be  punished  as  prescribed  in 
section  fifty-four  hundred  and  eighty-eight. 

The  same.  655.  And  any  officer  connected  with,  or  employed  in,  the 

'  internal-revenue  service  of  the  United  States,  and  any  as- 
sistant of  such  officer,  who  shall  embezzle  or  wrongfully 
convert  to  his  own  use  any  money  or  other  property  of 
the  United  States,  and  any  officer  of  the  United  States,  or 
any  assistant  of  such  officer,  who  shall  embezzle  or  wrong- 
fully convert  to  his  own  use  any  money  or  property  which 
may  have  come  into  his  possession  or  under  his  control  in 
the  execution  of  such  office  or  employment,  or  under  color 
or  claim  of  authority  as  such  officer  or  assistant,  whether 
the  same  shall  be  the  money  or  property  of  the  United 
States  or  of  some  other  person  or  party,  shall,  where  the 
offense  is  not  otherwise  punishable  by  some  statute  of  the 
United  States,  be  punished  by  a  tine  equal  to  the  value  of 
the  money  and  property  thus  embezzled  or  converted,  or 
by  imprisonment  not  less  than  three  months  nor  more  than 
ten  years,  or  by  both  such  tine  and  imprisonment.  Act  of 
February  3,  1879  (80  Stat.  Z.,  880). 

in°t?rS?teedCin     65^f  Every  °fficer  of  the  United  States,  or  person  hold- 

clFebS>26  1853  c  *n£  any  P^ace  °^  trust  or  protit,  or  discharging  any  official 

si  ,  s.  2,  v.  10,  p.  function  under  or  in  connection  with  any  Executive  De- 

sec.5498,  U.S.  partment  of  the  Government  of  the  United  States,  or  under 

the  Senate  or  House  of  Representatives  of  the  United 

States,  who  acts  as  an  agent  or  attorney  for  prosecuting 

any  claim  against  the  United  States,  or  in  any  manner  or 

by  any  means,  otherwise  than  in  discharge  of  his  proper 

official  duties,  aids  or  assists  in  the  prosecution  or  support 

of  any  such  claim,  or  receives  any  gratuity,  or  any  share 

of  or  interest  in  any  claim  from  any  claimant  against  the 

United  States,  with  intent  to  aid  or  assist,  or  in  considera- 


MILITARY    LAWS    OF    THE    UNITED    STATES.  251 

tion  of  having  aided  or  assisted,  in  the  prosecution  of  such 
claim,  shall  pay  a  fine  of  not  more  than  five  thousand  dol- 
lars, or  suffer  imprisonment  not  more  than  one  year,  or 
both. 

657.  Every  officer  of  the  United  States,  and  every  ^»* 
son  acting  for  or  on  behalf  of  the  United  States,  in  any 
official  capacity  under  or  by  virtue  of  the  authority  of  any  18J 
department  or  office  of  the  Government  thereof;  and  every  c67;6,^a6'  ?'  12: 


officer  or  person  acting  for  or  on  behalf  of  either  House  of  X 

Congress,  or  of  any  committee  of  either  House,  or  of  both  ^s^.'ssoi,  R.S. 

Houses  thereof,  who  asks,  accepts,  or  receives  any  money, 

or  any  contract,  promise,  undertaking,  obligation,  gratuity, 

or  security  for  the  payment  of  money,  or  for  the  delivery 

or  conveyance  of  anything  of  value,  with  intent  to  have 

his  decision  or  action  on  any  question,  matter,  cause,  or 

proceeding  which  may  at  any  time  be  pending,  or  which 

may  be  by  law  brought  before  him  in  his  official  capacity, 

or  in  his  place  of  trust  or  profit,  influenced  thereby,  shall 

be  punished  as  prescribed  in  the  preceding  section. 

658.  Every  member,  officer,  or  person  convicted  under  of|£erfeiture  of 
the  provisions  of  the  two  preceding  sections,  who  holds  g/fVVHf'p' 
any  place  of  profit  or  trust,  shall  forfeit  his  office  or  place;  17^-ec  5502  K  s> 
and  shall  thereafter  be  forever  disqualified  from  holding 

any  office  of  honor,  trust,  or  profit  under  the  United 
States.1 

659.  Every  officer  of  the  Government  who  knowingly    officer   c  o  n  - 

J  &  J  tractmg  beyond 

contracts  for  the  erection,  repair,  or  furnishing  of  any  sPfatfonappro" 
public  building,  or  for  any  public  improvement,  to  pay  a  23^Ugy32\181658'  e> 
larger  amount  than  the  specific  sum  appropriated  for  such  i?7^  _^  ^  g 
purpose,  shall  be  punished  by  imprisonment  not  less  than 
six  months  nor  more  than  two  years,  and  shall  pay  a  fine 
of  two  thousand  dollars. 

660.  Any  person  who  shall  embezzle,  steal,  or  purloin  U53£^g?ent> 
any  money,  property,  record,  voucher,  or  valuable  thing  18Mpai>47|  1876>  v' 
whatever  of  the  moneys,  goods,  chattels,  records,  or  prop- 

erty of  the  United  States  shall  be  deemed  guilty  of  felony, 
and  on  conviction  thereof  before  the  district  or  circuit 
court  of  the  United  States  in  the  district  wherein  said 
offense  may  have  been  committed,  or  into  which  he  shall 
carry  or  have  in  possession  of  said  property  so  embezzled, 
stolen,  or  purloined,  shall  be  punished  therefor  by  impris- 
onment at  hard  labor  in  the  penitentiary  not  exceeding 
five  years,  or  by  a  fine  not  exceeding  five  thousand  dollars, 

1  Section  5500,  above  referred  to,  but  here  omitted,  relates  to  the  offense  of  bribery 
when  committed  by  a  judge  of  a  court  of  the  United  States. 


252  MILITARY    LAWS    OF    THE    UNITED    STATES. 

or  both,  at  the  discretion  of  the  court  before  which  he 
shall  have  been  convicted.  Act  of  March  3,  1875  (18 
Stat.  Z.,  479). 

conceafing.prop-  6(>L  If  any  person  shall  receive,  conceal,  or  aid  in  con- 
d.  cealing,  or  have,  or  retain  in  his  possession  with  intent  to 
convert  to  his  own  use  or  gain,  any  money,  property, 
record,  voucher,  or  valuable  thing  whatever  of  the  mon- 
eys, goods,  chattels,  records,  or  property  of  the  United 
States  which  has  theretofore  been  embezzled,  stolen,  or 
purloined  from  the  United  States  by  any  other  person, 
knowing  the  same  to  have  been  so  embezzled,  stolen,  or 
purloined,  such  person  shall,  on  conviction  before  the  cir- 
cuit or  district  court  of  the  United  States  in  the  district 
wherein  he  may  have  such  property,  be  punished  by  a  fine 
not  exceeding  five  thousand  dollars,  or  imprisonment  at 
hard  labor  in  the  penitentiary  not  exceeding  five  years, 
one  or  both,  at  the  discretion  of  the  court  before  which  he 
shall  have  been  convicted;  and  such  receiver  may  be  tried 
either  before  or  after  the  conviction  of  the  principal  felon; 
but  if  the  party  has  been  convicted,  then  the  judgment 
against  him  shall  be  conclusive  evidence  in  the  prosecu- 
tion against  such  receiver  that  the  property  of  the  United 
States  therein  described  has  been  embezzled,  stolen,  or 
purloined.  Sec.  #,  ibid. 


CHAJPTER    XV. 


THE  ADJUTANT-GENERAL'S  DEPARTMENT. 


Par. 


667.  Adjutants-General  to  act  as  Inspect- 

ors-General. 

668.  Returns  of  troops. 
669-679.  The  recruiting  service. 


Par. 

662.  Organization. 

663.  Rank  of  adjutant-general. 
664-666.  Promotions  and  details. 


662.  The  Adjutant-General's  Department  shall  consist 

of  one  adjutant-general  with  the  rank  of  major-general  18sli.? 
during  the  active  service  of  the  present  incumbent  of  the 
office,  and  with  the  rank  of  brigadier-general  thereafter; 
five  assistant  adjutants-general  with  the  rank  of  colonel, 
seven  assistant  adjutants-general  with  the  rank  of  lieuten- 
ant-colonel, and  fifteen  assistant  adjutants-general  with 
the  rank  of  major:  Provided,  That  all  vacancies  created 
or  caused  by  this  section  shall,  as  far  as  possible,  be  filled 
by  promotion  according  to  seniority  of  officers  of  the 
Adjutant-General's  Department.  Sec.  13,  act  of  February 
'2,  1901  (31  Stat.  L.,  751). 

663.  The  Adjutant-General  of  the  Army  shall  have  the 
rank,  pay,  and  allowances  of  a  major-general  in  the  Army 
of  the  United  States,  and  on  his  retirement  shall  have  the 
retired  pay  of  that  rank.     Sec.  3,  act  of  June  6,  1900  (31 
Stat.  Z.,  655). 

PROMOTIONS    AND    DETAILS. 


664.  So  long  as  there  remain  any  officers  holding  per- 
manent  appointments  in  the  Adjutant-General's 
Department,  they  shall  be  promoted  according 
to  seniorit}7  in  the  several  grades,  as  now  provided  by 
law,  and  nothing  herein  contained  shall  be  deemed  to  apply 
to  vacancies  which  can  be  filled  by  such  promotions,  or  to 
the  periods  for  which  the  officers  so  promoted  shall  hold 
their  appointments.2    Sec.  26,  act  of  1901  (31  Stat.  L.  ,  755]. 

665.  When  any  vacancy,  except  that  of  the  chief  of  the 
department  or  corps,  shall  occur,  which  can  not  be  filled 
by  promotion  as  provided  in  this  section,  it  shall  be  filled 


6,  1900,  s. 


*  '•**•  v-  31-  p  755- 


Details. 
Ibid. 


1  For  historical  note  see  end  of  chapter. 

2  See  also  section  13,  act  of  February  2,  1901,  paragraph  662,  ante. 


253 


254  MILITARY    LAWS    OF    THE    UNITED    STATES. 

by  detail  from  the  line  of  the  Army,  and  no  more  perma- 
nent appointments  shall  be  made  in  those  departments  or 
corps. l  Ibid. 

The  same.  666.  Such  details  shall  be  made  from  the  grade  in  which 

the  vacancies  exist,  under  such  system  of  examination  as 
the  President  may  from  time  to  time  prescribe,  fbid. 

DUTIES. 
TO  act  as  assist-     667.  Assistant   adjutants-general   shall,  in   addition   to 

ant  inspectors-         . 

general.  their  own  duties,  perform  those  of  assistant  inspectors- 

hip ?'  v8?'  p'  general,  when   the  convenience  of  the  service  requires 

267;  June  18, 1846,  fVipm  tr»  Hn  <an  2 

c.  29,  s.  6,  v.  9,  p. inem  t0  (  °  S0- 

18;  Mar.  3,  1847,  c.  61,  s.  2,  v.  9,  p.  184;  July  19,  1848,  c.  104,  s.  3,  v.  9,p.  247;  Mar.  2,  1849,  c.  83,  s.  4,  v.  9. 

p.  351.    Sec.  1130,  B.  S. 

RETURNS   OF   TROOPS. 

turns11  thly  re      668.  Every  officer  commanding  a  regiment,  an  independ- 

7  Art.  war.      en£  troop,  battery,  or  company,  or  a  garrison,  shall,  in  the 

beginning  of  every  month,  transmit  through  the  proper 

channels  to  the  Department  of  War  an  exact  return  of 

the  same,  specifying  the  names  of  the  officers  then  absent 

1  For  statutory  regulations  respecting  details  to  the  staff  see  the  title  ' '  Details  to 
the  Staff"  in  the  chapter  entitled  "THE  STAFF  DEPARTMENTS." 

3  The  Adjutant-General's  Department  is  the  bureau  of  orders  and  records  of  the 
Army. 

Orders  and  instructions  emanating  from  the  War  Department  or  Army  Headquar- 
ters and  all  general  regulations  are  communicated  to  troops  and  individuals  in  the 
military  service  through  the  Adjutant-General.  His  office  is  the  repository  for  the 
records  of  the  War  Department  which  relate  to  the  personnel  of  the  permanent  mili- 
tary establishment  and  militia  in  the  service  of  the  United  States,  to  the  military 
history  of  every  commissioned  officer  and  soldier  thereof,  and  to  the  movements  and 
operation  of  troops. 

The  records  of  all  appointments,  promotions,  resignations,  deaths,  and  other  casual- 
ties in  the  Army,  the  preparation  and  distribution  of  commissions,  and  the  compila- 
tion and  issue  of  the  Army  Register  and  of  information  concerning  examinations  for 
appointment  and  promotion,  pertain  to  the  Adjutant-General's  Office. 

The  Adjutant-General  is  charged,  under  the  direction  of  the  Secretary  of  War,  with 
the  management  of  the  recruiting  service,  the  collection  and  classification  of  military 
information  in  regard  to  our  own  and  foreign  countries,  the  preparation  of  instruc- 
tions to  officers  detailed  to  visit  encampments  of  militia,  and  the  digesting,  arranging, 
and  preserving  of  their  reports;  also  the  preparation  of  the  annual  returns  or  the 
militia  required  by  law  to  be  submitted  to  Congress.  Requests  for  military  informa- 
tion, which  require  action  on  the  part  of  any  military  attache  of  the  United  States, 
will  be  made  to  the  Adjutant-General  of  the  Army.  Par.  833,  A.  R,,  1901. 

In  the  Adjutant-General's  Office  the  names  of  all  enlisted  soldiers  are  enrolled, 
enlistments  and  descriptive  lists  filed,  deaths,  discharges,  desertions,  etc.,  recorded, 
the  general  returns  of  the  Army  consolidated,  returns  of  regiments  and  posts  and  all 
muster  rolls,  and  the  inventories  of  effects  of  deceased  officers  and  soldiers  preserved. 
Par.  834,  ibid.  But,  see,  as  to  the  custodianship  of  certain  rolls,  returns,  and  records 
of  the  volunteer  forces  called  into  service  during  the  recent  war  with  Spain,  section 
8  of  the  act  of  April  22,  1898  (30  Stat.  L.,  362),  paragraph  1238,  post. 

The  act  of  appropriation  of  March  15,  1898,  contained  the  following  requirement : 
"For  contingent  expenses  of  the  Military  Information  Division  of  the  Adjutant- 
General's  Office,  and  of  the  military  attaches  at  the  United  States  embassies  and 
legations  abroad,  to  be  expended  under  the  direction  of  the  Secretary  of  War,  three 
thousand  six  hundred  and  forty  dollars.  Act  of  March  15,  1898  (30  Stat.  L.,  327). 
For  pay  of  a  clerk  attendant  on 'the  collection  and  classification  of  military  informa- 
tion, one  thousand  five  hundred  dollars."  Ibid.,  320.  Similar  provision  is  made  in 
in  the  act  of  March  3,  1899.  Ibid.,  1064. 


MILITARY    LAWS    OF    THE    UNITED    STATES. 


255 


from  their  posts,  with  the  reasons  for  an  I  the  time  of  their 
absence.  And  any  officer  who,  through  neglect  or  design, 
omits  to  send  such  returns  shall,  on  conviction  thereof,  be 
punished  as  a  court-martial  may  direct.1  Seventh  article 
of  war. 

THE    RECRUITING    SERVICE. 


Par. 

669.  Term  of  enlistment. 
670-671.  General  qualifications. 
672-673.  Enlistment  of  minors. 

674.  Unlawful  enlistments,  penalty. 

675.  Fraudulent  enlistment. 

676.  Oath  of  enlistment. 


Par. 

677.  Bounty. 

678.  Enlistments  in  excess  of  authorized 

strength. 

679.  Details  for    recruiting  service;    in- 

creased rank. 


enll8t' 


669.  Hereafter  all  enlistments  in  the  Army  shall  be  f  or 
the  term  of  three  years,2  and  no  soldier  shall  be  again 
enlisted  in  the  Army  whose  service  during  his  last  preced-  £u,|-  ^  lj**,  *•  2, 
ing  term  of  enlistment  has  not  been  honest  and  faithful.  Sec-  1119-  K-  s- 
Section  8,  act  of  August  1,  1894  (®$  Stat  Z., 


670.  Recruits  enlisting  in  the  Army  must  be  effective    General 
and  able-bodied  men,  and  between  the  ages  of  eighteen 

and  thirty-five  years,3  at  the  time  of  their  enlistment.    This  9  f  n-v 
limitation  as  to  age  shall  not  apply  to  soldiers  reenlisting.  ^ar.  |.  isis,  c. 

224;  July  5,  1838,  c.  162,  s.  30,  v.  6,  p.  260,  Feb.  13,  1862,  c.  25,  s.  2,'  v.  12,  p.  C39: 
June  21,  1862,  res.  37,  v.  12,  p.  620;  July  17,  1862,  c.  200,  s.  21,  v.  12,  p.  597,  Feb. 
27,  1893,  v.  27,  p.  486,  s.  2;  Aug.  1,  1894,  v.  28,  p.  216,  s.  4;  Mar.  2,  1899,  v.  30,  p.  977; 
In  re  McDonald,  1  Lowell,  p.  100.  Sec.  1116,  B.  S. 

671.  In  time  of  peace  no  person  (except  an  Indian)  who    Qualifications 

.    .  ,  TT    .  for  enlistment. 

is  not  a  citizen  ot  the  United  States,  or  who  has  not  made  Aug.  i,  ISM,  s.  2, 

i          i    j      i  ^    i  •       •    A       X-  -j.-  ,  v,  28,  p.  216;  Mar. 

legal  declaration  ot  ms  intention  to   become  a  citizen  or  2,  1899,  s.  4,  v.  so, 

the  United  States,  or  who  can  not  speak,  read,  and  write 

the  English  language,  or  who  is  over  thirty-five  }Tears  of 

age,3  shall  be  enlisted  for  the  first  enlistment  in  the  Army. 

Sec.  0,  act  of  August  1,  1804  (28  Stat.  Z.,  216);  sec.  \ 

act  of  March  2,  1899  (30  Stat.  L..  977). 

1  Commanders  of  departments,  corps,  and  posts  will  make  to  the  Adjutant-Gen- 
eral's Office,  in  Washington,  monthly  returns  of  their  respective  commands  on  forms 
furnished  by  the  Adjutant-General  of  the  Army,  and  in  accordance  with  the  directions 
printed  thereon.     In  like  manner  company  commanders  will  make  monthly  returns 
of  their  companies  to  regimental  headquarters.     Par.  876,  A.  R.,  1901. 

For  instructions  relating  to  the  preparation  of  monthly  returns  see  paragraphs 
876-889,  Army  Regulations,  1901. 

2  This  enactment  replaces  the  requirement  of  section  1119  of  the  Revised  Statutes 
by  which  the  term  of  enlistment  was  fixed  at  five  years.     For  regulations  governing 
enlistments  in  the  regular  service  see  Article  LXXI,  paragraphs  818  to  856,  Army 
Regulations  of  1895.     For  rules  governing  the  recruitment  of  the  volunteer  forces  see 
Circular  of  June  3,  1898,  from  the  Adjutant-General's  Office,  and  General  Orders,  122 
and  150,  A.  G.  O.,  of  1899. 

3The  act  of  February  27,  1893  (27  Stat.  L.,  486).,  fixed  the  superior  limit  of  age  at 
enlistment  at  thirty  years  instead  of  thirty-five,  as  required  by  section  1116,  Revised 
Statutes,  and  this  requirement  was  repeated  in  section  2  of  the  act  of  August  1,  1894 
(28  ibid.,  216),  which  limited  the  operation  of  the  enactment  to  a  "time  of  peace," 
leaving  the  higher  limit  of  age  to  become  operative  in  time  of  war.  The  superior 
limit  was  established  at  thirty-five  years  and  the  inferior  limit  at  eighteen  years  by 
section  4  of  the  act  of  March  3,  1899  (ibid.,  977). 


256  MILITARY    LAWS    OF    THE    UNITED    STATES. 


f  672-  No  Person  under  the  age  of  twenty-one  years  shall 
m?Zi?'v*$lp;^*  enlisted  or  mustered  into  the  military  t-ervice  of  the. 
nshorner'scase,  United  States  without  the  written  consent  of  his  parents  or 

1  llee.Vn  ^iifs.  guardians:  Provided,  That  such  minor  has  such  parents  or 

guardians  entitled  to  his  custody  and  control. 

bePeSted!ot  l°  6?3.  ^TO  minor  under  the  age  of  sixteen  years,  no  insane 
MuhT^/Ri*  or  intoxicated  person,  no  deserter  from  the  military  serv- 

Do,  S.  0,  v  .  3,  p.  tH  /  ,  •/ 

s.U5f  v/iTp.'S  *ce  °f  the  United  States,  and  no  person  who  has  been  con- 
Mar.  3,  ^^79,  victed  of  a  felony  shall  be  enlisted  or  mustered  into  the 
JS&Sffi6-^  military  service. 

Sec.ill8,B.S. 

]is^m^nte;tedpS-  674>  Every  officer  who  knowingly  enlists  or  musters  into 
al3yirt.war.  *he  military  service  any  minor  over  the  age  of  sixteen 
years  without  the  written  consent  of  his  parents  or  guard- 
ians, or  any  minor  under  the  age  of  sixteen  years,  or  any 
insane  or  intoxicated  persons,  or  any  deserter  from  the 
military  or  naval  service  of  the  United  States,  or  any  per- 
son who  has  been  convicted  of  any  infamous  criminal 
offense,  shall,  upon  conviction,  be  dismissed  from  the 
service,  or  suffer  such  other  punishment  as  a  court-martial 
may  direct.  Third  Article  of  War. 
]iftrment!lenten"  675>  Fraudulent  enlistment  and  the  receipt  of  any  pay 

2  JvUl2?2p  lyn'  *'  01>  allowance   thereunder,  is  hereby  declared  a  military 

offense  and  made  punishable,  by  a  court-martial,  under 
the  sixty-second  Article  of  War.1  Sec.  2.  act  of  Juf//  J7. 
1892  (27  Stat.  Z.,  277). 

OATH    OF    ENLISTMENT. 
mOath  of  enlist-       QJQ     Thege     ruleg    and    ftrticles    shall     be    rea(j     to    eyery 

2  Art.  war.  en]isted  man  at  the  time  of,  or  within  six  days  after,  his 
enlistment,  and  he  shall  thereupon  take  an  oath  or  affir- 
mation, in  the  following  form:  "/,  A.  B.,  do  xohnndy 
swear  (or  affirm)  that  I  will  bear  true  faith  and  allegiance 
to  the  United  States  of  America;  that  /  will  serve  them 
honestly  and  faithfully  against  all  their  enemies  whomso- 
ever; and  that  I  loill  obey  the  orders  of  the  President  of 
the  United  States,  and  the  orders  of  the  officers  appointed 
over  me^  according  to  the  rules  and  Articles  of  W<i/'."  This 
oath  may  be  taken  before  any  commissioned  officer  of  the 
Army.2  Second  Article  of  War. 

1  For  a  definition  of  the  offense  of  fraudulent  enlistment  see  Circular  13,  H.  Q.  A., 
of  1892;  see  also  Dig.  Opin.  J.  A.  Gen.,  paragraphs  1412-1423. 

2  Enlistment  is  a  contract,  but  it  is  one  of  those  contracts  which  changes  the  status, 
and  where  that  is  changed  no  breach  of  contract  destroys  the  new  status  or  relieves 
from  the  obligations  which  its  existence  imposes.          *    *    By  enlistment  the  citi- 
zen becomes  a  soldier.     His  relations  to  the  State  and  the  public  are  changed.     He 
acquires  a  new  status,  with  correlative  rights  and  duties,  and  although  he  may  violate 
his  contract  obligations,  his  status  as  a  soldier  is  unchanged.     He  can  not  of  his  own 


MILITARY    LAWS    OF    THE    UNITED    STATES.  257 

677.  A  premium  of  two   dollars  shall  be  paid  to  anybr?£|?^m  for 
citizen,  noncommissioned  officer,  or  soldier  for  each  ac-re;JUIg  yS^p 
cepted  recruit  he  may  bring  to  a  recruiting  rendezvous.1   62seC.  1120.  B.  s. 

678.  To  fill  vacancies  occurring,  from  time  to  time,  in 
the  several  organizations  serving  without  the  limits  of  the  %de 
United  States  with  trained  men,  the  President  is  author-29' v- 
ized  to  enlist  recruits  in  numbers  equal  to  four  per  centum 

of  the  total  strength  authorized  for  such  organizations. 
Section  29,  act  of  February  8, 1901  (31  Stat.  L. ,  756). 

679.  The   Secretary   of  War  is   authorized  to   detach 
from  the  Army  at  large  such  number  of  enlisted  men 
may  be  necessary  to  perform  duty  at  the  various  recruit- 
ing stations,  and  while  performing  such  duty  one  member 
of  each  party  shall  have  the  rank,  pay,  and  allowances  of 
a  corporal  of  the  arm  of  the  service  to  which  they  respec- 
tively belong.     Section  31,  act  of  February  #,  1901  (31 
Stat.  Z.,  756). 

HISTORICAL  NOTE. — The  office  of  Adjutant-General,  which  had  existed  during  the 
government  under  the  Articles  of  Confederation,  was  created  by  section  7  of  the  act 
of  March  5,  1792  (1  Stat.  L.,  241),  which  made  provision  for  an  adjutant  who  was  to 
do  the  duty  of  an  inspector:  section  3  of  the  act  of  May  30, 1796  (ibid.,  483),  contained 
a  similar  provision  for  an  inspector  who  was  to  do  the  duty  of  adjutant-general,  but 
who  was  to  continue  in  service  until  March  4,  1797,  and  no  longer.  Temporary  pro- 
vision seems  to  have  been  made  for  the  performance  of  the  duties  of  the  department 
from  March  4,  1797,  until  May,  1798,  when,  in  anticipation  of  war  with  France,  an 
increase  of  the  military  establishment  was  authorized  and  provision  made  in  section 
6  of  the  act  of  May  28,  1798  (ibid.,  538),  for  the  appointment  of  an  adjutant-general 
with  the  rank  and  pay  of  a  brigadier-general.  Section  14  of  the  act  of  March  3, 1799 
(ibid.,  749),  contained  the  requirement  that  the  adjutant-general  of  the  Army  should 
be,  ex  officio,  assistant  inspector-general,  and  that  deputy  inspectors-general  should  be, 
ex  officio,  deputy  adjutants-general,  and  should  perform  the  duties  of  adjutants-general 

volition  throw  off  the  garments  he  has  once  put  on,  nor  can  he,  the  State  not  object- 
ing, renounce  his  relations  and  destroy  his  status  on  the  plea  that  if  he  had  disclosed 
truthfully  the  facts  the  other  party,  the  State,  would  not  have  entered  into  the  new 
relations  with  him,  or  permitted  him  to  change  his  status.  U.  S.  v.  Grimley,  137 
U.  S.,  147. 

Volunteer  recruiting  service. — The  method  of  enlistment  in  the  case  of  volunteers  is 
regulated  by  section  5  of  the  act  of  April  22,  1898  (30  Stat.  L.  361),  which  confers 
authority  upon  the  Secretary  of  War  "to  prescribe  such  rules  and  regulations,  not 
inconsistent  with  the  terms  of  this  act,  as  may  in  his  judgment  be  necessary  for  the 
purpose  of  examining,  organizing,  and  receiving  into  service  the  men  called  for." 
Under  the  authority  thus  conferred  regulations  were  prepared  by  the  Secretary  of 
War  and  promulgated  to  the  Army  in  a  circular  from  the  Adjutant-General's  Office 
under  date  of  June  3, 1898.  Section  12  of  the  act  of  March  2,  1899  (30  Stat.  L.,  977) , 
authorized  the  recruitment  of  a  force  of  35,000  volunteers,  "without  restriction  as  to 
citizenship  or  educational  qualifications."  For  orders  regulating  the  enlistment  and 
organization  of  this  force  see  General  Orders,  No.  122  and  150,  A.  G.  0.,  of  1899. 

*This  provision  has  become  practically  obsolete,  as  funds  for  the  payment  of  the 
premiums  therein  authorized  are  no  longer  provided  for  in  the  annual  acts  of  appro- 
priation for  the  support  of  the  military  establishment. 

During  the  period  of  the  war  of  the  rebellion  the  amount  authorized  by  the  statute 
was  paid,  not  to  the  person  bringing  the  recruit,  but  to  the  recruit  himself  as  a  part 
of  the  bounty  due  him  at  enlistment.  By  Circular  No.  24,  A.  G.  O.,  of  1866,  this 
practice  was  discontinued  and  the  premium  was  required  to  be  paid  to  any  military 
person  or  civilian  who  brought  an  accepted  recruit  to  the  rendezvous;  but  these  pay- 
ments were  finally  suspended,  until  further  orders,  by  a  circular  dated  February  11, 
1868. 

22924—08 17 


258  MILITARY    LAWS    OF    THE    UNITED    STATES. 

in  the  armies  to  which  they  might  be  assigned.  These  officers  were  disbanded  on 
June  15,  1800,  in  pursuance  of  a  requirement  to  that  effect  contained  in  the  act  of 
May  14,  1800  (2  ibid.,  85).  Section  3  of  the  act  of  March  16,  1802  (ibid.,  132),  pro- 
vided for  an  adjutant  and  inspector  of  the  Army,  who  was  to  be  taken  from  the  field 
officers.  Section  4  of  the  act  of  January  11,  1812  (ibid.,  671),  created  the  office  of 
Adjutant-General,  with  the  rank  and  pay  of  a  brigadier-general,  which  continued  to 
exist  until  the  close  of  the  war,  when  it  was  discontinued  in  the  reduction  accom- 
plished by  the  act  of  March  3, 1815  (3  ibid. ,  224).  The  duties  of  the  department  were 
again  performed  by  officers  temporarily  detailed  for  the  purpose  for  a  little  more  than 
a  year,  when,  by  the  act  of  April  24,  1816  (3  ibid.,  297),  the  temporary  establishment 
was  made  permanent  and  the  strength  of  the  department  was  fixed  at  one  Adju- 
tant and  Inspector-General  (brigadier-general),  one  assistant  adjutant-general  (colo- 
nel) for  each  division,  and  one  assistant  adjutant-general  (major)  for  each  brigade. 
At  the  general  reduction  of  1821  the  department  was  reduced  to  a  single  officer — an 
Adjutant-General  of  the  Army — with  the  rank  of  a  colonel  of  cavalry.  By  section  7 
of  the  act  of  July  5, 1838  (5  ibid.,  256),  two  assistant  adjutants-general  (brevet  majors) 
and  four  brevet  captains  were  added  to  the  department.  By  section  6  of  the  act  of 
June  18, 1846  (9  ibid.,  17),  four  assistant  adjutants-general  were  added  for  the  period 
of  the  existing  war;  by  section  2  of  the  act  of  March  3, 1847  (ibid.,  184),  one  lieutenant- 
colonel  and  two  brevet  captains  were  authorized  under  the  sain^  restriction  as  to 
tenure  of  office.  By  section  3  of  the  act  of  July  19,  1848  (ibid.,  247),  the  limitation 
contained  in  the  two  acts  last  cited  was  removed,  and  the  establishment,  as  it  existed 
at  the  close  of  the  war  with  Mexico,  was  made  permanent;  the  vacancies  were  not 
to  be  filled,  however,  until  the  further  order  of  Congress;  but,  by  section  4  of  the 
act  of  March  2,  1849  (ibid.,  351),  this  restriction  was  repealed  and  the  President  was 
authorized  to  make  appointments  and  promotions  in  the  department  as  then  consti- 
tuted by  law. 

At  the  outbreak  of  the  war  of  the  rebellion  the  department  was  reorganized,  its 
composition  being  fixed  by  the  act  of  August  3,  1861  (12  Stat.  L.,  287),  at  1  brigadier- 
general,  1  colonel,  2  lieutenant-colonels,  4  majors,  and  12  captains.  By  section  22  of 
the  act  of  July  17,  1862  £ibid.,  597),  1  colonel,  2  lieutenant-colonels,  and  9  majors 
were  added  to  the  establishment,  with  the  requirement  that  vacancies  in  the  grade 
of  major  should  thereafter  be  filled  by  selections  from  captains  in  the  Army.  By 
section  10  of  the  act  of  July  28,  1866  (14  ibid.,  333),  the  composition  of  the  depart- 
ment was  fixed  as  follows:  One  brigadier-general,  2  colonels,  4  lieutenant-colonels, 
and  13  majors.  The  grade  of  captain  not  being  provided  for  in  this  enactment  was 
thenceforward  discontinued.  This  statute  contained  the  requirement  that  vacancies 
in  the  office  of  Adjutant-General  should  thereafter  be  filled  by  selection  from  the  offi- 
cers of  the  department.  By  section  2  of  the  act  of  March  3,  1869  (15  ibid.,  318) ,  pro- 
motions and  appointments  in  the  department  were  forbidden  until  the  further  order  of 
Congress,  but  by  Joint  Resolution,  No.  12, of  April  10, 1869  (16 ibid.,  53) ,  this  statute  was 
suspended  in  its  operation  as  to  vacancies  which  had  existed  on  March  3,  1869.  By 
the  act  of  March  3,  1873  (17  ibid.,  578),  the  appointment  of  1  major  to  the  department 
was  authorized  and,  by  the  act  of  March  3,  1875  (18  ibid.,  478) ,  the  restriction  upon 
appointments  and  promotions,  imposed  by  the  act  of  March  3,  1869,  was  removed, 
and  the  composition  of  the  department  fixed  at  1  brigadier-general,  2  colonels,  4 
lieutenant-colonels,  and  10  majors.  By  the  act  of  February  28,  1887  (24  ibid.,  434), 
the  grades  of  rank  of  the  officers  constituting  the  department  were  rearranged  so  as 
to  consist  of  1  brigadier-general,  4  colonels,  6  lieutenant-colonels,  and  6  majors,  the 
vacancies  created  by  the  act  to  be  filled  by  promotion  according  to  seniority.  By 
the  act  of  August  6,  1894  (28  ibid.,  234),  the  number  of  majors  in  the  department 
was  reduced  to  4.  By  the  act  of  May  18,  1898  (30  ibid.,  419),  the  appointment 
of  1  colonel  and  1  major  was  authorized,  with  the  proviso  that,  upon  the  muster  out 
of  the  volunteer  forces,  no  promotions  or  appointments  should  be  made  until  tne 
number  of  officers  of  the  above  grades  had  been  reduced  to  that  authorized  by  the 
law  in  force  prior  to  the  passage  of  the  act.  By  section  3  of  the  act  of  June  6,'  1900 
(31  ibid.,  655),  the  rank  of  major-general  was  conferred  upon  the  Adjutant-General 
'  'during  the  service  of  the  present  incumbent. ' '  By  section  1 3  of  the  act  of  February  2, 
1901  (31  ibid.,  751 ),  the  permanent  strength  of  the  "department  was  fixed  at  1  adjutant- 
general  with  the  rank  of  major-general,  until  a  vacancy  shall  occur  in  the  office  on 
the  expiration  of  the  service  of  the  present  incumbent,  by  retirement  or  otherwise, 
and  thereafter  with  the  rank  of  brigadier-general,  5  assistant  adjutants-general  vvit-h 
the  rank  of  colonel,  7  assistant  adjutants-general  with  the  rank  of  lieutenant-colonel, 
and  15  assistant  adjutants-general  with  the  rank  of  major.  A  system  of  details  was 
also  established,  by  the  operation  of  which  the  permanent  commissioned  personnel 
of  the  department  will  be  gradually  replaced,  as  vacancies  occu~,  by  officers  detailed 
from  the  line  of  the  Army  for  duty  in  the  Adjutant-General's  Department. 


CHAPTER 


THE  INSPECTOR-GENERAL'S  DEPARTMENTS 


Par. 

680.  Composition. 

681-683.  Promotions  and  details. 

684.  Expert  accountant. 

685.  Inspections  of  public  works  and  dis- 

bursements. 

686.  The  same,  reports. 

687.  Restriction  on  the  payment  of  mile- 


Par. 

688.  Inspection  of    National  Home  for 

Disabled  Volunteer  Soldiers. 

689.  Inspection  of  the  Soldiers'  Home. 

690.  Designation  of  articles  for  sales. 

691.  Administration  of  oaths. 


ORGANIZATION. 

680.  The  Inspector-General's  Department  shall  consist 
of  one  inspector-general  with  the  rank  of  brigadier-gen- 

eral,  three  inspectors-general  with  the  rank  of   colonel,    Sec.ii8i,B.s. 
four  inspectors-general  with  the  rank  of  lieutenant-colonel, 
and  nine  inspectors-general  with  the  rank  of  major.2     Sec. 
14,  act  of  February  2, 1901  (31  Stat.  Z.,  751),  act  of  March 
8,1901.     (Ibid.,  899.) 

PROMOTIONS   AND    DETAILS. 

681.  So  long  as  there  remain  any  officers  holding  perma- 

nent  appointments  in  the  *  *  *  Inspector-General's  26> v<  -P- ?55. 
Department,  *  *  *  they  shall  be  promoted  according 
to  seniority  in'the  several  grades,  as  now  provided  by  law, 
and  nothing  herein  contained  shall  be  deemed  to  apply  to 
vacancies  which  can  be  filled  by  such  promotions,  or  to 
the  periods  for  which  the  officers  so  promoted  shall  hold 
their  appointments.3  Sec.  26,  act  of  February  2, 1901  (31 
Stat.  L.,  755). 

682.  When  any  vacancy,  except  that  of  the  chief  of  the    Details. 
department  or  corps,  shall  occur,  which  can  not  be  filled 

by  promotion  as  provided  in  this  section,  it  shall  be  filled 

1  For  historical  note  see  end  of  chapter. 

2  The  organization  above  set  forth  becomes  operative  upon  the  occurrence  of  a 
vacancy  in  the  grade  of  colonel  as  established  by  the  act  of  February  2,  1901. 

3  See  also  section  14,  act  of  February  2,  1901,  paragraph  680,  ante. 

259 


260  MILITAEY    LAWS    OF    THE    UNITED    STATES. 

by  detail  from  the  line  of  the  Army,  and  no  more  per- 
manent appointments  shall  be  made  in  those  departments 
or  corps.1  IMd. 

The  same.  683.  Such  details  shall  be  made  from  the  grade  in  which 

the  vacancies  exist,  under  such  system  of  examination  as 
the  President  may  from  time  to  time  prescribe.     Ibid. 
countantrt  ac       ^84.  For  pay  of  one  expert  accountant  for  the  Inspector- 
26Fpb773.'1891>  v'  General's  Department,  to  be  appointed  in  case  of  vacancy, 
by  the  Secretary  of  War,  two  thousand  five  hundred  dol- 
lars.2    Act  of  February  %  1891  (26  Stat.  Z.,  773). 

DUTIES.3 

685«  Jt  sha11  be  the  dutJ  of  the  Secretary  of  War  to 
'V  cause  frequent  inquiries  to  be  made  as  to  the  necessity, 
is,  p.  33.  economy,   and  propriety  of  all  disbursements  made  by 

disbursing  officers  of  the  Army,  and  as  to  their  strict  con- 

1  For  statutory  regulations  respecting  details  to  the  staff,  see  the  title  Details  to  the 
Staff  in  the  chapter  entitled  "The  Staff  Departments."     This  section  replaces  the 
requirement  of  the  act  of  June  23,  1874  (18  Stat.  L.,  244),  authorizing  the  detail  of 
four  officers  of  the  line  of  the  Army  to  act  as  assistant  inspectors. 

2  For  statutory  provisions  respecting  the  mileage  of  this  officer  see  the  act  of  Feb- 
ruary 27,  1893  (27  Stat.  L.,  480).     Par.  847,  post. 

3  The  duties  of  inspectors-general  are  denned  in  the  following  paragraphs  of  the 
Army  Regulations  of  1895  (see  also  G.  O.  80  and  91,  A.  G.  O.  of  1898) : 

Officers  of  the  Inspector-General's  Department  will  inspect  once  in  each  year  all 
military  commands,  garrisoned  posts,  and  camps,  and  once  in  two  years  such  ungar- 
risoned  posts  and  national  cemeteries  as  can  be  visited  without  departing  materially 
from  the  routes  of  other  prescribed  inspections.  (Par.  867,  A.  R.,  1895.) 

Inspections  of  the  Military  Academy  will  be  made  only  under  specific  instructions 
given  in  each  case  by  the  Secretary  of  War,  and  inspections  of  the  service  schools,  in 
so  far  as  they  are  distinct  from  posts,  under  similar  instructions  given  by  the  Secretary 
of  War  or  the  Commanding  General  of  the  Army.  (Par.  869,  ibid.) 

The  military  department  of  civil  institutions  of  learning  at  which  officers  of  the  Army 
are  detailed  will  be  inspected  annually,  near  the  close  of  the  college  year,  under  specific 
instructions.  The  inspecting  officer,  upon  his  arrival  at  the  institutions,  will  apply 
to  the  president  or  the  administrative  officer  thereof  for  such  aid  or  facilities  as  he 
may  require.  His  report  will  be  sent  to  the  Inspector-General  of  the  Army,  tjien  to 
the  Adjutant-General  of  the  Army  for  note  and  return,  and  a  copy  furnished  the 
president  of  the  institution  by  the  War  Department.  (Par.  870,  ibid. ) 

The  sphere  of  inquiry  of  the  Inspector-General's  Department  includes  every  branch 
of  military  affairs,  except  when  specially  limited  in  these  regulations  or  in  orders. 
Inspectors-general  and  acting  inspectors-general  will  exercise  a  comprehensive  and 
general  observation  within  their  respective  districts  over  all  that  pertains  to  the  effi- 
ciency of  the  Army,  the  condition  and  state  of  supplies  of  all  kinds,  of  arms  and 
equipments,  of  the  expenditure  of  public  property  and  moneys,  and  the  condition  of 
accounts  of  all  disbursing  officers  of  every  branch  of  the  service;  of  the  conduct,  dis- 
cipline, and  efficiency  of  officers  and  troops,  and  report  with  strict  impartiality  in 
regard  to  all  irregularities  that  may  be  discovered.  From  time  to  time  they  will  make 
such  suggestions  as  may  appear  to  them  practicable  for  the  cure  of  any  defect  that 
may  come  under  their  observation.  Par.  857,  ibid. 

Inspectors-general  and  acting  inspectors-general  are  under  the  orders  of  the  Secre- 
tary of  War  and  the  Commanding  General  of  the  Army  only,  and  all  orders  not  con- 
fidential will  be  issued  from  the  Adjutant-General's  Office  and  transmitted  to  them 
through^ the  Inspector-General  of  the  Army.  They  will  make  the  general  inspections 
within  the  limits  of  their  respective  districts,  and  will  each  be  allowed  the  necessary 
clerks  and  one  messenger,  who  will  be  assigned  by  the  Secretary  of  War.  (Par.  858, 
ibid. ) 

See  also  paragraphs  720,  859-866,  872-875,  and  878-889,  A.  R.,  1895. 

The  sphere  of  inquiry  of  the  Inspector-General's  Department  includes  every  branch 
of  military  affairs  except  when  specially  limited  in  these  regulations  or  in  orders. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  261 

formity  to  the  law  appropriating  the  money;  also  to  ascer- 
tain whether  the  disbursing  officers  of  the  Army  comply 
with  the  law  in  keeping  their  accounts  and  making  their  de- 
posits; such  inquiries  to  be  made  by  officers  of  the  Inspec- 
tion Department  of  the  Army,  or  others  detailed  for  that 
purpose:  Provided,  That  no  officer  so  detailed  shall  be  in 
any  way  connected  with  the  department  or  corps  making 
the  disbursement.  Act  of  April  20, 1874  (18  Stat.  L. ,  3$). 

686.  That  the  reports  of  such  inspections  shall  be  made8p^J^J  of  in' 
out  and  forwarded  to  Congress  with  the  annual  report  of 

the  Secretary  of  War.     Ibid.1 

687.  Hereafter  no  portion  of  the  appropriation  for  mile-  mne?g^tion  on 
age  to  officers  traveling  on  duty  without  troops  shall  be  28A^37'. 1894)  v 
expended  for  inspections  or  investigations,  except  such  as 

are  especially  ordered  by  the  Secretary  of  War,  or  such 

Inspectors-general  and  acting  inspectors-general  will  exercise  a  comprehensive  and 
general  observation  within  their  respective  districts  over  all  that  pertains  to  the  effi- 
ciency of  the  Army,  the  condition  and  state  of  supplies  of  all  kinds,  of  arms  and 
equipments,  of  the  expenditure  of  public  property  and  moneys,  and  the  condition  of 
accounts  of  all  disbursing  officers  of  every  branch  of  the  service;  of  the  conduct,  dis- 
cipline, and  efficiency  of  officers  and  troops,  and  report  with  strict  impartiality  in 
regard  to  all  irregularities  that  may  be  discovered.  From  time  to  time  they  will 
make  such  suggestions  as  may  appear  to  them  practicable  for  the  cure  of  any  defect 
that  may  come  under  their  observation.  Par.  857,  ibid. 

1  INSPECTIONS   OF   PUBLIC    WORKS   AND    DISBURSEMENTS. 

The  inspection  contemplated  in  this  provision  is  that  required  by  the  act  of  April 
20, 1874  (18 Stat,  L.,  33).  See  also  Chapter  XLI,  entitled  THE  NATIONAL  HOME  FOB 
DISABLED  VOLUNTEER  SOLDIERS. 

All  depots,  armories,  arsenals,  and  public  works  of  every  kind  under  charge  of 
officers  of  the  Army,  except  works  of  engineering  conducted  under  the  direction  of 
the  Secretary  of  War  and  supervision  of  the  Chief  of  Engineers,  will  be  inspected 
annually  by  officers  of  the  Inspector-General's  Department.  These  inspections  will 
include  military  and  business  administration  and  methods,  but  will  not  extend  to  the 
scientific  or  technical  character  of  work,  for  which  the  officer  in  charge  is  responsible, 
through  the  head  of  his  department,  to  the  Secretary  of  War.  Par.  868,  A.  R.,  1895. 

The  inspection  of  disbursements  and  money  accounts  of  disbursing  officers  required 
by  act  of  April  20,  1874,  will  be  made  by  officers  of  the  Inspector-General's  Depart- 
ment or  others  detailed  for  that  purpose,  and,  as  far  as  practicable,  at  irregular  inter- 
vals, but  no  officer  so  detailed  shall  be  in  any  way  connected  with  the  corps  or  staff 
department  making  the  disbursement.  The  frequency  of  these  inspections  will  be 
regulated  by  the  Secretary  of  War.  Par.  871,  ibid. 

Inspectors-general  and  acting  inspectors-general  will  inquire  as  to  the  necessity, 
economy,  and  propriety  of  all  disbursements,  their  strict  conformity  to  the  law  appro- 
priating the  money,  and  whether  the  disbursing  officers  comply  with  the  law  in  keep- 
ing their  accounts  and  making  their  deposits.  A  statement  of  receipts  and  expendi- 
tures and  of  the  distribution  of  funds,  with  a  list  of  outstanding  checks,  on  forms 
furnished  by  the  Inspector-General  of  the  Army,  will  be  submitted  by  the  disbursing 
officer  to  the  inspector,  who  should  immediately  transmit  the  list  of  outstanding 
checks  to  the  several  depositories.  Upon  return  from  a  depository,  balances  will  be 
verified  and  noted  on  the  inspection  report,  which  will  then  be  forwarded  to  the 
Inspector-General.  The  list  of  outstanding  checks  will  be  retained  by  the  inspector, 
and  a  copy,  with  indorsements  thereon,  sent  to  the  Inspector-General.  Par.  876, 
ibid. 

When  an  officer  ceases  to  act  as  a  disbursing  officer  he  will  submit  to  the^officer  to 
whom  the  inspection  of  his  accounts  has  been  assigned  a  statement  of  _  his  money 
accounts  from  date  of  last  inspection  to  and  including  tiie  closing  of  his  accounts, 
with  a  list  of  outstanding  checks.  If  an  inspection  be  impracticable,  the  statement 
will  be  forwarded  to  the  Inspector-General  of  the  Army.  Par.  877,  ibid. 


262  MILITARY    LAWS    OF    THE    UNITED    STATES. 

as  are  made  by  army  and  department  commanders  in  visit- 
ing their  commands,  and  those  made  by  Inspector-General's 
Department  in  pursuance  of  law,  Army  Regulations,  or 
orders  issued  by  the  Secretary  of  War  or  the  Commanding 
General  of  the  Army;  and  all  orders  involving  the  pay- 
ment of  mileage  shall  state  the  special  duty  enjoined.1 
Act  of  August  6,  1894  (28  Stat.  L.,  237). 

vSSSa  08$     688'  The  Secretary  of  War  shall  hereafter  exercise  the 

diMar  ^  iS  v  same  supervision  over  all  receipts  and  disbursements  on 

27,  p.  ess.          account  of  the  Volunteer  Soldiers'  Homes  as  he  is  required 

by  law  to  apply  to  the  accounts  of  disbursing  officers  of  the 

Army.     Act  of  March  3,  1893  (27  Stat.  Z.,  653). 

era??feci?m?e?o     689«  The  Inspector-General  of  the  Army  shall,  in  per- 

nmkereportaet<?  son?  once  ln  eacn  year  thoroughly  inspect  the  [Soldiers'] 

i883,Cv.22,^a5648'  Home,  its  records,  accounts,  management,  discipline,  and 

sanitary  condition,  and  shall  report  thereon  in  writing, 

together  with  such  suggestions  as  he  desires  to  make.2 

Sec.  2,  act  of  March  3,  1883  (22  Stat.  Z.,  564). 

emTtPoedl°sriSggI?e      690.  The  officers  of  the  Subsistence  Department  shall 
artici<          ale,  procure?  an(j  keep  for  sale  to  officers  and  enlisted  men  at 


,Cv.2i4?p!yJ6!  cost  prices,  for  cash  or  on  credit,  such  articles  as  may,  from 
Sec.  ii4*,R.s.  .     time,  be  designated  by  the  inspectors-general  of 


the  Army.  An  account  of  all  sales  on  credit  shall  be  kept, 
and  the  amounts  due  for  the  same  shall  be  reported  monthly 
to  the  Paymaster-General.  See  sections  1299  and  1300, 
Jtev.  Stat.  (paragraphs  659  and  660,  post). 

administered  by     691>  ^ny  °fficer  or  clerk  of  any  of  the  departments  law- 

oflAprii  H?'  1869  frdty  detailed  to  investigate  frauds  on  or  attempts  to  de- 

Res.  NO.  15^2,  v.  fraud,  the  Government,  or  an}^  irregularity  or  misconduct 

7570Mar8>2'  i9oi'  °^  anJ  °fficer  or  agent  of  the  United  States,  and  any  officer 

v's3ec.pillJ'B.  s.  °^  ^e  Army  detailed  to  conduct  an  investigation,  and  the 

recorder,  and,  if  there  be  none,  the  presiding  officer  of 

any  military  board  appointed  for  such  purpose,  shall  have 

authority  to  administer  an  oath  to  any  witness  attending 

to  testify  or  depose  in  the  course  of  such  investigation. 

Act  of  March  2,  1901  (31  Stat.  Z.,  951). 

1  The  expense  for  transportation  to  a  point  not  located  on  a  railroad  incurred  by  an 
officer  of  the  Inspector-General's  Department  in  inspecting  unserviceable  river  and 
harbor  material,  is  properly  payable  from  the  appropriation  for  the  river  and  harbor 
work.     Ill  Compt.  Dec.,  3. 

2  The  act  of  January  19,  1891  (26  Stat.  L.,  722),  required  an  officer  of  this  Depart- 
ment, at  least  once  each  year,  to  visit  the  military  prison  at  Fort  Leavenworth, 
Kansas,  "  for  the  purpose  of  examining  into  the  books  and  all  the  affairs  thereof, 
and  ascertaining  whether  the  laws,  rules,  and  regulations  relating  thereto  are  com- 
plied with,  the  officers  are  competent  and  faithful,  and  the  convicts  properly  governed 
and  employed,  and  at  the  same  time  treated  with  humanity  and  kindness.     And  it 
shall  be  the  duty  of  the  inspector,  at  once,  to  make  full  report  thereof  to  the  Secre- 
tary of  War." 


MILITARY    LAWS    OF   THE    UNITED   STATES.  268 

HISTORICAL  NOTE. — The  Inspector-General's  Department  had  existed  during  the 
war  of  the  Revolution,  the  office  of  Inspector-General  having  been  held  by  Baron 
Steuben,  whose  appointment  was  approved  by  Congress  in  a  resolution  dated  May 
25,  1778.  During  the  incumbency  of  Baron  Steuben  a  system  of  drill  regulations 
was  prepared  and  introduced,  which  continued  in  use  until  replaced,  in  part,  by  the 
system  prepared  by  Col.  Alexander  Smyth  in  1810,  being  finally  superseded  by  the 
d'rill  regulations  prepared  by  Major-General  Scott  in  1821.  On  June  25,  1788,  in  con- 
formity to  a  resolution  of  Congress  of  that  date,  the  Inspector's  Department  ceased 
to  exist,  and  the  inspection  of  the  troops  was  conducted  for  a  time  by  officers  of  the 
line  detailed  for  the  purpose.  By  section  4  of  the  act  of  April  30,  1790  (1  Stat.  L., 


who  was  to  do  the  duty  of  an  Inspector;  section  3  of  the  act  of  May  30, 1796  (ibid. ,  483) , 
made  similar  provision  for  an  Inspector  who  was  to  do  the  duty  of  an  Adjutant.  The 
acts  of  March  3,  1797  (ibid.,  507),  and  May  22,  1798  (ibid.,  557),  authorized  the  detail 
of  an  officer  of  the  line  to  perform  the  duties  of  Inspector-General.  Section  6  of  the 
act  of  May  28,  1798  (ibid.,  588) ,  passed  in  contemplation  of  war  with  France,  author- 
ized the  appointment  of  an  Inspector-General  with  the  rank  of  major-general,  and  on 
July  18,  1798,  Gen.  Alexander  Hamilton  was  appointed  to  the  vacancy.  The  tem- 
porary military  establishment  thus  authorized,  which  was  never  fully  completed,  was 
disbanded  by  the  acts  of  February  20,  1800  (2  ibid.,  7),  and  May  14,  1800  (ibid.,  85) 
aud  the  duties  of  the  Department  were  again  performed  by  detail  until  the  office  of 
Inspector  was  created  by  section  4  of  the  act  of  March  16, 1802  (ibid.,  132) ;  by  section 
3  of  the  act  of  April  12,  1808  (ibid.,  481),  two  brigade  inspectors  were  authorized  to 
be  detailed  from  the  line  with  increased  rank;  by  the  act  of  December  24,  1811 
(ibid.,  669),  the  office  of  Inspector-General  (brigadier-general)  was  created  and  two 
assistants  (lieutenant-colonels)  were  authorized;  the  duties  of  the  Department  were 
defined  in  regulations  approved  by  the  Secretary  of  War  on  November  4,  1812.  By 
the  act  of  March  3,  1813  (ibid.,  819),  the  Adjutant  and  Inspector-General's  Depart- 
ments were  again  merged.  The  act  of  March  3,  1815  (3  ibid.,  224),  fixing  the  peace 
establishment,  made  no  express  provision  for  these  Departments,  their  duties  being 
performed  by  officers  temporarily  detailed  for  the  purpose.  By  section  10  of  the  act 
of  April  24,  1816  (ibid.,  297),  however,  the  temporary  establishment  which  had 
existed  since  1815  was  made  permanent.  Provision  was  also  made  for  an  Adjutant 
and  Inspector-General  of  the  Army,  together  with. an  inspector-general  to.  each  divi- 
sion and  an  assistant  to  each  brigade,  which  were  to  be  filled  by  detail  of  officers 
from  the  line.  At  the  general  reduction  of  1821  the  Inspector-General's  Department 
was  recognized  and  continued  by  section  6  of  the  act  of  March  2,  1821  (ibid.,  615), 
its  composition  being  fixed  at  two  inspectors-general  with  the  rank  and  pay  of  colonels 
of  cavalry.  By  section  4  of  the  act  of  August  23,  1842  (51bid.,  512),  the  Department 
was  reduced  to  one  officer;  the  disbanded  officer  wras  restored,  however,  by  the  act 
of  June  12,  1846  (9  ibid.,  2),  and  the  composition  of  the  Department,  as  thus  estab- 
lished, underwent  no  change  until  the  outbreak  of  the  war  of  the  rebellion. 

By  section  2  of  the  act  of  August  3,  1861  (12  ibid.,  287),  five  majors  were  added  to 
the  Department;  by  section  4  of  the  act  of  August  6,  1861  (ibid.,  318),  two  colonels 
were  authorized ;  and  provision  for  the  inspection  service  of  the  armies  in  the  field 
was  made  by  section  10  of  the  act  of  July  17,  1862  (ibid.,  299),  which  authorized  the 
rank  and  pay  of  lieutenant-colonel  of  cavalry  to  be  conferred  upon  the  inspectors- 
general  of  Army  corps.  By  section  11  of  the  act  of  July  28,  1866  (14  ibid.,  334),  the 
composition  of  the  Department  was  fixed  as  follows:  Four  colonels,  three  lieutenant- 
colonels,  and  two  majors.  Section  6  of  the  act  of  March  3,  1869  (15  ibid.,  318),  con- 
tained the  requirement  that  there  should  be  no  promotions  or  appointments  in  the 
staff  until  otherwise  directed  by  law;  by  the  acts  of  June  8,  1872  (17  ibid.,  338),  and 
June  16,  1874  (18  ibid.,  77),  promotions  were  authorized  to  correct  inequalities  in  the 
rank  of  officers  of  the  Department.  By  the  act  of  June  23,  1874  (ibid.,  244),  the 
restriction  contained  in  the  act  of  March  3,  1869,  was  removed  and  the  strength  of 
the  Department  fixed  at  one  Inspector-General  with  the  rank  of  colonel,  two 
inspectors-general  with  the  rank  of  lieutenant-colonel,  and  two  inpectors-general 
with  the  rank  of  major;  authority  was  also  conferred  for  the  detail  of  four  officers 
from  the  line  of  the  Army  for  service  as  assistant  inspectors-general,  who  were 
to  receive  the  mounted  pay  of  their  grades,  and  no  appointments  were  to  be 
made  to  the  grade  of  major  until  the  number  of  officers  in  the  Department  had  been 
reduced  to  five.  By  the  act  of  December  12,  1878  (20  ibid.,  257),  the  rank  of  briga- 
dier-general was  conferred  upon  the  senior  inspector-general.  By  the  act  of  Febru- 
ary 5,  1885  (23  ibid.,  297),  the  composition  of  the  Department  was  fixed  as  follows: 
One  Inspector-General  (brigadier-general),  two  colonels,  two  lieutenant-colonels,  and 


264  MILITAEY    LAWS    OF   THE    UNITED    STATES. 

two  majors.  It  was  also  provided  that  the  Inspector-General  should  be  selected  from 
the  officers  of  the  corps,  that  promotions  should  be  by  seniority  in  the  Department, 
and  that  appointments  to  the  grade  of  major  should  be  made  from  the  captains  in 
the  line  of  the  Army.  By  the  act  of  July  7,  1898  (30  ibid.,  720),  one  colonel,  one 
lieutenant-colonel,  arid  one  major  were  added  to  the  Department  under  the  conditions 
above  set  forth. 

By  section  14  of  the  act  of  February  2, 1901  (31  ibid. ,  751 ) ,  the  permanent  strength  of 
the  Department  was  fixed  at  one  Inspector-General  with  the  rank  of  brigadier-gen- 
eral, four  inspectors-general  with  the  rank  of  colonel,  four  inspectors-general  with 
the  rank  of  lieutenant-colonel,  and  eight  inspectors-general  with  the  rank  of  major. 
A  system  of  details  was  also  established,  by  the  operation  of  which  the  permanent 
commissioned  personnel  of  the  Department  will  be  gradually  replaced,  as  vacancies 
occur,  by  officers  detailed  from  the  line  of  the  Army  for  duty  in  the  Inspector-Gen- 
eral's Department. 

The  act  of  March  3, 1901  (31  Stat.  L.,  899),  modified  the  organization  prescribed  in 
the  act  of  February  2, 1901,  by  the  insertion  of  the  requirement  that,  upon  the  occur- 
rence of  a  vacancy  in  the  grade  of  colonel,  after  the  present  lieutenant-colonels  shall 
have  been  promoted  or  retired,  the  vacancy  shall  not  be  filled  and  thereafter  the 
number  of  officers  authorized  for  the  Department  shall  be  as  follows:  One  Inspector- 
General  with  the  rank  of  brigadier-general,  three  inspectors-general  with  the  rank 
of  colonel,  four  inspectors-general  with  the  rank  of  lieutenant-colonel,  and  nine 
inspectors-general  with  the  rank  of  major. 


CHAJPTER 


THE  JUDGE-ADVOCATE-GENERAL'S  DEPARTMENT.1 

Par.  i   Par. 

692.  Organization.  i  699.  Administration  of  oaths. 

693-695.  Promotions,  appointments,  de-  |  700.  Records  of  inferior  courts. 

tails.  '  701.  The  same,  summary  courts. 

696,697.  Duties. 
698.  Professor    of    law  at    the  Military 

Academy. 

ORGANIZATION. 

692.  The  Judge-  Advocate-General's  Department2  shall    g°£p2^n- 
consist  of  one  Judge-Advocate-General  with  the  rank  of  75f  •  15>  v-  31>  P- 
brigadier-general,  two  judge-advocates  with  the  rank  of   see.  lies,  B.S. 
colonel,  three  judge-advocates  with  the  rank  of  lieutenant- 

colonel,  six  judge-advocates  with  the  rank  of  major,  and  for 
each  geographical  department  or  tactical  division  of  troops 
not  provided  with  a  judge-advocate  from  the  list  of  officers 
holding  permanent  commissions  in  the  Judge-Advocate- 
General's  Department,  one  acting  judge-advocate  with  the 
rank,  pay,  and  allowances  of  captain  mounted.3  Sec.  15  ', 
act  of  February  V,  1901  (31  Stat.  L.,  751). 

PROMOTIONS,    APPOINTMENTS,    DETAILS. 

693.  Promotions  in  the  Judge-  Advocate-General's  De- 
partment,  as  provided  in  the  first  section  of  this  act,  shall 
be  by  seniority  up  to  and  including  the  rank  of  colonel. 
Sec.  2,  act  of  July  5,  1884  (23  Stat.  Z.,  113). 

694.  Vacancies  created  or  caused  by  this  act  in  the  grade 

of  major  may  be  filled  by  appointment  of  officers  holding  75|-  15>  v-  31>  p- 
commissions  as  judge  -advocates  of  volunteers  since  April 
21,  1898.     Vacancies  which  may  occur  thereafter  in  the 
grade  of  major  in  the  Judge-  Advocate-General's  Depart- 

1  For  historical  note  see  end  of  chapter. 

2  Sections  1198  and  1200  of  the  Revised  Statutes  and  section  2  of  the  act  of  June  23, 
1874  (18  Stat.  L.,  244),  were  replaced  by  the  act  of  July  5,  1884  (23  Stat.  L.,  117), 
which  merged  the  Bureau  of  Military  Justice  and  the  corps  of  judge-advocates  in  the 
Judge-  Advocate-General's  Department,  created  by  that  statute. 

3  This  section  repeals  and  replaces  section  1  of  the  act  of  July  5,  1884  (23  Stat.  L., 
117),  in  par  i  materia. 


nf  •  2>  v-  23> 


266  MILITARY    LAWS   OF  THE   UNITED   STATES. 

ment  shall  be  filled  by  the  appointment  of  officers  of  the 
line,  or  of  persons  who  have  satisfactorily  served  as  judge- 
advocates  of  volunteers  since  April  21,  1898,  or  of  persons 
from  civil  life  not  over  thirty -five  years  of  age.  Sec.  15, 
act  of  February  2,  1901  (31  Stat.  Z.,  751). 
i,  s.  695-  Acting  judge-advocates  provided  for  herein  shall  be 
15,  v.  si,  p.  75i.  detailed  from  oflicers  of  the  grades  of  captain  or  first  lieu- 
tenant of  the  line  of  the  Army,  who,  while  so  serving,  shall 
continue  to  hold  their  commissions  in  the  arm  of  service 
to  which  they  permanently  belong.  Upon  completion  of 
a  tour  of  duty,  not  exceeding  four  years,  they  shall  be 
returned  to  the  arm  in  which  commissioned,  and  shall 
not  be  again  detailed  until  they  shall  have  completed  two 
years  duty  with  the  arm  of  service  in  which  commissioned. 
Sec.  15,  act  of  February  2,  1901  (31  Stat.  L.,  751). 

DUTIES. 

judgSdviate6     696.  The  Judge-Advocate-General  shall  receive,  revise 
GIec??i99,  B.  s.  an(i  cause  to  be  recorded  the  proceedings  of  all  courts- 
martial,  courts  of  inquiry,  and  military  commissions,  and 
perform  such  other  duties  as  have  been  performed  hereto- 
fore by  the  Judge- Advocate-General  of  the  Army.1 
advu<£?te°sf judge     697-  Judge-advocates  shall  perform  their  duties  under 
sec.  1201,  B.  s.  the  direction  of  the  Judge- Advocate-General. 

1The  work  done  in  his  office  and  for  which  this  officer  is  responsible  consists 
mainly  of  the  following  particulars:  Reviewing  and  making  reports  upon  the  pro- 
ceedings of  trials  by  court-martial  of  officers,  enlisted  men,  and  cadets,  and  the 
proceedings  of  courts  of  inquiry;  making  reports  upon  applications  for  pardon  or 
mitigation  of  sentence;  preparing  and  revising  charges  and  specifications  prior  to 
trial,  and  instructing  judge-advocates  in  regard  to  the  conduct  of  prosecutions; 
drafting  of  contracts,  bonds,  etc. ;  as  also  for  execution  by  the  Secretary  of  War 
of  deeds,  leases,  licenses  (see  License),  grants  of  rights  of  way,  approvals  of  loca- 
tion of  rights  of  way,  approvals  of  plans  of  bridges  and  other  structures,  notices  to 
alter  bridges  as  obstructions  to  navigation,  etc. ;  framing  of  bills,  forms  of  procedure, 
etc. ;  preparing  of  opinions  upon  questions  relating  to  the  appointment,  promotion, 
rank,  pay,  allowances,  etc.,  of  officers,  enlisted  men,  etc.,  and  to  their  amenability 
to  military  jurisdiction  and  discipline;  upon  the  civil  rights,  liabilities,  and  relations 
of  military  persons  and  the  exercise  of  the  civil  jurisdiction  over  them ;  upon  the 
employment  of  the  Army  in  execution  of  the  laws;  upon  the  discharge  of  minors, 
deserters,  etc.,  on  habeas  corpus;  upon  the  administration  of  military  commands, 
the  care  and  government  of  military  reservations,  and  the  extent  of  the  United 
States  and  State  jurisdictions  over  such  reservations  or  other  lands  of  the  United 
States;  upon  the  proper  construction  of  appropriation  acts  and  other  statutes;  upon 
the  interpretation  and  effect  of  public  contracts  between  the  United  States  and 
individuals  or  corporations;  upon  the  validity  and  disposition  of  the  varied  claims 
against  the  United  States  presented  to  the  War  Department;  upon  the  execution 
of  public  works  under  appropriations  by  Congress;  upon  obstructions  to  navigation 
as  caused  by  bridges,  dams,  locks,  piers,  harbor  lines,  etc.,  upon  the  riparian  rights 
of  the  United  States  and  of  States  and  individuals  on  navigable  waters,  etc. ;  and  the 
furnishing  to  other  departments  of  the  Government  of  statements  and  information 
apposite  to  claims  therein  pending,  and  to  individuals  of  copies  of  the  records  of 
their  trials  under  the  one  hundred  and  fourteenth  article  of  war.  The  matter  of 
the  submitting  to  the  Judge- Advocate-General  of  applications  for  opinions  is  regu- 
lated by  paragraph  853,  Army  Regulations  of  1901. 

The  Judge- Advocate-General's  Department  is  the  Bureau  of  Military  Justice.     The 


MILITARY    LAWS    OF    THE    UNITED    STATES.  267 

698.  The   Secretary   of   War   may   assign   one   of    thela^rofe|^e  °6| 
judge-advocates  of  the  Army   to   be   professor  of  law.1  1874'  v-  ^'P-60- 
Act  of  June  6,  187  '4  (18  Stat.  Z.,  60). 

699.  Judge-advocates   of   departments   and   of    courts-  ca{esd?fe"depa?t- 
martial  and  the  trial  officers  of  summary  courts  are  hereby 


authorized  to  administer  oaths  for  the  purposes  of  military  ™ay 
justice  and  for  other  purposes  of  military  administration,  pusrPcosf  -July  27 
Sec.  4,  act  of  July  27,  1892  (27  Stat.  Z.,  278).  1892-  v-  '27'  P-  27*: 

700.  Hereafter  the  records  of  regimental,  garrison,  and  procleSngsn  of 
field  officers  [and]  courts-martial  shall,  after  ^having  been^m^mmor 
acted  upon,  be  retained  and  filed  in  the  judge-advocate's  19Mpar^  1877-  v- 
office  at  the  headquarters  of  the  department  commander 

in  whose  department  the  courts  were  held  for  two  years, 
at  the  end  of  which  time  they  m&y  be  destroyed.  Act  of 
March  3,  1877  (19  Stat.  Z.,  310). 

701.  Post  and  other  commanders  shall,  in  time  of  peace,    P68?™?^ 

*•  June  is,  isyo,  s. 

on  the  last  day  of  each  month,  make  a  report  to  the  de-  4-  v-  so,  P.  483. 
partment  headquarters  of  the  number  of  cases  determined 
by  the  summary  court  during  the  month,  setting  forth  the 
offenses  committed  and  the  penalties  awarded,  which  re- 
port shall  be  filed  in  the  office  of  the  judge-advocate  of  the 
department,  and  may  be  destroyed  when  no  longer  of  use. 
Sec.  4,  act  of  June  18,  1898  (30  Stat.  Z.,  483). 

Judge-Advocate-General  is  the  custodian  of  the  records  of  all  general  courts-martial, 
courts  of  inquiry,  and  military  commissions,  and  of  all  papers  relating  to  the  title 
of  lands  under  the  control  of  the  War  Department,  except  the  Washington  Aque- 
duct and  the  public  buildings  and  grounds  in  the  District  of  Columbia.  The  officers 
of  this  department  render  opinions  upon  legal  questions  when  called  upon  by  proper 
authority.  Par.  991,  A.  R.,  1901. 

The  original  proceedings  of  all  general  courts-martial,  courts  of  inquiry,  and  military 
commissions,  with  the  decisions  and  orders  of  the  reviewing  authorities  made  thereon, 
and  the  proceedings  of  all  general  courts-martial,  courts  of  inquiry,  and  military  com- 
missions which  require  the  confirmation  of  the  President,  but  which  have  not  been 
appointed  by  him,  will  be  forwarded  direct  to  the  Judge-Advocate-General.  One 
copy  of  the  order  promulgating  the  action  of  the  court  and  a  copy  of  every  subsequent 
order  affecting  the  case  will  be  forwarded  to  the  Judge-Advocate-General,  with  the 
record  of  each  case.  When  more  than  one  case  is  embraced  in  a  single  order,  a 
sufficient  number  of  copies  will  be  forwarded  to  enable  one  to  be  filed  with  each 
record.  The  proceedings  of  all  courts  and  military  commissions  appointed  by  the 
President  will  be  sent  direct  to  the  Secretary  of  War.  Par.  993,  A.  R.,  1901. 

Applications  of  officers,  enlisted  men,  and  military  prisoners  for  copies  of  proceed- 
ings of  general  courts-martial,  to  be  furnished  them  under  the  one  hundred  and 
fourteenth  article  of  war,  will,  when  received  by  post  or  other  commanders,  be 
forwarded  direct  to  the  Judge-  Advocate-General.  Par.  995,  A.  R.,  1910. 

Communications  relating  to  proceedings  of  military  courts  on  file  in  the  Judge- 
Ad  vocate-GeneraPs  Department  will  be  addressed  and  forwarded  direct  by  department 
commanders  to  the  Judge-Advocate-General.  In  routine  matters  the  Judge-  Advocate- 
General  and  judge-advocates  may  correspond  with  each  other  direct.  Par.  996,  A.  R., 
1901. 

The  reports  which  the  Judge-  Advocate-General  may  render  upon  cases  received  by 
him,  and  which  require  the  action  of  the  President,  will  be  addressed  to  the  Secretary 
of  War  and  will  be  forwarded,  through  the  Commanding  General  of  the  Army,  for 
such  remarks  and  recommendations  as  he  may  see  fit  to  make.  Par.  997,  A.  R.,  1901. 

1  But,  see  the  act  of  June  1,  1880  (21  Stat.  L.,  153)  ,  which  authorizes  any  officer  of 
the  Army  to  be  so  detailed.  The  act  of  June  27,  1881,  contained  a  similar  requirement. 


268  MILITAEY    LAWS    OF   THE    UNITED    STATES. 

HISTORICAL  NOTE. — The  office  of  Judge-Advocate  of  the  Army  was  created  during 
the  war  of  the  Kevolution,  having  been  established  by  resolution  of  Congress  of 
July  25,  1775  (Journals  of  Cong.),  soon  after  the  enactment  of  the  Articles  of  War 
on  June  29  of  the  same  year.  In  the  reenactrnent  of  the  Articles,  in  1776,  this  officer 
was  styled  the  Judge- Advocate-General  of  the  Army  and  was  empowered  to  prose- 
cute in  the  name  of  the  United  States  or  to  conduct  such  prosecutions  by  deputy. 
The  office  of  Judge- Advocate  ceased  to  exist  at  the  disbandment  of  the  Revolutionary 
armies,  but  was  revived  by  section  2  of  the  act  of  March,  3,  1797  (1  Stat.  L.,  507), 
which  made  provision  for  a  Judge- Advocate,  to  be  taken  from  the  commissioned  offi- 
cers of  the  line,  who  was  to  receive  the  same  pay  and  allowances  as  the  brigade 
major  (adjutant)  and  inspector  therein  authorized.  This  office,  with  other  offices  in 
the  general  staff,  was  discontinued  by  the  act  of  March  16,  1802  (2  ibid.,  132).  Sec- 
tion 19  of  the  actof  1812  (ibid.,  674),  passed  in  contemplation  of  war  with  England, 
made  provision  for  one  judge-advocate,  with  the  rank  of  major,  to  each  division,  and 
this  nifmber  was  increased  to  three  by  section  2  of  the  act  of  April  24,  1816  (3  ibid., 
397).  At  the  reduction  of  1818  these  officers  were  disbanded  (act  of  April  14,  1818, 
3  ibid.,  426),  and  the  office  of  Judge- Advocate  of  the  Army  was  discontinued  by  the 
act  of  March  2,  1821  (ibid.,  615) . 

By  section  4  of  the  actof  March  3,  1849  (9  ibid.,  351),  the  office  of  Judge- Advocate 
of  the  Army  was  reestablished,  with  the  rank  and  pay  of  major  of  cavalry.  By  section 
5  of  the  act  of  July  17,  1862  (12  ibid.,  598),  the  office  of  Judge- Advocate-General  was 
created,  with  the  rank  and  pay  of  brigadier-general;  by  this  enactment  the  duties  of 
the  office  were  defined.  By  section  5  of  the  same  statute  provision  was  made  for  a 
corps  of  judge-advocates,  one  of  whom  was  to  be  assigned  to  duty  at  the  headquarters 
of  each  army  in  the  field.  By  section  5  of  the  act  of  June  20,  1864  (13  ibid.,  145),  the 
Bureau  of  Military  Justice  was  established,  to  which  the  Judge- Advocate-General 
was  transferred,  and  an  Assistant  Judge- Advocate-General,  with  the  rank  of  colonel  of 
cavalry,  was  authorized.  By  section  12  of  the  act  of  July  28, 1866  (14  ibid.,  334),  the 
composition  of  the  department  was  fixed  at  one  Judge- Advocate-General  (brigadier- 
general),  one  Assistant  Judge- Advocate-General  (colonel),  and  ten  judge-advocates 
were  added  to  the  military  establishment,  who  were  to  be  selected  by  the  Secretary 
of  War  from  the  corps  of  judge-advocates  authorized  by  the  act  of  July  17,  1862.  By 
this  statute  the  office  of  Solicitor  of  the  War  Department  was  discontinued,  the  duties 
of  the  office  being  merged  in  the  Bureau  of  Military  Justice.  By  section  3  of  the  act 
of  March  3,  1869  (15  Stat.  L.,  318),  all  appointments  and  promotions  in  the  several 
departments  of  the  staff  were  prohibited  until  otherwise  directed  by  law;  but  this 
restriction  was  removed,  as  to  the  Bureau  of  Military  Justice,  by  the  act  of  April  10, 
1869  (16  ibid.,  44),  which  fixed  the  number  of  judge-advocates  at  eight.  By  sec- 
tion 2  of  the  act  of  June  23, 1874  (18  ibid.,  244),  the  office  of  Assistant  Judge- Advocate- 
General  was  discontinued,  and  it  was  provided  that  there  should  be  no  appointments 
to  the  grade  of  major  until  the  number  of  officers  of  that  grade  had  been  reduced  to 
four.  By  the  act  of  July  5,  1884  (23  ibid.,  113),  the  Bureau  of  Military  Justice  and 
the  corps  of  judge-advocates  were  consolidated  and  merged  in  the  Judge- Advocate- 
General's  Department,  the  composition  of  which  was  fixed  as  follows:  One  Judge- 
Advocate-General  (brigadier-general),  one  Asssistant  Judge- Advocate-General  (colo- 
nel), three  deputy  judge-advocates-general  (lieutenant-colonels),  and  three  judge- 
advocates  (majors).  Promotion  to  the  grade  of  colonel  was  to  be  by  seniority,  and 
provision  was  made  for  the  detail  of  officers  of  the  line  as  judge-advocates  of  military 
departments,  who  were  to  have,  while  so  serving,  the  rank  and  pay  of  captains 
mounted. 

By  section  15  of  the  act  of  February  2, 1901  (31  ibid.,  751) ,  the  permanent  strength  of 
the  Department  was  fixed  at  one  Judge-Advocate-General  with  the  rank  of  brigadier- 
general,  two  judge-advocates  with  the  rank  of  colonel,  three  judge-advocates  with 
the  rank  of  lieutenant-colonel,  and  six  judge-advocates  with  the  rank  of  major.  The 
system  of  details  of  officers  of  the  grade  of  captain  or  first  lieutenant  to  serve  as  act- 
ing judge-advocates,  and,  while  so  serving,  to  have  the  rank,  pay,  and  allowances  of 
captains  mounted,  as  established  by  the  act  of  July  5,  1884  (23  Stat.  L.,  113),  was 
recognized  and  continued. 


CHAPTER  XVIII. 


THE  QUARTERMASTER'S  DEPARTMENT.1 


Par. 

702.  Organization. 

703-705.  Promotions,  transfers,  details. 

706.  Military  storekeeper. 

707.  Post  quartermaster-sergeants. 
708-711.  Duties. 

712-719.  The  procurement  of  supplies. 


Par. 

728-732.  Public  animals,  veterinarians. 

733-739.  Barracks  and  quarters. 

740,  741.  Fuel  and  forage. 

742-747.  Extra-duty  pay. 

748.  Civilian  employees. 

749-757.  Clothing. 


720-727.  Transportation. 

ORGANIZATION. 

702.  The  Quartermaster's  Department  shall  consist  of 
one  Quartermaster-General  with  the  rank  of  brigadier- 
general,  six  assistant  quartermasters-general  with  the  rank 
of  colonel,  nine  deputy  quartermasters-general  with  the 
rank  of   lieutenant-colonel,  twenty   quartermasters  with 
the  rank  of  major,  sixty  quartermasters  with  the  rank  of 
captain,  mounted,     *     *     *     and  one  hundred  and  fifty 
quartermaster-sergeants.2     Sec.   16,  act  of  February  #, 
1901  (31  Stat.  L.,  751). 

PROMOTIONS,  TRANSFERS,  AND   DETAILS. 

703.  So  long  as  there  remain  any  officers  holding  per- 
manent  appointments  in   the     *     *     *     Quartermaster's 26>  31>  p>  765- 
Department     *     *     *     including  those  appointed  to  origi- 
nal vacancies  in  the  grades  of  captain  and  first  lieutenant 

under  provisions  of  sections  sixteen,  seventeen,  twenty- 
one,  and  twenty- four  of  this  act,  they  shall  be  promoted 

1  For  historical  note  see  end  of  chapter. 

2 Section  16  of  the  act  of  February  2,  1901  (31  Stat.  L.,  752),  contained  the 
requirement  that  "  the  President  is  authorized  to  continue  in  the  service,  during  the 
present  emergency,  for  duty  in  the  Philippine  Islands  and  on  transports,  twenty-four 
captains  and  assistant  quartermasters  of  volunteers."  The  same  enactment  provided 
that  "all  vacancies  in  the  grade  of  colonel,  lieutenant-colonel,  and  major  created  or 
caused  by  this  section  shall  be  filled  by  promotion  according  to  seniority  as  now 
prescribed  by  law."  It  also  provided  "  that  to  fill  original  vacancies  in  the  grade  of 
captain  created  by  this  act  in  the  Quartermaster's  Department  the  President  is 
authorized  to  appoint  officers  of  volunteers  commissioned  in  the  Quartermaster's 
Department  since  April  21, 1898."  See  also  a  clause  extending  the  scope  of  selection 
in  such  appointments  in  paragraph  578,  ante. 

269 


270  MILITAEY    LAWS    OF    THE    UNITED    STATES. 

according  to  seniority  in  the  several  grades,  as  now  pro- 
vided by  law,  and  nothing  herein  contained  shall  be 
deemed  to  apply  to  vacancies  which  can  be  filled  by  such 
promotions  or  to  the  periods  for  which  officers  so  pro- 
moted shall  hold  their  appointments.  Sec.  26,  act  of, 
February  2,  1901  (31  Stat.  L.,  755). 

"^'  When  any  vacancy,  except  that  of  the  chief  of  the 
department  or,  corps,  shall  occur,  which  can  not  be  tilled 
by  promotion  as  provided  in  this  section,  it  shall  be  filled 
by  detail  from  the  line  of  the  Army,  and  no  more  perma- 
nent appointments  shall  be  made  in  those  departments  or 
corps.  Ibid. 

^^'  Such  details  shall  be  made  from  the  grade  in  which 
the  vacancies  exist,  under  such  system  of  examination  as 
the  President  may  from  time  to  time  prescribe.1     Ibid. 
°di8c<m-     706<  When  a  vacancy  shall  occur  through  death,  retire- 
tmued.  ment,  or  other  separation  from  active  service  in  the  office 

of  storekeeper  in  the  Quartermaster's  Department  and 
Ordnance  Department,  respectively,  now  provided  for  by 
law,  said  offices  shall  cease  to  exist.2  Acts  of  March  2, 
1899  (30  Stat.  Z.,  ,977),  and  February  2,  1901  (31  Stat. 
Z.,  748). 

POST   QUARTERMASTER-SERGEANTS . 

^^ '  That  ^ne  Secretary  of  War  is  authorized  to  appoint, 
geants.  On  the  recommendation  of  the  Quartermaster-General,  as 

July  6,  1884,  v. 

i898P'v1(?6  Jul728'  many  POS^  quartermaster-sergeants,  not  to  exceed  one 
Feb.  2, 1961,  v.  hundred  and  fifty,3  as  he  may  deem  necessary  for  the  inter- 
ests of  the  service,  said  sergeants  to  be  selected  by  exam- 
ination from  the  most  competent  enlisted  men  of  the  Army 
who  have  served  at  least  four  years,  and  whose  character 
and  education  shall  fit  them  to  take  charge  of  public  prop- 
erty and  to  act  as  clerks  and  assistants  to  post  and  other 
quartermasters.  Said  post  quartermaster-sergeants  shall, 
so  far  as  practicable,  perform  the  duties  of  storekeepers 
and  clerks,  in  lieu  of  citizen  employees.  The  post  quarter- 
master-sergeants shall  be  subject  to  the  Rules  and  Articles 
of  War  and  shall  receive  for  their  services  the  same  pay  and 

1  For  statutory  regulations  respecting  details  to  the  staff,  see  the  title  Details  to  tJie 
Staff,  in  the  chapter  entitled  THE  STAFF  DEPARTMENTS. 

2  The  above  statute  replaces  a  similar  restriction  which  was  contained  in  section  2 
of  the  act  of  March  3,  1875  (18  Stat.  L.,  339);  the  act  of  February  2,  1901,  contained 
the  same  restriction.     The  office  of  storekeeper  in  the  Quartermaster's  Department, 
by  the  retirement  of  the  last  incumbent,  hae  ceased  to  exist  as  a  grade  of  rank  on 
the  active  list. 

3  Twenty-five  post  quartermaster-sergeants  added  to  the  existing  establishment  by 
the  act  of  July  8,  1898  (30  Stat.  L.,  728);  forty  added  by  section  16,  act  of  February  2, 
1901  (31  ibid.,  751). 


MILITARY    LAWS    OF    THE    UNITED    STATES.  27  1 

allowances  as  ordnance-sergeants.  l  Acts  of  July  5,  188  % 
(23  Stat.  Z.,  109),  July  8,  1898(30  StatJ  L.,  728),  and 
February  0,  1901  (31  ibid.,  751). 

DUTIES. 

708.  It  shall  be  the  duty  of  the  officers  of  the  Quarter-    gjte*  1812  c 
master's  Department,  under  the  direction  of  the  "Secretary  ege88^.5'^2'^* 


of  War,  to  purchase  and  distribute  to  the  Army  all  military  l1  £ 
stores  and  supplies,  requisite  for  its  use,  which  other  corps  ^•1^7>  8*  >  v 
are  not  directed  by  law  to  provide;  to  furnish  means  of    »ec.  ii88,B.s. 
transportation  for  the  Army,  its  military  stores  and  sup- 
plies, and  to  provide  for  and  pay  all  incidental  expenses 
of  the  military  service  which  other  corps  are  not  directed 
to  provide  for  and  pay. 

709.  The  Secretary  of  War  shall  from  time  to  time  define    Kind    and 
and  prescribe  the  kinds  as  well  as  the  amount  of  supplies  pSesU  to  be  p£ 
to  be  purchased  by  the  Subsistence  and  Quartermaster  tary  of  war. 
Departments  of  the  Army,   and  the  duties  and  powers  48,  sa5,'v.'2,p,  si?! 
thereof  respecting  such   purchases;   and  shall   prescribe 

general  regulations  for  the  transportation  of  the  articles 
of  suppl  \T  from  the  places  of  purchase  to  the  several  armies, 
garrisons,  posts,  and  recruiting  places,  for  the  safe-keeping 
of  such  articles,  and  for  the  distribution  of  an  adequate 
and  timely  supply  of  the  same  to  the  regimental  quarter- 
masters, and  to  such  other  officers  as  may  by  virtue  of  such 
regulations,  be  intrusted  with  the  same;  and  shall  fix  and 
make  reasonable  allowances  for  the  store  rent  and  storage 
necessary  for  the  safe-keeping  of  all  military  stores  and 
supplies. 

710.  The  officers  of  the   Quartermaster's   Department    supplies  to 

r    11  ,1  •    .,-  <.    .1  T  .  /«         naval   and   ma- 

snall,  upon  the  requisition  ot  the  naval  or  marine  omcerrine  detacb- 
commanding  any  detachment  of  seamen  or  marines  under    Dec.  I6,isi4,c. 
orders  to  act  on  .shore,  in  cooperation  with  land  troops,  and  laf8* 
during  the  time  such  detachment  is  so  acting  or  proceeding 
to  act,  furnish  the  officers  and  seamen  with  camp  equipage, 
together  with  transportation  for  said  officers,  seamen,  and 
marines,  their  baggage,  provisions,  and  cannon,  and  shall 
furnish  the  naval  officer  commanding  any  such  detach- 
ment, and  his  necessary  aids,  with  horses,  accouterments, 
and  forage. 

711.  Assistant  quartermasters  shall  do  dutv  as  assistant    subsistence 

,,        ,     .    A  duty  of  assistant 

commissaries  of  subsistence  when  so  ordered  by  the  Secre-  quartermasters. 

,,  A,r  J  Sec.  1134,  B.S. 

tary  ot  War. 


*For  corps  of  army  service  men,  see  chapter  entitled  THE  MILITARY  ACADEMY. 


272 


MILITARY    LAWS    OF    THE    UNITED    STATES. 


THE    PROCUREMENT    OF    SUPPLIES. 


Par. 

712.  Method  of  procurement. 

713.  Purchases. 

714.  Bakeries,  schools,  messes. 

715.  Post  gardens,  exchanges. 

716.  Printing,  restriction. 


si,  P.  905 


Par. 

717.  Purchase  of  clothing,  transportation, 

etc. 

718.  Purchases  from  Indians. 

719.  Officers  not  to  engage  in  trade. 


712>  The  Quartermaster's  Department  of  the  Army,  in 
Sec.37i6,iR.s.  obtaining  supplies  for  the  military  service,  shall  state  in 
•  all  advertisements  for  bids  for  contracts  that  a  preference 
.  shall  be  given  to  articles  of  domestic  production  and  manu- 
facure,  conditions  of  price  and  quality  being  equal,  and 
that  such  preference  shall  be  given  to  articles  of  American 
production  and  manufacture  produced  on  the  Pacific  Coast, 
to  the  extent  of  the  consumption  required  by  the  public 
service  there.  In  advertising  for  army  supplies  the  Quar- 
termaster's Department  shall  require  all  articles  which  are 
to  be  used  in  the  States  and  Territories  of  the  Pacific 
Coast  to  be  delivered  and  inspected  at  points  designated  in 
those  States  and  Territories;  and  the  advertisements  for 
such  supplies  shall  be  published  in  newspapers  of  the  cities 
of  San  Francisco,  in  California,  and  Portland,  in  Oregon. 
7^3  Hereafter,  except  in  cases  of  emergency  or  where 
^  js  impracticable  to  secure  competition,  the  purchase  of 
all  supplies  for  the  use  of  the  various  departments  and 
posts  of  the  Army  and  of  the  branches  of  the  Army  serv- 
ice, shall  only  be  made  after  advertisement,  and  shall  be 
purchased  where  the  same  can  be  purchased  the  cheapest, 
quality  and  cost  of  transportation  and  the  interests  of  the 
Government  considered;  but  every  open-market  emer- 
gency purchase  made  in  the  manner  common  among  busi- 
ness men  which  exceeds  in  amount  two  hundred  dollars 
shall  be  reported  for  approval  to  the  Secretary  of  War, 
under  such  regulations  as  he  may  prescribe.2  Act  of 
March  3,  1901  (31  Stat.  Z.,  905). 

1  For  general  provisions  on  this  subject  see  the  chapter  entitled  CONTRACTS  AND 
PURCHASES;  see  also  for  expenditures  upon  buildings  at  military  posts  the  chapter 
entitled  THE  PUBLIC  LANDS,  MILITARY  RESERVATIONS,  AND  MILITARY  POSTS.     See 
also  in  respect  to  the  construction  of  buildings  at  military  posts,  paragraphs  734  and 
737,  post. 

2  The  acts  of  March  16,  1896  (29  Stat.  L.,  65),  and  March  2,  1897  (ibid.  613),  con- 
tained a  similar  requirement.     These  clauses  were  suspended  during  the  period  of 
the  existing  war  by  the  act  of  June  7,  1898  (  30  Stat.  L.  ,  433  )  .     By  the  act  of  March  3, 
1899  (30  Stat.  L.,  1350),  the  act  of  June  7,  1898,  was  continued  in  operation  ''for 
such  further  time  as  in  the  discretion  of  the  Secretary  of  War  may  be  found  neces- 
sary, or  until  otherwise  provided  by  Congress,  not  longer,  however,  than  March  1, 
1900.     By  the  act  of  February  24,  1900  (31  Stat.  L.,  32),  the  suspension  was  still  further 
extended  under  the  same  conditions  until  June  30,  1901. 

The  requirement  of  section  229  of  the  Revised  Statutes  that  the  Secretary  of  War 
shall  lay  before  Congress  at  the  commencement  of  each  regular  session  a  statement 


MILITARY    LAWS    OF   THE    UNITED   STATES.  273 


714.  For  the  current  year  and  thereafter  there  may  1: 
expended  from  the  appropriation  for  regular  supplies  the  ™£ ools-  messes. 
amounts  required  for  the  necessary  equipments  of  thevJ2^  }|^ 
bakehouse  to  carry  on  post  bakeries;  for  the  necessary  J^1892>  v-  27) 
furniture,  text-books,  paper,  and  equipments  of  the  post 

schools;  for  the  tableware  and  mess  furniture  for  kitchens 
and  mess  halls;  *  *  each  and  all  for  the  use  of  the 

enlisted  men  of  the  Army.  Acts  of  June  13, 1890  (26  Stat. 
Z.,  152),  July  16,  1892  (27  Stat.  Z.,  178). 

715.  Hereafter  no  money  appropriated  for  the  support 

of  the  Army  shall  be  expended  for  post  gardens  or  v  ^^  $g 1892> 
exchanges;  but  this  proviso  shall  not  be  construed  to 
prohibit  the  use,  by  post  exchanges,  of  public  buildings 
or  public  transportation  when,  in  the  opinion  of  the  Quar- 
termaster-General, not  required  for  other  purposes.  Act 
of  July  16,  1892  (27  Stat.  Z.,  178). 

716.  No  part  of  the  appropriations   for  the  Quarter-    fj^if'  i89i 
master's  Department  shall  be  expended  on  printing  unless  v-  28«  P-  65^- 
the  same  shall  be  done  by  contract,  after  due  notice  and 
competition,  except  in  such  cases  as  the  emergency  will 

not  admit  of  the  giving  notice  for  competition;  and  in 
cases  where  it  is  impracticable  to  have  the  necessary 
printing  done  by  contract  the  same  may  be  done,  with  the 
approval  of  the  Secretary  of  War,  by  the  hire  of  the 
necessary  labor  for  the  purpose.1  Act  of  March  2,  1901 
(31  Stat.  Z.,  905). 

717.  No  contract  or  purchase  on  behalf  of  the  United    Purchases    of 

clothing. 

States  shall  be  made  unless  the  same  is  authorized  b^y  law  sec.3782,B.s. 
or  is  under  an  appropriation  adequate  to  its  fulfillment, 
except  in  the  War  and  Navy  Departments,  for  clothing, 
subsistence,  forage,  fuel,  quarters,  or  transportation, 
which,  however,  shall  not  exceed  the  necessities  of  the 
current  year. 

718.  That  the  Secretary  of  War  be,  and  he  is  hereby,  InSTesfr°m 
authorized  and  directed,  when  making  purchases  for  the  g  ^;  26%.172i! 

of  all  contracts  and  purchases  made  by  him  or  under  his  direction  during  the  year 
preceding;  and  so  much  of  the  act  of  July  5,  1884,  as  requires  the  Quartermaster- 
General  and  the  Commissary-General  of  Subsistence  to  report  all  purchases  made  by 
their  departments  with  the  cost  price  and  place  of  delivery  to  the  Secretary  of  War 
for  transmission  to  Congress  annually,  were  repealed  by  the  act  of  March  2,  1895 
(28  Stat.  L.,  787). 

1This  provision  replaces  a  requirement  which  had  been  embodied  in  the  several 
acts  of  appropriation  for  the  support  of  the  Army  since  that  of  June  30, 1886  (24  Stat. 
L.,  96).  This  enactment  was  suspended  by  the  acts  of  June  7, 1898  (30  Stat.  L.,  433), 
and  March  3, 1899  (ibid.,  1350),  subject  to  the  discretion  of  the  Secretary  of  War  and 
the  further  order  of  Congress,  until  March  1, 1899.  By  the  act  of  February  24, 1900 
(31  Stat.  L.,  32),  the  suspension  was  extended,  under  the  conditions  above  stated,  to 
June  30, 1901. 

22924—08 18 


274 


MILITARY    LAWS    OF    THE    UNITED    STATES. 


military  posts  or  service  on  or  near  Indian  reservations, 
to  purchase  in  open  market,  from  the  Indians  as  far  as 
practicable^  at  fair  and  reasonable  rates,  not  to  exceed  the 
market  prices  in  the  localities,  any  cattle,  grain,  hay,  fuel, 
or  other  produce  or  merchandise  they  may  have  for  sale 
or  which  may  be  required  for  the  military  service.  Sec.  h 
act  of  January  19,  1891  (26  Stat.  L.,  721). 

tradecers  not  to      ^^  ^°  °^cer  belonging  to  the  Quartermaster's  Depart- 

v  2Hp  T?2  1812>  men^  or  doing  the  duty  of  a  quartermaster  or  assistant 

Sec.  ii88,B.s.  quartermaster,  shall  be  concerned,  directly  or  indirectly, 

in  the  purchase  or  safe  of  any  article  intended  for  or 

appertaining  to   said   department  ^  of   service,  except  on 

account  of  the  United  States;  nor  shall  any  such  officer 

take  or  apply  to  his  own  use  any  gain  or  emolument  for 

negotiating  or  transacting  any  business  connected  with 

the  duties  of  his   office,  other  than  that  which  may  be 

allowed  by  law. 


TRANSPORTATION. 


Par. 

720.  Transportation  of  troops. 

721.  The  same,  officers  traveling  without 

troops;  transportation  in  kind. 

722.  The  same,  land-grant  roads. 

723.  Deduction  from  mileage  accounts. 

724.  The  same,  tables  of  distances. 


and 


Par. 

725.  Transportation   by   land-grant 

bond-aided  roads. 

726.  Procurement  of  means  of  transpor- 

tation. 

727.  Transportation  of  property  for  other 

departments  of  Government. 


TRANSPORTATION    OF   TROOPS. 


oarSSs°etction 


0.  The  transportation  of  troops,  munitions  of  war, 
.  equipments,  military  property,  and  stores  throughout  the 

c  United  States  shall  be  under  the  immediate  control  and 
>. 

supervision  of  the  Secretary  of  War  and  such  agents  as  he 
may  appoint.1 


xThe  transportation  of  organized  bodies,  or  detachments  of  troops  under  orders 
from  competent  authority  directing  travel  to  be  performed,  is  regulated  by  the  require- 
ments of  this  section,  as  modified  from  time  to  time  by  the  provisions  of  the  annual 
acts  of  appropriation  for  the  support  of  the  Army.  The  allowance  of  sleeping-car 
accommodation  to  officers  traveling  with  troops  is  regulated  by  the  following  require- 
ments of  General  Orders  No.  3,  A.  G.  O.,  of  1899: 

The  following  persons  are  entitled,  at  public  expense,  to  a  double  berth  in  a  sleep- 
ing car,  or  to  the  customary  stateroom  accommodations  on  steamers  where  extra 
charge  is  made  for  the  same:  Officers  of  the  Army  traveling  on  duty  with  troops; 
army  nurses,  civilian  clerks  and  agents  in  the  military  service,  when  traveling  under 
orders  on  public  business;  sergeant-majors,  ordnance,  commissary  (post  or  regi- 
mental), quarterm aster  (post  or  regimental),  and  electrician  sergeants,  hospital  stew- 
ards, chief  musicians,  chief  trumpeters,  principal  musicians,  and  sergeants  of  the 
Signal  Corps,  when  traveling  under  orders  on  public  business  without  troops;  also 
invalid  soldiers,  when  so  traveling  on  the  certificate  of  a  medical  officer  showing  the 
necessity  therefor. 

When  the  number  of  officers  traveling  with  troops  is  too  small  to  justify  the  hire 
by  the  Quartermaster's  Department  of  a  standard  sleeping  car  for  their  accommoda- 
tion, they  shall  be  furnished  with  such  part  of  a  tourist  sleeping  car,  or  other  suitable 
sleeping  car,  properly  curtained  off  for  their  accommodation,  as  the  Quartermaster's 
Department  may  provide  for  their  use  during  the  journey. 

For  statutes  respecting  the  allowance  and  payment  of  mileage  to  officers  traveling 


MILITARY    LAWS    OF    THE    UNITED    STATES.  275 

TRANSPORTATION   TO    OFFICERS    TRAVELING    WITHOUT   TROOPS. 

721.  Officers  who  so  desire  may,  upon  application  to  the  inTkf^Jportation 
Quartermaster's  Department,  be  furnished  with  transpor-  31^a^i' 1901>  v 
tation    requests,    exclusive    of    sleeping   and   parlor  car 
accommodations,  for  the  entire  journey  under  their  orders; 

without  troops  see  the  title  Travel  Allotvances  in  the  chapter  entitled  THE  PAY  DEPART- 
MENT. For  enactments  respecting  the  furnishing  of  actual  transportation  (exclusive 
of  sleeping  and  parlor  car  accommodations)  see  the  act  of  February  26,  1900  (31  Stat. 
L.,  210),  paragraphs  721  to  724,  post. 

REIMBURSEMENT    OF   CIVILIANS    FOR  TRAVELING    EXPENSES. 

The  transportation  of  civilian  employees  and  their  reimbursement  for  traveling 
expenses  are  controlled  by  the  following  paragraphs  of  the  Army  Regulations  of  1895: 

TRAVELING    EXPENSES.- 

For  authorized  journeys  of  civilian  employees  of  any  branch  of  the  military  serv- 
ice transportation  requests  will  be  obtained  when  practicable,  but  will  be  obtained  in 
every  case  for  travel  over  bond-aided  railroads.  Par.  813,  A.  R.,  1901. 

Reimbursement  of  actual  expenses  when  traveling  under  competent  orders  will  be 
allowed  under  the  following  heads,  to  civilians  in  the  employ  of  any  branch  of  the 
military  service,  excepting  the  expert  accountant  of  the  Inspector-General's  Depart- 
ment, paymasters'  clerks,  and  those  mentioned  in  the  next  succeeding  paragraph, 
viz: 

1.  Cost  of  transportation  (excluding  parlor-car  fare)  over  the  shortest  usually  trav- 
eled route,  when  it  was  impracticable  to  furnish  transportation  in  kind  on  transporta- 
tion requests. 

2.  Cost  of  transfers  to  and  from  railroad  stations,  not  exceeding  50  cents  for  each 
transfer. 

3.  Cost  of  one  double  berth  in  a  sleeping  car,  or  customary  state-room  accommo- 
dation on  boats  and  steamers  when  extra  charge  is  made  therefor. 

4.  Cost  of  meals,  not  exceeding  $3  per  day,  while  en  route,  when  meals  are  not 
included  in  the  transportation  fare  paid;  and  not  exceeding  $3  per  day  for  meals  and 
lodgings  during  necessary  delay  en  route. 

5.  Cost  of  meals  and  lodgings,  not  exceeding  $3  per  day,  while  on  duty  at  places 
designated  in  the  orders  for  the  performance  of  temporary  duty.     Par.  814,  ibid. 

Veterinary  surgeons  of  cavalry  regiments  traveling  under  proper  orders,  in  accord- 
ance with  paragraph  185,  are  not  entitled  to  reimbursement  under  the  fifth  heading 
above  given.  Par.  730,  A.  R.  1895. 

Laborers,  teamsters,  and  employees  of  similar  character,  traveling  under  compe- 
tent orders,  will  be  entitled  to  such  actual  and  necessary  expenses  of  travel  and  sub- 
sistence as  may  be  authorized  by  the  chief  of  bureau  which  pays  the  accounts. 
Those  in  receipt  of  a  ration  under  paragraph  1252  will  not  be  allowed  commutation 
therefor.  If  it  be  impracticable  for  them  to  carry  rations  in  kind,  rations  will  not 
be  drawn  for  the  period  during  which  they  are  traveling.  Par.  815,  A.  R.  1901. 

None  but  the  authorized  items  of  traveling  expenses  of  civilians  will  be  allowed. 
They  will  in  all  cases  be  set  forth  in  detail  in  each  voucher  for  reimbursement  sup- 
ported by  oath  and,  when  practicable,  by  receipts.  Par.  816,  ibid. 

Paymasters'  clerks  and  the  expert  accountant  of  the  Inspector-General's  Depart- 
ment, when  traveling  on  duty,  will,  when  transportation  in  kind  can  not  be  furnished 
by  the  Quartermaster's  Department,  be  reimbursed  for  cost  of  transportation  paid 
by  them,  exclusive  of  parlor  or  sleeping  car  fares  or  transfers,  and  will  receive  in 
addition  thereto,  for  all  travel  whether  or  not  on  transportation  requests,  4  cents 
per  mile  for  each  mile  necessarily  traveled  by  them  in  the  performance  of  duty — 
distance  to  be  computed  over  the  shortest  usually  traveled  route.  Par.  818,  ibid. 

Actual  traveling  expenses,  as  contemplated  in  the  preceding  paragraphs,  are  paid 
by  the  following  departments,  viz: 

Pay  Department. — To  paymasters'  clerks,  the  expert  accountant  of  the  Inspector- 
General's  Department,  civilians  summoned  as  witnesses  before,  and  authorized 
reporters  of,  military  courts. 

_  Ordnance  Department. — To  employees  at  arsenals  and  armories  (cost  of  transporta- 
tion included)  from  appropriations  for  the  service  of  the  Ordnance  Department. 

Engineer  ^Department. — To  employees  on  public  works  and  fortifications  (cost  of 
transportation  included)  from  appropriations  made  specifically  for  the  work. 

Quartermaster's  Department. — To  employees  of  the  Quartermaster' sand  Subsistence 


276 


MILITARY    LAWS    OF    THE    UNITED    STATES. 


and  the  transportation  so  furnished  shall  be  a  charge 
against  the  officers'  mileage  account,  to  be  deducted  at  the 
rate  of  three  cents  per  mile  by  the  paymaster  paying  the 
account,  the  amount  so  deducted  to  be  turned  over  to  the 
authorized  officer  of  the  Quartermaster's  Department  for 
the  credit  of  the  appropriation  for  transportation  of  the 

Departments,  and  other  employees  of  the  Army  not  above  provided  for.  Par.  819, 
ibid.  This  department  also  furnishes  transportation  to  maimed  soldiers,  etc.,  to 
enable  them  to  procure  artificial  limbs  (see  paragraphs  948  and  949,  post),  and  to 
soldiers  who  have  been  admitted  to  the  Soldiers'  Home. 

When  officers  of  the  staff  departments  change  station  the  transfer  of  clerks  or  other 
employees  to  the  new  stations  at  the  expense  of  the  United  States  is  prohibited,  except 
in  cases  of  urgent  necessity,  for  which  the  sanction  of  the  Secretary  of  War  will  first  be 
obtained.  The  Pay  Department  is  excepted  from  this  regulation.  Par.  820,  ibid. 

The  appropriation  for  the  transportation  of  the  Army  is  not  applicable  to  the  per- 
manent repair  of  a  public  highway  under  the  jurisdiction  of  a  State.  V  Compt. 
Dec.,  673. 

TRANSPORTATION    OP   BAGGAGE. 

In  changing  station  an  officer's  authorized  allowance  of  baggage  (a)  will  be  turned 
over  to  a  quartermaster  for  transportation  as  freight  by  ordinary  freight  lines,  unless 
otherwise  ordered  by  the  department  commander  or  higher  authority.  No  reim- 
bursement will  be  made  to  an  officer  who  under  such  circumstances  sends  packages 
by  express  or  ships  and  pays  for  the  transportation  of  his  baggage.  Par.  1118,  A.  R., 
1895. 

The  baggage  to  be  transported  at  public  expense,  including  mess  chests  and  personal 
baggage,  upon  change  of  station,  will  not  exceed  the  following  weights: 


Rank. 

• 

In  the 
field. 

Changing 
station. 

Major-general  

Pounds. 
1,000 

rounds. 
3  500 

Brigad  ler-general 

700 

2  800 

Field  officer  

500 

2,400 

Captain  ...              

200 

2  000 

First  lieutenant 

150 

1  700 

Second  lieutenant  and  veterinarian  .                                     .... 

150 

1,500 

Acting  assistant  surgeon 

150 

1  200 

Post  and  regimental  noncommissioned  staff  officer,  hospital  steward,  chief 
musician,  sergeant  of  the  Signal  Corps,  squadron  and  battalion  sergeant- 
majors  each 

500 

These  allowances  are  in  excess  of  the  weights  transported  free  of  charge  under  the 
regular  fares  by  public  carriers.  They  may  be  reduced  pro  rata  by  the  commanding 
officer,  if  necessary,  and  may,  in  special  cases,  be  increased  by  the  War  Department 
on  transports  by  water.  Shipments  of  officers'  allowance  of  baggage  will  in  all  cases 
be  made  at  carrier's  risk,  including  those  over  roads  where  tariffs  provide  for  extra 
charge  therefor.  Par.  1242,  A.  K.  1901. 

The  Quartermaster's  Department  will  transport  the  authorized  change  of  station 
allowance  of  baggage  and  professional  books  and  papers  for  officers  or  enlisted  men 
upon  retirement,  or  who  die  in  the  service,  from  their  last  duty  stations  to  such  placet: 
within  the  limits  of  the  United  States  as  may  be  the  homes  of  their  families,  or  as 
may  be  designated  by  their  legal  representatives  or  executors.  Par.  1243,  ibid. 

Transportation  of  change  of  station  allowance  of  baggage  is  authorized  for  such 
contract  surgeons  as  may  be  employed,  when  they  join  for  duty  under  the  first  order, 
and  also  on  return  to  their  homes  on  the  termination  of  their  contracts,  if  provided 
for  in  the  contracts.  Graduates  of  the  Military  Academy  and  officers  promoted  from 
the  ranks  will  be  furnished  with  transportation  for  field  allowance  of  baggage  on  their 
first  assignment  to  duty  as  commissioned  officers.  With  these  exceptions,  transpor- 
tation of  baggage  at  public  expense  is  not  authorized  for  officers  joining  for  duty  on 
first  appointment  to  military  service,  nor  upon  reinstatement  or  reappointment,  nor 
to  effect  transfers  from  one  company  or  regiment  to  another  at  the  request  of  parties 
transferred.  Officers  ordered  on  temporary  duty  and  officers  going  abroad  as  military 


aThe  term  "  baggage,"  in  the  military  sense,  and  as  used  in  statutes  relating  to  the  Army,  embraces 
almost  any  article  of  personal  property  which  does  not  exceed  in  weight  the  limit  prescribed  by  Army 
Regulations  or  general  orders.  3  Dig.  2d  Compt.  Dec.,  55. 


MILITAEY    LAWS    OF   THE    UNITED    STATES.  277 

Army  and  its  supplies.1     Act  of  March  2,  1901  (31  Stat. 
L.,901). 

722.  When  the  established  route  of  travel  shall,  in  whole  ro^nd'grant 
or  in  part,  be  over  the  line  of  any  railroad  company  which,    Ibid- 
by  law  or  agreement,  is  entitled  to  receive  only  fifty  per 
centum  of  the  compensation  earned  by  such  company  for 
transportation  services  rendered, the  United  States,  officers 
traveling  as  herein  provided  for  shall,  for  the  travel  over 
such  roads,   be  furnished  with  transportation   requests, 
exclusive  of  sleeping  and  parlor  car  accommodations,  by 
the  Quartermaster's  Department.1     Ibid. 

attaches  (a)  are  not  entitled  to  such  transportation.  An  officer  detailed  as  attache", 
however,  is  entitled  to  have  his  full  allowance  transported  from  the  post  he  leaves 
to  his  home,  or  to  the  nearest  convenient  place  of  storage,  and  upon  resuming  duty 
in  this  country  from  such  place  of  storage  to  his  post  of  duty.  While  on  journeys 
as  an  attache  the  cost  of  transporting  his  personal  baggage  can  not  be  paid  by  the 
Quartermaster's  Department.  (6)  Par.  1121,  A.  R.,  1895. 

The  Quartermaster's  Department  will  furnish  transportation  for  the  prescribed 
regimental  and  company  desks,  for  the  books,  papers,  and  instruments  of  staff  officers 
necessary  to  the  performance  of  their  duties,  and  for  the  medical  chests  of  medical 
officers;  also  for  the  professional  books  of  officers  changing  station,  officers  ordered 
home  for  retirement,  graduates  of  the  Military  Academy,  and  officers  joining  on  first 
appointment,  which  they  certify  belong  to  them  and  pertain  to  their  official  duties; 
also  the  professional  books  of  hospital  stewards  changing  station,  not  exceeding  two 
hundred  pounds  in  weight.  Invoices  of  packages  turned  over  to  the  shipping  officer 
will  be  accompanied  by  the  certificate  of  the  officer  as  to  character  of  books,  and  a 
certified  copy  will  be  attached  to  the  bill  of  lading  issued  at  the  initial  point  of  ship- 
ment. The  certificate  as  to  the  character  of  the  books  of  a  hospital  steward  will  be 
given  by  the  medical  officer  under  whom  he  last  served.  Par.  1245,  A.  R.,  1901. 

The  Quartermaster's  Department  will  transport,  for  officers  changing  station,  the 
number  of  horses  for  which  they  are  legally  entitled  to  forage,  and  an  attendant  to 
accompany  the  horses  when  necessary,  subject  to  the  following  restrictions: 

(1)  That  the  expense  paid  by  the  United  States  shall  not  exceed  $50  for  each 
horse  transported.     The  cost  of  such  shipment  will  be  ascertained  in  advance,  and 
if  found  to  exceed  $50  for  each  horse,  including  transportation  of  attendant,  if  any, 
the  excess  must  be  prepaid  by  the  owner,  who  must  also  pay  all  the  expenses  of  the 
attendant  other  than  his  transportation. 

(2)  That  the  horses  are  owned  by  the  officer  and  were  used  by  him  in  the  public 
service  at  the  station  from  which  he  is  ordered  to  move. 

(3)  The  horses  of  retired  officers  or  officers  ordered  to  their  homes  to  await  retire- 
ment, or  officers  ordered  on  recruiting  service  or  college  detail,  or  to  attend  schools 
of  instruction  as  student  officers,  or  to  effect  a  voluntary  transfer,  will  not  be  trans- 
ported at  public  expense.     Par.  1069,  A.  R.,  1895. 

The  Quartermaster's  Department  may  provide  transportation  of  baggage  for  enlisted 
men  traveling  under  orders  without  troops,  not  to  exceed  the  following  weights: 

Noncommissioned  officers pounds. .  100 

Privates  of  the  Hospital  Corps do 100 

Other  privates do 50 

This  allowance  will  accompany  each  man  on  the  conveyance  by  which  he  is  trans- 
ported, and  will  include  the  number  of  pounds  of  baggage  carried  free  on  the  passage 
ticket.  Par.  1224,  A.  R.,  1901. 

^his  statute  replaces  the  acts  of  February  12  (28  Stat.  L.,  657)  and  March  3, 1899 
(30  ibid.,  1068).  For  an  executive  interpretation  of  this  enactment  see  Circular  No. 
21,  A.  G.  0.,  of  1900;  for  a  decision  of  the  Comptroller  of  July  18,  1900,  see  Circular 
28,  A.G.O.,1900. 

a  A  military  attache  is  entitled  to  the  same  allowance  for  baggage  in  changing  his  station  in  a 
foreign  country  that  he  would  have  been  entitled  to  in  changing  his  station  in  the  United  States. 
V  Compt.  Dec.,  55. 

6  The  term  "  baggage,"  in  the  military  sense,  and  as  used  in  statutes  relating  to  the  Army,  embraces 
almost  any  article  of  personal  property  which  does  not  exceed  in  weight  the  limit  prescribed  by  Army 
Regulations  or  general  orders.  3  Dig.  2d  Compt.  Dec.,  55. 


278  MILITARY    LAWS    OF   THE    UNITED    STATES. 


723-  When  transportation  is  furnished  by  the  Quarter- 
master's Department,  or  when  the  established  route  of 
travel  is  over  any  of  the  railroads  above  specified,  there 
shall  be  deducted  from  the  officers'  mileage  account,  by  the 
paymaster  paying  the  same,  three  cents  per  mile  for  the 
distance  for  which  transportation  has  been  or  should  have 
been  furnished.1  Ibid. 
Tables  of  dts-  724.  Payment  and  settlement  of  mileage  accounts  of 

tances. 

ibid.  officers  shall  be  made  according  to  distances  computed 

over  routes  established,  and  by  mileage  tables  prepared 
by  the  Paymaster-General  of  the  Army  under  the  direction 
of  the  Secretary  of  War.  Ibid. 

TRANSPORTATION   BY    LAND-GRANT   AND   BOND-AIDED   RAILROADS. 


iand-|Sntroads!  725>  ^or  tne  payment  of  army  transportations  lawfully 
etMar  2  1901  v  ^ue  sucn  land-grant  railroads  as  have  not  received  aid  in 
P.  31,  907.  Government  bonds  (to  be  adjusted  in  accordance  with  the 

decisions  of  the  Supreme  Court  in  cases  decided  under 
such  land-grant  acts),  but  in  no  case  shall  more  than  fifty 
per  centum  of  full  amount  of  service  be  paid:  Provided, 
That  such  compensation  shall  be  computed  upon  the  basis 
of  the  tariff  or  lower  special  rates  for  like  transportation 
performed  for  the  public  at  large,  and  shall  be  accepted  as 
in  full  for  all  demands  for  such  service:  Provided  further, 
That  in  expending  the  money  appropriated  by  this  act,  a 
railroad  company  which  has  not  received  aid  in  bonds  of 
the  United  States,  and  which  obtained  a  grant  of  public 
land  to  aid  in  the  construction  of  its  railroad  on  condition 
that  such  railroad  should  be  a  post  route  and  military  road, 
subject  to  the  use  of  the  United  States  for  postal,  military, 
naval,  and  other  Government  services,  and  also  subject  to 
such  regulations  as  Congress  may  impose  restricting  the 
charge  for  such  Government  transportation,  having  claims 
against  the  United  States  for  transportation  of  troops  and 
munitions  of  war  and  military  supplies  and  property  over 
such  aided  railroads,  shall  be  paid  out  of  the  moneys 
appropriated  by  the  foregoing  provision  only  on  the  basis 
of  such  rate  for  the  transportation  of  such  troops  and 
munitions  of  war  and  military  supplies  and  property  as 
the  Secretary  of  War  shall  deem  just  and  reasonable  under 
the  foregoing  provision,  such  rate  not  to  exceed  fifty  per 

lrrhis  statute  replaces  the  acts  of  February  12  (28  Stat.  L.,  657)  and  March  3,  1899 
(30  ibid.,  1068).  For  an  executive  interpretation  of  this  enactment  see  Circular  No. 
21,  A.  G.  O.,  of  1900;  for  a  decision  of  the  Comptroller  of  July  18,  1900,  see  Circular 
28,  A.  G.  O.,  1900. 


MILITAEY   LAWS    OF   THE    UNITED    STATES.  279 

centum  of  the  compensation  for  such  Government  trans- 
portation as  shall  at  the  time  be  charged  to  and  paid  by 
private  parties  to  any  such  company  for  like  and  similar 
transportation;  and  the  amount  so  fixed  to  be  paid  shall 
be  accepted  as  in  full  for  all  demands  for  such  service, 
*  *  *  dollars.1  Act  of  March  2,  1901  (31  Stat.  Z., 
907). 

726.  Hereafter  all  purchases  of  horses,  mules,  or  oxen, 
wagons,  carts,  drays,  ships  and  other  seagoing  vessels, 
also  all  other  means  of  transportation,  shall  be  made  by 
the  Quartermaster's  Department,  by  contract,  after  due 
legal  advertisement,  except  in  cases  of   extreme  emer- 
gency.    Act  of  July  5,  1884  (23  Stat.  Z.,  110). 

727.  Hereafter  the  Quartermaster-General  and  his  offi-    pr°Perty  for 

^  Government  sur- 

cers,  under   his   instructions,   wherever    stationed,  shall yeys,  National 

Museum,  etc.,  to 

receive,  transport,  and  be  responsible  for  all  property  bej 
turned  over  to  them,  or  any  one  of  them,  by  the  officers  23>  P-  11(>- 
or  agents  of  any  Government  survey,  for  the  National 
Museum,  or  for  the  civil  or  naval  departments  of  the  Gov- 
ernment, in  Washington  or  elsewhere,  under  the  regula- 
tions governing  the  transportation  of  army  supplies,  the 
amount  paid  for  such  transportation  to  be  refunded  or  paid 
by  the  bureau  to  which  such  property  or  stores  pertain.3 
Act  of  July  5,  1884  (23  Stat.  Z.,  110). 


PUBLIC  ANIMALS;  VETERINARIANS. 


Par. 

731.  Draft  animals,  restriction. 

732.  The  same,  cavalry  horses. 

733.  Veterinarians. 


Par. 

728.  Draft  and  pack  animals,  restriction. 

729.  Purchases  of  animals  by  contract. 

730.  The    same,    cavalry    and    artillery 

horses. 

728.  The  number  of  draft  animals  purchased  from  this 
appropriation,  added  to  those  now  on  hand,  shall  be  lim- 
ited to  such  numbers  as  are  actually  required  for  the  serv-  £e  byrcontractto 
ice,  and  all  transportation  of  stores  by  private  parties  for 
the  Army  shall  be  done  by  contract,  after  due  legal  adver- 
tisement, except  in  cases  of  emergency,  which  must  be  at^^-P-907- 
once  reported  to  the  Secretary  of  War  for  his  approval. 
Acts  of  July  5, 1884  (®3  Stat.  L.,109);  March  2,  1901  (31 
ibid.,  907). 

'The  act  of  February  26,  1900  (31  Stat.  L.,  214),  contained  the  same  requirement. 

2  When  a  contract  provides  that  upon  the  arrival  of  a  train  the  Quartermaster's 
Department  shall  examine  the  stores,  and,  if  found  to  be  in  good  condition  and 
delivered  in  proper  time,  shall  so  indorse  the  bill  of  lading,  upon  which  payment 
shall  be  made,  it  will  be  presumed  that  such  a  certificate  was  made  and  given  when 
it  appears  that  the  contract  was  fully  performed.  Curtis  v.  U.  S.,  34  Ct.  Cls.,  5. 


280  MILITAEY    LAWS    OF   THE    UNITED   STATES. 

portltipon°ftoabe     729-  Hereafter  all  purchases  of  horses,  mules,  or  oxen, 
?racturedbyc°n ~  wa£°ns>  carts,  drays,  ships  and  other  seagoing  vessels,  also 
' 1884'  v' a^  °ther  means  of  transportation,  shall  be  made  by  the 
Quartermaster's  Department,  by  contract,  after  due  legal 
advertisement,  except  in   cases  of  extreme  emergency. 
Act  of  July  5,  1884  (%3  Stat.  Z.,  110). 

artuierlry  horses     "^*  Hereafter  all  purchases  of  horses,  under  appropria- 

b°y  cbontmctcu  ind  ^ons  *or  norses  f or  the  cavalry  and  artillery  and  for  the 

spjuTy°5'  1884  v  In^an  scouts,  shall  be  made  by  contract,  after  legal  adver- 

23,  p.  109.          tisement,    by   the   Quartermaster's    Department,    under 

instructions  from  the  Secretarv  of  War,  the  horses  to  be 

inspected  under  the  orders  of  the  general  commanding  the 

Army  and  no  horse  shall  be  received  and  paid  for  until 

duly  inspected.1    Act  of  July  5,  1884  (23  Stat.  Z.,  109). 

^Draft  animals.     73 j    Hereafter  no  part  of  this  appropriation  shall  be  ex- 

v  S26Pp  Hi  1888>  Pended  m  the  purchase  for  the  Army  of  draft  animals 

until  the  number  on  hand  shall  be  reduced  to  five  thousand. 

and  hereafter  shall  only  be  expended  for  the  purchase  of 

a  number  sufficient  to  keep  the  supply  up  to  five  thousand.2 

Act  of  September  %%,  1888  (25  Stat.  Z.,  486). 

m^Serofahorses     732-  The  number  of  horses  purchased  under  this  appro- 
*£v£eountedpriation,  added  to  the  number  on  hand,  shall  be  limited  to 
28fpb>  ^b!8Mar!  the  actual  needs  of  the  mounted  service;  and  unless  other- 
2^1901,  v.  si,  p.  wjge  ordered  by  the  Secretary  of  War  no  part  of  this 
appropriation  shall  be  paid  out  for  horses  not  purchased 
by  contract,  after  competition  duly  invited  by  the  Quar- 
termaster's   Department,    and    an    inspection    by    such 
Department,  all  under  the  direction  and  authority  of  the 
Secretary  of  War.     Act  of  March  2,  1901  (31  Stat.  Z., 
906). 

veterinarian^.  733,  Such  number  of  veterinarians  as  the  Secretary  of 
s.  20,  v.  si,'  p.  753.  War  may  authorize  shall  be  employed  to  attend  the 
animals  pertaining  to  the  Quartermaster's  or  other  De- 
partments not  directly  connected  with  the  cavalry  and 
artillery  regiments,  at  a  compensation  not  exceeding  one 
hundred  dollars  per  month.  Sec.  20,  Act  of  February  2, 
1901  (31  Stat.  Z.,  753). 

1  So  much  of  the  act  of  July  5,  1884,  as  requires  these  purchases  to  be  reported  to 
the  Secretary  of  War  for  transmission  to  Congress  was  repealed  by  the  act  of  March 
2,  1895  (28  Stat.  L.,  787). 

2  By  the  act  of  June  7,  1898  (30  Stat  L.,  433),  the  operation  of  this  statute  was  sus- 
pended, at  the  discretion  of  the  Secretary  of  War,  during  the  period  of  the  existing 
war;  by  the  act  of  March  3,  1899  (ibid.,  1350),  its  operation  was  further  suspended, 
at  the  discretion  of  the  Secretary  of  War  and  subject  to  the  further  discretion  of  Con- 
gress, until  March  1,  1900;  by  the  act  of  February  24,  1900  (31  Stat.  L.,  32) ,  the  sus- 
pension was  extended,  under  the  conditions  above  set  forth,  until  June  30,  1901. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  281 


BARRACKS   AND   QUARTERS. 


Par. 


Par. 


737.  Restriction  on  expenditures. 

738.  Quarters  in    kind^  to  be    furnished 

to  officers. 

739.  Absent  officers,  rights  of. 


734.  Permanent  barracks    and  quarters, 

construction. 

735.  Barracks  and  quarters  for  seacoast 

artillery. 

736.  Quarters  for  hospital  stewards. 

734.  Permanent  barracks  or  quarters  and  buildings  and 
structures  of  a  permanent  nature  shall  not  be  constructed  83MsaritV8n;  £ 
unless  detailed  estimates  shall  have  been  previously  sub-  43|^( 
mitted  to  Congress,  and  approved  by  a  special  appropria- 
tion for  the  same,  except  when  constructed  by  the  troops; 

and  no  such  structures,  the  cost  of  which  shall  exceed 
twenty  thousand  dollars,  shall  be  erected  unless  by  special 
authority  of  Congress.1 

735.  For  the  erection  of  barracks  and  quarters  for  artil-  ql*jgj£ !gr 
lery  in  connection  with  the  project  adopted  for  seacoasl 
defense  there  shall  not  hereafter  be  expended  at  any  one  81»  P-  624> 
point  more  than  one  thousand  two  hundred  dollars  per 

man  for  each  man  required  for  one  relief  to  man  the  guns 
at  the  post  up  to  eighty-three  men,  the  present  permanent 
strength  of  a  battery,  enlisted  and  commissioned,  and 
for  each  man  required  beyond  this  number  six  hundred 
dollars  per  man,  from  any  appropriation  made  by  Con- 
gress, unless  special  authority  of  Congress  be  granted  for 
a  greater  expenditure.2  Act  of  June  6, 1900  (31  Stat.  Z., 


736.  Hereafter  the  posts  at  which  such  quarters  [for 
hospital  stewards],  shall  be  constructed  shall  be  designated  arp|-b  27 1893  v 
by  the  Secretary  of  War,  and  such  quarters  shall  be  built27-  p>484> 

by  contract,  after  legal  advertisement,  whenever  the  same 
is  practicable.    Act  of  February  $7, 1893  (27  Stat.  L. ,  484). 

737.  Hereafter  no  expenditures  exceeding  five  hundred  pend?turesU  ex~ 
dollars  shall  be  made  upon  any  building  or  military  post, 

or  grounds  about  the  same,  without  the  approval  of  the  secretary  ofwar 
Secretary  of  War  for  the  same,  upon  detailed  estimates  pavements  ex- 
of    the    Quartermaster's  Department,  and    the  erection,  ^Feb^iSs.v. 
construction,  and  repairs  of  all  buildings  and  other  pub- 27>  p- 484> 
lie  structures  in   the  Quartermaster's  Department  shall, 

1  The  Quartermaster's  Department  alone  is  charged  with  the  duty  and  respon- 
sibility of  erecting  quarters.  Travers  v.  U.  S.,  5  Ct.  Cls.,  329. 

2 This  enactment  replaces  the  requirement  of  the  act  of  July  1,  1898  '(30  Stat.  L., 
629),  which  restricted  expenditures  on  artillery  posts  for  seacoast  defense  to  $60,000 
for  a  one-battery  post  and  $20,000  additional  for  each  additional  battery. 


282 


MILITARY    LAWS    OF    THE    UNITED    STATES. 


so  far  as  may  be  practicable,  be  made  by  contract,  after 
due  legal  advertisement.1  Act  of  February  27,  1893  (27 
Stat.  L.,484). 

kind  atotbeSfur1-     ?38.  At  all  posts  and  stations  where  there   are  public 

ntehed    to  offi-  quarters  belonging  to  the  United  States,  officers  may  be 

I8??v92oupei44  furnished  with  quarters  in  kind  in  such  public  quarters, 

and  not  elsewhere,  by  the  Quartermaster's  Department, 

assigning  to  the  officers  of  each  grade,  respectively,  such 

number  of  rooms2  as  is  now  allowed  to  such  grade  by  the 

rules  and  regulations  of  the  Army.3     Sec.  £,  act  of  June 

17,  1878  (W  Stat.  Z.,  144)- 

1  This  requirement  has  appeared  in  the  several  acts  of  appropriation  since  that  of 
1884. 

2  For  rules  respecting  the  allowance  and  assignment  of  quarters  at  military  posts, 
see  paragraphs  1088-1100  Army  Regulations  of  1901. 

LOCKERS. 

The  Quartermaster's  Department  will  provide  in  all  permanent  barracks  a  box 
locker  for  each  enlisted  man  for  his  uniform  and  extra  clothing.  Each  man  will 
provide  his  own  lock.  Par.  1085,  ibid. 

3  The  following  table  shows  the  number  of  rooms,  the  quantity  of  fuel,  and  the 
allowance  of  cooking  and  heating  stoves  to  be  supplied  for  the  use  of  officers  and  men 
in  quarters  and  barracks: 


Increased 

Cords 

allowance 

Rooms. 

of  wood 
per 

from  Sep- 
tember to 

quar- 

of- 

month. 

April,  both 

nee. 

inclusive. 

. 

ij 

1 

i 

bis 

£ 

So 

s? 

£ 

5 

n£ 

•8  . 

s 

a 

2 

rH 

§| 

4 

•^ 

B 

' 

't 

I 
i 

i 

5 

f. 

™B 

qj  tS 

"8 

| 

1 

f 

? 
< 

o 

V. 

Id 

1 

1  . 
TO 

i 

35 

I 

1 
H 

A  lieutenant-general  or  major-general 

1 

\ 

1 

... 

1 
l 

5 
4 

p 

it 

I 

4 

1 

1 

- 

A  lieutenant-colonel  or  major 

1 

1 

JH 

t 

jt 

8 

1 

A  captain  or  chaplain 

•> 

1 

f 

i 

2 

1 

A  lieutenant                                           

1 

1 

i 

2 

1 

t 

1 

1 

The  Commanding  General  of  the  Army 

i 

3 
2 

1 

1 

i 
t 

3 

2 

1 

The  commanding  officer  of  a  territorial  department 

The  aids  to  the  commanding  officer  of  a  territorial  depart- 
ment 

1 

An  assistant  or  deputy  quartermaster-general,  an  assistant 
commissary-general  of  subsistence,  an  assistant  surgeon- 

general,  the  assistant  and  deputy  paymaster-general,  and 
the  chief  quartermaster  and  chief  commissary  at  the 

2 

2 

1 

i 

The  commanding  officer  of  a  regiment  or  post,  or  .paymas- 
ter, quartermaster,  assistant  quartermaster,  commissary, 
and  military  storekeeper  eacn                             

1 

1 

1 

An  assistant  adjutant-general,  an  Inspector-general,  an 
acting  inspector-general,  an  engineer  officer,  (a)  an  ord- 
nance officer,  (a)  a  signal  officer,  a  judge-advocate  or  an 
acting  judge-advocate,  and  the  senior  medical  officer, 
when  stationed  on  duty  as  any  place  not  in  the  field,  (a) 
each  .  .                                                         

1 

1 

i 

1 

a  Except  at  Military  Academy. 


MILITAEY    LAWS    OF    THE    UNITED    STATES. 


283 


to 


739.  Hereafter  officers  temporarily  absent  on  duty  in  the 
field  shall  not  lose  their  right  to  quarters,  or  commutation  JJj 
thereof,  at  their  permanent  station  while  so  temporarily  q™5f  S  um  v 
absent.      A&  of  February  27,  1893  (27  Stat.  L.,  4-78}.          27-P-  " 

[Footnote  «— Continued.] 


Rooms. 

Cords 
of  wood 
per 
month. 

Increased 
allowance 
from  Sep- 
tember to 
April,  both 
inclusive. 

For 
quar- 
ters. 

For 
of- 
fice. 

i 

i 

i 

w 

As  quarters. 

As  kitchen. 

|  As  office. 

From  May  1  to  Aug.  31. 

From  Sept.  1  to  Apr.  30. 

Between  36th  and  43d  deg. 
N.  latitude,  one-fourth. 

0! 
d 

9 

$ 

"S 

rr1  *O 

32  *^ 
"*  A 

*o 

A 

1 

Heating  stoves. 

Cooking  stoves  or  ranges. 

An  acting  assistant  quartermaster,  an  acting  commissary 
of  subsistence,  an  adjutant,  when  approved  by  the  Quar- 

1 

1 
1 

i 

2 
i 
3 
2 

1 

i 

i 
i 

A 

i 
& 

I 

* 
i 

A 

* 

* 

A 

» 

A 
i 

J 

* 

A 

1 

A  sergeant-major,  quartermaster-sergeant,  sergeant  of  the 
post  noncommissioned  staff,  hospital  steward,  veterinary 
surgeon,  signal  sergeant;  (a)  a  regimental,  squadron,  and 
battalion  so  want-major,  quartermaster-sergeant,  ser- 
geant o*  the  post  noncommissioned  staff,  hospital  stew- 
ard, and  chief  musician  and  enlisted  men  of  the  signal 
corps  when  employed  as  signal  sergeants,  each  

1 

1 

& 

i 
A 

1 

Superintendent  national  cemetery 

1 

Each  noncommissioned  officer,  musician,  private,  and  hos- 
pital matron 

Each  necessary  fire  for  thesick  in  hospital,  each  dispensary 
and  hospital  mess  room,  at  a  military  post  or  station,  to 
be  regulated  by  the  surgeon  and  commanding  officer,  not 

exceeding 

1 

Kor  ^neral  hospitals,  when  necessary,  not  exceeding,  for 
each  bed 

Each  guard  fire,  to  be  regulated  by  the  commanding  officer, 

1 
1 
1 

Each  necessary  fire  for  military  courts  or  boards,  at  a  rate 

Storehouse  of  commissary  and  quartermaster,  whenneces- 

Each  employee  of  the  Quartermaster's,  Subsistence,  or 
Medical  Department  to  whom  subsistence  in  kind  is 

A 

For  library,  reading  room,  schoolroom,  chapel,  and  gym- 
nasium, 1  healing  stove  for  each,  and  when  the  garrison 
exceeds  150  enlisted  men,  2  heating  stoves,  and  such 
quantity  of  fuel  for  the  same  as  may  be  certified  to  as 
necessary  by  the  officers  in  charge  and  approved  by  the 
commanding  officer 

For  a  company:  2  large  stoves  in  dormitory,  1  large  stove 
in  each  mess  room  and  day  room,  1  small  stove  for  each 
of  the  two  rooms  for  noncommissioned  officers,  1  small 
stove  for  the  library,  and  1  cooking  stove  or  range  suffi- 
cient to  cook  its  food 

1 

For  each  authorized  room  as  quarters  for  civilian  em- 

1 

For  each  six  civilian  employees  to  whom  fuel  is  allowed 

1 

For  me^s  of  civilian  employees 

1 

1 

1 

i 

a  Except  when  serving  in  a  detachment. 


Par.  1006,  A.  K.,  1895. 


284  MILITARY    LAWS    OF    THE    UNITED    STATES. 

FUEL    AND    FORAGE. 

fuei^nd^orage1  "^§  Allowance  of  or  commutation  for  fuel  to  commis- 
isfl c\\oup ei5o si°ne(l  officers  is  hereby  prohibited;  but  fuel  may  be 
furnished  to  the  officers  of  the  Army  by  the  Quartermas- 
ter's Department,  for  the  actual  use  of  such  officers  only, 
at  the  rate  of  three  dollars  per  cord  for  standard  oak  wood, 
or  at  an  equivalent  rate  for  other  kinds  of  fuel,  according 
to  the  regulations  now  in  existence;  and  forage  in  kind 
may  be  furnished  to  the  officers  of  the  Army  by  the  Quar- 
termaster's Department,  only  for  horses  owned  and  act- 
ually kept  by  such  officers  in  the  performance  of  their 
official  military  duties  when  on  duty  with  troops  in  the 
field  or  at  such  military  posts  west  of  the  Mississippi 
River,  as  may  be  from  time  to  time  designated  by  the  Sec- 
retary of  War,  and  not  otherwise  as  follows : 

To  the  General,  five  horses; 

To  the  Lieutenant-General,  four  horses; 

To  a  major-general,  three  horses; 

To  a  brigadier-general,  three  horses; 

To  a  colonel,  two  horses; 

To  a  lieutenant-colonel,  two  horses; 

To  a  major,  two  horses; 

To  a  captain  (mounted),  two  horses; 

To  a  lieutenant  (mounted),  two  horses; 

To  an  adjutant,  two  horses; 

To  a  regimental  quartermaster,  two  horses.1     Sec.  8,  act 
of  June  17,  1878  (20  Stat.  Z.,  150). 
NO  discrimina-     741.  There  shall  be  no  discrimination  in  the  issue  of 

tion    to    officers  .  .  .         _T. 

serving  east  of  rorage  against  otncers  serving   east   01   the   Mississippi 
River.   "  River,  provided  they  are  required  by  law  to  be  mounted, 

Feb.  24, 1881,  v.  J  J.  _    —, ,' 

21,  p.  347.  and  actually  keep  and  own  their  animals.     Act  oj  Feb- 

ruary 24,  1881  (21  Stat.  Z.,  347). 

1This  statute,  which  replaces  section  1271,  Revised  Statutes,  contains  the  added 
condition  that  horses  shall  not  only  be  "actually  kept"  but  "owned"  by  officers  in 
the  performance  of  their  military  duties. 

The  right  conferred  upon  officers  of  the  Army  by  the  act  of  June  18,  1878  (20  Stat. 
L.,  150),  to  purchase  fuel  for  their  actual  use  only,  in  the  manner  and  at  the  terms 
prescribed  by  said  act,  pertains  to  all  officers  of  the  Army,  irrespective  of  the  nature 
of  the  duties  upon  which  they  are  engaged.  No  part  of  the  cost  of  fuel  so  sold  is 
properly  chargeable  to  the  appropriation  for  any  public  work,  unless  provision  is 
expressly  made  therein  for  such  cost.  3  Dig.  2d  Compt.  Dec. ,  par.  655.  For  allow- 
ances of  fuel  as  established  by  regulation,  see  table  in  note  5  to  par.  738,  ante. 

The  forage  ration  for  a  horse  is  14  pounds  of  hay  and  12  pounds  of  oats,  corn,  or 
barley;  for  a  mule,  14  pounds  of  hay  and  9  pounds  of  oats,  corn,  or  barley.  Depart- 
ment commanders  will  reduce  the  forage  ration  when  necessary.  Par.  1154,  A.  R., 
1901. 

One  hundred  pounds  of  straw  per  month  is  allowed  for  bedding  to  each  horse  or 
mule  in  public  service.  At  posts  where  straw  is  not  furnished,  hay  will  be  issued 
and  used  for  bedding.  Par.  1162,  ibid. 

Forage  is  furnished  only  to  officers  for  the  horses  owned  and  actually  kept  by  them 


MILITARY    LAWS    OF   THE    UNITED    STATES. 


285 


WORKING    PARTIES    AND   EXTRA-DUTY   PAY. 


Par. 

742.  Rates. 

743.  Details  to  be  in  writing. 

744.  The  same,  by  whom  made. 


Par. 

745.  Rates  of  pay. 

746.  Restriction  in  time  of  war. 

747.  The  same  in  insular  possessions. 


742.  When  soldiers  are  detailed  for  employment  as  artifi-  rafef  of  payUty; 
cers  or  laborers  in  the  construction  of  permanent  military  ^" 
works,  public  roads,  or  other  constant  labor  of  not  less  f's 
than  ten  days'  duration,  they  shall  receive,  in  addition  tojf* 
their  regular  pay,  the  following  compensation  :  [Fifty  cents  ^ 
per  day  for  mechanics,  artisans,  school-teachers,  and  thirty- 
five  cents  per  day  for  other  clerks,  teamsters,  laborers,  and 
others.]     This  allowance  of  extra  pay  shall  not  apply  to 
the  troops  of  the  Ordnance  Department. 


in  the  performance  of  their  official  duties  when  serving  with  troops  in  the  field  or 
at  military  posts  and  stations  and  for  the  following  number:  To  a  lieutenant-general, 
four,  to  a  major-general  or  a  brigadier-general,  three;  to  a  colonel,  lieutenant-colonel, 
major,  captain,  or  lieutenant,  mounted,  and  regimental  adjutant  and  quartermaster, 
each  two.  Par.  1157,  ibid. 

Mounted  officers  will  not  use  public  horses  and  at  the  same  time  draw  forage  for 
those  they  own;  nor  will  they  use  public  animals  except  as  authorized  by  regula- 
tions. Should  circumstances  render  it  necessary,  an  officer  may  be  temporarily  fur- 
nished public  horses,  but  during  such  period  he  will  not  be  permitted  to  draw  forage 
for  a  private  horse.  Par.  1158,  ibid. 

An  officer  not  mounted  may  purchase  forage  for  two  horses  kept  for  his  own  use, 
for  which  he  will  be  charged'  cost,  including  transportation.  The  sale  of  forage  to 
mounted  officers  is  forbidden.  Par.  1159,  ibid. 

For  a  case,  in  which  certain  officers  of  the  Army  were  ordered  by  the  Secretary  of 
War  to  make  restitution  to  the  United  States  of  certain  sums  of  money  representing 
quantities  of  fuel  which  had  been  consumed  by  them  without  being  paid  for  as 
required  by  law,  see  Gen.  Court-martial  Orders  No.  85,  War  Dept,  of  1882. 

1  WORKING    PARTIES  —  EXTRA    AND    SPECIAL   DUTY   MEN. 

Troops  will  not  be  employed  in  labors  that  interfere  with  their  military  duties 
except  in  cases  of  necessity.  Par.  181,  A.  R.,  1901. 

Enlisted  men  detailed  to  perform  specific  services  which  remove  them  temporarily 
from  the  ordinary  duty  roster  of  the  organization  to  which  they  belong  will  be 
reported  on  extra  duty  if  receiving  increased  compensation  therefor,  otherwise,  on 
special  duty.  They  will  not  be  placed  on  extra  duty,  except  as  bakers  or  to  perform 
the  necessary  routine  services  in  the  Quartermaster's  and  Subsistence  Departments, 
without  the  sanction  of  the  department  commander,  nor  will  they  be  employed  on 
extra  duty  for  labor  in  camp  or  garrison  which  can  be  properly  performed  by  fatigue 
parties.  Allotments  of  funds  for  the  payment  of  extra-duty  men  at  department 
headquarters  and  depots  under  the  control  of  department  commanders  will  be  made 
only  with  the  approval  of  the  Secretary  of  War.  Duty  of  a  military  character  must 
be  performed  without  extra  compensation.  Par.  164,  A.  R.,  1895. 

The  provisions  of  section  6  of  the  act  approved  April  26,  1898,  abolishing  extra- 
duty  pay  in  time  of  war,  applies  to  enlisted  men  in  every  department  of  the  Army, 
and,  as  war  existed  when  the  act  was  passed,  enlisted  men  ceased  to  be  entitled  to 
extra-duty  pay  upon  the  date  of  its  approval.  Circular  15,  A.  G.  O.,  1898.  See,  also, 
G.  O.  77,  A.  G.  O.,  1898. 

The  detail  of  a  noncommissioned  officer  on  extra  duty  other  than  that  of  overseer 
will  not  be  made  without  the  approval  of  the  Secretary  of  War.  A  noncommissioned 
officer  will  not  be  detailed  on  any  duty  inconsistent  with  his  rank  and  position  in  the 
military  service.  Par.  166,  A.  R.,  1895. 

Company  artificers,  farriers,  blacksmiths,  saddlers,  and  wagoners  will  not  receive 
extra-duty  pay  unless  detailed  on  extra  duty  in  the  Quartermaster's  Department, 
wholly  disconnected  from  their  companies.  Par.  186,  A.  R.,  1901. 

Soldiers  on  extra  duty  will  be  paid  the  extra  rates  of  pay  allowed  by  law  for  the 


286  MILITARY    LAWS    OF    THE    UNITED    STATES. 

writing8  tobein      743<  Working  parties  of  soldiers  shall  be  detailed  for 

i76Usy^3V^u'p'  employment  as  artificers  or  laborers,  in  the  construction  of 

98$er..i285,K.s.  permanent  military  works  or  public  roads,  or  in  other  con- 

stant labor  only  upon  the  written  order  of  a  commanding 

officer,  when  such  detail  is  for  ten  or  more  days. 

fle?l-tiiowimadet      "^'  Details  to  special  service  from  forces  in  the  field 
> 


*sa353>v18i2'  c'  s^a^  ^e  made  only  with  the  consent  of  the  commanding 

7.i2l6,Bl  officer  of  the  forces- 

dmfplyfextra~  745>  Extra-duty  pay  hereafter  shall  be  at  the  rate  of 
23Julyno  1884'  v'  -fr^ty  cents  per  day  for  mechanics,  artisans,  school  teachers, 
and  clerks  at  Army,  division,  and  department  headquar- 
ters, and  thirty  -five  cents  per  day  for  other  clerks,  team- 
sters, laborers,  and  others.1  Act  of  July  5,  1884  (23  Stat. 
L.,110.) 

ttaufofwa?1  in      7^'  ^n  war  ^me  no  a(^ditional  increased  compensation 

isfs  v  3opr'  365  s^a^  ^e  allowed  to  soldiers  performing  what  is  known  as 

'extra  or  special  duty.     Sec.  6,  act  of  April  26,  1898  (30 

Stat.  L.,  365}. 

MaeJari9oo  v      ^'  Enlisted  men  receiving  or  entitled  to  the  twenty 

31,  p.  211!  per  centum  increased  pay  herein  authorized  shall  not  be 

entitled  to  or  receive  any  additional  increased  compensa- 

tion for  what  is  known  as  extra  or  special  duty.     Act  of 

May  26,  1900  (31  Stat  L., 


duty  performed  and  for  the  exact  number  of  days  employed;  and  no  greater  number 
of  men  will  be  emyloyed  on  extra  duty  at  any  time  than  can  be  paid  the  full  legal 
rates  for  the  time  employed  from  the  funds  provided.  Payments  made  in  violation 
of  the  above  rules  will  be  charged  against  the  officers  who  ordered  the  details.  Par. 
187,  ibid. 

Extra-duty  men  will  be  held  to  such  hours  of  labor  as  may  be  expedient  and  nec- 
essary; but,  except  in  case  of  urgent  public  necessity,  as  in  military  operations,  eight 
hours  will  be  considered  a  day's  work.  For  all  hours  employed  beyond  that  num- 
ber the  soldier  will  receive  additional  compensation  —  the  extra  hours  being  computed 
as  fractions  of  a  day  of  eight  hours'  duration.  Par.  189,  ibid. 

Details  of  enlisted  men  for  extra  and  special  duty  will  be  limited  to  actual  neces- 
sities, which  will  be  determined  by  post  commanders  in  accordance  with  limits  pub- 
lished in  orders  from  the  War  Department.  Allotments  to  posts  of  funds  for  extra- 
duty  pay  are  made  by  department  commanders  from  allotments  made  to  depart- 
ments for  the  purpose,  and  must  not  be  exceeded  without  special  authority  from 
department  commanders.  Par.  190,  ibid. 

^  Enlisted  men  of  the  several  staff  departments  are  not  entitled  to  extra-duty  pay 
for  services  rendered  in  the  department  to  which  they  belong.  To  entitle  them  to 
such  compensation  they  must  be  detailed  by  competent  orders  and  must  have  per- 
formed duty  in  another  department  than  that  in  which  they  are  enlisted.  Under 
existing  orders  enlisted  men  of  the  Ordnance  Department  are  entitled  to  extra-duty 
pay  when  performing  duty  in  the  Quartermaster's  Department.  Circular  II,  A.  G. 
O.,  1886;  I,  ibid,  1887,  and  par.  185,  A.  R.,  1901. 

Clerical  services  at  Army,  division,  and  department  headquarters  have,  since  the 
act  of  July  29,  1886  (24  Stat.  L.,  167),  been  performed  by  a  corps  of  general-service 
clerks  and  messengers.  By  the  act  of  August  6,  1894,  this  force  ceased  to  exist  as  a 
part  of  the  enlisted  strength  of  the  Army. 

The  act  of  March  15,  1898  (30  Stat.  L.,  323),  and  prior  acts  of  appropriation  fix 
the  sum  that  may  be  expended  for  the  pay  of  extra-duty  men  at  $200,000  per  annum; 
they  also  contain  the  requirement  that  "no  payment  of  extra-duty  pay  shall  be 
made  at  any  greater  rate  per  day  than  is  fixed  by  law  for  the  class  of  persons 
employed  and  the  work  done  therein." 


MILITARY    LAWS    OF    THE    UNITED    STATES.  287 

CIVILIAN   EMPLOYEES. 

748.  The  number  of  and  total  sum  paid  for  civilian  em-  ei^pefoymeSt.  °n 
ploy ees  in  the  Quartermaster's  Department,  including  those  31Mpar^  1901»v- 
paid  from  the  funds  appropriated  for  regular  supplies, 
incidental  expenses,  barracks  and  quarters,  army  trans- 
portation, clothing,  camp  and  garrison  equipage,  shall  be 
limited  to  the  actual  requirements  of  the  service,  and  no 
employee  paid  therefrom  shall  receive  a  salary  of  more 
than  one  hundred  and  fifty  dollars  per  month,  except  upon 
the  approval  of  the  Secretary  of  War.1     Act  of  March  %, 
1901(31  Stat.  L., 906}. 

CLOTHING. 


Par. 

754.  Uniforms  not  to  be  sold. 

755.  Selling,  spoiling,  etc.,  clothing. 

756.  -Altering  clothing. 

757.  Restriction,  cost  of  altering. 


Par. 

749.  President  to  prescribe. 

750.  Gratuitous  issues. 

751.  Returns  and  accounts. 

752.  Clothing  allowances. 

753.  Clothing  balances. 

749.  The  President  may  prescribe  the  uniform  of  the  ^^£3 b°the 
Army  and  quantity  and  kind  of  clothing  which  shall  be  Prjsird 24*1816  c 
issued  annually  to  the  troops  of  the  United  States.  69sec?i296PB29!' 

750.  The  Secretary  of  War  may,  on  the  recommendation  su^atuitous  is" 
of  the  Surgeon-General,  order  gratuitous  issues  of  clothing  r™Al$  v2'^868' 
to  soldiers  who  have  had  contagious  diseases,  and  to  hospi-  2^c  j298  B  g 
tal  attendants  who  have  nursed  them,  to  replace  any  arti- 
cles of  their  clothing  destroyed  by  order  of  the  proper 

medical  officers  to  prevent  contagion.8 

JThe  act  of  March  3,  1885  (23  Stat.  L.,  359),  restricted  the  number  of  civilian 
employees  in  this  Department  to  1,000;  the  act  of  February  12,  1895  (28  ibid.,  661), 
restricted  the  payments  for  the  services  of  civilian  employees  to  $1,000,000,  and  pro- 
vided that  no  employee  should  receive  as  salary  more  than  $150  per  month  without 
the  specific  authority  of  law. 

The  amount  to  be  expended  for  the  payment  of  civilian  employees  was  fixed  at 
$1,600,000  by  the  act  of  March  3,  1883  (22  Stat.  L.,  459);  at  $1,500,000  by  the  acts  of 
July  5,  1884  (23  Stat.  L.,  Ill),  March  3,  1885  (23  Stat.  L.,  360),  and  June  30,  1886 
(24  Stat.  L.,  98);  at  $1,300,000  by  the  acts  of  February  9,  1887  (24  Stat.  L.,  399), 
September  22,  1888  (25  Stat.  L.,  486),  March  2,  1889  (25  Stat.  L.,  830),  June  13, 1890 
(26  Stat.  L..  154),  and  February  24,  1891  (26  Stat.  L.,  776);  at  $1,200,000  by  theacts 
of  July  16,  1892  (27  Stat.  L.,  180),  and  February  27,  1893  (27  Stat,  L.,  484);  at 
$1,100,000  by  the  act  of  August  6,  1894  (28  Stat.  L.,  240),  and  at  $1,000,000  by  the 
acts  of  February  12,  1895  (28  Stat,  L.,  661),  March  16,  1896  (29  Stat.  L.,  66),  March 
2,  1897  (ibid.,  614),  and  March  15,  1898  (30  ibid.,  323);  by  the  acts  of  June  7,  1898, 
(30  ibid.,  433),  March  3,  1899  (ibid.,  1350),  and  February  24.  1900  (31  ibid.,  32),  the 
restrictions  imposed  in  the  statutes  above  referred  to  were  suspended,  in  the  discretion 
of  the  Secretary  of  War  or  subject  to  the  further  order  of  Congress,  until  June  30, 1901. 

2  GRATUITOUS    ISSUES. 

Gratuitous  issues  of  clothing  may  be  made,  under  the  provisions  of  section  1298, 
Revised  Statutes,  to  replace  articles  destroyed  to  prevent  the  spread  of  contagious 
diseases.  Par.  1319,  A.  R.,  1901. 

Should  it  become  necessary  to  issue  new  clothing  for  use  in  the  burial  of  a  deceased 


288  MILITARY    LAWS    OF    THE    UNITED    STATES. 

ACCOUNTABILITY    FOR    CLOTHING. 

ciofh?ngBand     ^1.  Every  officer  who  receives  clothing  or  camp  equi- 
*26  c  Pa£e  ^or  ^ne  use  °^  ^^s  command,  or  for  issue  to  the  troops, 


Febi877v  render  to  the  Quartermaster-General,  at  the  expira- 

29'  i89424v;  2sap'  ti°n  °^  eacn  re8'ular  quarter  of  the  year,  quarterly  returns 
4?Sec  1221  R  s  °^  sucn  supplies,  according  to  the  forms  which  may  be 

prescribed,  accompanied  by  the  requisite  vouchers  for  any 

issues  which  shall  have  been  made.1 

clothing  ai-  752.  The  money  value  of  all  clothing  overdrawn  by  the 
c  is^ss  2?%  ^4'  s°ldier  beyond  his  allowance  shall  be  charged  against  him, 
P,wP8;  Ji?y  *o'  every  six  months,  on  the  muster  roll  of  his  company,  or  on 

lo/^i,    C.   lol,   S.  o, 

v<c17'  $•*•'•»  B  his  final  statements  if  sooner  discharged,  and  he  shall  re- 

sec.iauz,  K.  ».       t  L       ''  •  i  i  •  i 

ceive  pay  for  such  articles  of  clothing  as  have  not  been 
issued  to  him  in  any  year,  or  which  may  be  due  to  him  at 
the  time  of  his  discharge,  according  to  the  annual  estimated 
value  thereof.  The  amount  due  him  for  clothing,  when 
he  draws  less  than  his  allowance,  shall  not  be  paid  to  him 
until  his  final  discharge  from  the  service.1 

soldier,  as  in  the  case  of  a  man  who  dies  away  from  his  proper  command  and  under 
circumstances  rendering  such  issues  imperatively  necessary,  the  expense  of  the  issue 
will  be  borne  by  the  United  States,  and  the  clothing  will  be  dropped  from  the  returns 
of  the  issuing  officer  on  the  orders  of  the  commanding  officer,  which  must  recite  the 
necessity  for  the  issue.  Par.  1320,  ibid. 

Where  the  clothing  of  certain  enlisted  men  of  volunteers  was  destroyed  near  San- 
tiago, Cuba,  in  1898,  by  order  of  the  proper  military  authority,  on  account  of  having 
been  exposed  to  contagion,  and  replaced  by  new  clothing  which  was  charged  to  the 
enlisted  men  receiving  it  on  their  clothing  accounts,  it  was  decided  by  the  Comp- 
troller of  the  Treasury,  November  28,  1900,  that  the  issue  was  proper  under  the 
circumstances  of  the  case,  and  that  the  charges  therefor  in  the  clothing  accounts  were 
erroneous  and  should  be  canceled.  Circular  No.  51,  A.  G.  O.,  1900. 

1 A  table  showing  the  price  of  clothing  and  equipage  for  the  Army,  the  allowance 
of  clothing  in  kind  to  each  soldier  for  each  year  of  his  enlistment,  and  his  clothing 
money  allowance  for  each  year  and  day  thereof,  also  the  allowance  of  equipage  to 
officers  and  enlisted  men,  will  be  published  in  orders.  Par.  1286,  A.  R.,  1901. 

Each  soldier's  clothing  account  will  be  kept  by  the  company  or  detachment 
commander  in  the  company  clothing  book.  The  account  will  show  the  money 
value  of  the  clothing  received  by  the  soldier  at  each  issue,  and  his  receipt  therefor 
will  be  taken  in  the  book.  Par.  1303,  ibid. 

Company  and  detachment  commanders  will  settle  the  clothing  account  of  every 
enlisted  man  of  their  respective  commands  six  months  after  the  date  of  his  enlist- 
ment, and  thereafter  on  June  30  and  December  31  of  each  year.  The  entire  amount 
found  due  the  United  States  for  the  periods  embracing  the  dates  of  settlement  will 
be  charged  to  the  soldier  upon  the  pay  rolls.  The  money  allowance  of  clothing  for 
the  first  year  will  be  allotted  by  half  years.  Par.  1304,  ibid. 

The  balance  due  the  soldier  at  either  of  these  dates  will  be  credited  to  him  upon 
the  company  clothing  book.  It  will  not  be  placed  upon  the  pay  rolls,  but  the  final 
balance  due  at  date  of  discharge  will  be  entered  upon  his  final  statements.  In 
case  of  transfer  the  balance  due  the  soldier  or  the  United  States  will  be  entered  on 
the  descriptive  list.  All  balances  of  this  character  will  be  stated  in  words  and 
figures.  Par.  1305,  ibid. 

The  clothing  account  of  a  soldier  who  deserts  should  be  settled  in  full  to  the  date 
of  desertion.  The  balance  due  him  or  the  United  States  will  be  entered  on  the 
next  pay  rolls  after  date  of  desertion.  The  amount  due  the  United  States  or  the 
soldier  at  date  of  desertion  should  be  ascertained  by  crediting  the  soldier  with 
clothing  allowance  from  date  of  last  clothing  settlement  to  the  date  of  desertion 
(excluding  the  day  of  desertion)  and  debiting  him  with  the  money  value  of  all  cloth- 


MILITARY    LAWS    OF    THE    DOTTED    STATES.  289 


763.  The  amounts  of  deposits  and  clothing  balances  a  ecu- 
inulating  to  the  soldier's  credit  under  sections  thirteen  atMay^5ri872  c 
hundred  and  two  and  thirteen  hundred  and  five  shall,  ^s'5>v-  17-V- 
when  payable  to  him  upon  his  discharge,  be  paid  out  of  8ec.i308,R.s. 
the  appropriations  for  "pay  of  the  Army"  for  the  then 
current  fiscal  year.  Sergeants  of  ordnance  shall  receive  sergeants  of 
the  same  allowance  of  clothing  as  other  sergeants  in  like  July  Ci6,  1392, 
staff  departments.  Act  of  July  16,  1892  (27  Stat.  L.  ,  174).  V' 

754.  The  clothes,  arms,  military  outfits,  and  accouter-    uniforms  and 
ments  furnished  by  the  United  States  to  any  soldier  shall  tc^e'Vo  Fd, 
not  be  sold,  bartered,  exchanged,  pledged,  loaned,  or  given  cnanged.ioaned" 
away:  and  no  person  not  a  soldier,  or  duly  authorized  offi-    Mar.  3,  ises,  c. 

I   ,,        TT    £    j    Q,  .,  .  £  .    75,  s.  23,  v.  12,  p. 

cer  of  the  United  States,  who  has  possession  of  any  such  735. 

.r,  .„.  J  Sec.3748,B.S. 

clothes,  anus,  military  outfits,  or  accouterments,  so  fur- 
nished, and  which  have  been  the  subjects  of  any  such  sale, 
barter,  exchange,  pledge,  loan,  or  gift,  shall  have  any 
right,  title,  or  interest  therein;  but  the  same  may  be  seized 
and  taken  wherever  found  by  any  officer  of  the  United 
States,  civil  or  militaiy,  and  shall  thereupon  be  delivered 
to  any  quartermaster,  or  other  officer  authorized  to  receive 
the  same.  The  possession  of  any  such  clothes,  arms,  mili- 
tary outfits,  or  accouterments  by  any  person  not  a  soldier 
or  officer  of  the  United  States  shall  be  presumptive  evidence 
of  such  a  sale,  barter,  exchange,  pledge,  loan,  or  gift. 

755.  Any  soldier  who  sells  or  through  neglect  loses  or    selling    or 

•i     i  •     i  i    ji  •  t     \i  ••      spoiling  cloth- 

SpOlls  his  horse,  arms,  clothing,  or  accouterments  shall  being,   etc.;    pen- 
punished  as  a  court-martial  may  adjudge,  subject  to  such  &  July  27,  1392,  v. 
limitation  as  may  be  prescribed  by  the  President  by  virtue    i?  Art.'  war. 
of  the  power  vested  in  him.     Seventeenth  article  of  war. 

ALTERING   CLOTHING. 

756.  It  shall  be  lawful  for  the  commanding  officer  of  each  in  Altering  cloth- 
regiment,  whenever  it  may  be  necessary,  to  cause  the  coats,  69F|bi97p1827473  c' 
vests,  and  overalls  or  breeches  which  may  from  time  to    sec.  i22o,R.s. 
time  be  issued  to  and  for  his  regiment  to  be  altered  and 

ing  drawn  by  him;  the  difference  between  the  two  amounts  will  be  the  amount  due 
the  United  States  or  the  soldier.  Par.  1306,  ibid. 

A  deserter  is  entitled  to  clothing  allowance  from  the  date  he  surrenders  or  is 
apprehended,  and  the  amount  due  nim  will  be  computed  from  the  tables  then  and 
subsequently  in  force.  A  new  clothing  account  will  be  opened  without  reference  to 
his  account  at  date  of  desertion.  Par.  1307,  ibid. 

Clothing  allowance  accruing  to  a  soldier  after  return  to  the  service  from  desertion 
will  not  be  used  to  reduce  the  amount  of  the  soldier's  indebtedness  at  date  of  deser- 
tion; the  full  amount  of  the  soldier's  indebtedness  must  be  charged  on  the  roll,  to 
be  deducted  by  the  paymaster  when  he  settles  the  soldier's  account.  Par.  1309, 
ibid. 

Section  1297,  Revised  Statutes,  forbidding  the  allowance  of  clothing  to  ordnance- 
sergeants,  was  repealed  by  the  act  of  July  14,  1892.  27  Stat.  L.,  578, 

22924—08  -  19 


290  MILITAEY    LAWS    OF    THE    UNITED    STATES. 

new  made,  so  as  to  better  to  fit  them  to  the  persons  respec- 
tively for  whose  use  they  shall  be  delivered;  and  for  defray- 
ing the  expense  of  such  alterations,  to  cause  to  be  deducted 
and  applied  out  of  the  pay  of  such  persons  a  sum  or  sums 
not  exceeding  twenty -five  cents  for  each  coat,  eight  cents 
for  each  vest  and  for  each  pair  of  overalls  or  breeches. 
M^1 2  °i889°8v'      ^^  Hereafter  the  regimental  price  fixed  for  altering 
25, 83i.  an(j  fitting  soldiers'  clothing  shall  not  exceed  the  cost  of 

making  the  same  at  the  clothing  depots. l     Act  of  March  %, 
1889  (25  Stat.  Z.,  831). 

HISTORICAL  NOTE. — The  office  of  Quartermaster-General  was  created  during  the  war 
of  the  Revolution  by  a  resolution  of  Congress  of  June  16,  1775;  by  a  subsequent 
resolution  dated  July  19,  1775,  the  appointment  to  the  vacancy  was  vested  in  Gen- 
eral Washington,  and  by  a  resolution  of  December  22,  1775,  the  rank  of  colonel  was 
attached  to  the  office.  The  appointment  was  conferred  upon  Thomas  Mifflin,  of 
Pennsylvania,  who  continued  to  exercise  its  functions  until  August  5, 1780,  save  for 
the  period  between  June  5  and  October  1,  1776,  when  the  office  was  held  by  Col. 
Thomas  Moylan.  Upon  the  resignation  of  General  Mifflin  he  was  succeeded  by 
Gen.  Nathaniel  Greene,  who  was  appointed  to  another  command  on  August  5,  1780, 
and  was  succeeded  by  Col.  Timothy  Pickering,  who  continued  to  perform  the  duties 
of  the  office  until  the  close  of  the  war.  On  July  25,  1785,  the  office  expired  by 
statutory  limitation.  After  the  close  of  active  military  operations  in  1781  the  prac- 
tice of  supplying  the  troops  by  a  system  of  contracts  which  had  been  resorted  to 
during  the  war,  and  had  been  approved  by  a  resolution  of  Congress  dated  October  2, 
1778,  was  resumed  and  continued  to  exist  until  its  failure  as  an  efficient  method  of 
supply  was  demonstrated  during  the  war  of  1812. 

The  office  of  quartermaster  was  established  by  sections  5  and  6  of  the  act  of  March 
3,  1791  (1  Stat.  L.,  222);  the  incumbent  of  this  office  was  designated  as  Quarter- 
master-General, and  the  rank  of  lieutenant-colonel  was  conferred  by  sections  10  and 
11  of  the  act  of  March  3,  1795  (ibid.,  431),  and  the  office  as  thus  established  was 
continued  in  the  acts  to  ascertain  and  fix  the  military  establishment,  approved  May 
30,  1796  (ibid.,  483),  and  March  3,  1797  (ibid.,  507).  The  provisional  establishment 
authorized  in  contemplation  of  war  with  France  by  the  acts  of  May  28, 1798  ( ibid. ,  558) , 
and  March  3,  1799  (ibid.-,  740),  made  provision  for  a  Quartermaster-General,  with  the 
rank  of  major-general,  with  deputy  quartermasters-general  for  armies  and  quarter 
masters  for  divisions,  who  were  to  be  selected  from  the  line.  Operations  looking  to 
an  increase  of  the  Army  were  suspended  by  the  acts  of  February  20,  1800  (2  Stat. 
L.,  7),  and  May  14,  1800  (ibid.,  85).  The  duties  hitherto  performed  by  the  Quarter- 
master's Department  were,  by  section  3  of  the  act  of  March  16,  1802  (ibid.,  133), 
devolved  upon  the  Paymaster-General,  and  upon  the  military  agents  and  assistant 
military  agents  authorized  by  that  enactment,  and  this  arrangement  continued  until 
the  establishment  of  the  Quartermaster's  Department  in  1808. 

The  procurement  of  supplies  for  the  military  establishment  during  the  period 
immediately  following  the  organization  of  the  Government  under  the  Constitution 
was  regulated  by  section  5  of  the  act  of  May  8,  1792  (1  Stat.  L.,  280),  which  con- 
tained the  requirement  that  "all  purchases  and  contracts  for  supplying  the  Army 
with  provisions,  clothing,  supplies  in  the  Quartermaster's  Department,  military 
stores,  Indian  goods,  and  all  other  supplies  or  articles  for  the  use  of  the  Department 
of  War  be  made  by  or  under  the  direction  of  the  Treasury  Department."  The  office 
of  purveyor  of  public  supplies  in  the  Treasury  Department  was  created  by  the  act  of 
February  23,  1795  (ibid.,  419),  and  this  officer  was  to  perform  the  duties,  in  connection 
with  contracts  and  purchases,  which  had  been  prescribed  in  the  act  of  May  8,  1792. 
The  power  to  make  purchases  for  the  military  establishment,  by  contract  or  other- 
wise, was  vested  in  the  Secretary  of  War  by  section  3  of  the  act  of  July  16,  1798 

1  LAUNDRY   WORK    FOR   RECRUITS   AT   DEPOTS. 

The  Quartermaster's  Department  is  authorized  to  pay  from  the  appropriation  for 
clothing  and  equipage  a  sum  not  exceeding  $1.50  for  the  laundry  work  of  each  recruit 
at  rendezvous  and  stations  who  has  no  funds  of  his  own.  The  expenditure  will  be 
charged  on  the  clothing  account  of  the  recruit  and  so  noted  on  his  descriptive  and 
assignment  card.  Par.  1316,  A.  R.,  1901. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  291 

(ibid.,  610);  and  by  section  6  of  the  same  enactment,  the  corresponding  power  was 
withdrawn  from  the  purveyor  of  public  supplies,  the  purpose  of  the  statute  being  to 
vest  the  power  of  purchase  in  the  Secretary  of  War  and  that  of  auditing  the  vouch- 
ers of  purchase  in  the  accounting  officers  of  the  Treasury.  By  the  act  of  March  3, 
1809  (2  ibid.,  535),  a  method  of  making  purchases  and  of  accounting  for  the  same 
was  prescribed  by  statute. 

The  Quartermaster's  Department,  eo  nomine)  was  established  by  the  act  of  March 
28,  1812  (2  Stat.  L.,  690),  and  consisted  of  a  Quartermaster-General  with  the  rank  of 
brigadier-general,  four  deputy  quartermasters,  and  as  many  assistant  deputy  quarter- 
masters as,  in  the  opinion  of  the  President,  the  public  service  might  require;  in  sec- 
tion 3  the  duties  of  the  department  were  denned.  A  commissary -general  of  purchases 
was  also  authorized,  and  a  purchasing  department  was  established,  to  consist  of  a 
commissary-general  of  purchases,  a  deputy  for  each  division,  six  assistant  commissa- 
ries of  issues,  and  as  many  military  storekeepers  as  the  service  might  require. 
The  duties  of  the  purchasing  department,  which  were  to  some  extent  in  conflict 
with  those  prescribed  for  the  Quartermaster's  Department,  appear  to  have  been 
restricted  to  the  procurement  of  subsistence  stores  and  supplies,  leaving  the  purchase 
of  forage,  the  provision  of  transportation,  etc.,  to  the  Quartermaster-General.  The 
act  of  April  23,  1812  (ibid.,  710),  established  a  corps  of  artificers  as  a  component 
part  of  the  Quartermaster's  Department;  and  by  the  act  of  May  22,  1812  (ibid.,  742), 
a  force  of  barrack  masters  was  authorized,  and  officers  of  the  department  were 
required  to  give  bond  for  the  faithful  expenditure  of  public  moneys  and  accounting 
for  all  public  property  which  might  come  into  their  hands.  The  office  of  superin- 
tendent-general of  military  supplies  was  created  by  the  act  of  March  3,  1813  (ibid., 
816),  and  charged  with  the  duty  of  supervising  the  rendition  and  audit  of  accounts 
and  returns  from  officers  in  the  military  service;  this  office  was  abolished  by  the  act 
of  March  3, 1817  (3  ibid.,  366),  the  duties  of  audit  being  transferred  to  the  accounting 
officers  of  the  Treasury. 

In  the  reorganization  of  the  staff,  which  was  accomplished  by  the  act  of  April  24, 
1816  (3  Stat.  L.,  297),  the  services  of  the  Quartermaster-General  were  retained  and  a 
deputy  quartermaster-general  was  authorized  for  each  division  and  an  assistant  for 
each  brigade,  who  were  to  supersede  the  existing  quartermasters  of  brigades.  By 
section  3  of  the  act  of  April  14,  1818  (ibid.,  426),  the  department  was  to  consist  of  a 
Quartermaster-General  (brigadier-general),  four  assistant  deputy  quartermasters- 
general,  and  as  many  additional  assistants  as  the  President  might  deem  proper.  At  the 
general  reduction  of  1821  the  strength  of  the  department  was  fixed  at  a  Quartermaster- 
General  (brigadier-general),  two  quartermasters  (majors  of  cavalry),  and  ten  assistant 
quartermasters,  to  be  detailed  from  the  line  with  $10  per  month  additional  compen- 
sation. By  section  4  of  the  act  of  May  18,  1826  (4  ibid.,  173),  two  quartermasters 
and  ten  assistants  were  added,  who  were  also  to  be  taken  from  the  line.  This  statute 
imposed  upon  the  department  the  duty  of  distributing  (but  not  purchasing)  the 
clothing,  camp  and  garrison  equipage  required  for  the  use  of  the  troops.  By  section 
9  of  the  act  of  July  5,  1838  (5  ibid.,  256),  two  assistant  quartermasters-general 
(lieutenant-colonels),  and  eight  assistant  quartermasters  (captains)  were  added,  and 
officers  already  in  the  department  were  placed  on  the  same  footing  in  respect  to  rank, 
pay,  and  emoluments  (that  of  officers  of  dragoons  of  corresponding  rank)  as  those 
therein  authorized;  forage  and  wagon  masters,  not  to  exceed  twenty  in  all,  were  also 
authorized.  The  office  of  commissary-general  of  purchases  was  abolished  by  section 
3,  act  of  August  23,  1842  (5  ibid..,  512),  and  its  duties  were  merged  in  those  required 
to  be  performed  by  the  Quartermaster's  Department. 

At  the  outbreak  of  the  war  with  Mexico  provision  was  made  for  the  expansion  of 
the  department  in  section  5,  act  of  June  18,  1846  (9  Stat.  L.,17),  by  the  appoint- 
ment of  a  quartermaster  (major)  for  each  brigade  and  an  assistant  quartermaster 
(captain)  for  each  regiment.  By  section  10,  act  of  February  11,  1847  (ibid.,  126), 
four  quartermasters  and  ten  assistant  quartermasters  were  added  to  the  department; 
by  section  10,  act  of  July  19,  1848  (ibid.,  247),  so  much  of  the  act  of  February  11, 
1847,  as  required  the  discharge  of  the  additional  officers  therein  authorized  was 
repealed.  Five  military  storekeepers  were  added  by  the  act  of  March  3,  1857  (11 
ibid.,  200). 

For  the  volunteer  forces  called  into  the  service  at  the  commencement  of  the  war 
of  the  rebellion,  brigade  quartermasters  (captains)  were  authorized  for  each  brigade, 
and  the  permanent  force  of  the  department  was  increased  by  the  addition  of  one 
colonel,  two  lieutenant-colonels,  four  majors,  and  twenty  captains  by  section  3  of  the 
act  of  August  3,  1861  (12  Stat.  L.,  287);  captains  after  fourteen  years'  service  were  to 
be  advanced  to  the  grade  of  major,  and  wagon  masters  and  teamsters  were  authorized 
with  the  pay  and  allowances  of  sergeants  and  corporals,  respectively.  The  number 
of  military  storekeepers  was  increased  to  twelve  by  section  8  of  the  act  of  1862 


292  MILITARY    LAWS    OF    THE    UNITED    STATES. 

(ibid.,  509).  The  office  of  the  Quartermaster-General  was  reorganized  into  eight 
divisions,  and  six  inspectors  and  ten  chief  quartermasters  of  armies  and  departments 
(colonels)  and  division  quartermasters  with  the  rank  of  major  were  authorized  for 
the  period  of  the  war. 

At  the  general  reorganization  of  1866,  the  strength  of  the  department  was  increased 
to  the  following:  One  Quartermaster-General  (brigadier-general),  six  assistant  quar- 
termasters-general (colonels),  ten  deputy  quartermasters-general  (lieutenant-colo- 
nels), fifteen  quartermasters  (majors),  and  forty-four  assistant  quartermasters  (cap- 
tains), section  13,  act  of  July  28, 1866  (14  Stat.  L.,  334) .  The  vacancies  created  by  the 
act  were  to  be  filled  by  the  appointment  of  persons  who  had  served  in  the  Quarter- 
master's Department  during  the  war  of  the  rebellion;  so  soon  as  the  vacancies  created 
by  the  act  had  been  once  filled,  however,  there  were  to  be  no  appointments  or  pro- 
motions to  the  grades  of  captain  and  major  until  the  number  of  officers  in  tnose 
grades  had  been  reduced  to  twelve  and  thirty  respectively.  Promotions  and  appoint- 
ments were  prohibited  until  the  further  order  of  Congress  by  section  6,  act  of 
March  3,  1869  (15  Stat.  L.,  318,  sec.  1194,  R.  S.),  but  this  prohibition  was  removed  by 
the  act  of  March  3,  1875  (18  ibid.,  330),  which  provided  the  following  permanent 
organization  for  the  department:  One  Quartermaster-General  (brigadier-general), 
four  assistant  quartermasters-general  (colonels) ,  eight  deputy  quartermasters-general 
(lieutenant-colonels),  fourteen  quartermasters  (majors),  and  thirty  assistant  quarter- 
masters (captains);  no  more  military  storekeepers  were  to  be  appointed,  and  the 
office  was  eventually  to  cease  to  exist  upon  the  death  or  retirement  of  the  store- 
keepers then  in  service.  Appointments  to  the  grade  of  captain  from  civil  life  were 
authorized,  in  the  discretion  of  the  President,  by  the  act  of  March  3,  1883  (22  ibid., 
456),  but  this  requirement  was  repealed  by  the  act  of  August  6,  1894  (28  ibid.,  234), 
which  restricted  such  appointments  to  officers  of  the  next  lower  grade  in  the  line  of 
the  Army.  The  corps  of  quartermaster-sergeants  was  added  by  the  act  of  July  5, 
1884  (23  ibid.,  107),  and  the  corps  of  army  service  men  was  attached  to  the  depart- 
ment by  the  act  of  June  20,  1890  (26  ibid.,  163).  At  the  outbreak  of  the  war  with 
Spain  the  Secretary  of  War  was  authorized,  by  the  act  of  July  7, 1898  (30  ibid.,  714), 
to  assign  four  officers  of  the  department  to  duty  as  inspectors,  and  these  officers, 
together  with  the  four  principal  assistants  in  the  office  of  the  Quartermaster-General, 
the  heads  of  the  divisions  in  the  same  office,  and  the  officers  in  charge  of  the  princi- 
pal depots,  not  exceeding  twelve  in  number,  were  to  have,  during  such  assignment, 
the  rank  and  pay  one  grade  higher  than  that  actually  held  by  them  in  the  regular 
or  volunteer  service;  such  increase  in  rank,  however,  was  in  no  case  to  exceed  that 
of  colonel,  and  was  to  continue  for  a  period  not  exceeding  one  year  after  the  close  of 
the  war.  Two  colonels,  two  lieutenant-colonels,  three  majors,  and  twenty  captains 
were  added  to  the  volunteer  force  of  the  department  for  the  period  of  the  existing 
war.  The  corps  of  post  quartermaster-sergeants  was  increased  to  a  total  strength  of 
one  hundred  and  five  by  the  act  of  July  8,  1898  (ibid.,  728) . 

By  section  16  of  the  act  of  February  2, 1901  (31  Stat.  L.  751 ),  the  permanent  strength 
of  the  department  was  fixed  at  one  Quartermaster-General  with  the  rank  of  brigadier- 
general,  six  assistant  quartermasters-general  with  the  rank  of  colonel,  nine  deputy 
quartermasters-general  with  the  rank  of  lieutenant-colonel,  twenty  quartermasters 
with  the  rank  of  major,  and  sixty  quartermasters  with  the  rank  of  captain  mounted. 
A  system  of  details  was  also  established  by  the  operation  of  which  the  permanent 
commissioned  personnel  of  the  department  will  be  gradually  replaced,  as  vacancies 
occur,  by  officers  detailed  from  the  line  of  the  Army  for  duty  in  the  Quartermaster's 
Department. 


CHAPTER  XIX. 


THE  SUBSISTENCE  DEPARTMENT.1 

Par.  |   Par. 

758.  Organization.  778-784.  Sales  to    officers    and   enlisted 

759-761.  Appointments,  promotions,  de-  j  men. 

tails.  !  785-787.  Proceeds  of  sales. 

762.  Post  commissary-sergeants.  ;  788.  Supervision  of  cooking. 
763-768.  Duties;  purchases.  789-791.  Commutation  of  rations. 

769-777.  The  ration;  issues  of  rations. 

ORGANIZATION. 

758.  The  Subsistence  Department  shall  consist  of  one    £et?2°?9oin's 
Commissary-General   of    Subsistence   with    the   rank  of 17- v-  ^/P-  752. 

,.-,.  i         ,-,  •    ,  •  i    Sec.  1140,  R.  S. 

brigadier-general,  three  assistant  commissaries-general 
with  the  rank  of  colonel,  four  deputy  commissaries-general 
with  the  rank  of  lieutenant-colonel,  nine  commissaries  with 
the  rank  of  major,  twenty-seven  commissaries  with  the 
rank  of  captain,  mounted,  the  number  of  commissary- 
sergeants  now  authorized  by  law,  who  shall  hereafter  be 
known  as  post  commissary-sergeants.2  Sec.  17,  act  of 
February  8,  1901  (31  Stat.  Z.,  750). 

1  For  note  containing  the  statutory  history  of  the  Subsistence  Department  see  end 
of  chapter. 

2  Section  17  of  the  act  of  February  2,  1901  (31  Stat.  L.,  752),  contained  the  require- 
ment that  "all  vacancies  in  the  grades  of  colonel,  lieutenant-colonel,  and  major,  cre- 


to  appoint  officers  of  volunteers  commissioned  in  the  Subsistence  Department  since 
April  21,  1898."     See  also  the  act  of  March  2,  1901,  paragraph  578,  ante. 

Section  2  of  the  act  of  July  7,  1898  (30  Stat.  L.,  715),  authorized  the  Subsistence 
Department  of  the  volunteer  service  to  be  increased  "during  the  present  war,  and 
not  to  exceed  one  year  thereafter,  eight  majors  and  twelve  captains  for  the  discharge 
of  such  subsistence  duties  as  may  be  assigned  to  them  by  the  Secretary  of  War,  to  be 
nominated  and,  by  and  with  the  advice  and  consent  of  the  Senate,  to  be  appointed 
by  the  President." 

The  same  statute  contained  the  requirement  that  "during  the  existence  of  the 
present  war,  and  for  not  exceeding  one  year  thereafter,  every  commissary  of  subsist- 
ence, of  whatever  rank,  who  shall  be  assigned  to  the  duty  of  purchasing  and  ship- 
ping subsistence  supplies  at  important  depots,  shall  have  the  rank  next  above  that  held 
by  him  and  not  above  colonel,  but  the  number  so  assigned  shall  only  be  such  as  may 
be  found  necessary,  not  exceeding  twelve;  also  that  the  two  commissaries  of  subsist- 
ence who  may  be  detailed  as  assistants  to  the  Commissary-General  of  Subsistence, 
shall  have  the  rank  of  colonel:  Provided,  That  when  any  such  officer  is  relieved  from 
said  duty,  his  temporary  rank,  pay,  and  emoluments  shall  cease,  and  he  shall  return 
to  his  lineal  rank  in  the  Department." 

These  statutes  were  repealed  by  section  11,  act  of  March  2,  1899  (30  Stat.  L.,  979). 
For  the  volunteer  subsistence  staff,  see  the  act  of  March  2,  1899  (30  ibid.,  979). 

293 


294  MILITARY    LAWS    OF   THE    UNITED    STATES. 

PROMOTIONS,  DETAILS. 

Febm20ti°9oi'  s  ^9.  So  long  as  there  remain  any  officers  holding  per- 
26,  v.  31,  p.  755.  manent  appointments  in  the  Subsistence  Depart- 

ment including  those  appointed  to  original 

vacancies  in  the  grades  of  ^captain  and  first  lieutenant 
under  the  provisions  of  sections  sixteen,  seventeen,  twenty- 
one,  and  twenty -four  of  this  act,  they  shall  be  promoted 
according  to  seniority  in  the  several  grades,  as  now  pro- 
vided bylaw,  and  nothing  herein  contained  shall  be  deemed 
to  apply  to  vacancies  which  can  be  filled  by  such  promo- 
tions or  to  the  periods  for  which  the  officers  so  promoted 
shall  hold  their  appointments.  Sec.  26,  act  of  February  2, 
1901,  (31  Stat.  L.,  755). 

Details.  760.  When  any  vacancy,  except  that  of  the  chief  of  the 

department  or  corps,  shall  occur,  which  can  not  be  filled 
by  promotion  as  provided  in  this  section,  it  shall  be  filled 
by  detail  from  the  line  of  the  Army,  and  no  more  per- 
manent appointments  shall  be  made  in  those  departments 
or  corps. 1  Ibid. 

The  same.  >JQI  Such  details  shall  be  made  from  the  grade  in  which 

the  vacancies  exist,  under  such  system  of  examination  as 
the  President  may,  from  time  to  time,  prescribe.2  Ibid. 

POST    COMMISSARY-SERGEANTS. 


er  cant?18      ^2.  The  Secretary  of  War  is  authorized  to  select  from 
224V  n  18?485C'  ^e  sergeants  of  the  line  of  the  Army  who  shall  have  faith- 
sW.  ii42,R.s.  fully  served  therein  five  years,  three  years  of  which  in  the 
grade  of  noncommissioned  officers,  as  many  commissary- 
sergeants  as  the  service  may  require,  not  to  exceed  one  for 
each  military  post  or  place  of  deposit  of  subsistence  sup- 
plies, whose  duty  it  shall  be  to  receive  and  preserve  the 
subsistence  supplies  at  the  posts,  under  the  direction  of 

1  Section  17  of  the  act  of  February  2,  1901,  contained  a  provision  excepting  vacan- 
cies caused  by  that  enactment  from  the  operation  of  this  section.    Such  vacancies  are 
filled  by  the  President  under  his  constitutional  power  to  appoint,  as  modified  by  the 
acts  of  August  6,  1894,  (28  Stat.  L.,  234),  February  2,  1901  (section  17),  and  the  act 
of  March  3,  1901. 

2  For  regulations  respecting  details  to  the  staff  see  the  article  so  entitled  in  the 
chapter  relating  to  the  STAFF  DEPARTMENTS. 

CIVIL    EMPLOYEES. 

The  employment  of  civilians  in  the  Subsistence  Department  is  regulated  by  the 
annual  acts  of  appropriation.  The  amount  to  be  expended  for  such  services  was 
fixed  at  $105,000  in  the  acts  of  March  3,  1883,  July  5,  1884,  March  3, 1885,  and  June 
30,  1886;  at  $110, 000  by  the  acts  of  February  9,  1887,  September  22,  1888,  March  2, 
1889,  June  13,  1890,  February  24,  1891,  July  16,  1892,  and  February  27,  1893,  and  at 
$100,000  by  the  acts  of  August  6,  1894,  February  12,  1895,  and  March  16,  1896. 


MILITARY    LAWS    OF    THE    UNITED    STATES. 


295 


the  proper  officers  of  the  Subsistence  Department,  and 
under  such  regulations  as  shall  be  prescribed  by  the  Secre- 
tary of  War.  The  commissary-sergeants  hereby  authorized 
shall  be  subject  to  the  rules  and  articles  of  war.  and  shall 
receive  for  their  services  the  same  pay  and  allowances  as 
ordnance-sergeants. 1 

DUTIES.2 


Par. 

763.  Purchases  and  issues. 

764.  Sales  to  officers  and  enlisted  men. 

765.  Exceptional  articles  for  sales. 

766.  Issues  to  seamen  and  marines. 


Par. 

767.  Officers  not  to  trade  in  articles  of 

subsistence. 

768.  Methods    of    purchase;   emergency 

purchases. 


763.  It  shall  be  the  duty  of  the  officers  of  the  Subsistence  1818>  c 
Department,  under  the  direction  of  the  Secretary  of  War,  l^Ma/s  1835; 
to  purchase  and  issue  to  the  Arnry  such  supplies  as  enter  ^Q9' s<1'  v-  7>  p- 
into  the  composition  of  the  ration.3                                             Sec.  ii4i,K.s. 

764.  The  officers  of  the  Subsistence  Department  shall  aSMe£i°iJtld 
procure  and  keep  for  sale  to  officers  and  enlisted  men  at  mgJedit  sales 
cost  prices,  for  cash  or  on  credit,  such  articles  as  may  f rom  .^"^IV8!6?'  p' 
time  to  time  be  designated  by  the  inspectors-general  of  33s'ec.i  144,11.8. 
the  Arnty.     An  account  of  all  sales  on  credit  shall  be  kept, 

and  the  amounts  due  for  the  same  shall  be.  reported  monthly 
to  the  Paymaster-General.4 

1  For  regimental  commissary -sergeants  of  cavalry,  see  section  2,  act  of  February 
2,  1901  (31  Stat.  L.,  748);  for  regimental  commissary-sergeants  of  infantry,  see  sec- 
tion 10  of  the  same  enactment.  The  act  of  June  30,  1882  (22  Stat.  L.,  123),  author- 
izes the  detail  of  one  commissary-sergeant  to  act  as  assistant  to  the  commissary  of 
cadets  at  the  Military  Academy.  By  General  Orders  No.  17,  A.  G.  0.,  of  February 
16,  1900,  the  number  of  post  commissary-sergeants  was  fixed  at  165;  by  General 
Orders  No.  59,  A.  G.  0.,  of  May  3,  1900,  the  number  was  increased  to  200.  General 
Orders  No.  1,  A.  G.  0.,  of  1900,  contains  the  requirement  that  "at  military  posts 
and  stations  and  in  the  field  the  regimental  commissaries  and  regimental  commis- 
sary-sergeants of  cavalry  and  infantry  regiments  will  perform  the  necessary  work  of 
their  respective  offices  in  the  subsistence  department  at  the  stations  of  the  head- 
quarters of  their  regiments,  and  no  commissary-sergeants  of  the  general  staff  will  be 
assigned  to  posts  at  which  there  is  a  regimental  headquarters,  except  under  unusual 
conditions." 

2  The  Subsistence  Department,  under  the  direction  of  the  Secretary  of  War,  pro- 
vides for  the  distribution  and  expenditure  of  funds  appropriated  for  ^  subsisting 
enlisted  men  and  for  purchasing  articles  kept  for  sale  to  officers  and  enlisted  men. 
The  Commissary-General  furnishes  lists  of  articles  authorized  to  be  kept  for  sale,  and 
gives  instructions  for  procuring,  distributing,  issuing,  selling,  and  accounting  for  all 
subsistence  supplies.  Par.  1351,  A.  R.,  1901. 

Subsistence  supplies  comprise — 

(1 )  Subsistence  stores,  consisting  of  articles  composing  the  ration  and  those  fur- 
nished for  sale  to  officers  and  enlisted  men,  also  lantern  candles  for  stable  use,  forage 
for  beef  cattle,  and  coarse  salt  for  public  animals  and  rebrining. 

(2)  Subsistence  property,  consisting  of  the  necessary  means  for  handling,  preserv- 
ing, issuing,  selling,  and  accounting  for  these  stores.     Par.  13*55,  ibid. 

*  For  general  provisions  respecting  the  procurement  of  supplies,  see  the  chapter 
entitled  CONTRACTS  AND  PURCHASES;  see  also  the  chapter  entitled  THE  QUARTER- 
MASTER'S DEPARTMENT. 

4  See  the  title,  post,  Sales  of  Subsistence  Stores. 


296  MILITARY    LAWS    OF    THE    UNITED    STATES. 

suppi(2sptional      765<  Hereafter  exceptional  articles  of  subsistence  stores 
Fb' 1895  v'  f°r  officers  and  enlisted  men,  which  are  to  be  paid  for  bv 

XT  */ 

them,  regardless  of  condition  upon  arrival  at  posts,  may, 
under  regulations  to  be  prescribed  by  the  Secretary  of 
War,  be  obtained  by  open  purchase  without  advertising. 
Act  of  February  12,  1895  (28  Stat.  L.,  658). 
S  766-  The  officers  of  the  Subsistence  Department  shall, 
nseecS.'ii48,R.s.  uPon  ^ne  requisition  of  the  naval  or  marine  officer  com- 
manding any  detachment  of  seamen  or  marines  under  orders 
to  act  on  shore,  in  cooperation  with  the  land  troops,  and 
during  the  time  such  detachment  is  so  acting  or  proceeding 
to  act,  furnish  rations  to  the  officers,  seamen,  and  marines 
of  the  same. 

trSS^articiS      767'  No  °fficer  belonging  to  the  Subsistence  Department, 

f°AprSTi4  °i8i8lc' O1*  doing  the  duty  of  a  subsistence  officer,  shall  be  con- 

427-skarV3  1835'  cerned,  directly  or  indirectly,  in  the  purchase  or  sale  of  any 

78o4-9Mar'3'i8<36'ar^c^e  entering  into  the  composition  of  the  ration  allowed 

497;  July  S  1866' to  tro°Ps  ln  ^e  service  of  the  United  States,  or  of  any 

P  IS' s' 25>  v' 14>  article  designated  by  the  inspectors-general  of  the  Army, 

sec.  1150,  it.  K.  anci  furnished  for  sale  to  officers  and  enlisted  men  at  cost 

prices,  or  of  tobacco  furnished  for  sale  to  enlisted  men, 

except  on  account  of  the  United  States;  nor  shall  any  such 

officer  take  or  apply  to  his  own  use  any  gain  or  emolument 

for  negotiating  or  transacting  any  business  connected  with 

the  duties  of  his  office,  other  than  that  which  may  be 

allowed  by  law. 

Purchase^  ^  768.  Hereafter,  except  in  cases  of  emergency  or  where 
31,  p.  905.  it  is  impracticable  to  secure  competition,  the  purchase  of 

all  supplies  for  the  use  of  the  various  departments  and 
posts  of  the  Army  and  of  the  branches  of  the  army  service, 
shall  only  be  made  after  advertisement,  and  shall  be  pur- 
chased where  the  same  can  be  purchased  the  cheapest,, 
quality  and  cost  of  transportation  and  the  interests  of  the 
Government  considered;  but  every  open-market  emer- 
gency purchase  made  in  the  manner  common  among  busi- 
ness men  which  exceeds  in  amount  two  hundred  dollars 
shall  be  reported  for  approval  to  the  Secretary  of  War 
under  such  regulations  as  he  may  prescribe.1  Act  of 
March  2,  1901  (31  Stat.  Z.,  905). 

1  The  object  of  this  provision  is  to  secure  the  Government  the  benefit  arising  from 
competition.  It  is  expected  that  this  benefit  will  manifest  itself  in  the  selection  of 
the  best  and  most  suitable  supplies  for  the  least  expenditure  of  public  money.  Where 
the  prices  for  supplies  are  fixed  and  uniform  it  is  unusual  and  impracticable  to  adver- 
tise for  proposals.  Such  cases  are  not  within  the  meaning  of  the  statute.  3  Dig. 
2nd  Compt.  Dec.,  par.  1112.  Expenditures  for  water  and  gas  are  not  expenditures 
for  supplies  within  the  meaning  of  this  act.  Ibid.,  1111.  So  held  also  as  to  street- 
car tickets.  Ibid.,  1124. 

The  officers  of  the  Quartermaster's  Department  are  not  bound  to  award  contracts 


MILITARY    LAWS    OF    THE    UNITED    STATES.  297 


Par. 


769.  President  to  prescribe  components. 

770.  The  garrison  ration,  the  field  ration, 

the  emergency  ration;  meat  issues, 
proportions;  the  same,  substitu- 
tions. 


Par. 

771,  772.  Issues  to  enlisted  men. 

773.  Issues  to  matrons  and  nurses. 

774.  Issues  to  Indians. 

775.  776.  Sugar  and  coffee. 
777.  The  same,  commutation. 


769.  The  President  is  hereby  authorized  to  prescribe  the  presceribed  ec o1^0- 
kinds  and  quantities  of  the  component  articles  of  the  army  gjj£ ents  of  ra~ 
ration,  and  to  direct  the  issue  of  substitutive  equivalent  40F|b3J2'p19!^8- 
articles  in  place  of  any  such  components  whenever,  in  his 
opinion,  economy  and  due  regard  to  the  health  and  com- 
fort of  the  troops  may  so  require.2     Sec.  40,  act  of  Febru- 
ary 8,  1901  (31  Stat.  L.,  758). 

to  the  lowest  bidder  in  every  instance,  but  only  to  the  lowest  responsible  bidder  for 
the  best  and  most  suitable  article,  in  case  the  right  to  reject  "any  and  all  bids," 
which  the  statute  reserves,  is  not  exercised.  Ibid.,  433. 

Evidence  of  compliance  with  the  requirements  of  this  statute  should  accompany 
all  contracts  filed  in  the  Second  Comptroller's  Office.  Ibid.,  426. 

Whenever  an  officer  of  the  Army  enters  into  a  contract  on  behalf  of  the  Govern- 
ment for  the  purchase  of  quartermaster's  or  subsistence  supplies,  under  the  authority 
conferred  by  this  statute,  it  should  be  made  to  appear  by  the  certificate  of  the  officer 
that  the  supplies  were  required  for  immediate  use.  The  officer  should  also  certify  as 
to  the  time  and  manner  of  the  advertisement,  and  that  the  award  was  made  to  the 
lowest  responsible  bidder  for  the  best  and  most  suitable  article.  Ibid.,  428. 

Under  the  act  of  July  5,  1884  (23  Stat.  L.,  109),  there  are  four  classes  of  purchases 
of  arm1 
First 
War 

which  must  be  made  " by  contract  after  public  notice  of  not  less  than  ten  days;" 
third,  purchases  of  the  great  bulk  of  army  supplies,  which  must  be  made  under  the 
general  rule  prescribed  by  the  Army  Regulations,  that  is,  after  public  notice  of  not 
less  than  thirty  days;  and,  fourth,  unusual  and  important  purchases,  where  the  Sec- 
retary of  War  deems  public  notice  of  from  thirty  to  sixty  days  advisable.  Ibid.,  1119. 

In  all  cases  where  purchases  of  regular  or  miscellaneous  supplies  for  the  Army  are 
made  by  the  Quartermaster's  Department  or  by  the  Subsistence  Department  after 
public  notice  of  ten  days  or  more,  without  executing  formal  written  contracts,  the 
vouchers  therofor  must  be  accompanied  by  the  following  evidence,  namely:  First,  a 
copy  of  the  public  notice  for  bids;  second,  a  certificate  as  to  the  time  and  manner  of 
the  public  notice  for  bids;  third,  the  accepted  bid;  fourth,  a  copy  of  the  letter  accept- 
ing the  bid,  and,  fifth,  a  certificate  that  the  award  was  made  to  the  lowest  responsible 
bidder  for  the  best  and  most  suitable  article.  Ibid.,  p.  1122. 

The  object  of  this  legislation  is  to  secure  for  the  Government  the  benefit  of  compe- 
tition in  obtaining  supplies  and  to  prevent  favoritism  in  making  the  purchases 
thereof.  It  contemplates  one  general  mode  of  purchase,  namely,  by  contract,  after 
advertisement,  with  "the  lowest  responsible  bidder  for  the  best  and  most  suitable 
article,"  with  but  a  single  exception,  and  that  is  wrhere  an  "emergency"  exists 
requiring  the  purchase  to  be  otherwise  made.  Such  emergency  may  arise  not  only 
before  the  required  public  notice  can  be  given,  but  after  it  has  once  been  given,  in 
consequence  of  the  failure  to  receive  any  bids  or  proposals;  in  either  case  the  pur- 
chase thereupon  would  be  an  emergency  purchase,  and  come  within  the  requirement 
of  the  statute  for  an  immediate  report  to  the  Secretary  of  War  for  his  approval. 
This  requirement  is,  I  think,  designed  to  extend  to  all  purchases  which  are  not  made 
agreeably  to  the  general  mode  above  indicated,  and  hence  it  applies  to  the  purchase 
of  parts  of  machinery,  or  parts  of  stoves  or  ranges,  for  repairs,  or  of  patented  articles, 
when  the  same  is  (as  in  cases  of  emergency,  and  those  only,  it  may  be)  made  in  open 
market.  XVIII  Opin.  Att.  Gen.,  349. 

1  For  historical  note  in  reference  to  the  army  ration  see  end  of  chapter. 

2  This  enactment  replaces  the  requirement  of  section  1146,  Revised  Statutes,  which 
authorized  the  President  to  "make  such  alterations  in  the  component  parts  of  the 
ration  as  a  due  regard  to  the  health  and  comfort  of  the  Army  and  economy  may 
require." 


298 


MILITARY    LAWS    OF    THE    UNITED    STATES. 


770.  In  accordance  with  the  provisions  of  section  40  of 
the  act  entitled  "An  act  to  increase  the  efficiency  of  the 
permanent  military  establishment  of  the  United  States," 
approved  February  2,  1901,  which  authorizes  the  Presi- 
dent to  "prescribe  the  kinds  and  quantities  of  the  com- 
ponent articles  of  the  army  ration,  and  to  direct  the  issue 
of  substitutive  equivalent  articles  in  place  of  any  such 
co'mponents  whenever,  in  his  opinion,  economy  and  a  due 
regard  to  the  health  and  comfort  of  the  troops  may  so 
require,"  the  following  is  promulgated  for  the  informa- 
tion and  guidance  of  all  concerned: 

The  kinds  and  quantities  of  articles  composing  the  army 
ration  and  the  substitutive  equivalent  articles  which  may 
be  issued  in  place  of  such  components  shall  be  as  follows: 

1.  For  troops  in  garrison  (garrison  ration}. 


Standard  articles.                                Substitutive  articles. 

Kinds. 

S: 

Quan- 
tities. 

Meat  components           ... 

Fresh  beef  
Flour  

..ounces.. 

do.... 
do 

(Fresh  mutton  a  ounces.  . 
Bacon  do  6  .. 

20 
12 
16 
14 
18 
16 
18 
16 
20 

1 

12f 

1H 

.4* 

20  HCanned  meat  c  do  

Pickled  fish  do.... 

[Canned  fish                 do 

(Soft  bread  do  

18  K  Hard  bread  d             .do  

Vegetable  components  e  .  . 

Dried     (or     evaporated) 
fruit  components,  h 
Coffee  and  sugar  compo- 
nents. 

Seasoning  components  

Soap  and  candle  compo- 
nents. 

ICorn  meal  do  — 
(Pease  do  

2gURice                              do 

Potatoes 

do 

1  Hominy  do  

f  /Potatoes                      do  

(Onions  do  — 
1  [[Potatoes                      do  

1  Canned  tomatoes  —  do  — 
16<  [Potatoes  do  

Prunes  
(Coffee  green 

do.... 
do 

<Fresh  vegetables,    not 
[    canned/  ounces.  . 
Desiccated   veg  e  t  a  b  1  e  s  <•/ 
ounces 

1  -  /Apples  do  

*  \Peaches...                  do 

,  ,  /Roasted  and  ground  .do  
*  (Tea,  black  orgreen  .ounce.  . 
31 

ISugar 

do 

r  Vinegar  

iSalt  
iPepper  black 

gin.. 

...ounce., 
do 

o  /Vinegar  gill.. 
**  \Cucumber  pickles  rlo.  .  . 

t 

/Soap 

do 

Is 

\Candiesi  

do.... 

Y 

a  When  the  cost  does  not  exceed  that  of  fresh  beef. 

b  In  Alaska  16  ounces  of  bacon,  or  when  desired  16  ounces  of  salt  pork  or  22  ounces  salt  beef. 

c  When  impracticable  to  furnish  fresh  meat. 

d  To  be  ordered  issued  only  when  impracticable  to  use  flour  or  soft  bread. 

e  In  Alaska  the  allowance  of  fresh  vegetables  will  be  24  ounces  instead  of  16  ounces. 

/When  they  can  be  obtained  in  the  vicinity  or  transported  in  a  wholesome  condition  from  a  dis- 
tance. 

ff  When  impracticable  to  furnish  fresh  vegetables.    In  Alaska  3f  ounces  instead  of  2g  oTinces. 

'h  Thirty  per  cent  of  the  issue  to  be  prunes  when  practicable. 

t  When  illumination  is  not  furnished  by  the  Quartermaster's  Department.    In  Alaska  5sr,  ounce 
instead  of  &  ounce. 


MILITARY    LAWS    OF    THE    UNITED    STATES. 


299 


2.   For  troops  in  the  field  in  active  campaign  (field  ration). 


Standard  articles.                               Substitutive  articles. 

Kinds. 

Quanti- 
ties. 

Kinds. 

Quanti- 
ties. 

Meat  components  
Bread  components  

Vegetable  components 
Fruit  components 

Fresh  beef  a  

..ounces., 
do 

20 
18 

H 

2§ 
16 
If 

IA 

3i 

A 

H 

(Fresh  mutton  a  ounces.  . 
<  Canned  meat  6        .    do 

20 
16 
12 
18 
16 
* 

1 

22 

11 
1 

[Bacon  do  — 
jSoft  bread  do  

Ifiaking  powder  c 
Beans  

Potatoes  a 

...ounce.. 
.  .ounces.  . 

do.  . 

\Hard  bread  do  
(Hopsd  ounce.  . 
•{  Dried  or  compressed  yeast,  d 
[    ounce.. 
Rice  ounces.  . 
("Potatoes  a  do  

\Onionsa           .             do 

Desiccated  potatoes,  .do  
(Desiccated  potatoes,  .do  
1  Desiccated  onions,  .ounce.  . 
jDesiccated  potatoes.  ounces. 
\Canned  tomatoes  do  

Jam  

do.. 

Coffee  and  sugar  compo- 
nents. 

Seasoning  components  

Soap  and  candle  compo- 
nents. 

(Coffee,  roasted  an 

d  ground  , 
.  ounces., 
do 

Tea,  black  or  green  .  .ounce,  j           /5 

(Sugar 

jVinegar  

Salt  
.Pepper,  black  .  .  . 
{Soap 

gill.. 

...ounce.. 
do.... 
do 

fVinegar  gill. 

* 

\Cucumber  pickles  .  .  .do  

Candles  

do.... 

a  When  procurable  locally. 

b  When  fresh  meat  can  not  be  procured  locally. 


c  When  ovens  are  not  available. 
d  When  ovens  are  available. 


3.  For  troops  when  traveling  otherwise  than  by  marching  or  when  for  short  periods  they  are 
separated  from  cooking  facilities  (travel  ration] .  (a] 


Standard  articles. 


Substitutive  articles. 


Kinds. 

Quantities 
per  100 
rations. 

Kinds. 

Quantities 
per  100 
rations. 

Soft  bread  

Pounds. 
112£ 

Hard  bread 

Pounds. 
100 

Canned  corn  beef 

75 

Corned  beef  hash 

75 

Baked  beans  

25 

Canned  tomatoes 

50 

Coffee,  roasted  and  ground  

8 

Sugar  

15 

a  The  issue  of  liquid  coffee  to  troops  when  traveling  by  rail  is  governed  by  paragraph  1388  of  the 
Army  Regulations  of  1901. 

4-  For  troops  traveling  on  vessels  of  the  United  States  army  transport  service. 

Food  on  transports  for  troops  traveling  will  be  prepared 
from  the  articles  of  subsistence  stores  which  compose  the 
ration  for  troops  in  garrison,  varied  by  the  substitution  of 
other  articles  of  authorized  subsistence  stores  of  equal 
money  value  when  required.  No  savings  will  be  allowed 
to  troops  on  transports. 

5.  For  use  of  troops  on  emergent  occasions  in  active  campaign  (emergency  ration). 

An  emergency  ration,  prepared  under  direction  of  the 
War  Department,  will  be  issued  to  troops  on  active  cam- 
paign, but  will  not  be  used  at  any  time  or  place  where 


300  MILITARY    LAWS    OF    THE    UNITED    STATES. 

regular  rations  are  obtainable.  It  will  be  packed  in  a 
conveniently  shaped  package,  and  will  be  carried  in  the 
haversack  or  saddlebags  and  accounted  for  at  inspection, 
etc.,  by  the  soldier. 

6.  Proportions  of  meat  issues. 

Fresh  meats  will  ordinarily  be  issued  seven  days  in  ten, 
and  salt  meats  three  days  in  ten.  If  fish  (dried.  pickledr 
or  canned)  is  issued  it  will  be  in  substitution  of  salt  meat. 
The  proportions  of  the  meat  issues  may  be  varied  at  the 
discretion  of  department  commanders,  not,  however,  with- 
out due  consideration  being  given  to  the  equitable  rights 
of  contractors  engaged  in  furnishing  fresh  meats  to  the 
troops  under  their  commands. 

7.  Substitute  when  the  issue  of  both  fresh  meat  and  vegetables  is  impracticable. 

Whenever  the  issue  of  both  the  fresh  meat  and  vegetable 

components  is  impracticable  there  may  be  issued  in  lieu 

of  them  canned  fresh-beef-and-vegetable  stew,  at  the  rate 

of  28^  ounces  to  the  ration. 

issues  to  enlist-      771    Enlisted  men  shall  be  entitled  to  receive  one  ration 

eu  men. 

Feb.  8,  1815,  v.  dailv  * 
3,  p.  204;  Mar.  2,  Ud>1V  • 
1821,  v.  3,  p.  615;  July  5,  1862,  v.  12,  p.  508;  July  16,  1892,  v.  27,  p.  178.    Sec.  1293,  R.S. 

strict1orme  re~     772<  Hereafter  no  enlisted  man  shall  be  entitled  to  more 
vJ2U7lyP\6781892'than  one  ration  daily.2     Act  of  July  16,   1892  (27  Stat. 

L.,  178). 
Matrons  and      773    Hospital  matrons  and  the  nurses  employed  in  post 


nurses. 

M5r'v621p)i34:or  regimental  hospitals  [and  members  of  the  female  nurse 


9,  s. 


p8i5t?8Febf  corPs]  shall  be  entitled  to  receive  one  ration  daily. 
2i90i,s.i9;v.  31;^  act  Of  February  2,  1901  (31  Stat.  Z.,  763). 

Sec'.1295,B.S. 


TO   CIVILIANS. 

Issues  of  rations  to  civilian  employees  are  governed  by  the  requirements  of  para- 
graph 1398,  Army  Regulations,  1901,  which  provides  that  "  issues  of  rations  to  civilians 
employed  with  the  Army  will  be  made  on  ration  returns  signed  by  the  officers  in 
charge  of  the  employees,  when  ordered  by  the  commanding  officer." 

Rations  furnished  for  the  use  of  the  Army,  being  the  public  property  of  the  United 
States,  can  only  be  disposed  of  or  issued  in  accordance  with  law.  Issues  to  desti- 
tute citizens  not  being  so  authorized  are  made  on  the  responsibility  of  the  officer 
ordering  the  same.  In  this  connection,  see  paragraph  1405,  A.  R.,  1901. 

Private  persons  not  connected  with  the  Army  are  not  entitled  to  be  subsisted  at 
the  expense  of  the  United  States,  either  while  in  quarantine  hospitals  or  otherwise. 
5  Comp.  Dec.,  191. 

A  civilian  employee  of  the  Anny  engaged  to  accompany  a  scientific  expedition  at 
a  salary  of  $125  pe'r  month  is  not  entitled  to  subsistence,  but,  like  a  commissioned 
officer,  must  subsist  himself.  Herendeen  v.  U.  S.,  28  Ct.  Cls.,  348. 

2  Under  General  Orders  No.  73,  A.  G.  O.,  of  1879,  an  officer  of  the  Army  to  whom 
a  sum  of  money  has  been  advanced  for  supplying  enlisted  men  with  liquid  coffee  for 
the  estimated  number  of  days'  travel  at  the  rate  of  21  cents  per  day  each  while  trav- 


MILITARY    LAWS    OF    THE    UNITED    STATES.  301 

774.  The  President  is  authorized  to  cause  such  rations  dian£es  to  In" 
as  he  deems  proper,  and  as  can  be  spared  from  the  army  g  -}|?n£  |°'p  l®j*>. 
provisions  without  injury  to  the  service,  to  be  issued  under  :JTu°8e p2^g74> s> 3' 
such   regulations   as   he   shall   think  fit    to  establish,    to    ••*•*!**** 
Indians  who  ma}7  visit  the  military  posts  or  agencies  of 

the  United  States  on  the  frontiers,  or  in  their  respective 
nations,  and  a  special  account  of  these  issues  shall  be  kept 
and  rendered.1 

775.  The  ration  of  sugar  and  cofi'ee  where  issued  in  kind,  f  Jur^[0ann ^Oc^ 
shall,  when  the  convenience  of  the  service  permits,  be  is-isjSy^ei|&\, 
sued  weekly.  162>  s* 17>  v-  5>  p-  258-  Sec>  n*8' B* s 

776.  The  Secretary  of  War  may  commute  the  ration  of    coffee  and 

*  •  t  sugar  may  be 

coffee  and  sugar  for  the  extract  of  coffee  combined  with  co]^l^iuje^862 
milk  and  sugar,  if  he  shall  believe  such  commutation  to  be  gs- 8- 10' v- 12'  P- 
conducive  to  the  health  and  comfort  of  the  Army,  and  not  sec.  1147,  B.  s. 
to  be  more  expensive  to  the  Government  than  the  present 
ration;  provided  the  same  shall  be  acceptable  to  the  men. 

777.  For  each  ration  of  sugar  and  coffee  not  issued,  nor 
commuted  for  the  extract  of  coffee  combined  with  milk 17^ 
and  sugar,  enlisted  men  shall  be  paid  in  money. 

SALES   OF   SUBSISTENCE    STORES. 

Par. 


782.  Credit  sales  to  officers. 

783.  The  same,  enlisted  men. 

784.  The  same,  tobacco. 


Par. 

778.  Stores  for  sales. 

779.  Sales  of  rations. 

780.  Sales  of  tobacco. 

781.  Sales  to  be  made  at  cost  price. 

778.  The  officers  of  the  Subsistence  Department  shall 
procure  and  keep  for  sale  to  officers  and  enlisted  men  at5', 
cost  prices  for  cash  or  on  credit,  such  articles  as  may  from 
time  to  time  be  designated  by  the  inspectors-general  of 
the  Army.     An  account  of  sales  on  credit  shall  be  kept, 
and  the  amounts  due  for  the  same  shall  be  reported  monthly 
to  the  Paymaster-General. 

779.  Commissioned  officers  of  the  Army,  serving  in  the 

field,  may  purchase  rations  for  their  own  use,  from  any  fy s-  5'  v- 13'  P- 
commissary  of  subsistence,  on  credit,  at  cost  prices;  and  sec.  1145,  B.  s. 

eling,  is  authorized  to  turn  over  to  the  company  commanders  for  the  benefit  of  the 
company  funds  any  balance  of  such  sum  remaining  unexpended  at  the  end  of  the 
travel.  6  Comp.  Dec.,  369. 

1  Small  quantities  of  food  (articles  of  the  ration)  may,  on  the  order  of  the  com- 
manding officer,  be  issued  to  Indians  visiting  a  military  post.  The  order  will  state 
the  number  of  Indians  and  their  tribe,  number  of  days  for  which  the  issues  are 
made,  quantities,  and  necessity  for  the  issues.  Indians  will  not  be  continuously  sub- 
sisted in  this  manner  except  by  authority  of  the  Secretary  of  War.  A  copy  of  the 
order  directing  the  issue  will  accompany  the  abstract  of  issues.  Par.  1266,  A.  R., 
1895. 


302  MILITARY    LAWS    OF    THE    UNITED    STATES. 

the  amounts  due  for  such  purchases  shall  be  reported 

monthly  to  the  Paymaster-General.1 

ba^o1.68  °f  to~  780.  Tobacco  shall  be  furnished  to  the  enlisted  men  by 
sifs^e,  V8jf,'  p!  the  commissaries  of  subsistence,  at  cost  prices,  exclusive 
4s7ec.ii49,B.s.  °f  *ne  cos^  °f  transportation,  in  such  quantities  as  they 

may  require,  not  exceeding  sixteen  ounces  per  month.1 
male  atcost.  be     781.  Hereafter  all  sales  of  subsistence  supplies  to  officer.' 
23fp!yio8.1884>  v'  and  enlisted  men  shall  be  made  at  cost  price  only;  and  the 

cost  price  of  each  article  shall  be  understood,  in  all  cases 

of  such  sales,  to  be  the  invoice  price  of  the  last  lot  of  that 

article  received  by  the  officer  making  the  sale  prior  to  the 

first  day  of  the  month  in  which  the  sale  is  made.1     Act  of 

July  5,  1884  (®3  Stat.  Z.,  108). 

raDteioUnsi0pSuf?-  782>  The  am°unt  due  from  any  officer  for  rations  pur- 
cb3aMar  1865  c  cnased  on  credit,  or  for  any  article  designated  by  the 
'  inspectors  -general  of  the  Army  and  purchased  on  credit 

fr°m  commissaries  of  subsistence,  shall  be  deducted  from 
|'ec.i299  B.S  ^e  Pavment  made  to  such  officer  next  after  such  purchase 

shall  have  been  reported  to  the  Paymaster-General. 


.  5,    .  is,  p. 


Pu*rchafedticles     7^*  ^e  amount  due  from  any  enlisted  man  for  articles 

2998sJ25yVi8i?'p  Designated  by  the  inspectors-general  of   the  Army,  and 

33|'ec  1300  B  s  SO^  ^°  kim  on  credit  D3f  commissaries  of  subsistence,  shall 

be  deducted  from  the  payment  made  to  him  next  after  such 

sale  shall  have  been  reported  to  the  Paymaster-General. 

pu^chasedbacc°     7^f  ^he  amount  due  from  any  enlisted  man  for  tobacco 

si3  ^r'V18^'  c>  s°ld  to  him  at  cost  prices  by  the  United  States  shall  be 

81,  S.   o,  V.   lo,  p.  J 

49Sec.isoi,  B.S.  deducted  from  his  pay  in  the  manner  provided  for  the  set- 
tlement of  clothing  accounts. 

PROCEEDS    OF    SALES. 

safes  °acvlf  la  bi°e     785>  All  proceeds  of  sales  of  old  material,  condemned 

chases.ew  pur"stores,  supplies,  or  other  public  property  of  any  kind,  ex- 

Sec.36i8,  B.S.  cept  the  proceeds  of  the  sale  or  leasing  of  marine  hospitals, 

or  of  the  sales  of  revenue  cutters,  or  of  the  sales  of  com- 

missary stores  to  the  officers  and  enlisted  men  of  the  Army, 

or  of  materials,  stores,  or  supplies  sold  to  officers  and 

soldiers  of  the  Army,  or  of  the  sales  of  condemned  navy 

clothing,  or  of  sales  of  materials,  stores,  or  supplies  to  any 

1  The  acts  of  June  23,  1879,  and  May  4,  1880,  contained  the  requirement  that  10 
per  cent  of  the  cost  price  should  be  added  to  the  cost  of  all  stores  (except  tobacco) 
sold  to  officers  and  enlisted  men,  to  cover  wastage,  transportation,  and  other  incidental 
charges  (21  Stat.  L.,  32,  111).  This  provision  was  repealed  by  the  act  of  July  5, 
1884,  above  cited.  To  a  civilian  employed  with  the  Army  at  a  remote  place,  where 
food  can  not  otherwise  be  procured,  stores  will  be  sold  for  cash,  in  limited  quantities, 
for  his  own  use,  at  invoice  or  contract  prices  with  10  per  cent  added.  Par.  1284, 
A.  R.,  1895.  The  amounts  due  for  such  sales  to  be  deducted  from  the  next  payment 
to  the  officer  or  enlisted  man.  See  paragraphs  782,  783,  and  784,  post. 

For  statutory  regulation  of  the  purchase  of  exceptional  articles  of  subsistence  see 
the  act  of  February  12,  1895  (28  Stat.  L.,  658).  Paragraph  765,  ante. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  303 

exploring  or  surveying  expedition  authorized  by  law,  shall 
be  deposited  and  covered  into  the  Treasury  as  miscellaneous 
receipts,  on  account  of  proceeds  of  Government  property, 
and  shall  not  be  withdrawn  or  applied,  except  in  conse- 
quence of  an  appropriation  made  b}^  law. 

786.  All  moneys  received  from  the  leasing  or  sale  of  ceprrta  in6  sales 
marine  hospitals,  or  the  sale  of  revenue  cutters,  or 

the  sale  of  commissary  stores  to  the  officers  and  enlisted  48^a[; 
men  of  the  Army  [or  from  the  sale  of  materials,  stores,  pr'^f^jj 
supplies  sold  to  officers  and  soldiers  of  the  Army],  or  from^0;2 
sales  of  condemned  clothing  of  the  Navy,  or  from  sales  of  f^ci 
materials,  stores,  or  supplies  to  any  exploring  or  survey-  Js^'c 
ing  expedition  authorized  by  law,  shall  respectively  revert  Pg7|3£ 
to  that  appropriation  out  of  which  they  were  originally  Pg75388; 
expended,  and  shall  be  applied  to  the  purposes  for  which  Pg741°:  Feb.  27, 
they  are  appropriated  by  law.  Psec?3692,  B.  s. 

787.  So  much  of  the  appropriation  for  subsistence  of  foArppJXistenSI 
the  Army  as  may  be  necessary  maybe  applied  to  the  pur- 


chase  of  subsistence  stores  for  sale  to  officers  for  the  use  officeSrs°etcale  to 
of  themselves  and  their  families,  and  to  commanders  of  ^^f  ^  1876>  v> 
companies  or  other  organizations,  for  the  use  of  the  enlisted 
men  of  their  companies  or  organizations  and  the  proceeds 
of   all   sales   of   subsistence   supplies   shall  hereafter  be 
exempt  from  being  covered  into  the  Treasury  and  shall  be 
immediately  available  for  the  purchase  of  fresh  supplies.1 
Act  of  March  3,  1875  (18  Stat.  Z.,  410). 

788.  The  line  officers  of  the  Army  shall  superintend  the  enScepofricwk£g" 
cooking  done  for  the  enlisted  men.  2  sKi&M&l:  78's-8'v'12'p-744- 

1  Under  the  act  of  March  3,  1875  (18  Stat.  L.,  410),  the  proceeds  of  all  sales  of  sub- 
sistence supplies  are  exempt  from  being  covered  into  the  Treasury,  and  are  immedi- 
ately available  for  the  purchase  of  fresh  supplies.     3  Dig.  2nd  Coinp.  Dec.  ,  par.  1259. 

Under  the  act  of  March  3,  1875  (18  Stat  L.,  410),  the  proceeds  of  all  sales  of  sub- 
sistence supplies,  being  exempt  from  being  covered  into  the  Treasury,  revert  to  the 
appropriation  "Subsistence  of  the  Army,"  out  of  which  they  were  originally 
expended,  and  are  applicable  to  the  purpose  for  which  they  are  appropriated  by  law, 
namely,  the  purchase  of  fresh  supplies  only  during  the  fiscal  year  for  which  the 
appropriation  to  which  they^  revert  is  available,  for  which  purpose  they  are  immedi- 
ately available  without  the  intervention  of  a  repay  warrant.  Ibid. 

The  subsistence  supplies  contemplated  by  the  provision  of  the  act  of  March  3,  1875 
(18  Stat.  L.,  410),  declaring  the  proceeds  of  all  sales  of  such  supplies  immediately 
available  for  the  purchase  of  fresh  supplies,  comprise  not  only  the  supplies  denomi- 
nated "subsistence  stores,"  but  also  the  necessary  means  for  handling,  preserving, 
issuing,  selling,  and  accounting  for  these  supplies,  as  tools,  scales,  measures,  utensils, 
stationery,  safes,  office  furniture,  etc.  Ibid.,  1336. 

2  Section  1233,  Eevised  Statutes,  which  required  cooks  to  be  detailed,  in  turn,  from 
the  privates  of  each  company  was  repealed  by  the  act  of  June  29,  1879  (20  Stat.  L., 
ch.  24,  p.  276).     See  G.  0.  94,  A.  G.  O.,  1898.     The  act  of  July  7,  1898  (30  Stat.  L., 
721),  authorized  the  enlistment  of  one  cook  in  each  company  composing  the  military 
establishment.     Such  cook  was  to  have  the  rank  and  receive  the  pay  of  a  corporal. 
This  statute  was  replaced  by  the  act  of  March  2,  1899  (30  Stat.  L.,  977)  ,  which  author- 
ized two  cooks  to  be  enlisted  in  each  troop  of  cavalry,  battery  of  artillery,  and  com- 
pany of  infantry  of  the  Regular  and  Volunteer  establishments.     By  section  9  of  the 
act  of  March  2,  1899,  the  cooks  so  enlisted  were  to  have  the  pay  of  sergeants  of 
infantry. 


304  MILITARY   LAWS    OF   THE   UNITED   STATES 

COMMUTATION   OF  RATIONS. 

coffee  and      789,  For  each  ration  of  sugar  and  coffee  not  issued,  nor 
ujuiy  5,  isss,  s.  commuted  for  the  extract  of  coffee  combined  with  milk 

17,  v.  5,  p.  258;  _4    ,      1  .     __  ,  .  _    , 

8ee.i294,R.s.  and  sugar,  enlisted  men  shall  be  paid  in  money. 


1  Commutation  in  the  military  or  naval  service  is  money  paid  in  substitution  of 
something  to  which  an  officer,  soldier,  or  sailor  is  entitled.  Commutation,  being 
regulated  oy  statutes  and  regulations,  can  not  be  allowed  by  inferior  authority.  The 
principle  which  governs  the  commutation  of  rations  in  lieu  of  subsistence  is  that 
commutation  will  not  be  allowed  where  subsistence  in  kind  is  provided  by  the  Gov- 
ernment. Jaekle  v.  U.  &,  28  Ct.  Cls.,  133. 

Authority  to  establish  the  fates  of  the  allowance  for  commutation  of  rations  has 
not  been  given  by  statute,  but  these  rates  have  been  left  to  be  fixed  by  Army  Regu- 
lations. But  these  amounts  are  recognized  and  sanctioned  in  the  provisions  of  the 
Army  appropriation  acts  relating  to  the  Subsistence  Department.  Dig.  Opin.  J.  A. 
G,,  par.  1957. 

Paragraph  1273,  Army  Regulations,  1895,  in  directing  that  commutation  in  lieu  of 
rations  shall  not  be  allowed  to  soldiers  where  subsistence  in  kind  is  provided  by  the 
Government,  excepts  cases  where  the  same  is  specially  authorized  by  the  Secretary 
of  War.  Held,  that  this  part  of  the  Regulations  was  substantially  superseded  by  the 
statutory  provision  of  the  existing  army  appropriation  act  of  February  27,  1893, 
which  enumerates  several  specific  classes  of  enlisted  men  as  persons  to  whom  the 
payment  may  be  made  without  reserving  to  the  Secretary  of  War  any  authority  to 
extend  the  privilege.  Par.  1958,  ibid. 

The  allowance  for  commutation  of  rations,  made  payable  by  the  army  appropria- 
tion act  of  February  27,  1893,  "to  enlisted  men  traveling  on  detached  duty,  when  it 
is  impracticable  to  carry  rations,"  etc.,  held  to  be  restricted  to  the  period  covered  by 
the  travel,  and  not  to  be  payable  to  a  soldier  for  commutation  of  rations  consumed 
at  the  destination  where  he  was  placed  by  his  orders  on  detached  duty,  viz,  for  four 
days'  board  at  a  hotel  at  the  terminus  of  his  travel.  Par.  1959,  ibid. 

A  claim  for  .commutation  of  rations  on  furlough  can  not  be  allowed  without  the 
production  of  the  furlough  issued,  or  other  satisfactory  evidence  that  payment  has 
not  been  made.  The  burden  of  proof  rests  upon  the  claimant  to  establish  the  valid- 
ity of  his  claim  by  something  more  than  his  unsupported  statements.  1  Comp. 
Dec.,  513. 

Commutation  of  rations  may  be  allowed  at  the  following  rates,  under  the  condi- 
tions mentioned,  viz: 


Conditions. 


Rate. 

per  day 

each. 


1.  To  a  soldier  at  the  conclusion  of  his  furlough,  provided  that  on  or  before  the  last  day 


thereof  he  has  reported  at  his  proper  station  or  has  been  discharged 


2.  To  sergeants  of  the  post  noncommissioned  staff  (and  soldiers  acting  as  such)  on  duty 


at  forts  and  stations  where  there  are  no  other  troops 


3.  To  a  soldier  on  detached  duty,  stationed  in  a  city  or  town  where  subsistence  is  not  fur- 


nished by  the  Government . 


4.  To  a  soldier  traveling  under  orders  from  a  place  or  station  at  which  his  rations  have 


5.  To  enlisted  men  traveling  under  orders  (when  the  journey  can  not  be  performed  in 
it  is  impracticable  to  carry  rations  of  any  kind),  as  follows: 


been  regularly  commuted, 
'o  enlisted  men  traveling 
twenty-four  hours  and  it 

To  an  enlisted  man  traveling  alone 

To  two  enlisted  men  traveling  as  a  detatchment  or  traveling  as  a  guard  to  ati  in- 
sane patient  or  military  prisoner,  each 

To  an  insane  patient  or  military  prisoner  traveling  under  guard  of  one  or  two  en- 
listed men,  to  be  paid,  on  the  order  of  the  commanding  officer,  in  advance  to, 
and  to  be  receipted  for  by,  the  person  to  whose  charge  the  patient  or  military 
prisoner  is  committed  by  the  order 


SO.  25 
.40 


.75 
1.50 


1.50 
1.50 


1.50 


Par.  1272,  A.  R.,  1895. 

Commutation  of  rations  will  not  be  allowed  to  enlisted  men  serving  where  subsistence  is  furnished 
by  the  Government;  or  traveling  under  orders  when  they  can  carry  and  cook  their  rations,  or  can 
carry  cooked  or  travel  rations;  or  traveling  under  orders  by  steamboat  or  steamship  where  the  pas- 
sage rates  include  meals;  or  failing  to  report  at  their  proper  stations  on  or  before  the  last  day  of 
furlough  unless  discharged;  or  recruiting  parties  at  their  stations;  nor  to  civil  employees.  Par.  1273, 
ibid. 

A  soldier  who  has  been  granted  a  furlough  to  expire  upon  the  arrival  of  his  regi- 
ment in  the  United  States,  is  entitled  to  commutation  of  rations  until  he  receives 
notice  of  its  arrival  and  for  a  time  thereafter  sufficient  to  enable  him  to  join  it, 
5  Comp.  Dec.,  941. 


MILITAKY    LAWS    OF    THE    UNITED    STATES.  305 


790.  Every  noncommissioned  officer  and  private  of  the 
Regular  Army,  and  every  officer,  noncommissioned  officer, 

and  private  of  any  militia  or  volunteer  corps  in  the  service    sec.i288,B.s. 

of  the  United  States  who  is  captured  by  the  enemy,  shall 

be  entitled  to  receive  during  his  captivity,  notwithstanding 

the  expiration  of  his  term  of  service,  the  same  pay,  sub- 

sistence 1  and  allowance  to  which  he  may  be  entitled  while 

in  the  actual  service  of  the  United  States;  but  this  pro- 

vision shall  not  be  construed  to  entitle  any  prisoner  of  war 

of  such  militia  corps  to  any  pay  or  compensation  after  the 

date  of  his  parole,  except  the  traveling  expenses  allowed 

by  law. 

791.  For  the  payment  of  the  regulation  allowances  for  ofcr^™tation 
commutation  of  rations  in  lieu  of  rations:  To  enlisted  men  31^ar<^'  1901)  v- 
on  furlough;   to  ordnance-sergeants  on  duty  at  ungarri- 

soned  posts;  to  enlisted  men  and  male  and  female  nurses 
stationed  at  places  where  rations  in  kind  can  not  be  eco- 
nomically issued;  to  enlisted  men  traveling  on  detached 
duty  when  it  is  impracticable  to  carry  rations  of  any  kind; 
to  enlisted  men  selected  to  contest  for  places  or  prizes  in 
department  and  army  rifle  competitions  while  traveling  to 
and  from  places  of  contests;  and  to  male  and  female  nurses 
on  leaves  of  absence,  to  be  expended  under  the  direction 
of  the  Secretary  of  War.  Act  of  March  2,  1901  (31  Stat. 
Z.,  904). 

HISTORICAL  NOTE.  —  The  office  of  Commissary-General  of  Supplies  and  Purchases 
was  created  during  the  war  of  the  Revolution  by  a  resolution  of  Congress  dated  July 
19,  1775,  and  on  the  recommendation  of  General  Washington,  Jonathan  Trumbull, 
of  Connecticut,  was  appointed  to  the  office.  The  methods  of  supplying  the  Army 
with  provisions  having  proved  inadequate,  however,  the  matter  was  investigated  by 
a  committee  of  the  Congress,  and  the  department  was  reorganized  by  a  resolution  of 
Congress  dated  June  10,  1777.  Under  the  new  arrangement  the  duties  of  purchase 
and  distribution  were  separated  and  intrusted  to  independent  bureaus  under  the 
Commissary-General  of  Purchases  and  the  Commissary-General  of  Issues.  The  duties 
of  the  Commissary-General  of  Issues  were  defined  in  the  resolution  of  Congress  of 
June  10,  1777;  those  of  the  Commissary-General  of  Purchases  were  made  the  subject 
of  occasional  modifications,  and  will  be  found  in  the  resolutions  of  June  10,  1777,  and 
November  30,  1780.  By  the  resolution  of  July  10,  1781,  the  departments  of  pur- 
chases and  issues  were  merged  in  the  office  of  Superintendent  of  Finance,  under 
whose  direction  a  system  of  supplying  the  Army  by  contracts  was  established.  By 
a  subsequent  resolution,  dated  May  28,  1784,  the  office  of  Superintendent  of  Finance 
was  abolished,  its  duties  being  merged  in  the  Board  of  the  Treasury  created  by  that 
enactment.  Under  this  arrangement,  which  continued  in  force  after  the  organiza- 
tion of  the  Government  under  the  Constitution,  all  subsistence  supplies  for  the  Army 

1  Under  section  1288,  Revised  Statutes,  which  provides  that  any  soldier  who  is 
captured  by  the  enemy  shall  be  entitled  to  receive,  during  his  captivity,  "the  same 
pay,  subsistence,  and  allowance  to  which  he  may  be  entitled  while  in  the  actual 
service,"  a  soldier  so  captured  is  entitled  to  commutation  of  rations  during  his  cap- 
tivity at  the  rate  provided  in  General  Orders  No.  37,  A.  G.  O.,  of  1865,  viz,  25  cents 
per  day  from  the  appropriation  "Subsistence  of  the  Army."  6  Comp.  Dec.,  846. 

22924—08  -  20 


306  MILITARY    LAWS    OF   THE    UNITED   STATES. 

were  purchased  by  the  Treasury  Department  under  contracts  entered  into  under  the 
direction  of  the  Secretary  of  the  Treasury  (sec.  5,  act  of  May  8,  1792,  1  Stat.  L.,  280; 
act  of  February  23,  1795,  ibid.,  419).  By  the  acts  of  July  16,  1798  (ibid.,  .610),  and 
March  3, 1809  (2  ibid.,  535),  the  present  methods  of  purchasing  supplies  for  the  Army, 
and  accounting  for  the  same,  were  established.1  The  contract  system  continued  to 
exist  until  the  reorganization  of  the  staff,  which  was  accomplished  by  the  act  of 
April  4,  1818  (3  ibid.,  426),  when  it  was  replaced  by  the  present  Subsistence 
Department. 

At  the  reduction  of  1802  a  system  of  military  agencies  was  established  in  connection 
with  the  procurement  and  distribution  of  subsistence  stores  and  supplies.  Three 
military  agents  and  such  number  of  assistant  military  agents,  not  exceeding  one  to 
each  military  post,  as  the  service  might  require,  were  authorized  by  section  3  of  the 
act  of  March  16,  1802  (2  Stat.  L.,  132);  the  assistants  were  to  be  selected  from  the 
line  of  the  Army  and  were  to  receive  additional  monthly  compensation.  By  section 
4  of  the  act  of  March  28,  1812  (ibid.,  696),  the  military  agency  system  was  abolished, 
and  the  duty  of  procuring  military  supplies  was  vested  in  the  Commissary-General  of 
Purchases  and  in  the  Quartermaster's  Department  thereby  created.  By  section  2  of 
the  act  of  April  4,  1818  (3  ibid.,  426),  the  office  of  Commissary-General  was  created 
with  the  rank  and  pay  of  a  colonel  of  ordnance,  and  provision  was  made  for  as  many 
assistant  commissaries  as  the  service  might  require;  these  officers  were  to  be  detailed 
from  the  line,  and  were  to  receive  twenty  dollers  per  month  additional  pay.  The 
duties  of  the  department  thus  created  were  restricted  to  the  purchase  and  issue  of 
subsistence  stores  and  supplies;  and  the  system,  which  was  experimental  in  charac- 
ter, was  to  continue  for  five  years  from  the  passage  of  the  act. 

At  the  general  reduction  of  1821 2  the  organization  of  the  department  was  somewhat 
modified,  the  office  of  Commissary-General  of  Subsistence  being  created  and  provi- 
sion made  for  as  many  assistant  commissaries  as  the  service  might  require,  not 
exceeding  fifty,  who  were  to  be  taken  from  subalterns  of  the  line,  and  were  to 
receive,  in  addition  to  their  monthly  pay,  certain  sums,  to  be  regulated  by  the  Sec- 
retary of  War,  and  to  be  not  less  than  ten  dollars  nor  more  than  twenty  dollars  in 
amount;  they  wer3  to  perform  duty  in  both  the  Subsistence  and  Quartermaster's 
Departments,  as  might  be  required  under  the  orders  of  the  Secretary  of  War.  By 
the  act  of  June  23,  1823  (3  ibid.,  721),  the  existing  arrangement  of  the  department 
was  continued  for  five  years.  Two  assistant  commissaries  with  the  rank  of  major 
were  added  to  the  department  by  the  act  of  March  3,  1829  (4  ibid.,  360),  and  the 
system  was  to  be  continued  for  a  third  period  of  five  years.  By  section  5  of  the  act 
of  March  3,  1835  (ibid.,  780),  the  Subsistence  Department,  which  had  hitherto  been 
in  an  experimental  stage,  was  placed  upon  a  permanent  basis.  By  section  11  of  the 
act  of  July  5,  1838  (5  ibid.,  256),  there  were  added  to  the  department  one  assistant 
commissary-general  of  subsistence  with  the  rank  and  pay  of  a  lieutenant-colonel  of 
dragoons,  one  commissary  of  subsistence  with  the  rank  and  pay  of  quartermaster, 
and  three  commissaries  with  the  rank  and  pay  of  assistant  quartermasters. 

No  further  change  in  the  composition  or  duties  of  the  department  was  made  until  the 
outbreak  of  the  war  with  Mexico,  when,  by  section  5  of  the  act  of  June  18, 1846  (9  ibid., 
17) ,  the  President  was  authorized  to  appoint  as  many^additional  officers,  not  exceed- 
ing one  commissary  (major)  to  each  brigade,  and  one  assistant  commissary  (captain) 
to  each  regiment,  as  he  might  deem  necessary;  these  appointments,  however,  were 
not  to  extend  beyond  the  period  of  the  existing  war.  By  the  act  of  September  26, 
1850  (9  ibid.,  469),  four  commissaries  of  subsistence  (captains)  were  added  to  the 
existing  establishment,  and  these  appointments  were  to  be  made  from  the  line  of  the 
Army. 

At  the  commencement  of  the  war  of  the  rebellion  a  commissary  of  subsistence 
(captain)  was  allowed  for  each  brigade  of  the  volunteer  forces  authorized  to  be  raised 
by  the  act  of  July  22,  1861  (12  Stat.  L.  269),  and  four  commissaries  of  subsistence 
(majors)  and  eight  commissaries  of  subsistence  with  the  rank  of  captain  were  added 
to  the  permanent  establishment  by  the  act  of  August  3,  1861  (ibid.,  287) ;  by  section 
10  of  the  act  of  July  17, 1862  (ibid.,  599),  a  commissary  of  subsistence  for  each  army 
corps,  with  the  rank  of  lieutenant-colonel,  was  also  authorized.  By  the  act  of  Feb- 
ruary 9, 1863  (ibid.,  648),  the  department  was  reorganized,  the  rank  of  brigadier-gen- 
eral being  conferred  upon  the  Commissary-General  of  Subsistence,  who  was  to  be 
selected  from  the  department,  and  one  colonel,  one  lieutenant-colonel,  and  two 
majors  were  added.  These  offices  were  to  be  filled  by  regular  promotion. 

*For  a  more  extended  discussion  of  the  methods  of  procuring  supplies  during  the 
period  between  the  the  organization  of  the  Government  under  the  Constitution  and 
the  general  reorganization  of  the  staff  in  1821,  see  the  note  in  connection  with  the 
Quartermaster's  Department,  page  290,  ante. 

2  Act  of  March  2,  1821  (3  Stat.  L.,  615). 


MILITARY    LAWS    OF    THE    UNITED    STATES.  307 

The  peace  establishment  of  the  department  was  fixed  by  section  16  of  the  act  of 
July  28,  1866  (14  ibid.,  335),  as  follows:  One  Commissary-General  of  Subsistence 
(brigadier-general),  two  assistant  commissaries-general  of  subsistence  (colonels),  two 
deputy  commissaries-general  of  subsistence  (lieutenant-colonels),  eight  commissaries 
(majors),  and  sixteen  commissaries  of  subsistence  (captains).  The  repealing  clause 
of  the  act  of  July  28,  1866,  having  been  regarded  as  including  within  its  scope  the 
provision  for  additional  compensation  to  officers  detailed  from  the  line,  which  had 
been  authorized  by  section  3  of  the  act  of  March  3,  1821  (3  ibid.,  615),  it  was  pro- 
vided by  section  24  of  the  act  of  July  15,  1870  (16  ibid.,  320) ,  that  lieutenants  of  the 
line  detailed  to  perform  the  duties  of  acting  commissaries  of  subsistence  should  receive 
$100  additional  pay  per  annum.  Section  6  of  the  act  of  March  3, 1869  (15  ibid.,  318) , 
contained  the  requirement  that  there  should  be  no  more  promotions  or  appointments 
in  the  staff  of  the  Army  until  otherwise  directed  by  law,  but  this  restriction  was 
removed,  as  to  the  Subsistence  Department,  by  section  3  of  the  act  of  June  23,  1874, 
which  reorganized  the  department  and  fixed  its  commissioned  strength  at  one  briga- 
dier-general, two  colonels,  three  lieutenant-colonels,  eight  majors,  and  twelve  cap- 
tains. By  the  act  of  February  12,  1895  (28  ibid.,  656),  the  number  of  captains  was 
reduced  to  eight.  The  requirement  of  the  act  of  March  3,  1883  ( 22  ibid. ,  457 ) ,  author- 
izing captains  in  this  department  to  be  appointed  from  civil  life  was  repealed  by  the 
act  of  August  6,  1894  (28  ibid.,  234) ,  and  appointments  to  the  lowest  grade  are  now 
required  to  be  made  from  the  line  of  the  Army.  The  act  of  June  30,  1882  (22  ibid., 
118),  and  subsequent  acts  of  appropriation  have  made  provision  for  the  payment  of 
$100  additional  pay  to  officers  detailed  from  the  line  to  perform  the  duties  of  acting 
commissaries  of  subsistence.  A  corps  of  post  commissary-sergeants  was  added  to  the 
department  by  the  act  of  March  3,  1873  (17  ibid.,  485;  section  1142,  Revised  Statutes). 
They  were  to  be  appointed  by  the  Secretary  of  War  in  such  number  as  the  service 
might  require,  but  were  not  to  exceed  one  for  each  military  post. 

By  section  2  of  the  act  of  July  7,  1898  (30  ibid.,  715),  there  were  added  to  the 
strength  of  the  department  during  the  war  with  Spain  eight  majors  and  twelve  cap- 
tains of  volunteers,  and  the  two  assistants  to  the  Commissary-General  of  Subsistence 
and  the  officers  in  charge  of  important  depots  were  given  one  grade  of  rank  and  pay 
in  addition  to  that  actually  held  by  them;  such  increase,  however,  was  not  to  exceed 
the  rank  of  colonel  in  any  case,  and  was  to  continue  for  a  period  not  exceeding  one 
year  after  the  close  of  the  existing  war. 

By  section  17  of  the  act  of  February  2,  1901  (31  Stat.  L.,  752),  the  permanent 
strength  of  the  department  was  fixed  at  one  Commissary-General  with  the  rank  of 
brigadier-general,  three  assistant  commissaries-general  with  the  rank  of  colonel,  four 
deputy  commissaries-general  with  the  rank  of  lieutenant-colonel,  nine  commissaries 
with  the  rank  of  major,  and  twenty-seven  commissaries  with  the  rank  of  captain 
mounted;  the  existing  force  of  commissary-sergeants  was  recognized  and  continued 
in  service  and  were  thereafter  to  be  designated  as  post  commissary-sergeants.  A  sys- 
tem of  details  was  also  established  by  the  operation  of  which  the  permanent  com- 
missioned personnel  of  the  department  will  be  gradually  replaced,  as  vacancies 
occur,  by  officers  detailed  from  the  line  of  the  Army  for  duty  in  the  Subsistence 
Department. 

The  army  ration. — The  army  ration,  as  established  by  the  act  of  April  30,  1790  (1 
Stat.  L.,  121);  section  8,  act  of  March  3,  1795  (ibid.,  434);  and  section  13,  act  of 
May  30,  1796  (ibid.,  484) ;  consisted  of  1  pound  of  fresh  or  salt  beef,  or  three-quarters 
of  a  pound  of  pork  or  bacon;  1  pound  of  flour,  one-half  a  gill  of  spirits,  and  to  each 
100  rations  1  quart  of  salt,  2  quarts  of  vinegar,  2  pounds  of  soap,  and  1  pound  of 
candles.  By  section  3  of  the  act  of  June  7,  1794  (ibid.,  242);  section  6,  act  of  Janu- 
ary 2,  1795  (ibid.,  400), and  section  11,  actof  May  30, 1796  (ibid.,  484),  sundry  addi- 
tions were  made  to  meat,  bread,  and  seasoning  components  of  the  ration  in  the  case 
of  troops  employed  on  frontier  service.  The  ration  was  increased  by  section  6  of  the 
act  of  July  16,  1798  (ibid.,  605),  so  as  to  consist  of  l\  pounds  of  fresh  or  salt  beef,  or 
three-quarters  of  a  pound  of  pork  or  bacon;  1  pound  and  2  ounces  of  flour;  1  gill 
of  spirits;  and  to  each  100  rations  2  quarts  of  salt,  2  quarts  of  vinegar,  4  pounds  of 
soap,  and  1£  pounds  of  candles;  and  the  ration,  as  thus  constituted,  was  made  per- 
manent by  section  6  of  the  act  of  March  16,  1802  (2  ibid.,  134).  By  section  22  of 
the  act  of  March  3,  1799  (1  ibid.,  749),  the  regular  spirit  ration  was  reduced  to  one- 
half  gill,  and  commanding  officers  were  authorized  to  make  extra  issues  of  spirits,  at 
the  rate  of  one-half  gill  per  ration,  "in  cases  of  fatigue  service  or  other  extraordinary 
occasions."  l  The  spirit  ration  was  replaced  by  coffee  and  sugar  at  the  rate  of  6  and 
12  pounds,  respectively,  per  hundred  rations,  by  section  17  of  the  act  of  July  5, 1838 
(5  ibid.,  256),  and  the  ration  of  coffee  and  sugar  was  increased  to  10  and  15  pounds, 
respectively,  by  section  4  of  the  act  of  June  21,  1860  (12  ibid.,  68) ;  by  section  10,  act 
of  July  5,  1862  (ibid.,  510),  the  extract  of  coffee  was  authorized  to  be  issued  in  lieu 


308  MILITARY    LAWS    OF    THE    UNITED    STATES. 

of  the  coffee  and  sugar  ration.1  A  vegetable  component,  consisting  of  15  pounds  of 
beans  or  peas,  or  10  pounds  of  rice  or  hominy,  was  added  to  the  ration  by  Execu- 
tive order,  under  the  authority  conferred  by  section  8  of  the  act  of  April  14,  1818 
(3  ibid.,  426),  paragraph  — ,  Army  Regulations  of  1847).  An  increase  in  the  com- 
ponents of  the  ration  to  the  following  extent  was  authorized  by  section  13  of  the  act 
of  August  3,  1861  (12  ibid.,  289);  the  ration  of  bread  or  flour  was  increased  to  22 
ounces,  and  an  alternate  issue  of  1  pound  of  hard  bread  authorized,  and  a  vegetable 
ration,  to  consist  of  1  pound  of  potatoes,  was  required  to  be  issued  ' '  at  least  three  times 
per  week,  if  practicable."  This  increase  was  to  terminate  at  the  close  of  the  war,  when 
the  ration  was  to  be  reduced  to  the  articles  and  quantities  as  authorized  by  law  or  regula- 
tion on  July  1, 1861.  Pepper  was  added  as  one  of  the  seasoning  components,  at  the  rate 
of  4  ounces  to  the  hundred  rations,  by  section  11,  act  of  March  3,  1863  (12  ibid.,  744), 
and  section  2  of  the  act  of  June  20,  1864  (13  ibid.,  144),  contained  the  requirement 
that  the  ration  should  thereafter  be  the  same  as  provided  by  law  and  regulation  on 
the  1st  day  of  July,  1861,  with  the  addition  of  the  pepper  ration  authorized  by  the 
act  of  March  3,  1863;  the  components  of  beans  (or  peas),  or  rice  (or  hominy),  at  the 
rate  of  15  and  10  pounds,  respectively,  to  the  hundred  rations,  having  been  added 
by  Executive  regulation,  were  included  in  the  operation  of  the  act  of  July  1,  1864, 
and  became  part  of  the  authorized  ration.  By  section  5  of  the  act  of  June  16,  1890 
(26  ibid.,  158),  1  pound  of  vegetables  was  added  to  the  ration,  "the  proportion  to  be 
fixed  by  the  Secretary  of  War." 

1  Issues  of  spirits,  as  a  component  part  of  the  ration,  were  discontinued  by  Execu- 
tive order  in  1832  (General  Orders  No.  100,  A.  G.  0.,  1832),  ana  an  issue  'of  coffee 
and  sugar  was  substituted  therefor  at  the  rate  of  4  pounds  of  coffee  and  8  pounds  of 
sugar  to  the  hundred  rations. 

By  the  act  of  March  2,  1819  (3  Stat.  L.,  488),  an  "extra  gill  of  whisky  or  spirits" 
was  allowed  to  enlisted  men  engaged  in  the  construction  of  fortifications  or  the  exe- 
cution of  surveys,  but  by  the  act  of  May  19,  1846  (9  Stat.  L.,  14),  this  ration  was 
allowed  to  be  commuted  in  money.  Upon  the  discontinuance  of  the  spirit  ration  in 
1838,  section  22  of  the  act  of  March  3,  1799  (1  Stat.  L.,  754) ,  became  operative,  which 
authorized  the  issue  of  spirits  "in  case  of  fatigue  service  or  other  extra  occasions." 
This  placed  the  spirit  ration  upon  the  basis  of  an  extra  issue;  such  issues,  therefore, 
being  discretionary  with  the  Executive.  They  were  discontinued  by  General  Orders 
No.  120,  War  Department,  of  1865. 


CHAPTER    XX. 


THE  PAY  DEPARTMENT. 


Par. 

792-794.  Organization. 

795-797.  Promotions,  transfers,  details. 

798.  Renewal  of  bonds. 

.799-801.  Duties. 

802,  803.  Payments  to  troops. 

804.  Command. 

805,  806.  Clerks  to  paymasters. 
807-825.  Pay  of  commissioned  officers. 
826-829.  Pay  during  absence. 


Par. 

830,  835.  Commutation  of  quarters. 

836.  Payments  to  officers. 

837-849.  Travel  expenses,  mileage. 

850,  851.  Travel  pay  on  discharge. 

852-856.  Stoppages. 

857-861 .  Payments  to  matrons  and  nurses. 

862-888.  Payments  to  enlisted  men. 

889-898.  Stoppages  and  deductions. 


Additional 
paymasters. 


ORGANIZATION. 

792.  The  Pay  Department  shall  consist  of  one  Paymaster-    composition. 
General  with  the  rank  of  brigadier-general,  three  assist-  21, ^1,^.754. '  * 
ant  pa}Tmasters-general  with  the  rank  of   colonel,   four 
deputy-paymasters-general  with  the  rank  of  lieutenant- 
colonel,  twenty  paymasters  with  the  rank  of  major,  and 

twenty -five  paymasters  with  the  rank  of  captain  mounted.2 
Sec.  81,  act  of  February  2,  1901  (31  Stat.  Z.,  754). 

793.  When  volunteers  or  militia  are  called  into  the  serv- 
ice of  the  United  States,  and  the  officers  of  the  Pay  mas- ^^l;  y8?,'p' 
ter's  Department  are  not  deemed  by  the  President  sufficient  25|^c  1184^  Bi  s> 
for  the  punctual  payment  of  the  troops,  he  may  appoint,  by 

and  with  the  advice  and  consent  of  the  Senate,  and  add 
to  said  corps  as  many  paymasters,  to  be  called  additional 
paymasters  with  the  rank  of  major,  not  exceeding  one  for 

1  For  a  note  containing  the  statutory  history  of  the  Pay  Department,  see  end  of 
chapter. 

2  Section  21  of  the  act  of  February  2, 1901  (31  Stat.  L.,  754),  contains  the  requirement 
that  ' '  all  vacancies  in  the  grade  of  colonel  and  lieutenant-colonel  created  or  caused 
by  this  section  shall  be  filled  by  promotion  according  to  seniority,  as  now  prescribed 
by  law,  and  no  more  appointments  to  the  grade  of  major  and  paymaster  shall  be 
made  until  the  number  of  majors  and  paymasters  is  reduced  below  twenty:  And  pro- 
vided, That  persons  who  have  served  in  the  Volunteer  Army  since  April  twenty-first, 
eighteen  hundred  and  ninety-eight,  as  additional  paymasters  may  be  appointed  to 
positions  in  the  grade  of  captain  created  by  this  section.     So  long  as  there  remain 
surplus  majors  an  equal  number  of  vacancies  shall  be  held  in  the  grade  of  captain,  so 
that  the  total  number  of  paymasters  authorized  by  ^his  section  shall  not  be  exceeded 
at  any  time."     For  requirements  of  law  in  respect  to  appointments  in  this  depart- 
ment as  it  existed  prior  to  the  approval  of  the  act  of  February  2,  1901,  see  section  7 
of  the  act  of  March  2,  1899  (30  Stat.  L.,  979).     For  a  statutory  extension  of  the  field 
of  selection,  as  indicated  in  section  21  of  the  act  of  February  2,  1901,  see  the"  act  of 
March  2,  1901,  par.  578,  ante. 

309 


310  MILITARY    LAWS    OF    THE    UNITED    STATES. 

every  two  regiments  of  volunteers  or  militia,  as  he  may 

deem  necessary. 

temporary10  **  794*  Additional  paymasters  shall  be  retained  in  service 
i62s  25'  l\Sb'  c'  onty  so  ^on£  as  ^ey  may  ke  re(luire(l  f°r  the  payment  of 
25sL  ii85  B'S  v°lunteers  and  militia,  as  provided  herein. 

PROMOTIONS   AND   TRANSFERS. 


Febii  s      795>  ^°  *on£  as  ^ere  remain  any  officers  holding  per- 
26,  v.  si'  p.  755.  manent  appointments  in  the     *  Pay  Department 

including  those  appointed  to  original  vacancies 
in  the  grades  of  captain  and  first  lieutenant  under  the  pro- 
visions of  sections  sixteen,  seventeen,  twenty-one,  and 
twenty-four  of  this  act,  they  shall  be  promoted  according 
to  seniority  in  the  several  grades,  as  now  provided  by 
law,1  and  nothing  herein  contained  shall  be  deemed  to 
apply  to  vacancies  which  can  be  filled  by  such  promotions, 
or  to  the  periods  for  which  the  officers  so  promoted  shall 
hold  their  appointments.  Sec.  #£,  act  of  February  2-,  1901 
(31  Stat.  Z.,  755). 

retails.  796    When  any  vacancy,  except  that  of  the  chief  of  the 

department  or  corps,  shall  occur,  which  can  not  be  filled 
by  promotion  as  provided  in  this  section,  it  shall  be  filled 
by  detail  from  the  line  of  the  Army,  and  no  more  perma- 
nent appointments  shall  be  made  in  these  departments  or 
corps.  Ibid. 

The  ame.  797.  Such  details  shall  be  made  from  the  grade  in  which 

the  vacancies  exist,  under  such  system  of  examination  as 

the  President  may,  from  time  to  time,  prescribe.2     Ibid. 

bondsnofwpay*      798>  ^  disbursing  officers  of  the  Pay  Department  shall 

m™terso  T          renew  their  bonds,  or  furnish  additional  security,  at  loust 

jyLftr.  &)  J.o4.y,  c. 

wfal;  TOWN'S  once  m  f°ur  years,  and  as  much  oftener  as  the  President 

>*'<*.  I  I  J  _  ,  li..>. 

may  direct.3 

DUTIES. 


9    le.vp! 

''l86,  E. 


799.  The  Paymaster-General  shall  perform  the  duties  of 
his  office  under  the  direction  of  the  President. 

Sec.ll86,'E.S. 

ut?UpfymL&-     80°.  The  deputy  paymasters-general  shall,  in  addition  to 
geMara3  is-<7  c  Paym£  troops,  superintend  the  payment  of  armies  in  the 

61,  SS.lV22,~V.tHiAld 

p.  185;  July  19|  D  1Q* 

1848,  c.  104,  s.  3,  v-  9,  p.  247;  Mar.  2,  1849,  c.  80,  v.9,p.350; 

July  28, 1866,  c.299,  s.18,  v.  14, p.  335.   Scc.1187,  B.S. 

JFor  statutory  regulations   respecting  examinations  for  promotion,  see  the  title 
Examinations  for  Promotion,  in  the  chapter  entitled  THE  STAFF  DEPARTMENTS. 

2  For  statutory  regulations  respecting  details  to  the  staff,  see  the  title  Defaih  to  the 
Staff  in.  the  chapter  entitled  THE  STAFF  DEPARTMENTS. 

3  For  general  provisions  respecting  bonds  of  disbursing  officers,  see  the  chapters 
entitled  THE  TREASURY  DEPARTMENT  and  THE  STAFF  DEPARTMENTS. 


MILITARY   LAWS    OF    THE    UNITED   STATES.  311 


801.  The  paymasters  and  additional  paymasters  shall  pay  ^^  of  P*?* 
the  regular  troops,  and  shall  pay  all  other  troops  in  theg^^isie^c. 
service  of  the  United  States,  when  required  to  do  so  byg1}^  *832;  <;' 
order  of  the  President.  1  ^  Ju*  5>  1838'  c-  162'  s-  25«  v-  5-  *•  259'    sW:i1'88'  W 

PAYMENTS    TO    TROOPS. 

802.  The  Army  shall  be  paid  in  such  manner,  that  the  tro0plments  to 
arrears  shall  at  no  time  exceed  two  months,  unless  circum-  9t^fg|  ^pJi'ss. 
stances  shall  render  further  arrears  unavoidable.2  Sec.ii89,B.s. 

803.  The  Secretary  of  War  is  also  authorized  to  arrange  lfa^m^2fe£ 
for  the  payment  of  the  enlisted  men  serving  at  posts  or  ch-jyb'.$?im,  v. 
places  where  no  paymaster  is  on  duty  by  check  or  by  cur-  27)  p>  175< 
rency  ,  to  be  sent  to  them  by  mail  or  express,  at  the  expense 

and  risk  of  the  United  States.3     Act  of  February  27,  1893 
(27  Stat.  L.,  175}. 

804.  Officers  of  the  Pay  Department  shall  not  be  entitled,  m^|ht  of  com- 
in  virtue  of  their  rank,  to  command  in  the  line  or  in  other  61Msarif'  ™*g'  £ 
staff  corps.4  18L.ii88,R.s. 

1  Paymasters  of  the  Army  are  the  financial  agents  of  the  Government,  and  their 
disbursements,  represented  by  vouchers,  are  examined  and  scrutinized  by  the  Comp- 
troller, whose  duty  it  is  finally  to  determine  whether  or  not  any  particular  disburse- 
ment shall  be  credited  to  the  officer.     In  charging  an  officer,  or  refusing  him  credit 
for  erroneous  disbursements,  the  question  of  proper  care  invariably  enters  into  con- 
sideration in  arriving  at  a  decision.     The  right  to  determine  that  question  is  a  most 
essential  feature  of  the  functions  of  the  Comptroller.     3  Dig.  2d  Compt.  Dec.,  par.  8. 

2  Troops  will  be  paid  every  month  unless  circumstances  prevent,  in  which  case  the 
paymaster  charged  with  the  payment  will  immediately  report  the  facts  through  his 
chief  paymaster  to  the  Paymaster-General.     Par.  1502,  A.  R.,  1901. 

3  Payments  will  be  made  as  soon  after  the  close  of  each  month  as  practicable: 

(1)  By  paymasters  in  person;  or 

(2)  By  check  to  be  sent  by  registered  mail  or  express,  or  currency  shipped  by 
express. 

The  troops  at  posts  where  paymasters  are  stationed  and  others  in  their  immediate 
vicinity,  to  be  designated  in  instructions  issued  from  the  Adjutant-General's  Office, 
will  be  paid  by  paymasters  in  person. 

For  posts  at  which  payments  are  not  required  to  be  made  in  person,  the  paymaster 
will  transmit  the  pay  due  in  one  or  more  of  the  following  ways: 

(1)  By  individual  check,  payable  to  the  order  of  each  man  for  the  exact  amount 
due. 

(2)  By  enclosing  in  a  separate  sealed  envelope  the  exact  amount  in  currency  due 
each  soldier,  with  his  name  and  the  amount  inclosed  marked  thereon.     Par.  1503, 
ibid. 

Duplicate  pay  rolls  will  be  duly  signed  by  the  men,  and  forwarded  by  the  com- 
manding officer  by  mail  to  the  paymaster  who  has  been  designated  by  the  department 
commander  to  pay  the  command.  Par.  1505,  ibid.  For  regulations  respecting  the 
payment  of  troops  by  check  see  paragraphs  1502-1527  Army  Regulations  of  1901. 

A  paymaster  of  the  Army  who  alleges  that  he  inclosed  certain  sums  of  money  in  a 
package  transmitted  by  him  to  an  officer  for  the  payment  of  troops,  which  sums  were 
not  found  in  the  package  when  received,  the  seals  being  unbroken,  is  not  entitled  to 
credit  therefor.  6  Compt.  Dec.  ,  940. 

A  soldier  of  a  company  which  performed  duty  usually  performed  by  engineer  sol- 
diers, but  which  was  regularly  mustered  and  paid  as  a  company  of  infantry,  is  not 
entitled  to  pay  as  an  engineer  soldier.  Ibid.,  25. 

4  An  officer  of  the  Pay  or  Medical  Department  can  not  exercise  command,  except 
in  his  own  department;  but  by  virtue  of  his  commission  he  may  command  all  enlisted 
men  like  other  commissioned  officers.  Par.  18,  A.  R.,  1901. 


312 


MILITARY    LAWS    OF    THE    UNITED    STATES. 


CLERKS   TO  PAYMASTERS. 

clerks masters      ^05.  Paymasters   and   additional    paymasters   shall   be 
fiQA«ps'  vV?9Q7'-  allowed  a  capable  noncommissioned  officer  or  private  as 

oy,  s.  o,  v.  Oj  p.  6«f/, 

sU2o  V?8!)0 -259:  derk.  When  suitable  noncommissioned  officers  or  privates 
i45n  s  10  v18Ls'  p' can  no*  ke  procured  from  the  line  of  the  Army,  they  are 
145.  June  3 o,  authorized,  by  and  with  the  approbation  of  the  Secretary 
B.S.  Of  War,  to  employ  citizens  as  clerks,  at  a  salary  of  fourteen 
hundred  dollars  a  year. l  Act  of  June  30, 1882  (22  Stat.  L. , 
118). 

806.  Hereafter  the  pay  of  army  paymasters'  clerks  who 
have  served  as  such  over  fifteen  years  shall  be  one  thou- 
sand eight  hundred  dollars  per  annum;  the  pay  of  army 
paymasters'  clerks  who  have  served  as  such  over  ten  years 
shall  be  one  thousand  six  hundred  dollars  each  per  annum; 
the  pay  of  army  paymasters'  clerks  who  have  served  as 
such  over  five  years  shall  be  one  thousand  five  hundred 
dollars  each  per  annum;  the  pay  of  other  army  pay- 
masters' clerks  shall  be  one  thousand  four  hundred  dollars 
each  per  annum.  Act  of  May  26,  1900  (31  Mat.  L.,  209). 

PAY    OF    COMMISSIONED    OFFICERS. 


1882  v  zp  us 
Sec.ii9b, 


Pay  of  clerks. 
May  26, 1900,  v 
31,  p.  209. 


ERSITY 

OF 


807.  Rates  of  pay. 

808.  The  same,  militia  and  volunteers. 

809.  Principal  assistant  to  Chief  of  Ord- 

nance. 

810.  Mounted  pay. 

811.  No  increase  for  brevet  rank. 
812-813.  Advances  of  pay. 

814.  Increased  pay  for  higher  command. 

815.  The  same,  restriction. 


816.  The  same,  foreign  service. 

817.  Allowances,  restriction. 
818-823.  Longevity  pay. 
823  a.  Pay  of  volunteers. 

824.  Retired  pay. 

825.  The  same,  officers  wholly  retired. 
826-828.  Pay  during  absence. 

829.  Absence  without  leave. 


Rates  of  pay  to 
officers. 

July  15, 1870,  s. 
24,  v.  16.  p.  320; 
July  24,  1876,  v. 
19,  p.  97. 

Sec.  1261,  B.S 


807.  The  officers  of  the  Army  shall  be  entitled  to  the 

2  herein  stated  after  their  respective  designations : 3 
The  General,  thirteen  thousand  five  hundred  dollars  a 


The  Lieutenant-General,  eleven  thousand  dollars  a  year. 
Major-general,  seven  thousand  five  hundred  dollars  a 


year. 


1  For  travel  allowances  of  paymasters'  clerks  see  paragraph  847,  post.     Salaries 
of  clerks  to  paymasters  are  now  graded  according  to  length  of  service.     See  next 
paragraph  for  rates  of  pay  for  periods  of  service. 

2  Pay  is  the  monthly  pecuniary  compensation  of  officers  and  soldiers  of  the  Army, 
as  fixed  by  sections  1261,  1280,  etc.,  Revised  Statutes.     It  is  quite  distinct  from 
"  allowances."     Dig.  Opin.  J.  A.  G.,  par.  1894;  X  Opin.  Att.  Gen.,  285.     The  right  to 
pay  begins  and  ends  with  the  period  of  legal  service.     Except  by  special  authority  of 
Congress  an  officer  or  soldier  can  not  be  paid  for  military  service  rendered  before 
appointment,  enlistment,  or  muster  in.     See  note  3  to  paragraph  821,  post.     See  also 
the  chapter  entitled  COMMISSIONED  OFFICERS. 

3  For  longevity  pay,  see  paragraph  818,  post. 

4  This  office  has  ceased  to  exist  as  a  grade  of  rank  in  the  military  establishment. 


MILITARY    LAWS    OF    THE    UNITED   STATES.  313 

Brigadier-general,  five  thousand  five  hundred  dollars  a 
year. 

Colonel,  three  thousand  five  hundred  dollars  a  year. 

Lieutenant-colonel,  three  thousand  dollars  a  year. 

Major,  two  thousand  five  hundred  dollars  a  year. 

Captain,  mounted,  acting  judge-advocate,  and  chaplain 
of  volunteers,  two  thousand  dollars  a  year.1 

Captain,  not  mounted,  and  chaplain,  eighteen  hundred 
dollars  a  year. 

Squadron  and  battalion  adjutants,  cavalry,  infantry,  and 
engineers,  eighteen  hundred  dollars  a  year.2 

First  lieutenant,  mounted,  sixteen  hundred  dollars  a 
year. 

Squadron  and  battalion  quartermaster  and  commissary, 
cavalry,  infantry,  and  engineers,  sixteen  hundred  dollars  a 
year.2 

First  lieutenant,  not  mounted,  fifteen  hundred  dollars  a 
year. 

Second  lieutenant,  mounted,  and  veterinarian,  cavalry 
and  artillery,3  fifteen  hundred  dollars  a  year. 

Second  lieutenant,  not  mounted,  fourteen  hundred  dol- 
lars a  year. 

Aid  and  military  secretary  to  the  lieutenant-general, 
the  pay  of  lieutenant-colonel.4 

Aid  to  major-general,  two  hundred  dollars  a  year,  in 
addition  to  pay  of  his  rank. 

Aid  to  brigadier-general,  one  hundred  and  fifty  dollars 
a  year,  in  addition  to  pay  of  his  rank. 

Acting  assistant  commissary,  one  hundred  dollars  a  year, 
in  addition  to  pay  of  his  rank.5 

1  Section  15,  act  of  February  2,  1901  (31  Stat.  L.,  751);  act  of  July  8,  1898.  (30 
ibid.,  729). 

2 Sections  2,  10,  and  11,  act  of  February  2,  1901  (31  Stat.  L.,  748  and  750). 

3Section  2,  act  of  May  12,  1898  (30  Stat.  L.,  406);  section  20,  act  of  February  2, 
1901  (31  ibid.,  753). 

4Section  1097,  Revised  Statutes;  joint  resolution  No.  9,  February  5,  1895  (28  Stat. 
L.,  968). 

5 Higher  compensation  for  staff  service  is  given  by  law  in  several  forms,  as  follows: 

1.  In  the  form  of  increased  rank,  accompanied  by  the  pay  or  allowances  of  a  higher 
grade  in  lieu  of  the  pay  and  allowances  of  the  grade  which  the  officer  holds  under 
his  commission,  as  in  the  case  a  lieutenant,  or  captain  dismounted  detailed  as  an  acting 
judge-advocate,  or  as  in  the  case  of  the  superintendent  and  commandant  of  cadets  at 
the  Military  Academy. 

2.  In  the  form  of  a  higher  salary,  without  change  in  rank  or  grade,  as  in  the  case 
of  a  lieutenant  detailed  as  regimental  adjutant  or  quartermaster,  prior  to  March  2, 
1899  (sec.  1261,  R.  S. ) ,  or  as  is  the  case  with  certain  assistant  professors  and  instructors 
of  tactics  at  the  Military  Academy. 

3.  In  the  form  of  a  specific  sum  allowed  by  law,  in  addition  to  the  pay  and  allow- 
ances of  the  grade  or  rank  held  by  the  officer  under  his  commission,  as  in  the  case  of 
aids  to  major-generals  or  brigadier-generals.     See  5  Compt.  Dec.,  971,  975. 

The  positions  of  acting  judge-advocate  and  aid  to  major-general  in  the  Army  are 


314  MILITARY    LAWS    OF   THE    UNITED    STATES. 

Ordnance  storekeeper,  in  office  of  Chief  of  Ordnance, 
the  pay  of  major.  Acts  of  May  1,  1882  (22  Stat.  Z.,  52); 
June  6,  1896  (29  ibid.,  256). 

Military  storekeeper,  the  pay  of  captain,  mounted.1  Act 
of  July  1,  1898  (30  Stat.  Z.,  571). 

Contract  and  dental  surgeon,  not  to  exceed  eighteen 
hundred  dollars  a  year.2 

un°tSand  Jnl:     808-  Officers     *     *     *     of  the  Volunteer  Army,  and  of 
11  April  22  1898  ^e  militia  of  the  States,  when  in  the  service  of  the  United 
s.  12, v. so, p. SGI.' states,  shall  be  in  all  respects  on  the  same  footing  as  to 
pay,  allowances,  and  pensions  as  that  of  officers     * 
of  corresponding  grades  in  the  Regular  Army.     Sec.  12, 
act  of  April  22,  1898  (30  Stat.  L.,  361). 
Pay  of  princi-     809.  The  principal  assistant  in   the  Ordnance  Bureau 

pal  assistant  in  .          « 

ordnance  BU-  shall  receive  compensation,  including  pay  and  emoluments, 
Feb.  27,  is??,  v.  not  exceeding  that  of  a  major  of  ordnance.3 

19,     p.  243. 
Sec.  1279,R.S. 

Feb!  27^1877^.  ^10.  Officers  of  the  Army  and  of  volunteers  assigned  to 
i.s.  duty  which  requires  them  to  be  mounted  shall,  during  the 
time  they  are  employed  on  such  duty,  receive  the  pa}7, 
emoluments,  and  allowances  of  cavalry  officers  of  the  same 
grade,  respectively.* 

incompatible,  and  an  officer  is  not  entitled  to  the  additional  pay  of  both  positions  at 
the  same  time.  5  Compt.  Dec.,  971. 

Lieutenants  serving  as  regimental  (squadron  and  battalion)  commissaries  are  not 
entitled  to  additional  pay  as  acting  commissaries  of  subsistence.  5  Compt.  Dec.,  761. 
Captains,  other  than  regimental  commissaries,  are  entitled  to  additional  pay.  Dig. 
Opin.  J.  A.  G.,  par.  1910. 

^his  office  has  ceased  to  exist  as  a  grade  of  rank  on  the  active  list  of  the  Army. 

2Section  2,  act  of  May  12,  1898  (30  Stat.  L.,  406);  section  19,  act  of  February  2, 
1901  (31  ibid.,  753).  The  three  contract  dental  surgeons  first  appointed  are  entitled 
to  $60  per  month  additional  pay  for  the  performance  of  the  duties  prescribed  in  that 
section. 

3  And  the  Ordnance  storekeeper  on  duty  as  disbursing  officer  and  assistant  to  the 
Chief  of  ordnance.     See  paragraph  1159,  note,  and  paragraph  1160,  post. 

4  A  mounted  officer  is  one  who,  by  statute,  regulations,  or  army  organization,  is 
"required"  to  be  mounted  at  his  own  expense.     Harold  v.  TJ.  S.,  23  Ct.  Cls.,  295. 
An  officer  of  a  battery  designated  by  the  President  as  a  "light  battery"  is  entitled 
to  mounted  pay  from  the  date  of  such  designation.     Ibid.     Officers  are  not  assigned 
to  duty  "requiring  them  to  be  mounted"  when  no  order  or  authorization  requiring 
them  to  mount  themselves  has  been  issued  by  the  War  Department,  and  they  have 
merely  been  riding  Government  horses,  by  permission,  and  have  been  furnished  with 
Government  equipments.    Forbes  v.  U.  S. ,  17  Ct.  Cls.,  32.    Nor  are  officers  so  assigned 
within  the  meaning  of  the  act  of  February  12,  1877,  where  they  are  simply  mounted 
on  Government  horses  captured  from  Indians,  and  do  not  furnish,  at  their  own 
expense  horses,  saddles,  bridles,  sabers,  pistols,  spurs,  and  other  cavalry  equipments. 
Ibid.;  Carter  v.  U.  S.,  22  ibid.,  73;  see  also  Eskridge  v.  U.  S.,  30  ibid.,  290. 

The  following  officers,  in  addition  to  those  whose  pay  is  fixed  by  law,  are  entitled 
to  pay  as  mounted  officers:  Officers  of  the  staff  corps  below  the  rank  of  major,  offi- 
cers serving  with  troops  of  cavalry,  officers  of  a  light  or  siege  battery  duly  organized 
and  equipped,  authorized  aids  duly  appointed,  officers  serving  as  military  attaches 
to  the  embassies  and  legations  of  the  United  States  at  foreign  capitals,  officers  serv- 
ing with  companies  of  mounted  infantry,  and  officers  on  duty  which  requires  them 
to  be  mounted  and  which  is  so  certified  to  by  the  Secretary  of  War  or  the  depart- 
ment or  corps  commander  on  their  first  pay  vouchers  while  on  such  duty,  the  certifi- 


MILITARY    LAWS    OF    THE    UNITED    STATES.  315 


811.  Brevets  conferred  upon  commissioned  officers  shall 
not  entitle  them  to  any  increase  of  pay.  Ma  J  Vis 


s.  9,  v.  13.  p.  488. 
ADVANCES    OF    PAY. 


812.  The  President  may     *     *     *     direct  such  ad  vances  mon™  n  ces  °f 
as  he  may  deem  necessary  and  proper  to  persons  in  the 

naval  and  military  service  employed  on  distant  stations 
where  the  discharge  of  the  pay  and  emoluments  to  which 
they  may  be  entitled  can  not  be  regularly  effected.1 

813.  Troops  about  to  embark  for  service  in  the  Philip-    Advance  to 

.  troops     embark- 

pine  Islands  may,  in  the  discretion  of  the  Secretary  of  mg  for  Philip- 

pine Islands. 
War,  be  paid  one  month's  wages  in  advance  prior  to  em-    July  7,  isos,  v. 

barkation.2     Act  of  July  7,  1898  (30  Stat.  Z.,  780). 


cate  being  cited  by  the  officers  on  their  subsequent  vouchers.  Officers  ceasing  to 
draw  mounted  pay  will  file  with  the  last  pay  voucher  a  copy  of  the  order  relieving 
them  from  duty  which  required  them  to  be  mounted.  Acting  judge-advocates  of 
military  departments,  duly  detailed,  are  entitled  while  so  serving  to  the  rank,  pay, 
and  allowances  of  captains  of  cavalry.  Par.  1450,  A.  R.,  1901. 

The  act  of  July  17,  1862  (12  Stat.  L.,  594),  allowed  to  officers  "  assigned  to  duty 
which  required  them  to  be  mounted"  certain  increased  pay.  So  section  1261, 
Revised  Statutes,  entitles  captains  and  lieutenants,  when  "mounted,"  to  receive 
respectively  $200  and  $100  per  annum  of  pay  more  than  when  "not  mounted." 
Held,  that  to  entitle  officers  to  the  increase  of  pay  under  these  statutes  it  was  not, 
and  is  not,  essential  that  the  duties  required  of  them  should  make  it  absolutely 
necessary  that  they  should  be  mounted,  but  that  it  was,  and  is,  sufficient  if  these 
duties  were,  or  are,  such  as  are  usually  and  appropriately  performed  by  mounted 
officers,  and  such  as  can  not  be  performed  effectively  or  without  material  embarrass- 
ment and  inconvenience  to  the  service  except  by  such  officers  (note  in  this  connec- 
tion the  construction  in  Griswold  v.  Hepburn,  2  Duvall,  20,  of  the  provision  in 
Art.  I,  sec.  8  §  18  of  the  Constitution,  that  Congress  shall  have  the  power  "to  make 
all  laws  which  shall  be  necessary,1'  etc.,  for  the  execution  of  its  special  powers — 
as  meaning  not  indispensable  but  appropriate  and  conducive  to  the  purpose); 
and  further  that  the  certificate  of  the  proper  commander  of  an  officer  (as  of  the 
Chief  Signal  Officer  in  a  case  of  an  officer  engaged  in  signal  duty,  or  of  the  Superin- 
tendent at  West  Point  in  a  case  of  an  acting  quartermaster  stationed  at  that  post), 
that  the  duties  of  the  officer  properly  required  (in  the  sense  above  indicated)  that 
he  should  be  mounted,  would  (the  Secretary  of  War  approving)  be  sufficient  to 
entitle  him  to  receive  the  additional  pay.  Held,  that  a  captain  or  lieutenant  detailed 
as  a  professor  in  a  college,  under  section  1225,  was  not  entitled  to  mounted  pay.  Dig. 
Opin.  J.  A.  G.,  par.  1909. 

Where  the  duty  to  which  an  infantry  officer  is  assigned,  in  the  opinion  of  the 
department  commander,  requires  him  to  be  mounted,  and  such  officer  furnishes 
horses  and  forage,  he  is  entitled  to  be  paid  as  a  mounted  officer  until  he  is  notified  of 
the  changed  opinion  of  the  department  commander.  Eskridge  v.  U.  S.,  30  Ct.  Cls., 
290. 

An  officer  of  a  battery  of  artillery,  designated  by  the  President  as  a  mounted  bat- 
tery, is  entitled  to  mounted  pay  from  the  date  of  such  designation,  though  the  bat- 
tery was  not  equipped  until  a  later  date.  Harrold  r.  U.  S.,  23  Ct.  Cls.,  295. 

A  captain  detailed  as  regimental  adjutant  or  regimental  quartermaster  under  sec- 
tion 2  of  the  act  of  March  2,  1899  (30  Stat.  L.,  977),  is  entitled  to  the  pay  of  a  captain 
mounted.  5  Compt.  Dec.,  761.  x 

1  An  advance  of  public  money  made  by  a  paymaster  of  the  Army  to  an  officer 
ordered  to  a  distant  station,  when  made  by  direction  of  the  President,  as  provided 
by  section  3648  of  the  Revised  Statutes,  to  provide  for  the  pay  of  such  officer  for  a 
future  period,  is  not  a  payment  for  services  for  the  correctness  of  which  the  pay- 
master is  held  responsible,  but  is  an  advance  of  public  money  to  the  officer  in  ques- 
tion, for  which  he,  and  not  the  paymaster,  is  accountable  to  the  United  States.     4 
Compt.  Dec.,  250. 

2  The  act  of  May  2,  1898  (30  Stat.  L.,  420)  had  contained  the  same  provision. 


316  MILITARY    LAWS    OF   THE    UNITED    STATES. 

INCREASED    PAY   TO     OFFICERS    EXERCISING     COMMANDS     HIGHER    THAN 

THEIR    GRADES. 

Pay  of  grade      814.  In  time  of  war  every  officer  serving  with  troops 

appropriate      to  . 

command  exer- operating  against  an  enemy  who  shall    exercise,  under 

cised  in  time  of     r  .  J . 

war.  assignment  in  orders  issued   by  competent  authority,  a 

1898,  v.  so,  p. '364!  command  above  that  pertaining  to  his  grade  shall  be 
entitled  to  receive  the  pay  and  allowances  of  the  grade 
appropriate  to  the  command  so  exercised :  Provided,  That 
a  rate  of  pay  exceeding  that  of  a  brigadier-general  shall 
not  be  paid  in  any  case  by  reason  of  such  assignment.1 
Sec.  7,  act  of  April  26,  1898  (30  Stat.  L.,  364). 

1  Under  section  7  of  the  act  of  Congress  approved  April  26,  1898,  an  officer  is  not 
entitled  to  the  pay  and  allowances  of  the  grade  appropriate  to  a  command  exercised 
by  him  above  that  pertaining  to  his  grade  except  when  ' '  serving  with  troops  oper- 
ating against  an  enemy"  and  exercising  the  command  of  the  higher  grade  "  under 
assignment  in  orders  issued  by  competent  authority. ' '  It  has  been  held  by  the  Sec- 
retary of  War  that  troops  serving  within  the  limits  of  the  United  States  at  a  time 
when  there  is  no  foreign  army  within  said  limits  are  not  operating  against  an  enemy, 
notwithstanding  the  existence  of  war  conditions.  For  the  purpose  of  restricting 
assignments  to  command  under  this  section  to  "competent  authority,"  it  has  also 
been  decided  that  such  authority  can  be  exercised  only  by  the  Secretary  of  War,  or 
by  the  commanding  general  of  an  army  "operating  against  an  enemy."  Circular 
18,  A.  G.  0.,  1898.  See  also  G.  0.  86,  A.  G.  O.,  1898. 

The  command  prescribed  by  law  for  an  officer  of  the  Army  must  be  held  to  be  the 
appropriate  command  of  that  grade,  and  such  command  is  not  subject  to  change  by 
Executive  order,  or  regulation,  except  as  provided  by  law.  5  Compt.  Dec.,  354. 

An  officer  of  the  Army  who,  under  assignment  in  orders  issued  by  his  superior 
officer,  exercises  a  command  above  that  pertaining  to  his  grade  exercises  such  com- 
mand under  competent  authority  within  the  meaning  of  section  7  of  the  act  of  April 
26,1898.  Ibid.,  354. 

Under  section  7  of  the  act  of  April  26, 1898,  an  officer  of  the  Army  serving  in  time 
of  war  with  troops  operating  against  an  enemy,  who  is  required  by  the  Army  Regu- 
lations, upon  a  specified  contingency,  to  exercise  a  command  above  that  pertaining 
to  his  grade,  must  be  regarded  as  exercising  such  ' '  command  under  assignment  in 
orders  issued  by  competent  authority,"  and  is  entitled  to  the  pay  of  the  higher 
grade.  Ibid.,  639. 

The  office  of  an  officer  of  the  Army  and  his  rank  are  not  necessarily  identical. 
Wood  v.  U.  S.,  107  U.  S.,  414;  5  Compt.  Dec.,  280. 

A  captain  in  the  Army  while  performing  duty  as  chief  quartermaster  does  not  exer- 
cise a  command  within  the  meaning  of  section  7  of  the  act  of  April  26,  1898,  and  is 
not  entitled  to  increased  pay  for  exercising  a  command  above  that  pertaining  to  his 
grade.  5  Compt.  Dec.,  137.  A  judge-advocate  who  is  assigned  by  a  corps  com- 
mander to  act  as  judge-advocate  on  his  staff  does  not  thereby  acquire  any  higher 
rank  and  is  not  entitled  to  any  additional  pay.  Ibid.,  168. 

A  major  of  infantry  who,  on  the  assignment  of  the  lieutentant-colonel  to  the  com- 
mand of  the  regiment,  was  assigned  to  the  command  of  a  battalion  was  not  assigned 
to  a  command  above  that  pertaining  to  his  grade,  and  is  not  entitled  to  the  increase 
of  pay  provided  by  the  act  of  April  26,  1898,  for  exercising  a  command  above  that 
pertaining  to  his  grade.  Ibid.,  862. 

The  fact  that  a  major  of  the  Army  was  for  a  time  assigned  to  the  command  of  a 
post  garrisoned  by  two  batteries  of  artillery  does  not  make  such  a  command  the 
appropriate  command  of  a  major,  and  a  captain  assigned  to  such  a  command  is  not 
entitled  to  the  pay  of  a  major.  Ibid.,  891. 

There  is  no  law  authorizing  the  allowance  of  additional  pay  to  an  enlisted  man  for 
performing  the  duties  of  a  commissioned  officer,  and  a  claim  for  such  pay  can  not  be 
allowed.  4  Compt.  Dec.,  120. 

A  second  lieutenant  of  the  Army  who  exercised  the  command  of  a  first  lieutenant 
did  not  "exercise  a  command  above  that  pertaining  to  his  grade,"  within  the  mean- 
ing of  the  act  of  April  26,  1898,  and  he  is  not  entitled  to  the  pay  of  the  higher  grade. 
6  Compt.  Dec.,  905. 

Where  an  officer  of  the  Army  exercised  a  higher  command  and,  under  section  7 


MILITAEY    LAWS    OF    THE    UNITED    STATES.  317 

815.  For  additional  pay  for  increased  rank  when  in  com-   Restriction  May 
mand  by  competent  authority,  *    *    *   dollars:  Provided,***.. 

That  no  part  of  this  sum  shall  be  used  for  pay  of  officers 
assigned  to  higher  command  than  their  rank  in  the  Army, 
unless  such  service  shall  be  continuous  for  a  period  of  not 
less  than  three  months.  Act  of  May  26,  1900  (31  Stat. 
Z.,  VII). 

INCREASED    PAY    FOR    FOREIGN    SERVICE. 

816.  Hereafter  the  pay  proper  of  all  officers  and  enlisted  fojen.^  *ear*fcefor 
men  serving  beyond  the  limits  of  the  States  comprising  31Mparg023'  1901»  v 
the  Union  and  Territories  of  the  United  States  contiguous 

thereto  shall  be  increased  ten  per  centum  for  officers  and 
twenty  per  centum  for  enlisted  men  over  and  above  the 
rates  of  pay  proper  as  fixed  by  law  for  time  of  peace,  and 
the  time  of  such  service  shall  be  counted  from  the  date  of 
departure  from  said  States  to  the  date  of  return  thereto.1 
Act  of  March  0,  1901  (31  Stat.  Z.,  903). 

of  the  act  of  April  26,  1898,  is  entitled  to  the  pay  and  allowances  of  the  grade  appro- 
priate to  the  command  so  exercised,  and,  under  section  1262,  Revised  Statutes,  is  also 
entitled  to  increased  pay  for  length  of  service,  such  increased  pay  to  be  computed  on 
the  pay  of  the  grade  appropriate  to  such  higher  command.  Ibid.,  710. 

1  This  enactment  replaces  the  requirement  in  pari  materia  of  the  act  of  May  26, 
1900.  (31  Stat.  L.,  211.)  The  act  of  March  3,  1901  also  provides  that  "the  officers 
and  enlisted  men  who  have  served  in  China  at  any  time  since  the  twenty-sixth  day 
of  May,  nineteen  hundred,  shall  be  allowed  and  paid  for  such  service  the  same 
increase  of  pay  proper  as  is  herein  provided  for."  Under  this  statute  an  officer  is 
entitled  to  10  per  cent  increase  of  his  pay  proper  for  the  highest  grade  he  holds,  or 
of  the  highest  grade  to  which  his  pay  and  allowances  are  lawfully  assimilated,  but 
such  increase  of  pay  does  not  operate  to  increase  his  pay  for  length  of  service.  See 
6  Compt.  Dec.,  944. 

The  act  does  not  make  any  change  in  the  regular  pay  or  allowance  .of  the  Army, 
but  makes  provision  for  a  special  or  extra  allowance  to  officers  and  enlisted  men  of 
the  Army  while  they  are  serving  in  the  places  named  in  the  act.  It  obviously 
applies  only  to  service  rendered  on  and  after  the  date  of  the  act. 

The  provisions  of  the  various  laws,  to  wit,  section  11,  act  of  June  20,  1864  (13 
Stat.  L.,  145),  section  1265,  Revised  Statutes,  act  of  May  8,  1874  (18  Stat.  L.,  43),  and 
act  of  July  29,  1876  (19  Stat.  L.,  102),  authorizing  leaves  of  absence  to  be  allowed  to 
officers  for  specified  periods  "without  deduction  of  pay  or  allowances"  have  not  been 
construed  to  entitle  an  officer  while  on  leave  to  allowances  the  payment  of  which 
was  conditioned  upon  the  performance  of  some  particular  service,  such  as  payment 
istant  commissary  under  section  1261,  Revised  Statutes,  or 


of  $100  a  year  as  acting  assistant  commissary 

pay  for  exercising  a  higher  command  under  section  7,  act  of  April  26,  1898  (30 

Stat.  L.,  365). 

The  10  per  cent  increase  on  pay  proper  being  allowed  by  the  act  only  to  officers 
serving  in  the  places  named  therein,  I  am  of  the  opinion  that  an  officer  on  duty  in 
one  of  the  places  named  in  the  act,  who  is  relieved  from  duty  and  given  a  sick  leave 
or  an  ordinary  leave,  is  not  entitled  to  the  10  per  cent  increase  in  computing  his  pay 
after  the  date  on  which  he  leaves  the  place  where  the  increased  pay  for  service  therein 
is  authorized  by  law.  6  Comp.  Dec.,  948. 

The  provisions  of  the  act  in  respect  to  the  10  per  cent  increase  therein  provided 
were  special  and  peculiar,  and  while  the  10  per  cent  increase  would  undoubtedly  be 
included  in  the  term  "pay"  as  to  officers  serving  in  places  named  in  the  act,  it 
would  not  be  included  in  either  of  the  terms  "pay"  or  "allowances"  as  to  officers 
not  serving  in  such  places. 

In  all  the  laws  relating  to  contract  surgeons  they  are  clearly  distinguished  from 
officers  of  the  Army.  See  sections  1  and  2,  act  of  May  12,  1898  (30  Stat.  L.,  406)  ;  sec- 
tion 7,  act  of  March  2,  1899,  to  increase  the  efficiency  of  the  Army  (30  Stat.  L.,  979), 
and  the  acts  providing  for  mileage  to  officers  traveling  without  troops  and  to  con- 


318  MILITARY    LAWS    OF   THE    UNITED    STATES. 


817t  No  allowances  shall  be  made  to  officers  in  addition 
294,  s.  24,  v.  16,  p.  {o  their  pay  except  as  hereinafter  provided.  1 

Sec.  1269,  R.S. 

LONGEVITY   PAY. 

service  pay.        818.  There  shall  be  allowed  and  paid  to  each  commis- 

294?sy24,V.  16,'  p!  sioned  officer  below  the  rank  of  brigadier-general,  includ- 

s'ec.i262,B.s.  ing  chaplains  and  others  having  assimilated  rank  or  pay, 

ten  per  centum  of  their  current  yearly  pay  for  each  term 

of  five  years  of  service.2 

4oNpertoceSteeodf  ^1^<  The  total  amount  for  such  increase  for  length  of 
ye!uiy  15  yi8?o  c  service  shall  in  no  case  exceed  forty  per  centum  on  the 
294,  s.  24,  v.  16,  p.  yearly  pay  of  the  grade  as  provided  by  law. 

Sec.  1263,  R.S. 

820.  *n  no  case  sna^  the  pay  of  a  colonel  exceed  four 
1  C°]  thousand  five  hundred  dollars  a  year,  or  the  pay  of  a  lieu- 
294Usy245'v  8i6  '  p'  tenant-colonel  exceed  four  thousand  dollars  a  year. 

320!    Sec.l267,R.S. 

lo^leVity  ePayr     821-  ®n  and  after  the  passage  of  this  act,  all  officers  of 

hos^cC07mjune(i8  the  Army  of  the  United  States  who  have  served  as  officers 

1878,  v.  20,  p.  150.  ]n  the  volunteer  forces  during  the  war  of  the  rebellion,  or 

*  as  enlisted  men  in  the  armies  of  the  United  States,  regu- 

lar or  volunteer,  shall  be,  and  are  hereby,  credited  with 

the  full  time  they  may  have  served  as  such  officers  and  as 

such  enlisted  men  in  computing  their  service  for  longevity 

pay  and  retirement.3     Sec.  7,  act  of  June  18  ,  1878  (20 

Stat.  L.,150). 

tract  surgeons,  acts  of  January  5,  1899,  and  March  3,  1899  (30  Stat.  L.,  775,  1068), 
and  act  of  May  26,  1900  (31  Stat.  L.,  210),  and  section  1342,  Kevised  Statutes. 

It  has  been  uniformly  held  that  a  contract  surgeon,  also  called  acting  assistant 
surgeon,  is  neither  an  officer  nor  an  enlisted  man  and  is  not  a  member  of  the  Army, 
but  has  the  status  of  a  civilian  employee.  See  26  Ct.  Cls.,  302;  Dig.  2d  Compt. 
Dec.,  vol.  3,  sections  929,  932;  4  Compt.  Dec.,  631,  632;  5  Compt.  Dec.,  86,  275;  6 
Compt.  Dec.,  356,  376,  403. 

As  a  contract  surgeon  is  neither  an  officer  nor  an  enlisted  man  he  is  not  entitled  to 
increased  pay  under  the  act  of  May  26,  1900,  supra.  Dec.  Compt.  Treas.  ,  Oct.  19, 
1900,  Cir.  42  A.  G.  O.,  1900. 

1  Pay  is  the  fixed  and  direct  amount  given  by  law  ;  allowances  or  emoluments  are 
indirect  or  contingent  remuneration;  both  are  compensation.     Sherburne  v.  U.  S., 
16  Ct.  Cls.,  491.     See  also  note  2  to  paragraph  807,  ante. 

2  Longevity  pay  is  founded  upon  the  equivalent  of  increased  judgment  and  capacity 
acquired  by  the  experience  of  continued  service.     Brown  v.  U.  S.,  18  Ct.  Cls.,  545. 
Acts  authorizing  longevity  pay  are  remedial  statutes,  and  officers  are  entitled,  to  a 
liberal  interpretation  of  them,  the  language  used  being  given  as  broad  a  meaning  as 
Congress  maybe  presumed  to  have  intended.     Hendee  v.  U.  S.,  22  Ct,  Cls.,  134; 
19  ibid.,  153. 

3  An  officer  once  in  actual  service,  under  color  of  office,  is  entitled  to  have  the  time 
credited  to  him  in  the  computation  of  longevity  pay.     Gould  r.  U.  S.,  19  Ct.  Cls., 
593.     The  time  of  actual  service  is  to  be  credited  to  an  officer  in  the  computation  of 
his  longevity  pay,  without  regard  to  a  defect  in  his  title  to  the  office.     Palen  v. 
U.  S.,  19  ibid.,  389.     Service  as  chaplain  prior  to  the  act  of  March  2,  1867  (14  Stat.  L., 
423),  can  be  reckoned  in  computing  longevity  pay,  chaplains  being  in  the  military 
service  prior  to  that  date.     U.  S.  v.  LaTourette,  151  U.  S.,  572.     Service  as  a  contract 
surgeon  can  not  be  reckoned  in  such  computation.     Byrnes  v.  U.  S.,  26  Ct.  Cls., 
302;  Hendee  v.  U.  S.,  124  U.  S.,  309.     Before  the  passing  of  the  act  of  July  28,  1866, 
as  well  as  afterwards,  the  corps  of  cadets  of  the  Military  Academy  was  a  part  of  the 


MILITARY    LAWS    OF    THE    UNITED    STATES.  319 


822.  The  actual  time  of  service  in  the  Army  or  Navy,  or 

both,  shall  be  allowed  all  officers  in  computing  their  pay.  2iF£b34264'1881-v- 
Act  of  February  %  1881  (21  Stat.  Z.,  346). 

823.  From  and  after  the  first  day  of  July,  eighteen  hun-  edT0°n  y^ari^pay 
dred  and  eighty-two,  the  ten  per  centum  of  increase  for  ofj^rne  eso  1882, 
length  of  service  allowed  to  certain  officers  by  section  1262  v- 22'  p- 118- 

of  the  Revised  Statutes  *  shall  be  computed  on  the  yearly 
pay  of  the  grade  fixed  by  sections  twelve  hundred  and 
sixty-one2  and  twelve  hundred  and  seventy-four3  of  the 
Revised  Statutes.  Act  of  June  30, 1882  (22  Stat.  L. ,  118). 

PAY    OF    VOLUNTEERS. 

823 a.  All  officers  and  enlisted  men  of    the  Volunteer    Pfty.    allow- 
ances, etc.. of  vol- 

Army,  and  of  the  militia  of  the  States  when  in  the  service  of  jgj^6"  and  mi' 
the  United  States,  shall  be  in  all  respects  on  the  same  foot-  J.  12,  April  22, 

•••  loyo,  v.  ou,  p.  ooo. 

ing  as  to  pay,  allowances,  and  pensions  as  that  of  officers 
and  enlisted  men  of  corresponding  grades  in  the  Regular 
Army.4  Sec.  12,  act  of  April  22,  1898  (30  Stat.  Z.,  363). 

RETIRED   OFFICERS. 

824.  Officers  retired  from  active  service  shall  receive  ofjiJJra?f  retired 
seventy-five  per  centum  of  the  pay  of  the  rank  upon  which  294Usy245  V18i6'p' 
they  are  retired. 5  c2?^?8'  ^ 

Roberta's  Case,  10  Ct.  Cls.,  283.    Sec.'l27 


c.  178,  v.  18,  p.  512, 
74,  R.  S. 


Army  of  the  United  States,  and  a  person  serving  as  a  cadet  was  serving  in  the  Army; 
and  the  time  during  which  a  person  has  served  as  a  cadet  was,  therefore,  actual  time 
of  service  by  him  in  the  line  of  the  Army.  Morton  v.  U.  S.,  112  U.  S.,  1,  7. 

In  computing  longevity  pay,  service  performed  as  cadets  at  the  Military  or  Naval 
Academy,  or  as  enlisted  men  of  the  Army  or  Navy,  will  be  counted.  Par.  1311, 
A.  R.,  1895. 

1  Paragraph  818,  ante. 

2  Paragraph  807,  ante. 

3  Paragraph  824,  post. 

4 Section  1292  of  the  Revised  Statutes  contains  the  requirement  that  "in  all  matters 
relating  to  the  pay  and  allowances  of  officers  and  soldiers  of  the  Army  of  the  United 
States,  the  same  rules  arid  regulations  shall  apply  to  the  Regular  Arniy  and  to  volun- 
teer forces  mustered  into  the  service  of  the  United  States  for  a  limited  period." 

The  date  on  which  a  volunteer  officer,  appointed  by  the  President,  formally  accepts 
his  appointment  should  be  considered  as  the  date  of  the  commencement  of  his  mili- 
tary service.  No  such  officer  should  be  recognized  as  having  been  in  the  military 
service  of  the  United  States,  under  his  appointment,  because  of  any  service  that  may 
have  been  rendered  by  him  prior  to  his  formal  acceptance  of  that  appointment.— 
Decision  Sec.  War,  June  28,  1899.  Circular  32,  A.  G.  0.,  1899. 

5  An  officer  of  the  Army  who  has  been  retired  is  entitled  to  the  pay  provided  for 
a  retired  officer  only,  even  though  he  may  not  have  been  relieved  from  active  duty. 
5  Compt.  Dec.,  53.  Retired  officers  toeing  in  the  military  service  of  the  Government, 
the  increased  pay  of  10  per  cent  for  each  five  years'  service  applies  to  the  years  so 
parsed  in  the  service  after  retirement  as  well  as  before.  U.  S.  v.  Tyler,  10*5  U.  S., 
244,  246,  and  16  Ct.  Cls.,  223. 

An  officer  on  the  retired  list  to  whom  the  "full  pay  and  allowances  of  brigadier- 
general"  has  been  granted  by  Congress  is  not  entitled  to  an  allowance  of  forage. 
XVII  Opin.  Att.  Gen.,  390,  where,  by  a  private  act  of  Congress,  an  ex-officer  is  placed 
upon  the  retired  list  and  the  act  directs  that  his  retired  pay  shall  be  due  and  payable 
to  him  from  the  date  of  the  passage  of  the  act,  his  pay  will  begin  at  the  date  of  the 
act  and  not  at  the  date  of  his  acceptance.  1  Compt.  Dec.,  172. 


320  MILITARY    LAWS    OF    THE    UNITED    STATES. 


OFFICERS    WHOLLY    RETIRED. 

whoJy°rfet*eCders  825«  Officers  wholly  retired  from  the  service  shall  be 
42AsUl73'v!8i621;  p.  entitled  to  receive,  upon  their  retirement,  one  year's  pay 
29s«c.i276,R.s.  an<^  allowances  of  the  highest  rank  held  by  them,  whether 

by  staff  or  regimental  commission,  at  the  time  of  their 

retirement.  * 

PAY   DURING   ABSENCE. 

^Pay  during  ab-  826.  Officers  when  absent  on  account  of  sickness  or 
wounds,  or  lawfully  absent  from. duty  and  waiting  orders, 
42^0? V18i62,' p.  shall  receive  full  pay;  when  absent  with  leave,  for  other 
^5,Msar3i%18i2;  causes,  full  pay  during  such  absence  not  exceeding  in  the 
i864?£  As??,  ill  aggregate  thirty  days  in  one  year,  and  half -pay  during 
i5™m^'2M?i such  absence  exceeding  thirty  days  in  one  year.  When 
Ma/'  8,6i8^4,32c.;  absent  without  leave,  they  shall  forfeit  all  pay  during  such 
juiyV29!8i8?6,4c.;  absence,  unless  the  absence  is  excused  as  unavoidable.2 

239,  v.  19,  p.  102!  u.  S.  v.  Williamson,  23,  Wall.,  411.    Sec.  1265,  B.  S. 

Leaves  of  ab-     827.  All  officers  on  duty  shall  be  allowed,  in  the  discre- 

pay?*   2°n  ^  tion  of  the  Secretary  of  War,  sixty  days'  leave  of  absence 

v.  19,  p.  102.      '  without  deduction  of  pay  or  allowance :  Provided,  That  the 

same  be  taken  once  in  two  years :  And  provided  further, 

That  the  leave  of  absence  may  be  extended  to  three  months, 

if  taken  once  only  in  three  years,  or  four  months  if  taken 

only  once  in  four  years. 3     Act  of  July  29, 1876  (19  Stat.  L. , 

102). 

lrl  provision  of  section  1275,  Revised  Statutes,  that  an  officer  wholly  retired 
shall  receive,  upon  retirement,  one  year's  pay  and  allowances,  entitles  such  an  officer 
to  receive  a  sum  equal  to  the  total  of  one  year's  pay  and  all  the  pecuniary  allowances 
of  an  officer  of  his  rank.  And  held  that  the  fact  that  an  officer,  at  the  time  of  being 
wholly  retired,  was  under  a  sentence  of  suspension  from  rank  and  pay,  did  not  affect 
his  right  to  receive  such  full  sum  upon  the  retirement.  Dig.  Opin.  J.  A.  G.,  par.  2198. 

2  Section  1265  of  the  Revised  Statutes  provides  that  an  officer  absent  without  leave 
shall  forfeit  all  pay  unless  the  absence  is  excused  as  unavoidable;  the  rule  prevails 
whether  a  court-martial  declares  a  forfeiture  or  not.  Dodge  r.  U.  S.,  33  Ct.  Cls.,  28. 
The  pay  of  an  officer  absent  without  leave  is  not  absolutely  forfeited,  but  only  when 
it  has  been  made  to  appear  that  the  absence  was  not  unavoidable.  Smith  v.  U.  S. , 
23  Ct.  Cls.,  452.  A  statement  by  the  Adjutant-General  that  an  officer  was  "absent 
without  leave"  is  conclusive  as  to  his  status,  and  is  not  affected  by  statements  made 
by  officers  of  the  War  Department  implying  the  belief  that  the  officer  was  not 
responsible  for  his  absence.  3  Dig. ,  2d  Compt.  Dec. ,  par.  2.  The  act  of  March  3, 1 863, 
section  1265,  Revised  Statutes,  provides  that  an  officer  absent  without  leave  shall 
forfeit  his  pay.  If  payment  has  been  made  it  may  be  recovered.  Lapse  of  time  does 
not  preclude  the  Government  from  charging  an  officer  with  a  payment  made  to  him 
contrary  to  law.  Crowell  v.  U.  S.,  22  Ct.  Cls.,  69. 

8  Section  1265  of  the  Revised  Statutes  was  replaced  by  the  act  of  May  8,  1874  (18 
Stat.  L.,  43),  which  provided  that  ''all  officers  on  duty  west  of  a  line  drawn  north 
and  south  through  Omaha  City  and  north  of  a  line  drawn  east  and  west  upon  the 
southern  boundary  of  Arizona  shall  be  allowed  sixty  days'  leave  of  absence  without 
deduction  of  pay  or  allowances:  Provided,  That  the  "leave  is  taken  but  once  in  two 
years:  And  provided  further,  That  the  leave  may  be  extended  to  three  months  if  taken 
only  once  in  three  years,  or  four  months  if  taken  once  only  in  four  years."  This 
statute  was  superseded  by  the  act  of  July  29,  1876,  above  cited.  For  statutory  pro- 


MILITAEY    LAWS    OF   THE    UNITED    STATES.  321 


com- 


828.  Leaves  of  absence  which  may  be  granted  officers  of  J)a?esaofec 
the  Regular  and  Volunteer  Army  serving  in  Alaska  or  SrmlnSkm  and 
without  the  limits  of  the  United  States,  for  the  purpose  of  31Mpar^|'  1901.v- 
returning  thereto,  or  which  may  have  been  granted  such 
officers  for  such  purpose  since  the  thirteenth  day  of  Octo- 
ber, eighteen  hundred  and  ninety-eight,  shall  be  regarded 
as  taking  effect  on  the  dates  such  officers  reached  or  may 
have  reached  the  United  States,  respectively,  and  as  ter- 
minating, or  as  having  terminated,  on  the  respective  dates 
of  their  departure  from  the  United  States  in  returning  to 
their  commands  as  authorized  by  an  order  of  the  Secretary 
of  War,  dated  October  thirteenth,  eighteen  hundred  and 
ninety-eight.1  Act  of  March  2,  1901  (31  Stat.  Z.,  90%). 

visions  respecting  leaves  of  absence  to  graduates  of  the  Military  Academy,  see  the 
chapter  entitled  THE  MILITARY  ACADEMY. 

Section  31  of  the  act  of  March  3,  1863  (12  Stat.  L.,  736),  does  not  apply  to  an  officer 
ordered  to  proceed  to  his  home  and  there  await  orders,  though  the  order  was  issued 
at  his  own  request.  An  officer  "absent  with  leave"  is  at  liberty  to  go  where^ie  will; 
an  officer  ordered  to  a  particular  place,  there  to  await  orders,  must  remain  in  that 
place  and  continue  as  much  under  orders  as  though  assigned  to  any  ordinary  military 
duty.  Williamson  v.  U.  S.,  10  Ct.  Cls.  50,  and  23  Wall.,  411;  Phisterer  v.  IT.  S., 
11  Ct.  Cls.  98,  and  94  U.  S.,  219. 

An  officer  ordered  home  to  await  orders  may  change  his  place  of  residence,  report- 
ing the  fact  to  the  War  Department.  Phisterer  v.  U.  S.,  12  Ct.  Cls.  98.  An  officer 
ordered  home  to  await  orders  can  not  make  his  home  ambulatory  by  simply  report- 
ing from  the  places  where  he  may  chance  to  be.  Chilson  v.  U.  S.,  11  Ct.  Cls.  691. 

leaves  of  absence  will  be  granted  in  terms  of  months  and  days  as  "one  month," 
"one  month  and  ten  days."  Leave  for  one  month,  beginning  on  the  first  day  of  a 
calendar  month,  will  expire  with  the  last  day  of  the  month,  whatever  its  number  of 
days.  •  Commencing  on  an  intermediate  day,  the  day  will  expire  the  day  preceding 
the  same  day  of  the  next  month.  The  day  of  departure,  whatever  the  hour,  is 
counted  as  a  day  of  duty;  the  day  of  return  as  a  day  of  absence.  Par.  63,  A.  R.,  1901. 

A  leave  of  absence  commences  on  the  day  following  that  on  which  the  officer 
departs  from  his  proper  station.  The  expiration  of  his  leave  must  find  him  at  his 
post,  except  as  indicated  in  paragraphs  1467  and  1484.  A  leave  of  absence  granted 
an  officer  in  the  field,  or  on  special  duty,  will  :ake  effect  on  the  termination  of  the 
campaign,  or  on  the  completion  of  such  duty,  unless  in  the  opinion  of  the  depart- 
ment commander  his  services  can  sooner  be  spared,  in  which  case  it  will  take  effect 
at  such  time  as  the  department  commander  may  direct.  In  all  other  cases  an  officer 
is  expected  to  avail  himself  of  a  leave  as  soon  as  proper  facilities  offer,  unless  a  spe- 
cific date  is  stated  in  the  order,  and  if  unable  to  do  so,  he  will  report  the  fact  to  the 
authority  granting  the  leave.  Par.  64,  ibid. 

Held  (1871)  ,  that  an  officer  ordered  to  his  home  to  await  orders  did  not  occupy  the 
status  of  an  officer  on  leave  of  absence,  and  was  not  therefore  on  half  pay  during 
the  period  of  thus  awaiting  orders,  but  was  entitled  for  such  period  to  the  full  pay  of 
his  rank.  Dig.  Opin.  J.  A.  G.,  par.  1906.  This  opinion  was  affirmed  in  the  same 
case  (United  States  v.  Williamson)  by  the  Court  of  Claims  in  1873  (9  Ct.  01.  503,) 
and  by  the  Supreme  Court  in  the  next  year  (23  Wallace  411)  .  But  in  the  United 
States  v.  Phisterer,  4  Otto,  219,  it  was  held  that  an  officer  ordered  to  his  home  to 
await  orders  was  not  entitled  to  commutation  for  quarters  and  fuel,  his  home  not  being 
a  "station"  in  the  sense  of  par.  1080,  Arrny  Regulations.  'See  G.  O.  78,  Hdqrs.  of 
Army,  1877,  issued  in  consequence  of  this  decision.  But  see  the  recent  case  of  United 
States  v.  Lippitt,  10  Otto,  663,  where  the  officer  was  ordered  to  the  headquarters  of  a 
military  department  to  await  orders. 


PAY   DURING    ABSENCE   IN   CONFINEMENT. 


Officers  and  enlisted  men  in  arrest  and  confinement  by  the  civil  authorities  will 
receive  no  pay  for  the  time  of  such  absence;  if  released  without  trial,  or  after  trial 

22924—08 21 


322  MILITARY    LAWS    OF   THE    UNITED    8TATES. 

ABSENCE    WITHOUT   LEAVE. 

Pay01durin|  ab-  829-  Every  officer  who  is  dropped  by  the  President  from 
ieeave.e  wlthout  the  rolls  of  the  Army,  for  absence  from  duty  three  months 
294^yi7%*8i6;£  without  leave,  shall  forfeit  all  pay  due  or  to  become  due. 
319! 

Sec.  1266,  B.  S. 

COMMUTATION    OF   QUARTERS. 


Par. 

830.  Allowance. 

831.  Duty  without  troops. 

832.  Ratio  of  commutation. 


Par. 

833.  Commutation     of    Lieutenant-Gen- 

eral. 

834.  Temporary  absence. 

835.  Officers  detailed  abroad. 

830.  At  all  posts  and  stations  where  there  are  public 
ill8' s'  quarters  belonging  to  the  United  States,  officers  may  be 
furnished  with  quarters  in  kind  in  such  public  quarters, 
and  not  elsewhere,  by  the  Quartermaster's  Department, 
assigning  to  the  officers  of  each  grade,  respectively,  such 
number  of  rooms  as  is  now  allowed  to  such  grade  by  the 
rules  and  regulations  of  the  Army:  Provided,  That  at 
places  where  there  are  no  public  quarters,  commutation l 

and  acquittal,  their  right  to  pay  for  the  time  of  such  absence  is  restored.  Par.  1464, 
A.  R.,1901. 

The  fact  that  an  officer  or  soldier  is  under  charges  does  not  by  military  law  deprive 
him  of  his  pay,  although  under  the  application  of  military  rules  exceptions  may 
arise  to  this  rule.  Dodge  v.  U.  S.,  33  Ct.  Cls.,  28. 

The  pay  of  officers  detained  by  the  civil  authorities  continues,  but  an  officer  absent 
without  leave  in  willful  diregard  of  his  obligation  must  be  held  responsible  for  the 
results.  Ibid. 

1  Commutation  in  the  military  or  naval  service  is  money  paid  in  substitution  of 
something  to  which  an  officer,  sailor,  or  soldier  is  entitled;  being  regulated  by  statutes 
and  regulations,  it  can  not  be  allowed  by  inferior  authority.  Jaegle  v.  U.  S.,  28  Ct. 
Cls.  133.  The  right  of  an  officer  of  the  Army  to  commutation  of  fuel  and  quarters 
springs  out  of  the  general  authority  of  the  War  Department,  and  has  been  indirectly 
sanctioned  by  Congress  from  the  origin  of  the  Government.  This  usage  has  been  so 
long  practiced  in  the  Army,  and  so  often  sustained  by  Congress  in  appropriations  for 
the  payment  of  such  commutations,  that  the  right  of  officers  under  the  regulations 
of  the  Army  can  not  now  be  questioned.  Whittlesey  v.  U.  S.,  5  Ct.  Cls.,  99.  Since 
the  foregoing  decision  was  rendered  the  allowance  of  quarters  for  the  several  grades 
of  officers  of  the  Army  and  the  monthly  rate  of  commutation  therefor  having  been 
fixed  by  statute  the  practice  can  no  longer  be  said  to  rest  upon  usage  or  upon  the 
authority  of  regulations.  See  acts  of  June  18,  1878,  and  June  23,  1879.  See  also 
Dig.  Opin.  J.  A.  G.,  par.  1941. 

Officers  on  the  active  list  detailed  as  professors  of  colleges  and  engineer  officers 
engaged  upon  civil  works  are  entitled  to  commutation  of  quarters  and  to  purchase 
fuel  under  the  provisions  of  section  9  of  the  act  of  June  17, 1878.  Such  commutation 
in  the  case  of  an  engineer  officer  would  not  be  payable  from  the  appropriation  for  the 
civil  work  upon  which  he  is  engaged.  Dig.  Opin.  J.  A.  G.,  pars.  1915,1916.  See 
also  Long  v.  U.  S.,  8  Ct.  Cls.,  398.  An  officer  ordered  home  to  await  orders  is 
not  entitled  to  commutation  of  quarters,  such  home  not  being  a  military  station. 
Phisterer  v.  U.  S.,  13  Ct.  Cls.,  110.  When  a  military  officer  is  ordered  to  the  head- 
quarters of  a  military  department  to  await  further  orders  and  pursuant  to  the  order 
remains  there,  performing  no  duty,  he  is  entitled  to  commutation  of  quarters.  If 
such  headquarters  are  in  a  large  city  wrhere  there  are  quarters  assignable  to  officers 
on  duty  it  is  not  necessary  for  him  to  demand  that  quarters  be  assigned  him.  Lip- 
?itt  v.  U.  S.,  14  Ct.  Cls.,  148,  and  100  U.  S.,  063. 

Held  that  the  term  of  description  in  section  v)  of  the  act  of  June  18.  1878,  "  at  places 
where  there  are  no  public  quarters"  includes  places  where  the  public  quarters  were 
insufficient  for  all  the  officers  of  the  command;  and  that  officers  stationed  at  such 


MILITAEY    LAWS    OF   THE    UNITED    STATES.  323 

therefor  may  be  paid  by  the  Pay  Department  to  the  officer 
entitled  to  the  same  at  a  rate  not  exceeding  twelve  dollars 
per  room  per  month,  and  the  commutation  for  quarters 
allowed  to  the  General  shall  be  at  the  rate  of  one  hundred 
and  twenty-five  dollars  per  month,  and  to  the  Lieutenant- 
General  at  the  rate  of  one  hundred  dollars  per  month. 
Sec.  9,  act  of  June  17,  1878  (20  Stat.  Z.,  151). 

The  Secretary  of  War  may  determine  what  shall  consti-  tr^0utgy  without 
tute  travel  and  duty  without  troops  within  the  meaning  of  31Margo1>  1901>  v> 
the  laws  governing  the  payment  of  mileage  and  commuta- 
tion of  quarters  to  officers  of  the  Army.     Act  of  March®, 
1901(31  Stat.  L.,901).1 

832.  No  allowance  shall  be  made  for  claims  for  quarters 


for  servants  heretofore  or  hereafter;  and  that  the  rate  of  v  21  np  sf*  1879 
commutation  shall  hereafter  be  twelve  dollars  per  room 
per  month  for  officers'  quarters,  in  lieu  of  ten  dollars,  as 
now  provided  by  law.     Act  of  June  23,  1879  (21  Stat. 
Z,  31). 

833.  The  allowance  for  commutation  of  quarters  to  the  m^^  £f  co™- 
Lieutenant-General  of  the  Army  shall  be  one  hundred  lieutenant  -Gen- 
dollars  per  month.2  Act  of  June  28,  1882  (22  Stat.  Z.,  y  Jg"  ^  issz, 
118). 

places,  to  whom,  on  account  of  the  insufficiency  of  the  existing  accommodations,  no 
quarters  could  be  furnished  would  be  entitled  to  the  commutation  allowance.  Dig 
Opin.  J.  A.  G.,  569,  par.  26. 

An  officer  who  has  quarters  in  kind  at  one  station  does  not  by  a  change  of  station 
acquire  a  right  to  other  quarters  or  commutation  therefor  until  he  vacates  quarters 
at  the  former  station,  and  amounts  received  for  such  commutation  are  a  proper 
charge  against  him.  3  Dig.  2d  Comp.  Dec.,  par.  1139. 

Temporary  absence  from  his  station  on  duty  which  requires  an  officer  of  the  Army 
to  travel  during  a  considerable  portion  of  the  time  does  not  amount  to  a  change  of 
station,  and  the  officer  does  not  lose  his  rights  or  acquire  other  rights  respecting 
quarters  by  such  absence.  If  there  are  available  quarters  at  his  station  he  is  not 
entitled  to  commutation.  Ibid.,  1141. 

Officers  temporarily  on  duty  in  the  field  shall  not  lose  their  right  to  quarters  or 
commutation  thereof  at  their  permanent  stations  while  so  temporarily  absent.  Act 
of  July  16,  1892,  27  Stat.  L.,  176. 

For  allowance  for  rooms  in  kind  see  note  3  to  paragraph  738  ante. 

Where  an  army  paymaster  has  paid  an  officer  a  sum  as  a  commutation  allowance 
through  an  error  of  law  the  United  States  is  not  bound  by  such  payment,  and  may 
recover  the  money  so  paid  in  a  proper  action,  with  interest  from  the  date  when  the 
officer's  accounts  were  settled  by  the  Treasury  Department,  at  the  rate  established  by 
the  laws  of  the  State  in  which  the  action  is  brought.  U.  S.  v.  Dempsev,  104  Fed. 
Rep.,  197. 

1  Under  the  authority  conferred  by  the  act  of  March  3,  ]901,  it  has  been  decided 
by  the  Secretary  of  War  that  "officers  on  duty  in  the  War  Department,  at  army  and 
other  general  headquarters,  attending  surgeons  and  other  officers  on  duty  in  cities 
and  other  places  where  public  quarters  are  not  furnished,  but  where  enlisted  men  are 
on  duty  only  as  guards,  orderlies,  clerks,  and  messengers,  and  recruiting  officers  at 
city  stations  are  regarded  as  being  on  duty  without  troops  within  the  meaning  of  the 
laws  and  regulations."     G.  O.  43,  A.  G.  O.,  1901. 

2  The  act  of  June  28,  1882  (22  Stat.  L.,  118)  ,  authorized  commutation  of  quarters  to 
be  paid  to  officers  and  enlisted  men  of  the  Signal  Service  serving  in  the  arctic  regions, 
the  same  in  amount  as  though  they  were  serving  in  Washington  in  the  District  of 
Columbia.     For  regulations  in  respect  to  the  payment  of  commutation  of  quarters 
to  officers  see  paragraphs  1489  to  1496,  Army  Regulations  of  1901. 


324  MILITARY    LAWS    OF   THE   UNITED    STATES. 

senc^p°raryab"     834-  Hereafter  officers  temporarily  absent  on  duty  in 
27Fpb4'787'1893'v'the  field  shall  not  lose  their  right  to  quarters,  or  commu- 
tation thereof,  at  their  permanent  station  while  so  tempo- 
rarily absent.1     Act  of  February  87,  1893  (27  Stat.   L., 
478). 

Feb^7?i893!cv.     835>  Hereafter  the  officers  detailed  to  obtain  military 
27  p.  478.  information  from  abroad  shall  be  entitled  to  mileage  and 

transportation,  and  also  to  commutation  of  quarters  while 
on  duty,  as  provided  when  on  other  duty.  Act  of  Febru- 
ary 27,  1893  (27  Stat.  Z.,  478). 

PAYMENTS   TO   OFFICERS. 

Monthly  pay-     333    The  sums  hereinbefore  allowed  shall   be  paid  in 


ments. 

Jul; 
24,  v. 


24J?1i615p327o0>s'  montnlv  payments  by  the  paymaster.5 

Sec.  1268  K!  S. 


1  Officers  of  the  Army  acting  as  Indian  agents  at  places  where  there  are  suitable 
quarters  provided  by  the  Government  are  not  entitled  to  commutation  of  quarters. 
4Compt.  Dec.,  210. 

An  officer  relieved  from  duty  at  a  station  where  he  had  quarters  in  kind  and  ordered 
to  report  in  person  for  duty  at  a  college  during  vacation  is  not  entitled  to  commuta- 
tion of  quarters  prior  to  the  date  on  which  he  reports  in  person  at  the  college.  4 
Compt.  Dec.,  254. 

An  officer  is  not  entitled  to  reimbursement  for  the  amount  paid  for  quarters  when 
serving  at  a  post  where  there  are  public  quarters  to  which  he  could  have  been  assigned 
by  the  Quartermaster's  Department.  2  Compt.  Dec.,  187.  Officers  can  not  base 
claims  to  commutation  of  quarters  on  refusal  or  failure  to  occupy  public  quarters 
provided  for  their  use.  Ibid.,  223. 

Officers  of  the  Army  on  the  retired  list  who,  upon  their  own  application,  are 
detailed  to  educational  institutions,  in  accordance  with  the  provisions  of  the  act  of 
Novembers,  1893,  are  entitled  to  the  full  pay  of  their  rank.  6  Compt.  Dec.,  120. 
Such  officers  are  not  entitled  to  commutation  of  quarters.  Ibid.,  506. 

The  act  of  May  12, 1898,  which  limits  the  compensation  of  contract  surgeons  to  $150 
per  month,  by  implication  prohibits  the  payment  of  commutation  of  quarters  to  con- 
tract surgeons.  6  Compt.  Dec.,  403.  An  officer  who  has  been  relieved  from  duty 
and  directed  to  proceed  to  his  home  to  await  orders  is  not  entitled  to  commutation 
of  quarters.  Ibid.,  233. 

2  For  instructions  respecting  the  payment  of  commissioned  officers  see  paragraphs 
1298  to  1313,  Army  Regulations  of  1895. 

Section  1268  of  the  Revised  Statutes,  requires  that  officers  shall  be  paid  monthly; 
section  3848,  Revised  Statutes,  in  effect,  forbids  their  being  paid  in  advance.  Their 
right,  however,  to  assign  their  monthly  pay,  when  duly  accrued,  has  long  been 
admitted.  XV  Opin.  Att.  Gen.,  611.  The  prohibition  by  Army  Regulations  of  the 
transfer  of  pay  accounts  before  they  are  due  implies  the  right  to  transfer  them  when 
or  after  due.  XV  Opin.  Att.  Gen.,  271.  The  pay  of  an  officer  authorized  to  receive 
it  can  be  paid  by  a  paymaster  only  to  the  officer  himself  or  his  proper  assignee. 
Where  two  or  more  persons  produce  assignments  of  an  officer's  pay,  or  of  a  portion 
or  portions  of  the  same,  the  paymaster  should  refuse  to  pay  at  all.  The  Government 
can  not  undertake  to  decide  such  controversies.  Dig.  Opin.  J.  A.  G.,  par.  1923. 

An  officer  will  not  hypothecate  nor  transfer  a  pay  account  not  actually  due. 
a  When  due  it  may  be  transferred  by  indorsement,  naming  the  party  to  whom  trans- 
ferred, and  may  be  paid  by  the  proper  paymaster  if  satisfied  of  the  genuineness  of 
the  officer's  signature  and  if  no  stoppage  or  other  disability  as  to  pay  prevents.  The 
date  of  transfer,  certified  by  the  officer  whose  account  it  is,  will  appear  in  the  indorse- 
ment. When  an  officer  transfers  a  pay  account,  he  will,  at  the  time  of  transfer,  com- 
municate the  fact  to  the  chief  paymaster  of  the  department,  through  the  paymaster 
who  is  expected  to  pay  it.  If  the  officer  be  on  leave,  or  if  his  accounts  be  payable 

aNote  in  this  connection  the  opinion  of  the  Attorney-General,  in  XVI  Opins.,  191,  to  the  effect 
fliat  an  approved  account  or  voucher  issued  to  a  contractor  for  an  amount  due  him  under  his  con- 
tract is  "  not  in  any  proper  sense  negotiable  paper," 


MILITARY    LAWS    OF   THE    UNITED    STATES. 


325 


TRAVEL   ALLOWANCES. 


MILEAGE. 


Par. 

844.  The  same,  bond-aided  roads. 

845.  The  same,  deduction. 

846.  Restriction  on  mileage. 

847.  Paymasters'  clerks,  expert  account- 

ant. 

848.  Mileage  paid  by  paymasters. 

849.  The  same. 


to   be 
1894>  v' 


Par. 

837.  Eoute,    necessity    for  travel   to  be 

stated. 

838.  Duty  to  be  stated  in  order. 

839.  Rate. 

840.  The  same,  distance,  how  computed. 

841.  Sea  travel. 

842.  Travel  without  troops. 

843.  Transportation  in  kind. 

837.  From  and  after  the  passage  of  this  act  mileage  of 
officers  of  the  Army  shall  be  computed  over  the  shortest 

usually  traveled  routes  between  the  points  named  in  the  3  1883  v 

order,  and  the  necessity  for  such  travel  in  the  military  22>  P-  456- 
service  shall  be  certified  to  by  the  officer  issuing  the  order 
and  stated  in  the  order.     Act  of  March  3,  1883  (22  Stat. 
£,.,  456.) 

838.  All  orders  involving  the  payment  of  mileage  shall 
state  the  special  duty  enjoined.     Act  of  August  6,  1894  (®7 
Stat.  L.,237). 

839.  For  mileage  to  officers  and  contract  surgeons,  when    Mileage,  rate. 

1VT&T1   ^    "18QQ   v 

authorized  by  law,  dollars.      Hereafter  the  30,  p.  ioe's. 

maximum  sum  to  be  allowed  and  paid  to  any  officer  of 
the  Army  shall  be  seven  cents  per  mile.  Act  of  March  2, 
1901  (30  Stat.  L.,901). 

840.  Officers  so  traveling  shall  be  paid  seven  cents  per    Distances,  how 

*•        computed. 

mile  and  no  more;  distances  to  be  computed  and  mileage  Mar^2,  1901,  v. 
to  be  paid  over  the  shortest  usually  traveled  routes,  with 
deduction  as  hereinafter  provided;  and  payment  and  set- 
tlement of  mileage  accounts  of  officers  shall  be  made 
according  to  distances  computed  over  routes  established 
and  by  mileage  tables  prepared  by  the  Paymaster-General 
of  the  Army  under  the  direction  of  the  Secretary  of  War; 

in  Washington,  the  notification  of  transfer  will  be  made  to  the  Paymaster-General. 
Par.  1447,  A.  R.  1901. 

The  assignment  of  their  pay  accounts  by  army  officers  after  the  same  become 
due  is  authorized  by  paragraph  1300  of  the  Army  Regulations  of  1895,  and  is  legal. 
3Compt.  Dec.,  45. 

An  officer's  "  pay  account  "  is  not  commercial  paper,  but,  in  its  legal  aspect,  a 
mere  receipt,  (a)  So  held  that  a  bona  fide  assignee  of  an  officer's  pay  account  for  a 
certain  month,  who,  on  receiving  payment  thereon  from  a  paymaster,  delivered  to 
the  latter  the  account  with  his  name  written  on  the  back  of  same,  did  not  thereby 
incur  the  obligation  of  an  inclorser,  or  render  himself  liable  as  such  for  the  amount 
to  the  paymaster,  on  its  being  ascertained  that  the  officer  had  already  himself  drawn 
his  pay  for  that  .month,  and  that  a  double  payment  had  thus  been  made.  Dig.  Opin., 
J.  A.  G.,  par.  1892. 

It  has  been  held  by  the  Comptroller  of  the  Treasury  that  the  allotment  of  any 
portion  of  the  pay  of  a  commissioned  officer  constituted  a  violation  of  the  require- 
ments of  section  3477,  Revised  Statutes.  6  Compt.  Dec.,  319.  The  statutes  author- 
izing the  allotment  of  pay  have  exclusive  relation  to  enlisted  men. 


326  MILITAEY    LAWS    OF    THE    UNITED    STATES. 

and  all  payments  made  by  paymasters  on  account  of  mile- 
age previous  to  the  passage  of  this  act  shall  be  settled  in 
accordance  with  distance  tables  officially  promulgated  and 
in  use  at  date  of  payment. l  Act  of  March  2, 1901  (31  Stat. 
L.,  901}. 

Martr*vi9oi  v  ^^"  Actual  expenses  only  shall  be  paid  to  officers  for 
si,  P.  901.  sea  travel  when  traveling,  as  herein  provided  for,  to,  from, 

or  between  our  island  possessions.2  Act  of  March  8,  1901 
(31  Stat.  Z.,  901). 

1  Section  1273,  Eevised  Statutes,  fixed  the  allowance  of  mileage  at  10  cents  per  mile, 
to  be  computed  over  the  nearest  post  route  and  to  be  paid  by  the  Pay  Department. 
The  act  of  June  16,  1874  (18  Stat.  L.,  72) ,  discontinued  mileage  as  a  method  of  reim- 
bursement for  expenses  incurred  in  traveling  on  duty,  and  substituted  therefor  the 
payment  of  actual  expenses  in  all  cases  of  travel  under  orders.  This  provision  was 
repeated  in  the  act  of  March  3,  1875  (18  Stat.  L.  452).  The  mileage  allowance  was 
restored  and  fixed  at  the  rate  of  8  cents  per  mile  by  the  act  of  July  24,  1876  (19  Stat. 
L.  97),  but  was  not  payable  when  actual  transpo.tation  had  been  furnished  by  the 
Quartermaster's  Department,  or  in  a  conveyance  owned  or  chartered  by  the  United 
States,  or  on  any  railroad  over  which  the  troops  and  supplies  of  the  United  States 
were  entitled  to  be  transported  free  of  charge;  the  distance  in  each  case  was  to  be 
computed  by  the  shortest  usually  traveled  route.  Section  1273  was  repealed  by  the 
act  of  July  24, 1876,  above  cited.  The  act  of  March  3,  1883  (22  Stat.  L.,456),  contained 
the  requirement  that  mileage  should  be  computed  over  the  shortest  usually  traveled 
routes  between  the  points  named  in  the  order,  and  that  the  necessity  for  travel 
should  be  certified  to,  in  each  case,  in  the  order  directing  the  journey.  The  act  of 
June  30,  1886  (24  Stat.  L.,  95),  fixed  the  rate  of  mileage  at  4  cents  per  mile,  and,  in 
addition  thereto,  the  cost  of  transportation  actually  paid,  exclusive  of  sleeping  and 
parlor  car  fares.  The  act  of  February  9,  1887  (24  Stat,  L.,  396),  contains  the  follow- 
ing provision:  "  That  in  disbursing  this  amount  the  maximum  sum  to  be  allowed  and 
paid  to  an  officer  shall  be  four  cents  per  mile,  distance  to  be  computed  over  the  shortest 
usually  traveled  routes,  and,  in  addition  thereto,  upon  the  officer's  certificate  that  it 
was  not  practicable  to  obtain  transportation  from  the  Quartermaster's  Department 
the  cost  of  the  transportation  actually  paid  by  the  officer  over  said  route  or  routes, 
exclusive  of  sleeping  or  parlor  car  fare  and  transfers:  And  provided  further,  That 
when  any  officer  so  traveling  shall  travel  in  whole  or  in  part  on  any  railroad  on  which 
the  troops  and  supplies  of  the  United  States  are  entitled  to  be  transported  free  of 
charge  he  shall  be  allowed  for  himself  only  four  cents  per  mile  as  a  subsistence  fund 
for  every  mile  necessarily  traveled  over  any  such  last-named  railroad.  All  the  money 
hereinbefore  appropriated  except  the  appropriation  for  mileage  to  officers  when 
traveling  on  duty  without  troops  when  authorized  by  law  shall  be  disbursed  and 
accounted  for  by  the  Pay  Department  as  pay  of  the  Army,  and  for  that  purpose  shall 
constitute  one  fund,"  which  was  repeated  in  the  acts  of  September  22,  1888  (25  Stat. 
L.,  483),  March  2,  1889  (25  Stat.  L.,  827),  June  13,  1890  (26  Stat.  L.,  151),  February 
24,  1891  (26  Stat.  L.,  773),  July  14,  1892  (27  Stat,  L.,  177),  and  February  27,  1893. 
The  acts  of  February  12,  1895  (28  Stat.  L.,  657),  and  March  16,  1896  (29  ibid.,  60), 
contain  the  same  requirements.  The  act  of  March  2,  1897  (29  ibid.,  612,  614),  pro- 
vided that  actual  transportation  should  be  furnished  by  the  Quartermaster's  Depart- 
ment to  officers  traveling  under  orders,  and  that  mileage  only  should  be  paid  by  the 
Pay  Department.  The  act  of  March  15,  1898  (30  Stat.  L. ,  318),  contained  the  require- 
ment that  "the  maximum  sum  to  be  allowed  and  paid  to  any  officer  of  the  Army 
shall  be  seven  cents  per  mile,  distances  to  be  computed  by  the  shortest  usually  trav- 
eled route."  By  the  act  of  March  3,  1899  (30  Stat.  L.,1068),  the  foregoing  require- 
ment was  made  permanent.  The  act  of  March  15,  1898,  also  contained  the  proviso 
that  "officers  who,  by  reason  of  the  decision  of  the  accounting  officers  of  the  Treas- 
ury, have  been  compelled  to  pay  from  their  own  means  one-half  of  the  cost  of  their 
travel  fare  over  railroads  known  as  fifty  per  centum  railroads  shall  be  reimbursed 
the  same  by  the  Pay  Department,  and  paymasters  against  whom  disallowances  have 
been  made  by  the  accounting  officers  of  the  Treasury,  under  such  decision,  shall 
have  the  amount  so  disallowed  passed  to  their  credit.'^  For  requirements  of  regula- 
tion in  respect  to  travel  on  the  public  business,  see  paragraphs  77-84  and  1472-1488, 
Army  regulations  of  1901.  See  also  pars.  842  to  851  post. 

'2  This  replaces  a  similar  requirement  in  the  act  of  March  3, 1899  (30  Stat.  L.,  1068) . 
In  conformity  to  a  decision  of  the  Comptroller  of  the  Treasury -dated  March  3,  1899, 


MILITARY    LAWS    OF    THE    UNITED    STATES.  327 

842.  The  Secretary  of  War  may  determine  what  shall tJ0™vel  with 
constitute  travel  and  duty  without  troops  within  the  mean-  ^"^  1901>  v> 
of  the  laws  governing  the  payment  of  mileage  and  com- 
mutation of  quarters  to  officers  of  the  Army.1     Act  of 

March  2, 1901  (31  Stat.  Z.,  901). 

843.  Officers  who  so  desire  may,  upon  application  to  the  inTkr^8portation 
Quartermaster's  Department,  be  furnished  with  transpor-  31^ag0i •  1901>Vl 
tation  requests,  exclusive  of  sleeping  and  parlor  car  accom- 
modations, for  the  entire  journey  under  their  orders;  and 

the  transportation  so  furnished  shall  be  a  charge  against 
the  officer's  mileage  account,  to  be  deducted  at  the  rate  of 
three  cents  per  mile  by  the  paymaster  paying  the  account, 
and  of  the  amount  so  deducted  there  shall  be  turned  over 
to  an  authorized  officer  of  the  Quartermaster's  Depart- 
ment three  cents  per  mile  for  transportation  furnished 
over  any  railroad  which  is  not  a  free,  bond-aided,  or  fifty 
per  centum  land-grant  railroad  for  the  credit  of  the  appro- 
priation for  transportation  of  the  Army  and  its  supplies.2 
Act  of  May  26,  1900  (31  Stat.  Z.,  210);  act  of  March  2, 
1901(31  Stat.  L.,  901). 

844.  When  the  established  route  of  travel  shall,  in  whole  r0ad°snd~aided 
or  in  part,  be  over  the  line  of  any  railroad  on  which  the    Ibid- 

the  following  instructions  have  been  promulgated  by  the  Secretary  of  War  in  respect 
to  the  travel  allowances  of  officers  traveling  without  troops  "to,  from,  and  between" 
the  insular  possessions  of  the  United  States. 

1  Under  the  authority  conferred  by  the  act  of  March  3,  1901,  it  has  been  decided 
by  the  Secretary  of  War  that  ' '  traveling  with  troops, ' '  in  the  sense  here  employed, 
will  be  regarded  as  covering  all  cases  of  officers  included  in  orders  for  movement,  in 
whatever  manner,  of  their  appropriate  commands  or  in  orders  for  movement  of 
detachments,  escorts,  or  stores  which  proceed  by  marches  or  by  transportation 
belonging  to  or  especially  hired  for  the  purpose  by  the  United  States,  the  idea  being 
that  in  marches  the  officers  should  move  as  dp  the  troops  and  that  where  transpor- 
tation is  specially  devoted  to  the  movement  it  is  sufficient  for  all  included  therein. 
But  the  term  will  not  be  regarded  as  covering  cases  of  officers  included  in  the  move- 
ment by  railroad,  stage,  or  like  established  lines  of  conveyances;  of  detachments  of 
less  than  ten  armed  or  unarmed  men,  such  as  guards  and  nurses  for  disabled  or  insane 
officers  or  soldiers;  recruiting  parties  and  escorts  for  inspectors,  paymasters,  and  others, 
or  the  public  funds  or  property  in  their  charge,  or  of  officers  traveling  on  troop  trains 
or  transports,  but  not  ordered  to  report  to  the  commanding  officer  nor  on  duty  with 
the  troops  or  command  on  board,  and  such  officers  are  not  regarded  as  traveling  with 
troops  within  the  meaning  of  the  laws  and  regulations.  G.  5.  43,  A.  G.  O.,  1901. 

2 The  full  3  cents  per  mile  deducted  from  the  officer's  mileage  account  must  be 
turned  over  to  the  Quartermaster's  Department  and  credited  to  the  appropriation  for 
transportation  of  the  Army  and  its  supplies  in  all  cases  where  that  Department  has 
furnished  the  transportation,  and  this,  too,  without  regard  to  the  class  of  roads  over 
which  the  transportation  has  been  furnished. 

If  transportation  ia  not  furnished  by  the  Quartermaster's  Department  its  appro- 
priation is  not  entitled  to  any  credit. 

The  money  turned  over  to  an  authorized  officer  of  the  Quartermaster's  Depart- 
ment and  credited  to  the  appropriation  for  transportation  of  the  Army  and  its  sup- 
plies will  be  available  for  use  to  the  same  extent  that  it  would  be  if  it  had  been 
regularly  appropriated.  Dec.  Compt.  of  Treasury  of  July  18,  1900.  Circular  28, 
A.  G.  O. ,  1900.  This  provision  authorizes  army  officers,  before  the  commencement 
of  a  journey,  under  orders  requiring  travel  without  troops,  to  obtain  actual  transpor- 
tation from  the  Quartermaster's  Department,  the  cost  of  which  will  be  deducted  from 
the  mileage  authorized  to  be  paid  under  paragraph  839.  For  regulations  in  further- 
ance of  this  requirement  see  G.  O.  76,  A.  G.  O.,  1900. 


328  MILITAEY    LAWS    OF    THE    UNITED    STATES. 

troops  and  supplies  of  the  United  States  are  entitled  to  be 
transported  free  of  charge,  or  over  any  of  the  bond-aided 
Pacific  railroads,  or  over  any  fifty  per  centum  land-grant 
railroad,  officers  traveling  as  herein  provided  for  shall,  for 
the  travel  over  such  roads,  be  furnished  with  transporta- 
tion requests,  exclusive  of  sleeping  and  parlor  car  accom- 
modations, by  the  Quartermaster's  Department.  Ibid. 
Auction.  845.  When  transportation  is  furnished  by  the  Quarter- 
master's Department,  or  when  the  established  route  of 
travel  is  over  any  of  the  railroads  above  specified,  there 
shall  be  deducted  from  the  officer's  mileage  account  by  the 
paymaster  paying  the  same  three  cents  per  mile  for  the 
distance  for  which  transportation  has  been  or  should  have 
been  furnished.1  Ibid. 

pa?mentcof°mi?"  846<  Hereafter  no  portion  of  the  appropriation  for  mile- 
s£tedDuty  to  be  a£e  to  officers  traveling  on  duty  without  troops  shall  be 
28fp.g23?.'  1894'  v'  expended  for  inspections  or  investigations,  except  such 
as  are  especially  ordered  by  the  Secretary  of  War,  or  such 
as  are  made  by  army  and  department  commanders  in  vis- 
iting their  commands,  and  those  made  by  Inspector-Gen- 
eral's Department  in  pursuance  of  law,  army  regulations, 
or  orders  issued  by  the  Secretary  of  War  or  the  Com- 
manding General  of  the  Army;  and  all  orders  involving 
the  payment  of  mileage  shall  state  the  special  duty  en- 
joined.2 Act  of  August  6,  1894  (®$  Stat.  L., 


1  The  act  of  May  26,  1900  (31  Stat.  L.,  210),  contained  the  following  provision: 
'  '  For  traveling  expenses  and  commutation  of  quarters  for  civilian  physicians  em- 
ployed by  the  Surgeon-General,  one  thousand  five  hundred  dollars." 

2  It  is  a  well-established  fact  that  persons  traveling  on  Government  business  are 
entitled  to  be  reimbursed  for  their  expenses.     This  is  done  either  by  a  mileage  allow- 
ance, a  fixed  sum  as  a  commutation  of  expenses,  or  an  itemized  statement  showing 
actual  expenses.     Prior  to  1874  mileage  was  the  most  usual  measure  of  allowances. 
4  Compt.  Dec.,  421.     Mileage  is  a  form  of  reimbursement,  and  "public  business"  is 
the  foundation  on  which  it  rests.     Perrimond  v.  U.  S.,  19  Ct.  Cls.,  509.     Allowances 
for  travel  and  subsistence  are  payable  to  officers  and  agents  of  the  United  States  only 
when  they  are  employed  at  other  places  than  their  places  of  residence.     Test  v.  U.  S., 
ibid.,  357.     In  fact,  mileage  is  merely  a  commutation  for  traveling  expenses.     U.  S. 
v.  Smith,  158  U.  S.,  350. 

The  mileage  allowance  to  an  officer  of  the  Army  on  the  active  list  is  fixed  by  law, 
the  law  in  effect  at  the  time  the  travel  is  performed  and  not  the  law  in  effect  when 
the  order  for  the  travel  is  issued.  1  Compt.  Dec.,  29. 

Except  in  cases  of  emergency,  the  right  to  mileage  can  not  be  conferred  by  an 
order  issued  after  the  journey  has  been  performed.  4  Compt.  Dec.,  175.  The  law 
and  regulations  requiring  a  specific  order  prior  to  the  commencement  of  the  journey 
must  be  strictly  complied  with,  and  the  officer  must  make  the  journey  within  a 
reasonable  time  in  accordance  with  the  order  to  acquire  a  right  to  mileage.  Ibid. 

An  order  to  travel  to  a  designated  point,  perform  certain  duty  and  return,  is,  in 
effect,  two  distinct  orders,  and  the  mileage  allowances  for  each  trip  is  fixed  by  the 
law  at  the  time  the  travel  in  each  case  was  commenced.  1  Compt.  Dec.,  29. 

It  is  not  necessary  that  an  order  to  travel  should  specifically  designate  places  and 
routes.  It  may  leave  them  to  the  discretion  of  the  officer,  and  the  subsequent 
approval  of  the  Department  will  be  conclusive  upon  the  accounting  officers.  Billings 
v.  U.  S.,  23  Ct.  Cls.,  166.  If  public  business  was  an  element  in  an  officer's  circuity 


MILITARY    LAWS    OF   THE    UNITED    STATES.  329 

MILEAGE    TO    PAYMASTERS'    CLERKS    AND    TO    THE    EXPERT    ACCOUNTANT 

OF  THE  INSPECTOR-GENERAL'S  DEPARTMENT. 


817.  That  hereafter  the  maximum  sum  to  be  allowed  pay- 
masters'  clerks  and  the  expert  accountant  of  the  Inspector- 
GeneraFs  Department  when  traveling  on  duty  shall  be  four  ., 

cents  per  mile,  and,  in  addition  thereto,  when  transporta-27'p<48°- 
tion  can  not  be  furnished  by  the  Quartermaster's  Depart- 
ment the  cost  of  same  actually  paid  by  them,  exclusive  of 
sleeping  or  parlor  car  fare  and  transfers.     Act  of  February 
87,  1893  (27  Stat.  L.,  480). 

of  route,  he  is  entitled   to  mileage  therefor;  if  it  was  not,  the  Government  is  not 
answerable  for  the  increased  distance.     Du  Bose  v.  U.  S.,  19  Ct.  Cls.,  514. 

Where  the  route  is  left  to  the  discretion  of  the  officer,  his  mileage  should  be  calcu- 
lated by  the  shortest  usually  traveled  route,  unless  some  good  reason  be  shown  for 
deviation.  Crosby  v.  U.  S.,  22  Ct.  Cls.,  13.  2  Compt.  Dec.,  544. 

The  question  as  to  the  shortest  usually  traveled  route  between  any  two  points  is  a 
question  of  fact,  and  to  be  determined  by  the  best  obtainable  evidence.  * 
The  time  required  in  making  the  journey,  the  rates  of  fare,  and  the  fact  that  an  offi- 
cer should  be  absent  from  his  post  of  duty  for  the  shortest  possible  period  are  impor- 
tant elements  in  determining  the  shortest  usually  traveled  route  in  any  particular 
case. 

Evidence  should  accompany  the  voucher  on  which  payment  is  made,  to  establish  the 
fact  that  the  distance  is  computed  by  the  route  which,  for  the  time  and  occasion,  is 
the  shortest  usually  traveled  route.  Mileage  can  in  no  case  be  allowed  for  any  dis- 
tance in  excess  of  the  distance  actually  traveled,  and  if  the  distance  actually  traveled 
exceed  the  distance  by  the  shortest  usually  traveled  route,  mileage  can  be  allowed 
only  for  the  distance  by  the  shortest  usually  traveled  route.  1  Cprnpt.  Dec.,  115. 

The  mileage  of  an  officer  of  the  Army  is  to  be  computed  by  the  shortest  usually 
traveled  route  regardless  of  the  number  of  miles  actually  traveled,  unless  the  orders 
under  which  he  travels,  or  the  necessities  of  the  service  (and  not  the  mere  con- 
venience of  the  officer),  require  the  use  of  a  route  longer  than  that  usually  traveled. 
2  ibid.,  544.  See  also  1  ibid.,  118,  209;  4  ibid.,  74;  5  ibid.,  196. 

When  it  appears  that  an  army  officer  was  directed  to  travel  on  military  duty  and 
had  no  order  to  stop  over,  or  delay  on  his  journey,  it  must  be  presumed  by  the 
accounting  officers  that  he  was  directed  to  go  by  the  shortest  usually  traveled  route, 
without  unnecessary  delay,  and  he  will  be  allowed  only  the  cost  of  "through  limited 
tickets"  for  such  travel.  The  accounting  officers  look  to  the  officer's  orders  as  to 
the  necessity  for  delay  en  route,  not  questioning  the  authority  of  the  War  Depart- 
ment to  determine  whether  the  officer's  duty  requires  that  he  shall  stop  over  on  his 
journey.  3  Dig.  Dec.,  2nd  Compt.,  par..  1426. 

The  law  relating  to  the  cost  of  transportation  contemplates  that  army  officers  trav- 
eling on  duty  without  troops  shall  travel  over  the  usually  traveled  routes  in  the  mode 
usually  adopted  and  by  the  conveyances  usually  employed.  The  exigencies  of  the 
service  should  be  of  an  unusual  character,  not  admitting  of  even  the  possibility  of 
delay,  to  justify  the  officer  in  engaging  the  more  costly  transportation  on  fast  or  limited 
trains.  Ibid.,  1429. 

An  officer  ordered  home,  at  his  own  request,  to  await  orders,  is  entitled  to  mileage 
from  his  post  to  his  home,  such  a  journey  constituting  travel  under  orders.  William- 
son v.  U.  S.,  23  Wall.,  411;  Phisterer  v.  U.  S.,  12  Ct.  Cls.,  98,  and  94  U.  S.,  219. 
Where  an  officer  who  has  received  but  has  not  yet  taken  advantage  of  a  leave  of 
absence  is  ordered  to  convey  prisoners  to  another  post  his  leave  is  to  that  extent 
suspended,  and  he  is  entitled  to  mileage.  Andrews  v.  U.  S.,  15  Ct.  Cls.,  264. 

The  Army  Regulations  provide  that  the  expiration  of  an  officer's  leave  of  absence 
must  find  him  at  his  station.  His  station  means  his  permanent  station,  not  a  place 
to  which  he  was  temporarily  ordered  and  at  which  he  accepted  his  leave  of  absence. 
Andrews*;.  U.  S.,  15  Ct.  Cls.,  264.  An  officer's  proper  station  can  not  be  changed 
by  his  being  ordered  to  perform  a  temporary  duty  while  on  leave  of  absence.  Ibid. 
if  an  officer  on  leave  of  absence  be  ordered  to  temporary  duty  at  the  place  where  he 
may  happen  to  be,  and  he  be  kept  there  until  after  his  leave  of  absence  expires  and 


330  MILITARY  LAWS  OF  THE  UNITED  STATES. 

nmde'by payD*  848>  ^11  the  money  hereinbefore  appropriated  (for  pay, 
paju^ee3o'i886  v  travel  allowances,  and  commutation  of  quarters)  shall  be 
24, p. 95.  disbursed  by  the  Pay  Department  of  the  Army,  and  for 

that  purpose  shall  constitute  one  fund. 1     Act  of  June  30, 

1886  (fy  Stat.  L.,95). 

PAYMENTS   OF   MILEAGE    TO   BE    MADE    BY   PAYMASTERS. 

Dbee     849>  ^°  payment  [of  mileage]  shall  be  made  to  any  offi- 
yTs'  1870  s  cer  except  by  a  paymaster  of  the  Army. 

24,  v.  16,  p.  320. ' 
Sec.  1278,  B.S. 

TRAVEL   PAY    ON   DISCHARGE. 

di?chlrgepay  °n     850>  Hereafter  when  an  officer  shall  be  discharged  from 

3iMpar<Jo2  1901>  v'  ^ne  service^  except  by  way  of  punishment  for  an  offense, 

&ec.i289,R.s.  foQ  shall  receive  for  travel  allowances  from  the  place  of  his 

discharge  to  the  place  of  his  residence  at  the  time  of  his 

appointment  or  to  the  place  of  his  original  muster  into  the 

service  four  cents  per  mile;  and  an  enlisted  man  when 

discharged  from  the  service,  except  by  way  of  punishment 

for  an  offense,  shall  receive  four  cents  per  mile  from  the 

then  be  ordered  to  his  proper  station,  he  will  not  be  entitled  to  mileage.  Barr  v, 
U.  S.,  14  Ct.  Cls.,  272. 

An  officer  who  voluntarily  quits  the  military  service  is  not  entitled  to  travel  pay. 
1  Compt.  Dec.,  370.- 

An  officer  whose  resignation,  tendered  on  the  ground  of  physical  disability,  is 
accepted,  becomes  entitled  to  travel  pay,  provided  the  disability  did  not  exist  at  the 
time  of  his  entering  the  service,  or  was  not  incurred  on  account  of  his  own  miscon- 
duct during  service.  The  length  of  service  is  material  evidence  in  determining 
whether  the  disability  existed  prior  to  entry  into  the  service.  Ibid. 

1  All  subsequent  acts  of  appropriation  for  the  support  of  the  Army  have  contained 
a  similar  provision.  The  acts  of  appropriation  of  May  26,  1900,  and  March  3,  1901, 
except  from  the  foregoing  clause  the  appropriations  for  mileage  of  officers  when 
authorized  by  law. 

While  the  act  of  March  15,  1898  (30  Stat.  L.,  318),  does  not  make  it  the  duty  of 
officers  to  use  those  railroads  from  which  a  benefit  will  accrue  to  the  Government,  it 
is  no  doubt  within  the  authority  of  the  Secretary  of  War,  by  regulation,  to  direct 
their  use  whenever  practicable.  5  Compt.  Dec.,  196.  An  officer  who  actually  trav- 
els over  any  of  the  railroads  mentioned  in  the  act,  and  having  failed  to  secure  trans- 
portation in  kind,  pays  his  own  fare,  is  entitled  to  be  reimbursed  so  much  as  it  would 
have  cost  the  Government  had  a  request  been  used.  When  an  officer  travels  over 
any  of  the  railroads  included  in  the  act  it  will  be  presumed,  in  the  absence  of  affirm- 
ative evidence  to  the  contrary,  that  he  has  been  furnished  with  a  transportation 
request.  Ibid.  The  cost  of  a  local  ticket,  of  the  class  obtained,  between  points  for 
which  transportation  in  kind  is  furnished  should  be  deducted  from  the  mileage 
allowance.  Ibid. 

An  officer  of  the  Army  traveling  under  orders  and  using  a  conveyance  upon  which 
transportation  and  subsistence  are  furnished  or  paid  for  by  the  Government  is  not 
entitled  to  mileage.  4  Compt.  Dec.,  429.  See  also  Ibid.,  86. 

Sleeping-car  service  is  not  a  necessary  incident  to  transportation,  but  must  usually 
be  considered  as  lodging,  yet  special  circumstances  may  appear  showing  a  legislative 
intent  to  include  such  service  as  a  part  of  transportation.  In  ordinary  cases  where 
subsistence  is  excluded  from  traveling  expenses  such  exclusion  must  be  held  to  cover 
sleeping-car  service  on  the  ground  that  it  is  lodging  and  a  part  of  subsistence.  4 
Compt.  Dec.,  420. 

The  provision  in  the  act  of  March  15,  1898  (30  Stat.  L.,  321),  that  the  maximum 
sum  to  be  allowed  and  paid  to  "any  officer  of  the  Army"  shall  be  7  cents  per  mile 
applies  to  all  officers  of  the  Army,  including  officers  of  the  Corps  of  Engineers.  4 
Compt.  Dec.,  711. 


MILITARY    LAWS    OF   THE    UNITED   STATES.  331 

place  of  his  discharge  to  the  place  of  his  enlistment,  en- 
rollment, or   original  muster  into  the  service.1     Act  of- 
March  0,  1901  (31  Stat.  Z.,  902}. 

851.  For  sea  travel  on  discharge  actual  expenses  only    f§^*rave1' 
shall  be  paid  to  officers  and  transportation  and  subsistence 

only  shall  be  furnished  to  enlisted  men.     Ibid. 

STOPPAGES. 

852.  The  cost  of  repairs  or  damages  done  to  arms,  equip-  ar^f  P  J,irs    to 
ments,  or  implements  shall  be  deducted  from  the  pay  of  7>  ^p8^15'8' 
any  officer  or  soldier  in  whose  care  or  use  the  same  were    sec.  iso3,B.s. 
when  such  damages  occurred,  if  said  damages  were  occa- 
sioned by  the  abuse  or  negligence  of  said  officer  or  soldier.2 

1  An  officer  who  voluntarily  quits  the  military  service  is  not  entitled  to  travel  pay. 
1  Compt.  Dec.,  370. 

An  officer  whose  resignation,  tendered  on  the  ground  of  physical  disability,  is 
accepted,  becomes  entitled  to  travel  pay,  provided  the  disability  did  not  exist  at  the 
time  of  his  entering  the  service,  or  was  not  incurred  on  account  of  his  own  miscon- 
duct during  service.  The  length  of  service  is  material  evidence  in  determining 
whether  the  disability  existed  prior  to  entry  into  the  service.  Ibid. 

Under  section  1289  of  the  Revised  Statutes  an  officer  of  the  Volunteer  Army  is 
entitled  to  travel  pay  from  the  place  of  his  discharge  to  the  place  where  he  accepted 
his  appointment,  but  is  not  entitled  to  mileage  on  his  discharge.  5  Compt.  Dec.,  113. 

An  officer  or  soldier  who  is  discharged  for  his  own  convenience  is  not  entitled  to 
travel  pay  or  allowances.  Ibid.,  113. 

An  officer  who  is  ordered  to  proceed  to  his  home  and  is  discharged,  to  take  effect 
at  a  subsequent  date,  is  entitled  to  mileage,  but  not  to  travel  pay.  Ibi£L>  87.  See 
also  ibid.,  705. 

Under  section  1289  of  the  Revised  Statutes,  an  officer  of  the  Volunteer  Army  is 
entitled  to  travel  allowances  from  the  place  of  his  discharge  to  the  place  where  he 
accepted  his  appointment,  but  is  not  entitled  to  mileage  on  his  discharge.  Ibid.,  113. 

An  order  retiring  an  officer  from  active  service  in  the  Army,  which  contains  no 
direction  for  him  to  proceed  to  his  home,  can  not  be  regarded  as  an  order  directing 
him  to  perform  the  journey  so  as  to  confer  a  right  to  mileage.  4  ibid.,  175. 

2  The  pay  of  an  officer  or  soldier  can  not  be  subjected  to  stoppage  except  by  the 
authority  of  a  statute  or  regulation  specifically  authorizing  the  same  or  of  a  sentence 
of  court-martial  imposing  a  forfeiture  or  fine  as  a  punishment,  or  where  the  party  has 
become  indebted  to  the  United  States  on  account.     In  a  case  of  supposed  liability  to 
stoppage,  resulting  from  a  neglect  or  an  act  chargeable  as  a  military  offense,  and  as 
to  which  the  facts  are  disputed,  it  is  in  general  preferable  to  have  the  case  investi- 
gated and  the  actual  pecuniary  liability,  if  any,  fixed  by  a  trial  by  court-martial.     A 
superior  is  not  authorized  to  stop  against  the  pay  of  an  inferior  the  value  of  property 
charged  to  have  been  criminally  misappropriated;  and  it  is  the  experience  of  the 
Judge- Advocate-General  that  most  or  many  of  the  cases  of  loss  of  or  injury  to  public 
property  in  which  the  facts  have  been  investigated  and  the  damage  assessed  by 
boards  of  survey,  would  have  been  more  profitably  passed  upon  by  courts-martial, 
by  which,  instead  of  a  stoppage,  a  forfeiture  could  have  been  imposed,  as  a  punish- 
ment, by  sentence.     Dig.  Opin.  J.  A.  Gen.,  719,  par.  1.     See  also  ibid,  p.  720,  pars.  2, 
4,  5;  721  ibid.,  par.  8. 

By  operation  of  law,  indeed,  under  certain  express  statutory  provisions,  an  officer's 
or  soldier's  pay  may  be  withheld  altogether,  or  temporarily,  or  be  subjected  to  cer- 
tain charges  and  thus  reduced.  Thus,  by  section  1265,  Revised  Statutes,  an  officer 
absent  without  leave  forfeits  all  pay  during  the  period  of  his  absence,  unless  the  same 
be  excused  as  unavoidable.  By  section  1266,  an  officer  dropped  from  the  rolls  for  an 
unauthorized  absence  of  three  months  is  required  to  "forfeitall  pay  due  or  to  become 
due."  Section  1766  prohibits  the  payment  of  his  compensation  to  any  person  while 
he  continues  "in  arrears  to  the  United  States."  Sections  1303  and  1304  require  in 
effect  that  the  cost  of  damage  done  to  arms,  etc. ,  and  the  value  of  military  stores 
found  deficient,  shall,  except  where  the  loss  is  occasioned  by  no  personal  fault  of  the 
party,  be  charged  against  the  pay  of  the  officer  or  soldier  responsible  for  the  damage 
or  deficiency.  Ibid,  par.  1901. 


332  MILITARY    LAWS    OF   THE   UNITED   STATES. 

Deficiency    in     853.  In  case  of  deficiency  of  any  article  of  military  sup- 

articles  of  mill- 

tajy  i supplies,  phes,  on  final  settlements  of  the  accounts  of  any  officer 
3,  v.  4.  p.  174. '    charged  with  the  issue  of  the  same,  the  value  thereof  shall 

See    1*504-    R   S 

'  be  charged  against  the  delinquent  and  deducted  from  his 
monthly  pay,  unless  he  shall  show  to  the  satisfaction  of  the 
Secretary  of  War,  by  one  or  more  depositions  setting  forth 
the  circumstances  of  the  case,  that  said  deficiency  was  not 
occasioned  by  any  fault  on  his  part.     And  in  case  of  dam- 
age to  any  military  supplies,  the  value  of  such  damage 
shall  be  charged  against  such  officer  and  deducted  from 
his  monthly  pay,  unless  he  shall,  in  like  manner,  show  that 
such  damage  was  not  occasioned  by  any  fault  on  his  part. l 
pu^ha^ecTon     **54.  The  amount  due  from  any  officer  for  rations  pur- 
cr|?ar  3  1865  s  cnase(^  on  credit,  or   for  any  article  designated   by  the 
6'7uiy328'i866  s  inspectors-general  of  the  Army  and  purchased  on  credit 
^LJ'itUk'i?6^  from  commissaries  of  subsistence,  shall  be  deducted  from 

Ncc.   I  i';ll).  If.  S. 

rear? cer  in  ar"  ^ne  payment  made  to  such  officer  next  after  such  purchase 
2  val4  if'2468' c'  s^a^  have  been  reported  to  the  Paymaster-General. 
77M^y52p  ^i36' c'      855.  No  money  shall  be  paid  to  any  person  for  his  com- 
s'ec.  1766,  B.S.  pensation  who  is  in  arrears2  to  the  United  States  until  he 

1  The  power  given  to  the  Secretary  of  War  to  order  a  stoppage  of  pay  against  a 
delinquent  officer  is  exclusive  and  discretionary,  but  is  not  to  be  asserted  against  an 
officer  acting  under  an  order  which  he  is  bound  to  obey,  and  as  to  which  he  is 
expressly  relieved  from  personal  liability.  Such  an  abuse  of  power  would  not  tend 
to  preserve  but  to  subvert  military  order  and  discipline.  The  refusal  of  the  Secretary 
of  War  to  stop  an  officer's  pay  is  not  a  decision  upon  the  merits;  it  will  not  bind  the 
Government  nor  preclude  the  Comptroller  from  causing  a  suit  to  be  brought  against 
the  officer;  it  merely  determines  that  the  officer  is  so  far  without  fault  that  the  harsh 
and  summary  remedy  of  stopping  his  pay  should  not  be  resorted  to.  Smith  v.  U.  S., 
24  Ct.  Cls.,  209,  215;  Billings  v.  U.  S.,  23  ibid.,  166,175. 

Where  a  paymaster  receives  no  notice  of  stoppage  and  innocently  pays  an  officer, 
the  overpayment  must  be  recovered  from  the  officer.  Smith  v.  U.  S.,  23  Ct.  Cls.,  452. 

When  an  officer  has  been  overpaid,  or  is  indebted  to  the  United  States  for  money 
or  property,  or  has  failed  properly  to  account  for  the  same,  the  chief  of  the  bureau 
concerned  will  promptly  notify  him  of  the  amoun*  of  his  indebtedness,  or  his  failure 
to  account.  If  after  such  notice  he  does  not  refund,  or  make  satisfactory  explana- 
tion, or  take  proper  action  within  a  reasonable  time,  the  matter  will  be  reported  to 
the  Secretary  of  War.  Par.  1497,  A.  R,  1901. 

On  the  order  of  the  Secretary  of  War,  stoppages  may  be  made  against  the  pay  of 
officers  for  overpayments,  illegal  disbursement,  or  loss  through  fraud  or  neglect  of 
the  public  funds,  and  for  deficiencies  in,  loss  of,  or  damage  to,  military  supplies, 
unless  proof  be  furnished  that  the  deficiency,  loss,  or  damage  was  not  occasioned  by 
any  fault  on  their  part.  Par.  1498,  ibid. 

The  notice  of  stoppage  of  officers'  pay  will  be  prepared  in  the  form  of  a  monthly 
circular  to  paymasters,  advising  them  of  stoppages  outstanding  at  its  date.  This 
circular  will  be  submitted  to  the  Secretary  of  War  for  his  approval  prior  to  its  publi- 
cation. When  an  officer's  name  is  borne  thereon,  no  payment  of  salary  will  be  made 
to  him  which  is  not  in  accordance  with  the  stoppage  entry  made  against  his  name. 
Par.  1499,  ibid. 

Overpayments  to  an  officer  will  be  deducted  on  the  first  payment  after  a  notice  of 
stoppage  against  him  is  received,  even  if  the  pay  accounts  have  been  assigned.  Par. 
1500,  ibid. 

2 Persons  in  "arrears,"  are  only  such,  as  having  previous  transactions  of  a  pecun- 
iary nature  with  the  Government,  are  found,  upon  the  settlement  of  these  trans- 
actions, to  be  in  arrears  to  it.  Ill  Opin.  Att.  Gen.,  52.  This  section  only  applies  to 
cases  in  which  the  party  who  claims  compensation  is  liable  to  the  United  States. 
Hedrick  v.  U.  S.,  16  Ct.  Cls.,  88. 


MILITARY    LAWS    OF   THE    UNITED    STATES.  333 

has  accounted  for  and  paid  into  the  Treasury  all  sums  for 
which  he  may  be  liable.  In  all  cases  where  the  pay  or 
salary  of  any  person  is  withheld  in  pursuance  of  this  sec- 
tion, the  accounting  officers  of  the  Treasury,  if  required 
to  do  so  by  the  party,  his  agent  or  attorney,  shall  report 
forthwith  to  the  Solicitor  of  the  Treasury  the  balance  due; 
and  the  Solicitor  shall,  within  sixty  days  thereafter,  order 
suit  to  be  commenced  against  such  delinquent  and  his 
sureties. 

856.  The  pay  of  officers  of  the  Army  may  be  withheld  0£^ayding 
under  section  seventeen   hundred    and  sixty-six  of   the  27Jplyi77' 18^2' v' 
Revised  Statutes  on  account  of  an  indebtedness  to  the  Sec- 1766> B>  s- 
United  States  admitted  or  shown  by  the  judgment  of  a 

court,  but  not  otherwise,  unless  upon  a  special  order  issued 
according  to  the  discretion  of  the  Secretary  of  War.1  Act 
of  July  16,  1892  (27  Stat.  L.,  177). 

PAY   OF   HOSPITAL   MATRONS   AND   FEMALE    NURSES. 

857.  Hospital  matrons  in  post  or  regimental  hospitals    Mar^isrc  v 
shall  receive  ten  dollars  a  month     *     *     *.  iJlf&^ii 

July  4,  1864,  v.  13,p.  416.  18g£i $£ ILS .' 

858.  The  Nurse  Corps  shall  consist  of  one  superintend-  J^perintend- 
ent,     *     *     *     whose  compensation  shall  be  one  thousand 

eight  hundred  dollars  per  annum.     Sec.  19,  act  of  February  i9Fv.b3of  pS. 8' 
0,  1901(31  Stat.  L.,  153). 

859.  The   pav   and  allowances   of   nurses   and   reserve    Nurses,  reserve 

nurses. 

nurses,  when  on  active  service,  shall  be  forty  dollars  per    iw» 
month  when  on  duty  in  the  United  States,  and  fifty  dollars 
per  month  when  without  the  limits  of  the  United  States. 
lUd. 

860.  When  serving  as  chief  nurses,  their  pay  may  be    chief  nurc*. 
increased  by  authority  of  the  Secretary  of  War,  such  in- 
crease not  to  exceed  twenty-five  dollars  per  month.    Ibid. 

861.  Payments  to  the  Nurse  Corps  shall  be  made  by  the    Paym  its. 
Pay  Department.     Ibid. 

lrThe  Army  appropriation  act  of  June  16,  1892,  provides  that  ''the  pay  of  officers 
of  the  Army  may  be  withheld  under  section  1766,  R.  S.,  on  account  of  an  indebtedness 
to  the  United  States  admitted  or  shown  by  the  judgment  of  a  court,  but  not  other- 
wise, unless  upon  a  special  order  issued  according  to  the  direction  of  the  Secretary 
of  War. ' '  Held,  that  the  last  part  of  this  provision  was  to  be  construed  not  separately 
but  in  connection  with  the  former,  and  could  not  be  interpreted  as  empowering  the 
Secretary  of  War  to  stop  the  pay  of  officers  of  the  Army  to  satisfy  private  debts 
or  claim  for  alimony.  Dig.  Opin.  J.  A.  G.,  par.  2383. 


334 


MILITAKY    LAWS    OF    THE    UNITED    STATES. 


PAY    OF    ENLISTED    MEN. 


Par. 

862.  Rates  of  pay. 

863.  The  same,  chief  musicians. 

864.  The  same,  Indian  scouts. 

865.  Increased  pay,  time  of  war. 

866.  The  same,  foreign  service. 

867.  Retained  pay,  prohibition. 

868.  Reenlistment  pay. 
869-870.  Continuous  service  pay. 
871-874.  Allotments  of  pay. 

875.  The  same,  credits. 

876.  Retired  enlisted  men. 


Par. 

877.  The  same,  credit  for  service. 

878.  The  same,  allowances. 

878a  Pay  of  volunteers  and  militia. 
879-881.  Deposits. 

882.  The  same,  payment. 

883.  Certificates  of  merit. 

884.  Pay  during  absence,  furloughs. 

885.  The  same,  absence  without  leave. 

886.  Pay  during  captivity. 

887.  Travel  pay  at  discharge. 

888.  The  same,  sea  travel. 


^pay  of  enlisted  g^  The  monthly  pay  of  the  following  enlisted  men  of 
I2?asr'53'v8i5'  p'  ^e  Army  shall,  during  their  first  term  of  enlistment,  be 
81Mayi5  1872  c  as  f°M°ws5  w^h  the  contingent  conditions  thereto,  herein- 
iie:  s'  3  ^Aug  i'  a^  ter  provided : 

Mat' 2i899Pv23o;     Sergeant-majors  and  quartermaster-sergeants1  of  cav- 
P's9e7c'i279  R  s.  a^ry  an(^  infantry2  and  electrician-sergeants  of  artillery, 
sec.i280,R.s.  thirt}r-four  dollars.3 

Sergeant-majors  of  artillery  and  infantry,  twenty-three 
dollars. 

Regimental  quartermaster  and  commissary-sergeants  of 
cavalry  and  infantry,  twenty -three  dollars.* 

Drum-majors  of  cavalry,  artillery,  and  infantry,  twenty- 
five  dollars.5 

Chief  trumpeters  of  cavalry,  twenty -two  dollars. 
Principal  musicians  of  artillery  and  infantry,  twenty- 
two  dollars. 

Saddler-sergeants  of  cavalry,  twenty-two  dollars. 
Squadron  sergeant-majors  of  cavalry,  battalion  sergeant- 
majors  of  infantry,  and  color-sergeants  of  cavalry  and 
infantry,  twenty -five  dollars.6 

First   sergeants    of    cavalry,    artillery,    and    infantry, 
twenty-five  dollars.7 

Sergeants7  and   company    quartermaster-sergeants    of 

Section  2,  act  of  March  2,  1899  (30  Stat.  L.,  978). 

2  Act  of  May  26,  1900  (31  ibid.,  208). 

3 Section  3,  act  of  March  2,  1899  (30  ibid.,  978);  see,  also,  5  Compt.  Dec.,  761. 

4  Sections  2,  3,  and  4  ibid. 

5 Ibid.  In  sections  2,  3,  and  4  of  the  act  of  March  2,  1899  (30  Stat.  L.,  977),  the 
words  "who  shall  have  the  rank,  pay,  and  allowances  of  a  first  sergeant"  relate  to 
the  drum  major  only,  and  not  to  the' chief  musicians,  chief  trumpeters,  and  principal 
musicians,  whose  pay  and  allowances  remain  the  same  as  under  the  prior  laws. 
5  Compt.  Dec.,  761. 

6 Sections  2  and  4  ibid. 

7  Act  of  February  27, 1893  (27  Stat,  L. ,  478) .  Held,  that  the  Army  appropiation  act 
of  February  27,  1893,  in  changing  and  fixing  the  pay  of  first  sergeants  and  sergeants, 
had  reference  to  those  of  the  line  of  the  Army,  and  did  not  include  sergeants  of  the 
Engineer  or  Ordnance  Corps.  Dig.  Opin.J.  A.  G.,  par.  1929. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  335 

cavalry,  artillery,  and  infantry,  and  mechanics  of  artil- 
lery, eighteen  dollars.1 

Corporals  of  cavalry  and  light  artillery,  fifteen  dollars. 

Corporals  of  artillery  and  infantry,  fifteen  dollars. 

Saddlers  of  cavalry,  fifteen  dollars. 

Blacksmiths  and  farriers  of  cavalry,  fifteen  dollars. 

Trumpeters  of  cavalry,  thirteen  dollars. 

Musicians  of  artillery  and  infantry,  thirteen  dollars. 

Privates  of  cavalry,  artillery,  and  infantry,  thirteen 
dollars. 

Company  cooks  of  cavalry,  artillery,  infantry,  engi- 
neers, and  the  Signal  Corps,  eighteen  dollars.2 

Hospital  stewards,  first  class,  forty-five  dollars.3 

[Acting  hospital  stewards,  twenty-five  dollars.]3 

[Privates  of  the  Hospital  Corps,  eighteen  dollars.] 3 

Ordnance-sergeants  of  posts,  post  commissary*  and 
quartermaster-sergeants,4  thirty-four  dollars. 

Sergeant-majors  of  engineers,  thirty-six  dollars. 

Quartermaster-sergeants  of  engineers,  thirty -six  dollars. 

Sergents  of  engineers  and  ordnance,  thirty-four  dollars. 

Corporals  of  engineers  and  ordnance,  twenty  dollars. 

Musicians  of  engineers,  thirteen  dollars. 

Privates  (first  class)  of  engineers,  ordnance,  and  Signal 
Corps,5  seventeen  dollars. 

Privates  (second  class)  of  engineers,  ordnance,  and  Signal 
Corps,5  thirteen  dollars. 

[Sergeants  (first  class)  of  the  Signal  Corps,  forty-five 
dollars.]6 

[Sergeants  (second  class)  of  the  Signal  Corps,  thirty  - 
four  dollars.] 

[First-class  gunners,  artillery   corps,  two   dollars   per 

1  Section  3,  act  of  March  2,  1899  (30  Stat.  L.,  978) . 

2  Section  9  ibid. 

3  The  monthly  pay  of  hospital  stewards  fixed  at  $45,  and  that  of  acting  hospital 
stewards  at  $25,  by  the  act  of  March  1,  1887  (24  Stat,  L.,  435).     The  pay  of  privates 
of  the  Hospital  Corps  was  fixed  at  $18  per  month  by  the  act  of  July  13, 1892  (27  Stat. 
L. ,  1 20) . 

4  The  monthly  pay  of  post  commissary-sergeants  was  fixed  at  $34  by  the  act  of 
March  3,  1873  (17  Stat.  L.,  485),  and  that  of  post  quartermaster-sergeants  at  the  same 
rate  by  the  act  of  July  5,  1884  (23  Stat,  L.,  107). 

5  The  pay  of  sergeants  of  the  first  class  in  the  Signal  Corps  was  fixed  at  $45  per 
month  by  the  act  of  October  1,  1890  (26  Stat.  L.,  653) .     The  pay  of  sergeants  of  the 
second  class  in  the  Signal  Corps  was  fixed  at  $34  per  month  by  the  act  of  June  20, 
1878  (20  Stat.  L.,  219). 

The  enlisted  men  of  the  Army  Service  Corps,  stationed  at  the  Military  Academy, 
receive  the  same  pay  and  allowances  as  enlisted  men  of  corresponding  grades  in  the 
artillery.  Act  of  June  20, 1890  (26  Stat.  L. ,  653) .  See  the  chapters  entitled  ENLISTED 
MEN  and  THE  MILITARY  ACADEMY. 

6  The  pay  of  first  and  second  class  privates  of  the  Signal  Corps  was  fixed  by  section 
3,  act  of  April  26,  1898  (30  Stat.  L.,  364). 


336  MILITARY    LAWS    OF   THE    UNITED    STATES. 

month  in  addition  to  their  pay;  second-class  gunners,  one 
dollar  per  month  in  addition  to  their  pay.] l 

Artificers,  cavalry,  artillery,  and  infantry,  fifteen  dollars. 

Wagoners,  cavalry,  artillery,  and  infantry,  fourteen 
dollars. 

ADDITIONAL   PAY. 

payday  15°  &721      863.  To  the  rates  of  pay  stated  in  the  preceding  section 

s'  Mareh?if  iSej  one  Collar  per  month  shall  be  added  for  the  third  year  of 

v'secA28i,B.s.  enlistment,  one  dollar  more  per  month  for  the  fourth  year, 

and  one  dollar  more  per  month  for  the  fifth  year,  making 

in  all  three  dollars'  increase  per  month  for  the  last  year 

of  the  first  enlistment  of  each  enlisted  man  named  in  said 

section.2 

muScians.chief     864.  The  chief  musicians  of  regiments  shall  receive  sixty 
i8M,Cv.328Apg2i6!  dollars  a  month  and  the  allowances  of  a  quartermaster- 
sergeant.3 

scouts!  Tanown     865>  Indians,  enlisted  or  employed  by  order  of  the  Pres- 
aijuiyf28  ?866Mc'  ident  as  scouts,  shall  receive  the  pay  and  allowances  of 
333'-  Augl'21i876'cava'lry  soldiers.     That  so  much  of  the  army  appropria- 
v  s£A2736,'B.s.  ti°n  act  of  twenty-fourth  July,  eighteen  hundred  and  sev- 
enty-six, as  limits  the  number  of  Indian  scouts  to  three 
hundred  is  hereby  repealed;  and  sections  ten  hundred  and 
ninety-four  and  eleven  hundred  and  twelve  of  the  Revised 
Statutes,  authorizing   the   employment  of   one  thousand 
Indian  scouts,  are  hereby  continued  in  force:  Provided, 
That  a  proportionate  number  of  noncommissioned  officers 
may  be  appointed.     And  the  scouts,  when  they  furnish 
their  own  horses  and  horse  equipments,  shall  be  entitled 
to  receive  forty  cents  per  day  for  their  use  and  risk  so 
long  as  thus  employed.     Act  of  August  12,  1876  (19  Stat. 
L.,131}. 

1  The  additional  pay  of  gunners  was  fixed  by  section  7,  act  of  February  2,  1901 
(31  ibid.,  749). 

2 It  was  provided  by  the  act  of  May  15,  1872  (17  Stat.  L.,  116),  that  this  increase 
should  be  considered  as  retained  pay,  and  should  not  be  paid  to  the  soldier  until 
his  discharge  from  the  service,  and  should  be  forfeited  unless  his  service  was  honest 
and  faithful  to  the  date  of  discharge.  By  the  act  of  March  16,  1896  (29  Stat.  L.,  60), 
it  was  enacted  that  thereafter  no  pay  should  be  retained. 

3 By  the  terms  of  section  3,  act  of  August  1,  1894  (28  Stat  L.,  216),  chief  musicians, 
artificers,  and  wagoners  theretofore  excluded  from  the  benefits  of  the  act  of  May  15, 
1872  (paragraphs  643,  644  post),  became  entitled  to  said  benefits. 

PAY    OF    ENLISTED    MEN    IN    CONFINEMENT    BY    CIVIL    AUTHORITY. 

In  view  of  the  "pay  status  of  (officers  and)  enlisted  men  withdrawn  from  duty  by 
arrest  and  confinement  by  the  civil  authorities,"  as  established  by  par.  1464,  A.  R., 
1901 — held  that  an  enlisted  man  had  no  claim  for  his  pay  for  a  period  during  which 
he  was  detained  by  the  civil  authorities  in  arrest  and  for  trial,  although  his  offense 
was  shown  to  have  been  a  slight  one  and  he  was  convicted  of  an  offense  of  much  less 
gravity  than  that  with  which  he  was  charged. 


MILITAEY    LAWS    OF    THE    UNITED    STATES.  337 


WAR   INCREASE — INCREASE    FOR   FOREIGN   SERVICE. 

866.  In  time  of  war  the  pay  proper  of  enlisted  men  shall    J£ 

be  increased  twenty  per  centum  over  and  above  the  rates  &  6>  v-  ^  p-  262» 
of  pay  as  fixed  by  law.1     Sec.  6,  act  of  April  26,  1898  (30 
Stat.  «£.,  26%). 

867.  Hereafter  the  pay  proper  of  all     *     *     *     enlisted  icf oreign   serv' 
men  serving  beyond  the  limits  of  the  States  comprising  31^ar<^23'  1901}  y< 
the  Union,  and  the  Territories  of  the  United  States  con- 
tiguous thereto,  shall  be  increased     *     *     *    twenty  per 

centum  for  enlisted  men  over  and  above  the  rates  of  pay 
proper  as  fixed  by  law  for  time  of  peace,  and  the  time  of 
such  service  shall  be  counted  from  the  date  of  departure 
from  said  States  to  the  date  of  return  thereto.2  Act  of 
March  2,  1901  (31  Stat.  Z.,  903). 

RETAINED   PAY.3 

867a.  Hereafter  no  pay  shall  be  retained;  but  this  pro-  NO  pay  to  be  re- 
vision shall  not  apply  to  deductions  authorized  on  account  Mar.  ie,  18%,  v 

19  T>   50 

of  the  Soldiers'  Home.     Act  of  March  16,  1896  (29  Stat. 

!>.,  60). 

llt  has  been  decided  by  the  Comptroller  of  the  Treasury  that  the  increase  of  20 
per  cent  authorized  by  section  6  of  the  act  of  April  26,  1898,  is  to  be  computed  upon 
the  minimum  rates  of  pay,  or  pay  proper,  allowed  by  law  to  the  several  grades  of 
enlisted  men.  All  increases  in  or  additions  to  the  pay  of  enlisted  men,  as  for 
reenlistment,  length  of  service,  certificates  of  merit,  and  the  like  are  to  be  excluded 
from  the  computation.  4  Compt.  Dec.,  668. 

aThis  enactment  replaces  a  requirement  in  pari  materia  which  was  contained  in  the 
act  of  May  26,  1900  (31  Stat.  L.,  211 ).  The  act  of  March  3,  1901,  also  contains  a  pro- 
vision that  ' '  the  officers  and  enlisted  men  who  have  served  in  China  at  any  time 
since  the  twenty-sixth  day  of  May,  nineteen  hundred,  shall  be  allowed  and  paid  for 
such  service  the  same  increase  of  pay  proper  as  is  herein  provided  for. ' '  The  statute 
last  named  also  contains  the  requirement  that  ' '  enlistments  in  the  Regular  Army  on 
and  after  April  twenty-first,  eighteen  hundred  and  ninety-eight,  from  which  date 
war  was  declared  to  have  existed  between  the  United  States  and  Spain,  up  to  and 
including  April  twenty-sixth,  eighteen  hundred  and  ninety-eight,  shall  be  deemed 
enlistments  for  the  war  with  Spain,  and  shall  entitle  men  so  enlisting  to  the  extra 
pay  and  on  the  same  conditions  granted  to  men  who  enlisted  in  the  Regular  Army 
subsequent  to  the  declaration  of  war,  for  the  war  onlv,  as  provided  by  an  act  approved 
March  third,  eighteen  hundred  and  ninety -nine,  entitled  "An  act  making  appropria- 
tions for  the  support  of  the  Regular  and  Volunteer  Army  for  the  fiscal  year  ending 
June  thirtieth,  nineteen  hundred." 

3 By  the  acts  of  May  15,  1872  (17  Stat.  L.,  116,  sec.  1281,  Revised  Statutes),  and 
June  16,  1890  (26  ibid.,  157),  certain  portions  of  the  monthly  pay  of  enlisted  men 
were  retained  by  the  United  States.  The  sums  so  retained  were  paid  to  the  soldier 
at  discharge,  with  interest  at  the  rate  of  4  per  cent  per  annum  from  the  several  dates 
of  retention,  provided  the  service  of  the  soldier  had  been  honest  and  faithful,  and  the 
Secretary  of  War  was  authorized  to  determine  what  misconduct  on  the  part  of  the 
soldier  should  "  constitute  a  failure  to  render  honest  and  faithful  service"  within  the 
meaning  of  the  statute.  It  was  provided,  however,  that  ' '  no  soldier  who  has  deserted 
at  any  time  during  the  term  of  an  enlistment  shall  be  deemed  to  have  served  such 
term  honestly  and  faithfully"  (26  Stat.  L.,  157).  The  practice  of  retaining  pay  was 
discontinued  as  to  enlisted  men  in  the  first  year  of  their  enlistments  by  the  act  of 
February  12,  1895  (28  Stat.  L.,  654),  and  as  to  enlisted  men  generally  by  the  act  of 
March  16,  1896  (29  Stat.  L.,  60).  Since  March  16,  1896,  the  several  statutes  respect- 

22924—08 22 


338  MILITARY    LAWS    OF   THE    UNITED    STATES. 

REENLISTMENT   AND   CONTINUOUS   SERVICE   PAY. 

Payeenlistment     868-  AH  enlisted  men  mentioned  in  section  twelve  hun- 


8!?'  p'  dred  an(i  eighty  ^  who,  having  been  honorably  discharged 
.'ife  ^ave  reenlisted  or  shall  reenlist  within  three  months  there- 
uf^'1894'  after,  shall,  after  five  years'  service,  including  their  first 
sec.  1282,  B.  s.  enlistment,  be  paid  at  the  rate  allowed  in  said  section  to 
those  serving  in  the  fifth  year  of  their  first  enlistment.1 
Act  of  August  1,  1894  (%8  Stat.  Z.,  215). 

continuous     869.    Every  soldier  who,  having  been  honorably  dis- 

Reenhstment.  charged,  reenlists  within  three  months  thereafter,  shall  be 

247,  8^2,  'v-5  !<>£,?•  further  entitled,  after  five  years'  service,  including  his  first 

ii7^°Au4'  Vis'o?'  en^s^men^'  ^°  receiye»  ^or  ^ne  Period  of  five  years  next 
5-S  thereafter,  two  dollars  per  month  in  addition  to  the  ordi- 
nary pay  of  his  grade;  and  for  each  successive  period  of 
five  years  of  service,  so  long  as  he  shall'  remain  continu- 
ously in  the  Army,  a  further  sum  of  one  dollar  per  month. 
The  past  continuous  service  of  soldiers  now  in  the  Army 
shall  be  taken  into  account,  and  shall  entitle  such  soldier 
to  additional  pay  according  to  this  rule;  but  services  ren- 
dered prior  to  August  fourth,  eighteen  hundred  and  fifty- 
four,  shall  in  no  case  be  accounted  as  more  than  one 
enlistment.  2 

ede?odthtr1ee  ®^'  ^e  P^od  within  which  soldiers  may  reenlist 
months.  with  the  benefits  conferred  by  sections  twelve  hundred  and 

R  S    SGCS  1282 

^.amended.  i  eighty  -two  and  twelve  hundred  and  eighty-four  3  of  the 

Additional      &    .  . 

pay-  Revised  Statutes,  be,  and  the  same  is  hereby,  extended  to 

3,  v.  28,  p.'  215.  '  'three  months;  and  hereafter  every  enlisted  man  in  the 

Army,  excepting  general  service  clerks  and  general  service 

messengers,  shall  be  entitled  to  all  the  benefits  conferred 

by  sections  twelve  hundred  and  eighty-one4  and  twelve 

ing  the  retention  of  pay  of  enlisted  men  have  applied  only  in  the  settlement  of  the 
accounts  in  cases  where  retained  pay  had  accrued  prior  to  the  passage  of  the  act  of 
March  16,  1896.  (a) 

1  The  authority  to  retain  pay  conferred  by  section  1281,  Revised  Statutes  (para- 
graph 639,  ante),  was  withdrawn  as  to  all  enlisted  men  by  the  act  of  March  16,  1896 
(29  Stat.  L.,  p.  60)  .     See  par.  642,  ante. 

2  The  right  of  a  soldier,  under  section  1284  of  the  Revised  Statutes,  to  $1  per  month 
additional  pay  for  ten  years'  service  does  not  depend  merely  upon  the  ten  years' 
service,  but  upon  an  honorable  discharge  and  a  second  reenlistment.     The  increase 
can  be  allowed  only  for  services  rendered  after  the  enlistment,  and  the  principle 
applies  to  subsequent  reenlistments.      1  Compt.  Dec.,  459;  3  Dig.  Dec.  2d  Compt,, 
967;   Webb  t\  U.  S.,  23  Ct.  Cls.,  58.     By  section   1286,  Revised   Statutes,  $2  per 
month  additional  pay  was  allowed  to  certain  noncommissioned  officers  who  served 
in  the  war  with  Mexico. 

'Paragraphs  868  and  869,  ante. 
^Paragraph  863,  ante. 


a  Retained  pay  is  authorized  by  law.  The  Secretary  of  War  has  no  control  over  it.  He  only  deter- 
mines whether  the  service  has  been  honest  and  faithful.  The  operation  of  the  law  follows  imme- 
diately upon  his  decision,  and  either  vests  in  the  soldier  the  right  to  receive  the  pay  or  deprives  him 
of  it,  according  to  the  character  of  the  service  he  has  rendered.  3  Dig.  2d  Compt.  Dec.,  231. 

Under  the  act  of  June  16,  1890,  the  accounting  officers  have  no  jurisdiction  to  review  a  decision  of 
the  Secretary  of  War  that  a  soldier  did  not  serve  honestly  and  faithfully.  3  Compt.  Dec.,  557. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  339 


hundred  and  eighty-two1  of  the  Revised  Statutes: 
vided,  That  to  entitle  them  to  the  additional  pay  author- 
ized by  section  twelve  hundred  and  eighty-one,2  for  men 
serving  in  the  third,  fourth,  and  fifth  years,  the  service 
must  have  been  continuous  within  the  meaning  of  this 
section.2  Sec.  3,  act  of  August  1,  1894  (28  Stat.  L.,  2  IS). 

ALLOTMENTS   OF   PAY   BY   ENLISTED   MEN. 

871.  The  Secretary  of  War  is  hereby  authorized  to  per-    Allotments  of 

»  »  p&y  by  enlisted 

mit  enlisted  men  of  the  United  States  Army  to  make  allot-  men. 

JMfl.r.  2,  lo"",  s. 

ments  of  their  pay,  under  such  regulations  as  he  may  16>  v.  so,  p.  98i. 
prescribe,  for  the  support  of  their  families  or  relatives, 
for  their  own  savings,  or  for  other  purposes,  during  such 
time  as  they  may  be  absent  on  distant  duty,  or  under  other 
circumstances  warranting  such  action.3  Sec.  16,  act  of 
March  0,  1889  (30  Stat.  Z.,  981}. 

872.  All  allotments  of  pay  of  enlisted  men  of  the  United  mSitforallot- 
States  Army,  under  section  sixteen  of   act  of  Congress  31Mjfy2oo'  1900'  v< 
approved  March  second,  eighteen  hundred  and  ninety-nine, 

that  have  been  or  shall  be  paid  to  the  designated  allottees 
after  the  expiration  of  one  month  subsequent  to  the  month  in 
which  said  allotments  accrued  shall  pass  to  the  credit  of  the 
disbursing  officer  who  has  made  or  shall  make  such  payment: 
Provided,  That  said  disbursing  officer  shall,  before  mak- 
ing payment  of  said  allotments,  use,  or  shall  have  used, 

1  Paragraphs  868  and  869,  ante. 

2  Page  863,  ante.     Section  1283,  Revised  Statutes,  contains  the  provision  that  enlisted 
men,  now  in  the  service,  shall  receive  the  rates  of  pay  established  in  this  chapter 
according  to  the  length  of  their  service. 

The  act  of  February  27,  1893  (27  Stat.  L.,  478),  which  prohibited  the  reenlistment  of 
privates  of  over  ten  years'  service  or  who  were  over  35  years  old,  except  such  as  had 
served  as  enlisted  men  for  twenty  years  or  upward,  was  repealed  by  the  act  of  August 
1,  1894  (28  Stat.  L.,  215),  and  the  provisions  of  section  1284,  Revised  Statutes,  were 
extended  to  all  enlisted  men  in  the  Army,  except  general-service  clerks  and  messen- 
gers. See  also  pars.  1528,  1529,  and  1530,  A.  R.,  1901. 

Held  that  the  additional  pay  upon  reenlistment  accorded  to  soldiers  by  section 
1284,  Revised  Statutes,  was  intended  as  a  compensation  for  long  and  continued  mili- 
tary service,  without  reference  to  the  kind  of  service  or  the  corps  in  which  it  was 
rendered;  and  therefore  that,  where  this  additional  pay  had  once  begun  to  accrue  to 
a  soldier  by  reason  of  his  having  entered,  in  accordance  with  the  provisions  of  the 
section,  upon  a  second  term  of  five  years'  service  in  the  infantry,  his  continued  right 
to  the  same  was  not  interrupted  by  his  being  discharged  from  'the  infantry  and  (on 
the  next  day)  enlisted  in  the  Ordnance  Corps.  Dig.  Opin.  J.  A.  G.,  par.  1911. 

m  A  soldier  who  reenlisted  more  than  three  months  after  the  expiration  of  his  pre- 
vious term  of  enlistment  is  not  entitled  to  the  additional  pay  provided  by  section 
1281,  Revised  Statutes,  as  amended  by  section  3  of  the  act  of  August  1,  1894,  for  reen- 
listmg  within  three  months,  notwithstanding  that,  by  reason  of  sickness,  his  reen- 
listment was  antedated,  by  direction  of  the  Major-General  Commanding  the  Army, 
so  as  to  bring  it  within  the  limitation  of  three  months;  nor  to  regular  pay  prior  to 
his  actual  reenlistment.  6  Compt.  Dec.,  754. 

3  Under  section  16  of  the  act  of  March,  1899,  which  authorizes  the  Secretary  of 
War  to  permit  enlisted  men  of  the  Army  to  make  allotments  of  their  pay,  payment 
in  advance,  or  without  evidence  that  the  soldier  is  entitled  to  the  amount  allotted 
at  the  time  the  payment  is  to  be  made,  is  not  authorized.     6  Compt.  Dec.,  252. 


340 


MILITARY   LAWS    OF   THE    UNITED   STATES. 


31,  p.  8%. 


due  diligence  in  obtaining  and  making  use  of  all  informa- 
tion that  may  have  been  received  in  the  War  Department 
relative  to  the  grantors  of  the  allotments:  And  provided 
further,  That  if  an  erroneous  payment  is  made  because  of 
the  failure  of  an  officer  responsible  for  such  report  to 
report,  in  the  manner  prescribed  by  the  Secretary  of  War, 
the  death  of  a  grantor  or  any  fact  which  renders  the  allot- 
ment not  payable,  then  the  amount  of  such  erroneous  pay- 
ment shall  be  collected  by  the  Paymaster-General  from 
the  officer  who  fails  to  make  such  report,  if  such  collection 
is  practicable.  Act  of  May  26,  1900  (31  Stat.  Z.,  206). 

873>  Hereafter  all  allotments  of  pay  of  enlisted  men  of 
t^  United  States  Army,  under  section  sixteen  of  act  of 
Congress  approved  March  second,  eighteen  hundred  and 
ninety-nine,  that  have  been  or  shall  be  paid  to  the  desig- 
nated allottees,  after  the  expiration  of  one  month  subse- 
quent to  the  month  in  which  said  allotments  accrued,  shall 
pass  to  the  credit  of  the  disbursing  officer  who  has  made 
or  shall  make  such  payment.  Act  of  March  2,  1901  (31 
Stat.  Z.,  896). 

874.  Said  disbursing  officer  shall,  before  making  pay- 
ment of  said  allotments,  use,  or  shall  have  used,  due  dili- 
gence in  obtaining  and  making  use  of  all  information  that 
may  have  been  received  in  the  War  Department  relative 
to  the  grantors  of  the  allotments.  Ibid. 

®^*  ^  an  erroneous  payment  is  made  because  of  the 
failure  of  an  officer  responsible  for  such  report  to  report, 
in  the  manner  prescribed  by  the  Secretary  of  War,  the 
death  of  a  grantor  or  any  fact  which  renders  the  allot- 
ment not  payable,  then  the  amount  of  such  erroneous 
payment  shall  be  collected  by  the  Paymaster-General 
from  the  officer  who  fails  to  make  such  report,  if  such 
collection  is  practicable.1  Tbid. 

PAY   OF   RETIRED   ENLISTED  MEN. 


ii8?edmen  d  en      ^76.  That  when  an  enlisted  man   has  served   as   such 
how%rompuvtede;  thirty  Jears  in  tne  United  States  Army  or  Marine  Corps, 
lept/so  fi890,  v'.  eitner  as  private  or  noncommissioned  officer,  or  both,  he 
1^16'  snaH?  by  application  to  the  President,  be  placed  on  the 
retired  list  hereby  created,  with  the  rank  held  by  him  at 
the  date  of  retirement,  and  he  shall  receive  thereafter 

^or  requirements  of  regulations  in  respect  to  allotments  of  pay  by  enlisted  men, 
and  payments  of  the  same  to  the  designated  allottees,  see  paragraphs  1531  to  1544, 
Army-Regulations  of  1901.  Under  the  authority  conferred  by  the  above  statutes 
the  privilege  of  making  allotments  of  pay  is  restricted  to  enlisted  men  and  does  not 
extend  to  commissioned  officers. 


The  same. 


ibid. 
menteneonspay 


ibid. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  341 

seventy-five  per  centum  of  the  pay  and  allowances  of  the 
rank  upon  which  he  was  retired:  Provided,  That  if  said 
enlisted  man  had  war  service  with  the  Army  in  the  field, 
or  in  the  Navy  or  Marine  Corps  in  active  service,  either  as 
volunteer  or  regular,  during  the  war  of  the  rebellion,  such 
war  service  shall  be  computed  as  double  time  in  computing 
the  thirty  years  necessary  to  entitled  him  to  be  retired.1 
Act  of  September  30,  1890  (26  Stat.  Z.,  504). 

877.  Hereafter  in  computing  length  of  service  for  retire-  e^^}^  for" 
ment,  credit  shall  be  given  the  soldier  for  double  the  time  31Mpy20g' 1900)  v- 
of  his  actual  service  in  Porto  Rico,  Cuba,  or  in  the  Philip- 
pine Islands.     Act  of  May  86,  1900  (31  Stat.  Z.,  809). 

878.  Hereafter  a  monthly  allowance  of  nine  dollars  and  retoiTTnSte°d 
fifty  cents  be  granted  in  lieu  of  the  allowance  for  subsist-  mg^r  lg  18%  y 
ence  and  clothing.2    Act  of  March  16, 1896  (29  Stat  L.,62).  29>P-62-  ' 

PAY    OF    VOLUNTEERS    AND    MILITIA. 

878a.  All  officers   and  enlisted  men  of   the  Volunteer 
Army,  and  of  the  militia  of  the  States  when  in  the  service  of 

•/   7 

the  United  States,  shall  be  in  all  respects  on  the  same  foot- 
ing  as  to  pay,  allowances,  and  pensions  as  that  of  officers 
and  enlisted  men  of  corresponding  grades  in  the  Regular 
Army.3  Sec.  12,  act  of  April  22,  1898  (30  Stat.  Z.,  363). 

DEPOSITS. 

879.  Any  enlisted  man  of  the  Army  may  deposit  his 
savings,  in  sums  not  less  than  five  dollars,  with  any  army  16 
paymaster,  who  shall  furnish  him  a  deposit  book,  in  which  y17 

shall  be  entered  the  name  of  the  paymaster  and  of  the  sec.iso5,B.s. 
soldier,  and  the  amount,  date,  and  place  of  such  deposit. 
The  money  so  deposited  shall  be  accounted  for  in  the  same 
manner  as  other  public  funds,  and  shall  pass  to  the  credit 
of  the  appropriation  for  the  pay  of  the  Army,  and  shall 
not  be  subject  to  forfeiture  by  sentence  of  court-martial, 
but  shall  be  forfeited  by  desertion,  and  shall  not  be  per- 
mitted to  be  paid  until  final  payment  on  discharge,  or  to 

1  This  statute  replaces  the  act  of  February  14,  1885  (23  Stat.  L.,  305),  on  the  same 
subject. 

2  See  also  the  title  Retirement  of  Enlisted  Men  in  the  chapter  entitled  ENLISTED  MEN. 
Under  the  act  of  February  14,  1885  (23  Stat.  L.,  305),  and  the  act  of  September  30, 

1890  (26  ibid.,  504) ,  providing  that  a  hospital  steward  shall  be  retired  on  75  per  cent 
of  the  pay  and  allowances  of  the  rank  upon  which  he  was  retired,  the  steward  is  not 
entitled  to  commutation  for  fuel  and  quarters,  but  he  is  entitled  to  three-fourths  of 
his  entire  personal  pay,  including  clothing  and  subsistence.  Lander  v.  U.  S.,  30  Ct. 
Cls.,311. 

The  increase  of  20  per  cent  authorized  in  the  pay  of  enlisted  men  in  time  of  war 
does  not  apply  to  enlisted  men  on  the  retired  list.  6  Compt.  Dec.,  182. 

8  This  enactment  replaces  section  1292,  Revised  Statutes,  in  pari  materia. 


342  MILITARY   LAWS   OF   THE   UNITED   STATES. 

the  heirs  or  representatives  of  a  deceased  soldier,  and  that 
such  deposit  be  exempt  from  liability  for  such  soldier's 
debts:  Provided,  That  the  Government  shall  be  liable  for 
the  amount  deposited  to  the  person  so  depositing  the 


1SS  rest  °n  de      8WX  For  any  sums  not  less  than  five  dollars  so  deposited 
16ftyVi72>p  f°r  tne  period  of  six  months  or  longer,  the  soldier,  on  his 
ns'ec  i306,B.s.  final  discharge,  shall  be  paid  interest  at  the  rate  of  four 
per  centum  per  annum.2 

881-  Tne  system  of  deposits  herein  established  shall  be 
r"ed  mto  execution  under  such  regulations  as  may  be 
established  by  the  Secretary  of  War.3 

117.'   'Sec.i307,R.S. 

mentposion  Pd£  882'  Tbe  amounts  of  deposits  *  *  *  accumulated 
to  tne  soldier's  credit  under  section  thirteen  hundred  and 
fiye5  shall,  when  payable  to  him  on  discharge,  be  paid  out 
of  the  appropriations  for  "Pay  of  the  Army"  for  the 
then  current  fiscal  year. 

CERTIFICATES    OF    MERIT. 

Certificate    of     883.  A  certificate  of  merit  granted  to  an  enlisted  man 

Feb'^2.  1891>  v-  for  distinguished  service  shall  entitle  him,  from  the  date 

sec.i285,B.s.  of  such  service,  to  additional  pay  at  the  rate  of  two  dol- 

lars   per   month   while   he   is    in    the   military   service, 

although  such  service  may  not  be  continuous.     Sec.  2,  act 

of  February  9,  1891  (86  Stat.  Z.,  737). 

PAY   DURING   ABSENCE. 

^EieventKrticie     ®84.  Every  officer  commanding  a  regiment  or  an  inde- 

of  war.  pendent  troop,  battery,  or  company,  not  in  the  field,  may, 

when  actually  quartered  with  such  command,  grant  fur- 


act  of  June  16,  1890  (26  Stat.  L.,  157),  contains  the  requirement  that  the 
sums  retained  from  the  monthly  pay  of  enlisted  men  under  sections  1281  and  1282, 
Revised  Statutes,  shall  be  treated  as  deposits  upon  which  interest  shall  be  paid  in 
accordance  with  sections  1305,  1306,  1307,  and  1308,  Revised  Statutes. 

2  Amended  by  the  act  of  March  3,  1883  (22  Stat.  L.,  456),  so  as  to  authorize  the 
deposit,  at  interest,  of  sums  not  less  than  $5  in  amount. 

3  For  regulations  respecting  deposits,  see  paragraphs  1371-1378,  Armv  Regulations 
of  1895. 

Held,  under  section  1306,  Revised  Statutes,  that  a  soldier,  having  savings  on 
deposit  as  authorized  bv  section  1305,  Revised  Statutes,  was  not  entitled  to  interest 
on  the  same  after  the  elate  of  the  approval  of  a  sentence  imposing  upon  him  a  dis- 
honorable discharge;  although  such  discharge,  by  reason  of  the  soldier  being  sub- 
jected to  a  term  of  confinement  adjudged  by  the  same  sentence,  was  not  delivered 
personally  to  the  soldier  but  to  the  commanding  officer  to  retain  in  trust  for  him 
pending  his  confinement,  Dig.  Opin.  J.  A.  G.,  par.  1052. 

Section  1305,  Revised  Statutes,  provides  for  the  deposit  by  an  enlisted  man  of 
his  savings  with  a  paymaster,  to  be  paid  over  to  him  upon  discharge.  Held  that  this 
statute  provided  for  voluntary  deposits  only  ;  and  that  an  officer,  however  laudable 
his  motive,  was  not  legally  authorized  in  thus  depositing,  against  the  will  of  a  soldier, 
certain  money  in  his  hands  belonging  to  the  latter.  Ibid.,  par.  1913. 


MILITAEY    LAWS    OF    THE    UNITED    STATES.  343 

loughs  to  the  enlisted  men  in  such  numbers  and  for  such 
time  as  he  shall  deem  consistent  with  the  good  of  the 
service.  Every  officer  commanding  a  regiment,  or  an  in- 
dependent troop,  battery,  or  company,  in  the  field,  may 
grant  furloughs,  not  exceeding  thirty  days  at  one  time,  to 
five  per  centum  of  the  enlisted  men  for  good  conduct  in 
the  line  of  duty,  but  subject  to  the  approval  of  the  com- 
mander of  the  forces  of  which  said  enlisted  men  form  a 
part.  Every  company  officer  of  a  regiment,  commanding 
any  troop,  battery,  or  company  not  in  the  field,  or  com- 
manding in  any  garrison,  fort,  post,  or  barrack,  may,  in 
the  absence  of  his  field  officer,  grant  furloughs  to  the  en- 
listed men,  for  a  time  not  exceeding  twenty  days  in  six 
months,  and  not  to  more  than  two  persons  to  be  absent  at 
the  same  time.1  Eleventh  Article  of  War. 

885.  Any  soldier  who  absents  himself  from  his  troop,  ot£^^ce  with" 
battery,  or  company,  or  detachment,  without  leave  f rorn 
his  commanding  officer,  shall   be   punished   as   a   court- 
martial  may  direct. 2     Thirty -second  Article  of  War. 

1  For  instructions  in  respect  to  the  issue  of  furloughs  see  paragraphs  116-124,  Army 
Regulations,  1901.     Enlisted  men  on  furlough  suffer  no  deduction  of  pay  in  conse- 
quence of  their  authorized  absence.     They  are  paid  on  their  return  to  duty,  and  can 
only  be  paid,  while  absent  on  furlough,  with  the  authority  of  the  Secretary  of  War. 

2  An  enlisted  man  who  has  absented  himself  from  his  post  or  company  without 
authority  is  subjected  to  the  forfeiture  of  pay  and  allowances  prescribed  by  paragraph 
144  of  the  Army  Regulations  of  1901,  although  not  brought  to  trial  for  his  absence  as 
an  offense.     The  forfeiture  is  a  stoppage  by  operation  of  law,  irrespective  of  any  pun- 
ishment that  may  be  imposed,  and  whether  any  be  imposed  or  not.     Thus  a  soldier 
acquitted  under  a  charge  of  desertion  is  acquitted  of  the  absence  without  leave 
involved  in  the  charge,  and  can  not  be  punished  therefor;  but,  if  he  has  been  absent 
without  leave  in  fact,  he  incurs  the  forfeiture  specified  in  the  regulation.     And  a  sol- 
dier brought  to  trial  for,  and  convicted  of,  an  absence  without  leave  is  subject  to  the 
forfeiture,  though  none  be  adjudged  in  the  sentence.     Otherwise,  however,  if  the  find- 
ings be  disapproved  as  not  sustained  by  the  testimony.     But  the  stoppage  incurred 
under  paragraph  137,  Army  Regulations  of  1901,  is  enforced  only  upon  a  conviction 
by  court-martial.     Dig.  Opin.  J.  A.  G.,  140,  par.  3;  see  also  pars.  137  and  144,  1556, 
1557,  and  1558,  Army  Regulations  of  1901. 

The  forfeiture  specified  in  paragraph  133,  Army  Regulations  of  1895,  should  not  be 
enforced  for  absences  of  less  than  one  day,  but  the  soldier  should  be  left  to  be  pun- 
ished by  sentence  of  summary  court.  Thus  where  the  unauthorized  absence  was  for 
but  seven  and  a;  half  hours  a" forfeiture  of  a  day's  pay  would  deprive  the  soldier  of 
pay  for  sixteen  and  a  half  hours  which  he  had  actually  earned.  Held,  therefore, 
that  a  stoppage  of  one  day's  pay  in  such  a  case  was  not  warranted.  Ibid.,  141, 
par.  4. 

In  paragraphs  144,  1557  and  1558,  Army  Regulations  of  1901,  it  is  directed  that  no 
enlisted  man  shall  receive  pay  or  allowances  for  any  time  during  which  he  has  been 
absent  without  leave  (unless  he  shall  furnish  to  his  commanding  officer  a  satisfactory 
excuse  for  such  absence),  and,  further,  that  a  deserter  shall  forfeitall  pay  and  allow- 
ances due  him  at  the  time  of  his  desertion.  These  forfeitures  are  incurred  by  operation 
of  law,  upon  the  commission  of  the  offense,  independently  of  any  punishment  for  the 
same  by  sentence  of  court-martial,  and  it  is  not  essential  to  their  taking  effect  that 
the  offense  should  have  been  found  by  a  military  court.  In  general,  however,  they 
can  not  safely  be  enforced  in  the  absence  of  an  ascertainment  of  the  guilt  of  the  party 
by  a  trial  and  conviction.  Only  such  pay  is  affected  by  these  regulations  as  is 
expressly  specified  therein.  Thus  a  deserter  forfeits  both  pay  due  at  the  time  of  his 
offense  and  pay  for  the  period  of  his  unauthorized  absence,  so  that,  upon  his  appre- 
hension or  surrender,  nothing  whatever  is  due  him.  But  here  the  forfeiture  by  opera- 


344  MILITARY    LAWS    OF    THE    UIHTED    STATES. 

tivftyduringcap"  886<  Every  noncommissioned  officer  and  private  of  the 
37Msari4°'v834'p'  Regular  Army,  and  every  officer,  noncommissioned  offi- 
1  sec.  1288,  R.  s.  cer?  an(^  Private  of  any  militia  or  volunteer  corps  in  the 
service  of  the  United  States  who  is  captured  by  the  enemy, 
shall  be  entitled  to  receive  during  his  captivity,  notwith- 
standing the  expiration  of  his  term  of  service,  the  same 
pay,  subsistence,  and  allowance  to  which  he  may  be  en- 
titled while  in  the  actual  service  of  the  United  States;  but 
this  provision  shall  not  be  construed  to  entitle  any  prisoner 
of  war  of  such  militia  corps  to  any  pay  or  compensation 
after  the  date  of  his  parole,  except  the  traveling  expenses 
allowed  by  law. 

TRAVEL   PAY    ON    DISCHARGE. 

dJchI?gepay  °n  887-  Hereafter  an  enlisted  man  when  discharged  from 
3ifpa.y2ii!  19°°'  v'the  service,  except  by  way  of  punishment  for  an  offense, 
shall  receive  four  cents  per  mile  from  the  place  of  his 
discharge  to  the  place  of  his  enlistment,  enrollment,  or 
original  muster  into  the  service,1  Act  of  May  £6,  1900 
(31  Stat.  L.,211}. 

Sea  travel.          888.  For  sea  travel  on  discharge  actual  expenses  only 
31,  p. '902.         'shall  be  paid  to  officers,  and  transportation  and  subsistence 


tion  of  law  ends;  from  this  date  his  pay  begins  to  run  anew;  and  unless  his  sentence 
(in  the  case  of  his  trial  and  conviction)  includes  a  forfeiture  of  pay  due  he  will  be 
entitled  to  his  pay  (less  any  legal  stoppages  or  deductions)  from  such  date  (which 
is  considered  to  be  that  of  his  return  to  service)  to  the  date  of  his  discharge,  whether 
this  be  a  dishonorable  discharge  adjudged  by  the  sentence  and  executed  forthwith, 
or — the  sentence  not  imposing  such  punishment — an  honorable  discharge  given  him 
in  the  usual  manner  after  a  further  period  of  service.  Paragraph  140,  indeed,  provides 
that  this  pay  shall  not  be  rendered  to  him  prior  to  trial,  but  it  does  not  affect  his 
right  to  receive  it  when  the  trial  is  completed,  and  it  is  found  not  to  be  forfeited  by 
the  sentence  of  the  court. 

An  officer  or  soldier  brought  to  trial  for  desertion  or  absence  without  leave,  and 
acquitted,  can  not  of  course  be  subjected  to  any  of  these  forfeitures;  norcan  one  who 
has  been  convicted  but  whose  conviction  has  been  disapproved  by  the  competent 
reviewing  authority.  An  acquittal  of  desertion,  or  a  disapproval  of  a  conviction  of 
desertion,  includes  of  course  an  acquittal,  or  a  legal  nullifying  of  the  conviction,  of 
the  offense  of  absence  without  leave^  included  in  the  desertion. 

So,  where  a  charge  of  desertion  against  a  soldier  was ,  removed  in  orders,  as 
unfounded,  and  he  was  granted  an  honorable  discharge,  held  that  the  forfeiture  pre- 
scribed by  these  regulations  could  not  be  enforced.  Dig.  Opin.  J.  A.  G.,  562,  par.  9. 

1  An  officer  or  soldier  who  is  discharged  for  his  own  convenience  is  not  entitled  to 
travel  pay  or  allowances.  5  Compt.  Dec.,  113.  An  enlisted  man  who  is  discharged  at 
his  own  request  by  reason  of  the  illness  of  his  wife  is  discharged  for  his  own  conven- 
ience and  is  not  entitled  to  travel  pay.  Ibid.,  939. 

For  statute  regulating  the  travel  pay  of  enlisted  men  of  the  regular  and  volunteer 
forces  when  discharged  by  the  Secretary  of  War  see  the  act  of  June  6,  1900  (31  Stat. 
L.,  708) ,  par.  541,  ante.  For  statutes  regulating  the  payment  of  extra  pay  to  officers 
and  enlisted  men  of  volunteers  on  muster  out  or  discharge  from  the  military  service 
see  the  acts  of  January  12,  1899  (30  Stat.  L.,  784),  March  3, 1899  (ibid.,  1073),  and 
May  26,  1900,  (31  ibid.,  217),  pars.  536  to  538,  ante. 

Under  section  1290,  Revised  Statutes,  as  modified  by  the  act  of  February  27,  1877 
(19  Stat.  L.,  244) ,  it  has  been  held  that  where  a  soldier's  first  discharge  is  followed 
by  his  reenlistment  within  a  few  days,  so  that  his  service  is  practically  continuous, 
and  his  second  discharge  occurs  at  the  place  of  his  original  enlistment,  he  is  not 
entitled  to  commutation  for  travel  and  subsistence  to  the  place  of  his  second  enlist- 
ment. U.  S.  v.  Thornton,  160  U.  S.,  654. 


MILITARY    LAWS    OF   THE    UNITED    STATES.  345 

only  shall  be  furnished  to  enlisted  men.1     Act  of  March 
2,  1901  (31  Stat.  L., 


STOPPAGES   AND   DEDUCTIONS. 


Par. 


894.  The  same,  balances. 

895.  Tobacco. 

896.  Subsistence  stores,  credit  sales. 

897.  Damage  to  arms. 

898.  Assignments  of  pay  forbidden. 


Par. 

889.  Soldiers'  Home. 

890.  Recruits  at  depots. 

891.  Altering  clothing. 

892.  The  same,  restriction. 

893.  Clothing  allowance. 

889.  There  shall  be  deducted  from  the  pay  of  every  non- 
commissioned officer,  musician,    artificer,  and  private  of  7  ^Ia£-  3»  6^51> s- 
the  Army  of  the  United  States  the   sum  of  twelve  and  7  ^fi  3-  ^ s- 
a  half  cents  per  month,  y\*hich  sum  so  deducted  shall,  by    Sec.48i9,B.s. 
the  Pay  Department  of  the  Army,  be  passed  to  the  credit 

of  the  Commissioners  of  the  Soldiers'  Home.  *  *  * 
But  the  deduction  of  twelve  and  a  half  cents  per  month 
from  the  pay  of  noncommissioned  officers,  musicians, 
artificers,  and  privates  of  regiments  of  volunteers,  or  other 
corps  or  regiments  raised  for  a  limited  period,  or  for  a 
temporary  purpose  or  purposes,  shall  only  be  made  with 
their  consent.2 

890.  Traders  and  laundrymen  at  depots  for  recruits  in    Recruits  to 

•,.,,,,          .  ,  ,  .,  ,.,    have  credit,  etc., 

the  Army  are  authorized  to  lurnisn  such  recruits,  on  credit,  at  depots  for  re- 
with  laundr}^  work  and  such  articles  as  may  be  necessary  June  30,  1882, 
for  their  cleanliness  and  comfort,  at  a  total  cost  not  to  122.' 
exceed  seven  dollars  in  value  per  man.  That  muster  and 
pay  rolls  be  made  out  showing  the  amounts  the  recruits 
respectively  owe  to  the  traders  and  laundrymen,  and  signed 
by  them  before  leaving  the  depot,  and  that  the  traders 
and  laundrymen  be  paid  on  such  rolls,  the  amount  paid  for 
each  recruit  to  be  noted  accordingly  on  the  muster  and 
descriptive  rolls,  in  order  that  it  may  be  withheld,  after 
he  joins  his  company,  by  the  paymaster,  at  the  first  sub- 
sequent payment,  under  such  rules  and  regulations  as  may 
be  adopted  by  the  War  Department:  Provided,  That  this 
provision  shall  apply  only  to  recruits  on  their  enlistment, 
and  the  credit  shall  only  be  allowed  on  the  written  order 
of  the  regular  recruiting  officer  at  said  station.3  Sec.  3, 
act  of  June  30,  1882  (22  Stat.  Z., 


1  This  enactment  replaces  a  requirement  in  pari  materia  of  the  act  of  May  26,  1900. 
31  Stat.  L.,  211. 

2 The  act  of  March  16,  1896  (29  Stat.  L.,  60),  discontinuing  the  practice  of  retaining 
the  pay  of  enlisted  men,  contains  a  provision  excepting  the  deduction  authorized  by 
section  4819  of  the  Revised  Statutes  from  the  operation  of  the  clause. 

3 The  act  of  June  28,  1893  (27  Stat.  L.,  426) ,  directing  that  no  more  post  traders  be 
appointed,  will  operate  to  restrict  this  privilege  to  laundrymen  at  depots.  Paragraph 
1192,  Army  Regulations  of  189.5,  requires  all  laundry  charges  to  be  charged  to  the 
recruit  on  his  clothing  account  and  to  be  noted  on  his  descriptive  and  assignment  card. 


346  MILITARY    LAWS    OF    THE    UNITED    STATES. 


^Altering  cloth-     ggj    jt  ^^  ^G  ]awfu]  for  the  commanding  officer  of 

69Fvbi97'p18274?3  °'  each  regiment,  whenever  it  may  be  necessary,  to  cause  the 

feec.  i22o,R.s.  coats5  vests,  and  overalls  or  breeches  which  may  from  time 

to  time  be  issued  to  and  for  his  regiment  to  be  altered  and 

new  made,  so  as  to  better  to  fit  them  to  the  persons  respec- 

tively for  whose  use  they  shall  be  delivered;  and  for  defray- 

ing the  expense  of  such  alteration  to  cause  to  be  deducted 

and  applied  out  of  the  pay  of  such  persons  a  sum  or  sums 

not  exceeding  twenty  -five  cents  for  each  coat,  eight  cents 

for  each  vest  and  for  each  pair  of  overalls  or  breeches.1 

MarVisg^v      892'  Hereafter  the  regimental  price  fixed  for  altering 

25,  p.  83i'.  and  fitting  soldiers'  clothing  shall  not  exceed  the  cost  of 

making  the  same  at  the  clothing  depots.  l    Act  of  March  2, 

1889(25  Stat.  L.,  831). 

anceshiafd11(S-     893>  The  money  value  of  all  clothing  overdrawn  by  the 

auctions^   ^^  soldier  beyond  his  allowance  shall  be  charged  against  him, 

c-  gk88-  7>  8>  v'  4'  every  six  months,  on  the  muster  roll  of  his  company,  or 

le^sV8!?'^'011  his  final  statements  if  sooner  discharged,  and  he  shall 

Ugee.i802,  B.s.  receive  pay  for  such  articles  of  clothing  as  have  not  been 

issued  to  him  in  any  year,  or  which  may  be  due  to  him  at 

the  time  of  his  discharge,  according  to  the  annual  esti- 

mated value  thereof.     The  amount  due  him  for  clothing, 

when  he  draws  less  than  his  allowance,  shall  not  be  paid  to 

him  until  his  final  discharge  from  the  service.2 

clothing  bai-      394.  rphe  amounts  of     *     *     *     clothing  balances  accu- 

ances;    payment  .  IT,  T  . 

on  discharge,      mulating  to  the   soldier  s   credit  under  section   thirteen 
4,  y.  i7,  p.  in.'  ]'  hundred  and  two,  shall,  when  payable  to  him  upon  his 

Scc»lSOo^  K»S.    -I  •      i  i  •  i  i»      i  •       •  s*         L  L  T~*  p 

discharge,  be  paid  out  of  tne  appropriations  tor     .ray  or 
the  Arm}7  "  for  the  then  current  fiscal  }^ear. 

Tobacco.      ^      895.  The  amount  due  from  any  enlisted  man  for  tobacco 
6,  v.  is,  p.  497.'    sold  to  him  at  cost  prices  by  the  United  States  shall  be 
'  deducted  from  his  pay  in  the  manner  provided  for  the  set- 
tlement of  clothing  accounts. 


•tor«8icVedit     ^^'  T^e  amoun^  due  from  an    enlisted  man  for  articles 


1866  s  designated  by  the  inspectors-general  of  the  Army,  and 
25,  v."i4,  p.  SBC',    sold  to-Mni  on  credit  by  commissaries  of  subsistence,  shall 
'  be  deducted  from  the  payment  made  to  him  next  after 
such  sale   shall   have  been  reported   to   the   Paymaster- 
General.3 

1  Paragraph  263,  Army  Regulations  of  1895,  requiring  deductions  to  be  made  from 
the  pay  of  soldiers  in  favor  of  "tradesmen"  who,  when  "relieved  from  ordinary 
military  duty,"  are  authorized  to  make  or  repair  soldiers'  uniforms,  held,  to  authorize 
stoppages,  not  only  for  dues  to  tailors  who  are  in  the  military  service,  but  for  dues  to 
civilian  tailors.     Dig.  Opin.  J.  A.  G.,  720,  par.  4;  Circular  8,  A.  G.  O.,  1896. 

2  For  regulations  respecting  clothing  accounts  see  paragraphs  1286  and  1303-1309, 
Army  Regulations  of  1901. 

3  For  rules  respecting  sales  on  credit  see  paragraphs  1428,  1429,  1431,  1436,  and 
1438,  Army  Regulations  of  1901. 

A  stoppage  is  distinguished  from  a  forfeiture  or  fine;   and  an  executive  stoppage, 


MILITARY    LAWS    OF    THE    UNITED    STATES.  347 

897.  The  cost  of  repairs  or  damages  done  to  arms,  equip-ar^°gr  damage  to 
ments,  or  implements  shall  be  deducted  from  the  pay  of38F^-7^v1813^; 
any  officer  or  soldier  in  whose  care  or  use  the  same  were20|-ec  1303  B  Si 
when  such  damages  occurred,  if  said  damages  were  occa- 
sioned by  the  abuse  or  negligence  of  said  officer  or  soldier. 

ASSIGNMENTS   OF   PAY. 

898.  No  assignment  of  pay  by  a  noncommissioned  offi-  nost°lssfgmbi?ay 
cer  or  private,  previous  to  his  discharge,  shall  be  valid.       37Mga^  8^  Y92'  °' 

Sec.1291,  R.S. 

HISTORICAL  NOTE. — A  system  of  payments  to  troops  by  means  of  regimental  pay- 
masters had  been  prescribed  by  several  resolutions  of  Congress  during  the  Govern- 
ment under  the  Articles  of  Confederation.  The  office  of  Paymaster-General  had  also 
been  established,  but  had  ceased  to  exist  prior  to  the  organization  of  the  Govern- 
ment under  the  Constitution,  the  office  and  duties  of  Paymaster-General  having  been 
merged  in  those  of  Commissioner  of  Army  Accounts  by  a  resolution  of  Congress  dated 
March  3,  1787.  The  system  of  regimental  paymasters,  established  during  the  war  of 
the  Revolution,  was  recognized  and  continued  in  the  military  force  authorized 
by  the  act  of  September  29,  1789  (1  Stat.  L.,  95) .  A  regiment  of  infantry  and  a  bat- 
talion of  artillery  were  added  to  the  establishment  by  the  act  of  April  30, 1790  (ibid., 
119),  to  each  of  which  a  paymaster  was  attached,  with  the  proviso  that  the  paymas- 
ter, in  common  with  the  other  officers  of  the  regimental  staff,  should  be  selected 
from  subalterns  of  the  line.  An  additional  regiment  of  infantry  was  authorized  by 
the  act  of  March  3,  1791  (ibid.,  222),  with  the  same  organization,  and  three  addi- 
tional regiments  of  infantry  and  a  squadron  of  dragoons  were  added  to  the  existing 
establishment  by  the  act  of  March  5,  1792  (ibid.,  241),  the  infantry  regiments  having 
the  organization  prescribed  by  the  act  of  April  30,  1790.  As  no  paymaster  was 
authorized  for  the  squadron  of  dragoons  it  is  presumed  that  payments  to  that  organi- 
zation were  made  by  an  officer  detailed  for  the  purpose. 

By  section  3  of  the  act  of  May  8, 1792  ( 1  Stat.  L. ,  280) ,  a  paymaster  with  the  rank  and 
pay  of  major  was  authorized,  who  was  "to  reside  near  the  headquarters  of  the  troops 
of  the  United  States."  He  was  required  to  give  a  bond  in  the  sum  of  $20,000,  and  his 
duties  were  denned  in  the  same  enactment.  By  section  3  of  the  act  of  March  3, 1797 
(ibid.,  507),  the  title  of  Paymaster-General  was  conferred  upon  this  officer,  who  was  to 
receive  the  pay  and  allowances  already  authorized  by  law.  By  section  7  of  the  act 
of  May  28,  1798  (ibid.,  558),  passed  in  contemplation  of  war  with  France,  the  rank 

or  stoppage  by  order,  can  not  be  imposed  for  an  offense.  But  it  is  entirely  legal  to 
stop  against  a  soldier's  pay,  under  the  Army  Regulations,  an  amount  required  to  reim- 
burse the  United  States  for  loss  on  account  of  damage  done  to  public  property,  while 
at  the  same  time  bringing  the  soldier  to  trial  by  court-martial  for  the  offense  involved. 
Dig.  Opin.  J.  A.  G.,  720,  par.  3.  Gratiot  v.  U"  S.,  15  Peters,  336;  McKnight  v.  U.  S., 
98  U.  S.,  180. 

Pay  due  an  officer  or  soldier  can  legally  be  stopped  only  by  reason  of  an  accounta- 
bility to  the  United  States  (XVI  Opin.  Att.  Gen.,  477) .  'Thus  it  can  not  be  stopped 
to  reimburse  a  hospital  fund  for  money  stolen,  such  fund,  like  a  company  fund,  not 
being  public  money.  Dig.  Opin.  J.  A.  G.,  721,  par.  8. 

The  United  States  is  not  authorized  to  stop  against  the  pay  of  an  officer  or  soldier 
an  amount  of  personal  indebtedness  to  another  officer  or  soldier,  though  such  indebt- 
edness may  have  grown  out  of  the  relations  of  the  military  service.  Thus,  in  the 
absence  of  a  sentence  of  court-martial  forfeiting  the  same,  an  officer's  pay  can  not 
legally  be  stopped  with  a  view  to  the  reimbursement  of  enlisted  men  who  have 
deposited  with  him  money  for  safe-keeping,  which  he  has  failed  to  return  when 
required,  the  officer  being  accountable  for  the  same  in  a  personal  capacity  only. 
Ibid.,  par.  2375. 

Authorized  stoppages  will  be  entered  on  the  rolls  and  paid  in  the  following  order: 

1.  Reimbursements  to  the  United  States  for  the  loss  or  damage  to  arms,  equip* 
ments,  or  other  public  property,  the  nature  of  which  will  be  clearly  stated,  extra 
issues  of  clothing,  transportation,  subsistence,  expense  of  apprehending  deserters. 

2.  Amounts  paid  post  exchange  and  laundrymen  at  recruit  rendezvous. 

3.  Reimbursements  to  individuals  (as  the  paymaster,  for  instance). 

4.  Forfeitures  for  desertion,  and  fines  by  sentence  of  court-martial.     Par.  1568, 
A.  R.,  1901. 


348  MTLITAEY    LAWS    OF   THE   UNITED   STATES. 

and  pay  of  lieutenant-colonel  was  conferred  upon  the  incumbent  of  the  office  of 
Paymaster-General,  and  deputy  paymasters  were  authorized,  in  addition  to  the  regi- 
mental paymasters.  By  section  3  of  the  act  of  March  16,  1802  (2  ibid.,  132),  passed 
with  a  view  to  reduce  and  fix  the  military  peace  establishment,  provided  for  a  pay- 
master of  the  Army;  he  was  to  be  assisted  by  seven  paymasters  and  two  assistants, 
who  were  to  be  attached  to  districts;  the  deputy  paymasters  and  assistants  were  to 
be  detailed  from  the  line,  and  were  to  receive  additional  pay  at  the  rate  of  $30  and 
$10  per  month,  respectively. 

The  distribution  of  clothing  to  the  Army  was  vested  in  the  Pay  Department  by 
section  8  of  the  act  of  March  16,  1802  (2  ibid.,  132),  and  section  9  of  the  act  of  Janu- 
ary 11,  1812  (ibid.,  671);  this  duty  continued  to  be  performed  by  the  Pay  Depart- 
ment until  it  was  transferred  to  the  Quartermaster's  Department  by  the  act  of  May 
18,  1826  (4  ibid.,  173). 

Provision  was  made  for  the  payment  of  the  troops  during  the  war  of  1812  by  the 
appointment  of  as  many  district  paymasters  as  the  President  might  deem  necessary^ 
if  taken  from  the  line  these  officers  were  to  receive  $30  per  month  additional  pay;  if 
appointed  from  civil  life,  they  were  to  receive  the  pay  and  emoluments  of  majors 
of  infantry.  Act  of  May  16,  1812,  2  Stat.  L.,  735.  The  Pay  Department  was  estab- 
lished, eo  nomine,  by  section  3  of  the  act  of  April  24,  1816  (3  ibid.,  297),  and  was 
to  consist  of  a  Paymaster-General,  who,  with  the  regiment  and  battalion  paymas- 
ters, was  to  constitute  the  Pay  Corps.  The  regimental  and  battalion  paymasters 
were  given  the  rank  of  majors  of  infantry,  and  were  to  be  selected  from  subalterns 
of  the  line  or  from  civil  life;  provision  was  made  in  this  act  for  clerical  service  by  a 
clause  authorizing  the  detail  of  noncommissioned  officers  as  paymasters'  clerks,  who, 
while  so  employed,  were  to  receive  double  pay.  Fourteen  paymasters  were  added 
to  the  department  by  the  act  of  March  2, 1821  (ibid.,  615) ,  and  three  by  the  actof  July 
4,  1836  (5  ibid.,  117).  The  twenty-fifth  section  of  the  act  of  July  5,  1838  (5  ibid., 
256) ,  made  provision  for  the  expansion  of  the  department,  to  meet  the  emergency  of  a 
sudden  increase  in  the  strength  of  the  Army,  by  authorizing  the  President  to  appoint 
such  number  of  additional  paymasters  as  he  might  deem  necessary  "to  pay  the 
troops  with  sufficient  punctuality;  "  such  increase,  however,  was  not  "  to  exceed  one 
for  every  two  regiments  of  militia  or  volunteers,"  and  the  additional  paymasters 
were  to  be  continued  in  service  only  so  long  as  their  services  might  be  required 
to 'pay  militia  and  volunteers.  The  substance  of  this  requirement  was  subsequently 
incorporated  in  the  Revised  Statutes  as  section  1184  of  that  enactment.  By  section 
3  of  the  act  of  July  4,  1836,  the  President  was  authorized  to  assign  any  officer  of  the 
Army  to  duty  as  a  paymaster,  and  the  officer  so  assigned  was  to  give  bond,  but  was 
entitled  to  receive  the  pay  and  emoluments  allowed  by  law  to  paymasters.  By  sec- 
tion 4  of  the  act  of  August  23,  1842  (ibid.,  512),  the  number  of  majors  in  the  depart- 
ment was  reduced  to  fourteen. 

The  duties  of  the  officers  of  the  Pay  Department  were  defined  by  section  4  of  the 
act  of  April  24,  1816  (3  ibid.,  297),  and  by  the  act  of  July  14, 1832  (4  ibid.,  580), 
bonds  were  required  and  paymasters  brought  under  the  Articles  of  War  by  section 
6  of  the  act  of  April  24, 1816  (3  ibid.,  297).  The  rank  indicated  by  their  pay  and 
allowances  was  conferred  upon  officers  of  this  department  by  section  13  of  the  act  of 
March  3,  1847  (9  ibid.,  184),  and  the  restriction  in  respect  to  the  exercise  of  com- 
mand, which  is  embodied  in  section  1183  of  the  Revised  Statutes,  appeared  originally 
in  the  same  enactment.  By  section  12  of  the  same  act  two  deputy  paymasters-general 
(lieutenant-colonels)  were  added  to  the  establishment.  At  the  close  of  the  war 
with  Mexico  the  organization  of  the  department  was  fixed  at  one  Paymaster-General 
(colonel),  two  deputy  paymasters-general  (lieutenant-colonels),  and  twenty-five 
paymasters  with  the  rank  of  major,  and  the  officers  of  the  department  were  placed 
upon  the  same  footing  in  respect  to  tenure  of  office  as  officers  of  other  disbursing 
departments  of  the  Army.  By  the  same  enactment  the  bonds  of  paymasters  were 
required  to  be  renewed  at  least  once  in  every  four  years,  and  as  much  oftener  as  the 
President  might  direct. 

The  needs  of  the  department  were  met  during  the  period  of  the  war  of  the  rebel- 
lion by  the  appointment  of  additional  paymasters  under  the  authority  conferred  by 
section  25  of  the  act  of  July  5,  1838  (sec.  1184,  Revised  Statutes).  At  the  general 
reorganization  of  the  Army  in  1866  the  personnel  of  the  department  was  established 
at  one  Paymaster-General  (brigadier-general),  two  assistant  paymasters-general 
(colonels),  two  deputy  paymasters-general  (lieutenant-colonels),  and  sixty  paymas- 
ters with  the  rank  of  major.  The  Paymaster-General  was  to  be  selected  from  the 
corps,  and  the  vacancies  in  the  grade  of  major  were  to  be  filled  by  the  appointment 
of  persons  who  had  served  as  additional  paymasters  during  the  war  of  the  rebellion. 
Sees.  18  and  23,  act  of  July  28,  1866,  14  Stat.  L.,  335.  At  the  reduction  of  1869 
it  was  provided  by  section  6  of  the  act  of  March  3, 1869  ( 15  ibid. ,  318) ,  that  there  should 


MILITARY    LAWS    OF   THE    UNITED    STATES.  349' 

be  no  more  appointments  or  promotions  in  the  department  until  the  further  order 
of  Congress,  but  this  requirement  was  modified  by  the  act  of  June  4,  1872  (17  ibid., 
219),  which  authorized  the  appointment  of  a  Paymaster-General  with  the  rank  of 
colonel  to  fill  an  existing  vacancy,  and  by  the  act  of  March  2,  1875  (18  ibid.,  338), 
and  joint  resolution  No.  7  of  March  2,  1875  (ibid.,  524),  which  fixed  the  number  of 
paymasters  at  fifty.  The  rank  of  brigadier-general  was  restored  to  the  office  of 
Paymaster-General  by  the  act  of  July  22,  1876  (19  ibid.,  95),  and  the  restriction 
established  by  the  act  of  March  3,  1869,  was  finally  removed  by  the  act  of  March  3, 
1877  (ibid.,  270). 

A  gradual  reduction  in  the  strength  of  the  department  was  provided  for  in  the  acts 
of  March  3,  1883  (22  Stat.  L.,  451),  and  July  5, 1884(23  ibid.,  108) ,  by  authorizing  the 
voluntary  retirement  of  paymasters  of  over  twenty  years'  service,  and  by  a  require- 
ment that  there  should  be  no  more  original  appointments  to  the  grade  of  lieutenant- 
colonel  and  major  until  the  number  of  officers  in  the  department  had  been  reduced 
to  thirty-five  and  the  organization  of  the  department  was  thereafter  to  be  as  follows: 
one  paymaster-general  (brigadier-general),  two  assistant  paymasters-general  (colo- 
nels), three  deputy  paymasters-general  (lieutenant-colonels),  and  twenty-nine  pay- 
masters (majors).  By  the  act  of  July  16,  1892  (27  ibid.,  175),  the  number  of  majors 
was  reduced  to  twenty-five,  by  the  act  of  February  12,  1895  (28  ibid.,  655),  it  was 
still  further  reduced  to  twenty,  which  was  declared  to  be  the  number  authorized  by 
law. 

By  section  21  of  the  act  of  February  2, 1901  (31  Stat.  L. ,  754) ,  the  permanent  strength 
of  the  department  was  fixed  at  one  paymaster-general  with  the  rank  of  brigadier- 
general,  three  assistant  Paymasters-General  with  the  rank  of  colonel,  four  deputy 
paymasters-general  with  the  rank  of  lieutenant-colonel,  twenty  paymasters  with  the 
rank  of  major,  and  twenty-five  paymasters  with  the  rank  of  captain,  mounted.  A 
system  of  details  was  also  established  by  the  operation  of  which  the  permanent  com- 
missioned personnel  of  the  department  will  be  replaced,  as  vacancies  occur,  by 
officers  detailed  from  the  line  of  the  Army  for  duty  in  the  Pay  Department. 


CHAPTER  XXI. 


THE  MEDICAL  DEPARTMENT. 


Par. 

899-901.  Organization. 

902-906.  Appointments,  promotions,  ex- 
aminations. 

907-909.  Contract  surgeons,  dental  sur- 
geons. 

910-913.  Duties. 

914-924.  The  Hospital  Corps. 


Par. 

925-928.  The  Nurse  Corps  (female). 

929-931.  Hospitals. 

932-933.  Purchases. 

934,  935.  Sales  of  medical  supplies. 

936-939.  The  Army  and  Navy  HospitaL 

940-941.  The  Army  Medical  Museum. 

942-952.  Artificial  limbs. 


Par. 


ORGANIZATION. 


Par. 


899.  Composition. 

900.  Volunteer  surgeons. 

901.  Rank. 


902.  Contract  surgeons. 

903,  904.  Dental  surgeons. 


Fe™Tiit9oin's  899<  The  Medical  Department  shall  consist  of  one 
188ec.3ii68?B2.'s.  Surgeon-General  with  the  rank  of  brigadier-general, 
eight  assistant  surgeons-general  with  the  rank  of  colonel, 
twelve  deputy  surgeons-general  with  the  rank  of  lieutenant- 
colonel,  sixty  surgeons  with  the  rank  of  major,  two 
hundred  and  forty  assistant  surgeons  with  the  rank  of 
captain  and  first  lieutenant,  the  Hospital  Corps  as  now 
authorized  by  law  and  the  Nurse  Corps.  Sec.  18,  act  of 
February  2,  1901  (31  Stat.  Z.,  758). 

^volunteer  sur-  9QQ.  On  or  after  the  passage  of  this  act  the  President 
may  appoint  for  duty  in  the  Philippine  Islands  fifty  sur- 
geons of  volunteers  with  the  rank  and  pay  of  major,  and 
one  hundred  and  fifty  assistant-surgeons  of  volunteers 
with  the  rank  and  pay  of  captain  mounted,  for  a  period 
of  two  years:  Provided,  That  so  many  of  these  volunteer 
medical  officers  as  are  not  required  shall  be  honorably 
discharged  the  service  whenever,  in  the  opinion  of  the 
Secretary  of  War,  their  services  are  no  longer  needed. 
.  Ibid. 

1  For  a  note  containing  the  statutory  history  of  the  Medical  Department  see  end  of 
chapter. 

350 


MILITAEY    LAWS    OF   THE    UNITED    STATES.  351 

901.  Officers  of  the  Medical  Department  shall  take  rank  ce§^eand  pre" 
and  precedence  in  accordance  with  date  of  commission  or  23Jplyn5i 1884>  v' 
appointment,  and  shall  be  so  borne  on  the  official  Army 
Register.      Act  of  July  5,  1884  (23  Stat.  Z.,  111). 

APPOINTMENTS,    PROMOTIONS,    EXAMINATIONS. 


Par. 

905.  Credit  for  service. 

906.  Eelative  rank  on  appointment 


Par. 

902.  Appointments,  examinations. 

903.  Promotion  after  five  years'  service. 

904.  The  same,  examinations. 

902.  No  person  shall  receive  the  appointment  of  assistant 

surgeon  unless  he  shall  have  been  examined  and  approved  jJJJ  s-  1(  v-  4- p' 
by  an  army  medical  board,  consisting  of  not  less  than   sec.ii72,B.s. 
three  surgeons  or  assistant  surgeons,  designated  by  the 
Secretary  of  War;  and  no  person  shall  receive  the  appoint- 
ment of  surgeon  unless  he  shall  have  served  at  least  five 
years  as  an  assistant  surgeon  in  the  Regular  Army,  and 
shall  have  been  examined  and  app'roved  by  an  #,rmy  med- 
ical board,  consisting  of    not  less  than  three  surgeons, 
designated  as  aforesaid.1 

903.  Assistant  surgeons  who  have  served  five  years  as  terr°fiveti0yearsfr 
surgeons  or   assistant  surgeons  in  the  volunteer  forces  seMare'2,  ise?,  c 
[shall] 2  be  eligible  to  promotion  to  the  grade  of  captain.  423'. s>  j'Une14'23' 
Sec.  4,  act  of  June  23,  1874  (18  Stat.  L.,  244).  $' s<4>v' 18>  p! 

Sec.  1170,  R.S. 

904.  Before  receiving  the  rank  of  captain  of  cavalry,  of^ssSaif/  su£ 
assistant  surgeons  shall  be  examined,  under  the  provisions  §^8  for  promo" 
of  an  act  approved  October  first,  eighteen  hundred  and  sej-  |6'jSiy 5P; 
ninety,  entitled  "An  act  to  provide  for  the  examination1892iV-27'p<276- 
of  certain  officers  of  the  Army  and  to  regulate  promotions 
therein."3     Sec.  2,  act  of  July  27,  1892  (27  Stat.  L.,  276). 

905.  The  period  during  which   any  assistant  surgeon  ice.reditfor8erv" 
shall  have  served  as  a  surgeon  or  assistant  surgeon  in  the  isfvJai? p*752. 8' 
Volunteer  Army  during  the  war  with  Spain,  or  since,  shall 

be  counted  as  a  portion  of  the  five  years'  service  required 

1  No  allowance  will  be  made  for  the  expenses  of  persons  undergoing  examination, 
but  those  who  receive  appointments  will  be  entitled  to  travel  allowances  in  obeying 
the  first  order  assigning  them  to  duty.     Par.  1573,  A.  R,  1901. 

2  The  word  "shall"  omitted  from  the  roll. 

3  Section  1172,  Revised  Statutes,  provides  that  "no  person  shall  receive  the  appoint- 
ment of  surgeon    *    *    *    unless  he  shall  have  been  examined  and  approved  by  an 
army  medical  board."     The  act  of  October  1,  1890  (26  Stat.  L.,  562),  provides  that 
"should  the  officer  fail  in  his  physical  examination  and  be  found  incapacitated  for 
service  by  reason  of  physical  disability  contracted  in  the  line  of  duty,  he  shall  be 
retired  with  the  rank  to  which  his  seniority  entitled  him  to  be  promoted."     An 
assistant  surgeon  reported  by  one  board  as  "not  qualified  physically,"  and  by  a  sub- 
sequent board  as  "  incapacitated  for  active  service,"  is  not  entitled  to  be  retired  as  if 
he  had  passed  examination,  though  he  continues  on  the  active  list  for  several  years, 
and  requests  examination  for  promotion.     Steinmetz  v,  TL  S.,  33  Ct.  Cls.,  404. 


352  MILITARY    LAWS    OF    THE    UNITED    STATES. 

to  entitle  him  to  the  rank  of  captain.  Sec.  18,  act  of  Feb- 
ruary 2,  1901  (31  Stat.  Z.,  752}. 

Relative  rank.  906.  Nothing  in  this  section  shall  affect  the  relative  rank 
for  promotion  of  any  assistant  surgeon  now  in  the  service, 
or  who  may  hereafter  be  appointed  therein,  as  determined 
by  the  date  of  his  acceptance  of  appointment  or  commis- 
sion and  as  fixed  in  accordance  with  existing  law  and  regu- 
lations. Tbid. 

CONTRACT  SURGEONS  —  DENTAL  SURGEONS. 

onsntract  sur  907.  In  emergencies  the  Surgeon-General  of  the  Army, 
with  the  approval  of  the  Secretary  of  War,  may  appoint 
as  many  contract  surgeons  as  may  be  necessary,  at  a  com- 
pensation not  to  exceed  one  hundred  and  fifty  dollars  per 
month.1  Sec.  17.  Hid. 
n"  908'  Tne  Surgeon-General  of  the  Army,  with  the 

ibid.  approval  of  the  Secretary  of  War,  is  hereby  authorized  to 

employ  dental  surgeons  to  serve  the  officers  and  enlisted 
men  of  the  Regular  and  Volunteer  Army,  in  the  proportion 
of,  not  to  exceed  one  for  every  one  thousand  of  said  Army, 
and  not  exceeding  thirty  in  all.  Said  dental  surgeons  shall 
be  employed  as  contract  dental  surgeons  under  the  same 
terms  and  conditions  applicable  to  army  contract  surgeons, 
and  shall  be  graduates  of  standard  medical  or  dental  col- 
leges, trained  in  the  several  branches  of  dentistry,  of  good 
moral  and  professional  character,  and  shall  pass  a  satisfac- 
tory professional  examination.  Ibid. 

The  same.  909.  Three   of   the  number  of   dental  surgeons   to   be 

Examination. 

supervision,  employed  shall  be  first  appointed  by  the  Surgeon  General, 
with  the  approval  of  the  Secretary  of  War,  with  reference 


enactment  replaces  section  2  of  the  act  of  May  12,  1898  (30  Stat.  L.,  400), 
in  pari  materia.  The  office  of  contract  surgeon  was  first  established  by  regulation, 
but  their  compensation  has  been  provided  for  in  the  annual  acts  of  appropriation  for 
the  support  of  the  Army.  Such  provision  ceased  to  be  made  in  the  act  of  July  16, 
1892  (27  Stat  L.,  175),  and,  until  May  12,  1898,  when  their  employment  was  again 
authorized  by  law. 

A  "contract"  or  "  acting  assistant"  surgeon  is  not  a  military  officer  and  has  no 
military  rank  or  status.  He  is  amenable,  indeed,  to  the  military  jurisdiction  when 
employed  with  the  Army  in  the  field  in  time  of  war,  but  he  is  in  fact  no  part  of  the 
military  establishment,  but  is  simply  a  civilian  employed  by  the  United  States,  under 
a  special  contract  for  his  personal  services  as  a  medical'  attendant  to  the  troops. 
When  not  serving  with  troops  before  the  enemy  he  has  no  other  relation  to  the 
military  organization  or  the  Government  than  that  established  by  the  terms  of  his 
contract,  made  in  accordance  with  the  Army  Regulations.  He  is  not  subject  to  mili- 
tary orders  in  general,  like  an  officer  or  soldier,  but  only  to  such  orders  or  directions 
as  properly  pertain  to  the  peformance  of  his  particular  duties.  He  is  of  course  not 
eligible  to  be  detailed  as  a  member  of  a  military  court.  As  a  civilian,  however, 
he  is  entitled  to  the  per  diem  allowance,  etc.,  when  duly  attending  a  court-martial 
as  a  witness.  Dig.  Opin.  J.  A.  G.,  par.  384. 


MILITARY    LAWS    OF   THE    UNITED    STATES.  358 

to  thei-r  fitness  for  assignment,  under  the  direction  of  the 
Surgeon-General,  to  the  special  service  of  conducting  the 
examination  and  supervising  the  operations  of  the  others; 
and  for  such  special  service  an  extra  compensation  of  sixty 
dollars  per  month  will  be  allowed:  Provided  further,  That 
dental -college  graduates  now  employed  in  the  Hospital 
Corps,  who  have  been  detailed  for  a  period  of  not  less  than 
twelve  months  to  render  dental  service  to  the  Army,  and 
who  are  shown  by  the  reports  of  their  superiors  to  have 
rendered  such  service  satisfactorily,  may  be  appointed  con- 
tract dental  surgeons  without  examination.1  Ibid. 

DUTIES. 

910.  Medical  officers  of  the  Army  may  be  assigned  bydu^nment  to 
the  Secretary  of  War  to  such  duties  as  the  interests  of  the  18||%327Jlpyiw7f 
service  may  demand.2 

Oil.  The  medical  officers  of  the  Army  and  contract  m?  J£SSSS**£ 
geons  shall  whenever  practicable  attend  the  families  of  the  J™"^  of  offi~ 
officers  and  soldiers  free  of  charge.  Act  of  July  5,  1884  ^\^  1884> v- 
(23  Stat.  L.,  112). 

912.  The  officers  of  the  Medical  Department  of  the  Army  co^7ision  of 
shall  unite  with  the  officers  of  the  line,  under  such  rules^^g3'^8]3!'^ 
and  regulations  as  shall  be  prescribed  by  the  Secretary  of  74^c  1174^  B  s> 
War,  in  superintending  the  cooking  done  by  the  enlisted 

men;  and  the  Surgeon-General  shall  promulgate  to  the 
officers  of  said  corps  such  regulations  and  instructions  as 
may  tend  to  insure  the  proper  preparation  of  the  ration  of 
the  soldier. 

913.  Officers  of  the  Medical  Department  of  the  Army  m*ndht  °f  com' 
shall  not  be  entitled,  in  virtue  of  their  rank,  to  command  R  feRb -J^  1847,v£ 

o,  s.  o,  v«  y,  p.  i/o. 

in  the  line  or  in  other  staff  corps.3  Sec.  H69, B. s. 

1  For  regulations  fixing  the  status  and  regulating  the  employment  and  duties  of  con- 
tract and  dental  surgeons  see  par.  1574  to  1589,  Army  Regulations,  of  1901. 

2  The  Medical  Department,  under  the  direction  of  the  Secretary  of  War,  is  charged 
with  the  duty  of  investigating  the  sanitary  condition  of  the  Army  and  making  recom- 
mendations in  reference  thereto,  with  the  duty  of  caring  for  the  sick  and  wounded, 
making  physical  examinations  of  officers  and  enlisted  men,  the  management  and  con- 
trol of  military,  the  recruitment,  instruction  and  control  of  the  Hospital  Corps  and 
of  the  Army  Nurse  Corps  (female),  and  furnishing  all  medical  and  hospital  supplies, 
except  for  public  animals.     Par.  1570,  A.  R.,  1901. 

The  medical  officer  of  a  command  is  responsible  (within  reasonable  limits)  for  the 
health  of  the  men  composing  it.  Where,  in  the  course  of  the  proper  and  regular 
performance  of  his  function,  he  excuses  men  from  duty  on  account  of  sickness  or 
disability,  the  commanding  officer  should  almost  as  a  matter  of  course  accept  his 
action  as  conclusive  and  final.  If  he  refuses  to  do  so  and  orders  on  duty  a  soldier 
thus  excused,  he  assumes  the  responsibility  of  any  material  injury  that  may  thus 
result  to  the  individual  or  the  service,  and,  if  injury  results  in  fact,  is  amenable  to 
trial  for  the  military  offense  involved.  Dig.  Opin.  J.  A.  G.,  par.  1658. 

3  An  officer  of  the  Pay  or  Medical  Department  can  not  exercise  command,  except 
in  his  own  department;  but  by  virtue  of  his  commission  he  may  command  all  enlisted 
men  like  other  commissioned  officers.     Par.  18,  A.  R.,  1901. 

22924—08 23 


354 


MILITARY    LAWS    OF    THE    UNITED    STATES. 


THE    HOSPITAL   CORPS. 


Par. 

914.  Composition. 

915.  Hospital  stewards,  number. 
916-917.  The  same,  increase. 

918.  The  same,  selection  from  volunteers. 

919.  The  same,  rank  and  pay. 


Par. 

920.  Examination. 

921.  The  same,  volunteer  service. 

922.  Privates,  duties. 

923.  The  same,  pay  and  allowance. 

924.  Acting  hospital  stewards. 


The 
Corps. 


The  same. 
June  2,  1898,  v 
30,  p.  428. 


Ht  914.  The  Hospital  Corps l  of  the  United  States  Army 

24^pr'  Is-^Mar! sna^  consist  of  hospital  stewards,  acting  hospital  stewards, 
16, 1895,  v.  29,  p.  an(j  privates;  and  all  necessary  hospital  services  in  garri- 
son, camp,  or  field  (including  ambulance  service)  shall  be 
performed  by  the  members  thereof,  who  shall  be  regularly 
enlisted  in  the  military  service;  said  corps  shall  be  perma- 
nently attached  to  the  Medical  Department.2  Act  of 
March  1,  1887  (%4  Stat.  Z.,  435). 

Hospital  stew-     915.  The  Secretary  of  War  is  empowered  to  appoint  as 
Mar.  i,  1887,  v.  manv  hospital  stewards  as,  in  his  judgment,  the  service 

24,  p.  435,  Mar.  16,  "  ,  . 

18%,  v.  29,  p. 6i.  may  require;  but  not  more  than  one  hospital  steward  shall 
be  stationed  at  any  post  or  place  without  special  authority 
of  the  Secretary  of  War.  There  shall  be  no  appointments 
of  hospital  stewards  until  the  number  of  hospital  stewards 
shall  be  reduced  below  one  hundred,  and  thereafter  the 
number  of  such  officers  shall  not  exceed  one  hundred. 
Act  of  March  16,  1896  (29  Stat.  Z.,  61). 

916.  All  provisions  of  law  limiting  the  number  of  hos- 
pital stewards  in  service  at  any  one  time  to  one  hundred 
*     *     *     are  hereby  suspended  during  the  existing  war: 
Provided.  That  the  increase  of  hospital  stewards  under 
this  act  shall  not  exceed  one  hundred.     Act  of  June  2, 1898 
(30  Stat.  Z.,  488). 

917.  The  Secretary  of  War  is  authorized  to  appoint  in 
the  Hospital  Corps,  in  addition  to  the  two  hundred  hospital 
stewards  now  allowed  by  law,  one  hundred  hospital  stew- 
ards.    Sec.  18,  Act  of  February  8,  1901  (31  Stat.  L. ,  753). 

918.  Men  who  have  served  as  hospital  stewards  of  vol- 
unteers of  volunteer  regiments,  or  acted  in  that  capacity 
during  and  since  the  Spanish-American  war  for  more  than 

lrrhe  act  of  March  11,  1864  (13  Stat.  L.,  20),  made  provision  uniform  for  a  system 
of  ambulances  for  the  armies  in  the  field,  by  the  establishment  of  an  Ambulance 
Corps,  to  be  composed  of  officers  and  enlisted  men  detailed  for  such  service  from  the 
regiments  of  the  line.  The  composition,  distribution,  and  duties  of  the  corps  were 
regulated  by  statute,  supplemented,  in  some  matters  by  Executive  regulations  and 
orders.  The  act  of  March  11,  1864,  though  passed  to  meet  an  emergency  of  war, 
was  not  restricted  to  a  time  of  war  and  so  continued  in  existence  until  replaced  by 
the  enactment  establishing  the  Hospital  Corps. 

2  Sections  1179,  1180,  and  1181  of  the  Revised  Statutes  were  repealed  by  the  act  of 
March  1,  1887  (24  Stat.  L.,  435),  creating  the  Hospital  Corps.  By  the  act  of  March 
8,  1898  (30  ibid.,  261),  the  enlisted  men  of  the  Hospital  Corps  are  required  to  be 
included  in  the  authorized  enlisted  strength  of  the  Army. 


The  same. 
Feb.  2,  1901,  s. 
18,  v.  31,  p.  753. 


The  same. 
Ibid. 


MILITARY    LAWS    OF   THE    UNITED   STATES.  355 

six  months,  may  be  appointed  hospital  stewards  in  the 
Regular  Army:  And  provided  further,  That  all  men  so 
appointed  shall  be  of  good  moral  character  and  shall  have 
passed  a  satisfactory  mental  and  physical  examination. 
Ibid. 

919.  The  pay  of  hospital  stewards  shall  be  forty  -five    g^^^J^- 
dollars  per  month5  with  the  increase  on  account  of  length  188?.  v-  24.  P-  435'. 
of  service  as  is  now  or  may  hereafter  be  allowed  by  law 

to  other  enlisted  men.  They  shall  have  rank  with  ord- 
nance-sergeants and  be  entitled  to  all  the  allowances  apper- 
taining to  that  grade.  Sec.  3,  act  of  March  1,  1887  (24 
Stat.  L..  J$b\ 

920.  No  person   shall  be  appointed  a  hospital  steward    fexca^nMa?ni 
unless  he  shall   have  passed  a  satisfactory  examination  wf^7'Aj|  435' 
before  a  board  of  one  or  more  medical  officers  as  to  his 
qualifications  for  the  position,  and  demonstrated  his  fitness 
therefor  by  service  of  not  less  than  twelve  months  as  act- 

ing hospital  steward;  and  no  person  shall  be  designated 
for  such  examination  except  by  written  authority  of  the 
Surgeon-General,  Sec,  4,  ibid. 

921.  All  provisions  of  law     *     *     *     requiring  that  a    Ju^Tisos,  v 
person  to  be  appointed  a  hospital  steward  shall  first  demon-  30)  p>  428- 
strate  his  fitness  therefor  by  actual  service  of  not  less  than 

twelve  months  as  acting  hospital  steward,  *  *  *  are 
hereby  suspended  during  the  existing  war.  Act  of  June  2, 
1898  (30  Stat.  Z., 


922.  The  Secretary  of  War  is  empowered  to  enlist,  or  Privates;  du- 
cause  to  be  enlisted,  as  many  privates  of  the  Hospital  seo.5,iM& 
Corps  as  the  service  may  require,  and  to  limit  or  fix  the 
number,  and  make  such  regulations  for  their  government 
as  may  be  necessary;  and  any  enlisted  man  in  the  Army 
shall  be  eligible  for  transfer  to  the  Hospital  Corps  as  a 
private.1  They  shall  perform  duty  as  wardmasters,  cooks, 
nurses,  and  attendants  in  hospitals,  and  as  stretcher  bearers, 
litter  bearers,  and  ambulance  attendants  in  the  field,  and 
such  other  duties  as  may  by  proper  authority  be  required 
of  them.2  Sec.  5,  ibid. 

lHeld,  that  a  person  enlisted  in  the  Hospital  Corps,  or  transferred  to  it  from  another 
part  of  the  Army  under  the  authority  of  the  act  of  March  1,  1887,  could  not  be  trans- 
ferred out  of  it,  or  back  again  to  the  organization  from  which  he  was  transferred 
originally,  without  a  breach  of  contract.  The  authority  to  transfer  to  this  corps  is 
expressly  granted  by  the  statute,  but  there  is  no  statutory  authority  for  depriving 
transferred  members,  by  undoing  their  transfers,  of  the  positions  given  them  accord- 
ing to  the  express  law.  Dig.  Opin.  J.  A.  G.,  par.  1449.  For  regulations  prepared 
under  the  authority  conferred  by  this  section  see  paragraphs  1590  to  1620,  Army 
Kegulations  of  1901,  and  the  Manual  for  the  Medical  Department. 

2  Held,  that  neither  the  act  organizing  the  Hospital  Corps,  of  March  1,  1887,  nor 
paragraph  1410,  Army  Kegulations,  1895  (par.  1606,  A.  R.,  1901),  relating  to  the 
assignment  of  privates  of  the  corps  as  nurses,  etc.,  was  to  be  construed  as  restricting 


356  MILITARY    LAWS    OF    THE    UNITED    STATES. 

aiSJ.and  all°w"     923>  Tne  Pay  of  privates  of  the  Hospital  Corps  shall  be 

juSiyCi36'i89?dv' 'eighteen  dollars  per  month,  with  the  increase  on  account 

27,  p.  120.  of  length  of  service  as  is  now  or  may  hereafter  be  allowed 

by  law  to  other  enlisted  men  ;  they  shall  be  entitled  to  the 

same  allowances  as  a  corporal  of  the  arm  of  service  with 

which  on  duty.     Sec.  6,  ibid. 

tafstewlrdhs°spi"  924-  Privates  of  the  Hospital  Corps  may  be  detailed  as 
1887%  724*5>ar436  ac^ng  hospital  stewards  by  the  Secretary  of  War,  upon 
the  recommendation  of  the  Surgeon -General,  whenever  the 
necessities  of  the  service  require  it ;  and  while  so  detailed 
their  pay  shall  be  twenty-five  dollars  per  month,  with 
increase  as  above  stated. 1  Acting  hospital  stewards,  when 
educated  in  the  duties  of  the  position,  may  be  eligible  for 
examination  for  appointment  as  hospital  stewards  as  above 
provided.  Sec.  7,  ibid. 

THE    NURSE    CORPS. 
Par. 


928.  Travel  expenses. 


Par. 

925.  Composition. 

926, 927.  Pay  and  allowances. 

composition,  925.  The  Nurse  Corps  (female)  shall  consist  of  one  super- 
intendent,  to  be  appointed  by  the  Secretary  of  War,  who 
19,  v.  si,  p.  753. "  shall  be  a  graduate  of  a  hospital  training  school  having  a 
course  of  instruction  of  not  less  than  two  years,  whose 
term  of  office  may  be  terminated  at  his  discretion,  whose 
compensation  shall  be  one  thousand  eight  hundred  dollars 
per  annum,  and  of  as  many  chief  nurses,  nurses,  and 
reserve  nurses  as  may  be  needed.  Reserve  nurses  may  be 
assigned  to  active  duty  when  the  emergency  of  the  service 
demands,  but  shall  receive  no  compensation  except  when 
on  such  duty :  Provided,  That  all  nurses  in  the  Nurse 
Corps  shall  be  appointed  or  removed  by  the  Surgeon-Gen- 

the  use  of  nurses  to  attendance  upon  patients  within  the  hospital,  but  that  nurses 
might  legally  be  furnished  from  such  privates  to  attend  officers  at  their  quarters. 
Ibid.,  par.  1452. 

Where  a  hospital  is  not  supplied  with  enough  privates  of  the  Hospital  Corps  to  do 
the  necessary  police  duty  which,  under  section  5  of  the  act  organizing  the  corps,  of 
March  1,  1887,  they  may  properly  be  required  to  perform,  held,  that  convalescents  at 
the  hospital  may,  in  the  discretion  of  the  surgeon  in  charge  and  by  his  prescription 
and  direction,  be  employed  to  assist  in  such  duty.  Ibid.,  par.  1453. 

1  The  act  of  March  1,  1887  (24  Stat.  L.,  435),  provides  for  "acting  hospital  stew- 
ards" as  a  separate  grade  in  the  corps,  but  does  not  prescribe  any  mode  of  filling 
that  grade  other  than  by  declaring  that  "privates  "  of  the  corps  may  be  detailed  as 
such  "acting"  stewards.  Held,  therefore,  that  when  such  a  private  was  so  detailed 
he  ceased  to  be  a  private  of  the  corps  and  became  at  once  the  acting  hospital  stew- 
ard constituted  by  the  act;  and  if  discharged  while  so  detailed,  should  be  discharged 
asan  "  acting  hospital  steward,"  receiving  travel  pay  as  such.  Dig.  Opin.  J.  A.  G., 
par.  1447. 

A  private  who  is  detailed  as  an  acting  hospital  steward,  as  provided  in  the  act  of 
March  1,  1887,  is  to  be  regarded  as  promoted  to  that  grade,  and  the  extra  pay,  travel 
pay,  and  retired  pay  to  which  he  may  be  entitled  upon  discharge  or  retirement  are  to 
be  computed  on  the  basis  of  the  pay  provided  for  an  acting  hospital  steward.  6 
Compt.  Dec.,  807. 


MILITARY    LAWS    OF   THE    UNITED    STATES.  357 

eral,  with  the  approval  of  the  Secretary  of  War ;  that  they 
shall  be  graduates  of  hospital  training  schools,  and  shall 
have  passed  a  satisfactory  professional,  moral,  mental,  and 
physical  examination.  Sec.  19,  act  of  February  2,  1901 
(31  Stat.  L.,  753). 

926.  The  pay  and  allowances  of  nurses  and  of  reserve    Payandaiiow. 
nurses  when  on  active  service  shall  be  forty  dollars  per    IIM. 
month  when  on  duty  in  the  United  States,  and  fifty  dollars 

per  month  when  without  the  limits  of  the  United  States. 
Hid. 

927.  They  shall  be  entitled  to  quarters,  subsistence,  and    JJje  same, 
medical  attendance  during  illness,  and  they  may  be  granted 

leaves  of  absence  for  thirty  days,  with  pay,  for  each  calen- 
dar year;  and  when  serving  as  chief  nurses  their  pay 
may  be  increased  by  authority  of  the  Secretary  of  War, 
such  increase  not  to  exceed  twenty-five  dollars  per  month. 
Payments  to  the  Nurse  Corps  shall  be  made  by  the  Pay 
Department.  Ibid. 

928.  The  superintendent  and  nurses  shall  receive  trans-    Travel    ex- 

. .  ,       penses. 

portation  and  necessary  expenses  when  traveling  under    md. 
orders.     IMd. 


929.  Hospital  matrons  may  be  employed  in 

post  or  regimental  hospitals  in  such  numbers  as  may  be4' sec!'m9,4R.s. 
necessary. l 

930.  Hospital  matrons  in  post  and  regimental  hospitals  tr^°sspital    ma~ 
shall  receive  ten  dollars  a  month     *     *     *.     One  ration  2  ^gjf'i^'j; 
in  kind  or  by  commutation  shall  be  allowed  to  each.2  jSyZise^v2!^ 

p.  416,  s.  19;  Feb.  2,  1901,  v.  31,  p.  753.    Sec.'l277,R.S.' 


HOSPITAL   BUILDINGS. 


A  building  will  not  be  erected  for  nor  occupied  as  a  hospital  until  the  opinion  of  a 
medical  officer  has  been  obtained  in  writing  upon  the  suitableness  of  site  and  pro- 
posed arrangement.  If  the  commanding  officer  dissent  from  this  opinion  he  will 
return  it  to  the  surgeon  of  the  post  with  his  reasons  indorsed  thereon,  who  will 
forward  it,  through  military  channels,  to  the  Surgeon-General  of  the  Army.  Par. 
1644,  A.  R.,  1901. 

Hospitals  will  be  erected  at  permanent  posts  in  accordance  with  plans  and  speci- 
fications furnished  by  the  Surgeon-General,  approved  by  the  Secretary  of  War. 
Par.  1645,  ibid. 

When  alterations  of  or  additions  to  hospitals  are  necessary  the  surgeon  of  the  post, 
after  obtaining  from  the  quartermaster  an  estimate  of  cost,  will  transmit  plans  and 
specifications,  with  proposed  modifications,  through  military  channels  to  the  Secre- 
tary of  War.  Similar  action  will  be  taken  upon  quarters  for  hospital  stewards. 
Par.  1646,  ibid. 

No  portion  of  any  hospital  building  at  a  military  post  will  be  used  or  occupied  as 
quarters,  nor  will  any  mess  be  permitted  or  maintained  therein  except  such  as  may 
be  necessary  for  patients  and  enlisted  men  there  on  duty.  Par.  1650,  ibid. 

1  The  authority  for  the  employment  of  female  nurses,  conferred  by  section  1239, 
Revised  Statutes,  was  replaced  by  section  19,  act  of  February  2,  1901,  paragraphs 
925  to  927  ante.  The  rate  of  compensation  for  female  nurses,  fixed  at  40  cents  per 
day  by  section  1277  of  the  Revised  Statutes,  was  replaced  by  the  rates  of  compensa- 
tion established  iii  section  19  of  the  act  of  February  2,  1901  (31  Stat.  L.,  753),  para- 
graph 926  ante. 


358  MILITARY    LAWS    OF    THE    UNITED   STATES. 


931-  Hereafter  the  posts  at  which  such  quarters  [for 
aiFeb  27  1893  v  hospital  stewards]  shall  be  constructed  shall  be  designated 
27,  p.  484.          \yy  ^ke  Seccetary  of  War,  and  such  quarters  shall  be  built 
by  contract,  after  legal  advertisement,  whenever  the  same 
is  practicable.    Act  of  February  27,  1893  (27  Stat.  L.  ,  484). 

PURCHASES   OF    MEDICAL    SUPPLIES. 

purchases.          932.  Hereafter,  except  in  cases  of  emergfencv  or  where 

Mar.  2,  1901,  v. 

si,  p.  905.  it  is  impracticable  to  secure  competition,  the  purchase  of 

all  supplies  for  the  use  of  the  various  departments  and 
posts  of  the  Army  and  of  the  branches  of  the  army  service 
shall  only  be  made  after  advertisement,  and  shall  be  pur- 
chased where  the  same  can  be  purchased  the  cheapest,  qual- 
ity and  cost  of  transportation  and  the  interests  of  the  Gov- 
ernment considered;  but  every  open-market  emergency 
purchase  made  in  the  manner  common  among  business  men 
which  exceeds  in  amount  two  hundred  dollars  shall  be  re- 
ported for  approval  to  the  Secretary  of  War  under  such 
regulations  as  he  may  prescribe.1  Act  of  March  2,  1901 
(31  Stat.  Z.,  90S). 

Si<Sh?spSitafiOT     933>  Such  quantities  of  fresh  or  preserved  fruits,  milk, 

42AsUgi43V18i2!  p'  Butter,  and  eggs  as  may  be  necessary  for  the  proper  diet 

28|ec.ii75,R.  s  °^  *ke  sick  may  be  allowed  in  hospitals.     They  shall  be 

provided  under  such  rules  as  the  Surgeon-General,  with 

the  approval  of  the  Secretary  of  War,  shall  prescribe.2 

SALES   OF   MEDICAL    SUPPLIES. 

934>  Civilian  employees  of  the  Army  stationed  at  mili- 
taiT  Posts  ma^'  under  regulations  to  be  made  by  the  Sec- 
22,  p.  459.  retary  of  War,  purchase  necessary  medical  supplies,  pre- 

scribed by  a  medical  officer  of  the  Army,  at  cost,  with  ten 
per  centum  added.3  Act  of  March  3,  1883  (22  Stat.  L., 
459). 

tionaa1ieHomesNa"      935-  Hereafter,  upon  proper  application  therefor,  the 
29^45.'  1896>v'  Medical  Department  of  the  Army  is  authorized  to  sell 

1  For  general  provisions  in  respect  to  the  procurement  of  supplies  by  contract  see 
the  chapter  entitled  CONTRACTS  AND   PURCHASES.      For  special  authority  to  sell 
unserviceable  medical  and  hospital  stores  and  other  property  see  the  act  of  August  6, 
1894  (28  Stat.  L.,  241).     The  above  enactment  repeals  and'  replaces  the  act  of  Feb- 
ruary 27,  1893  (27  ibid.,  485),  in  pan  materia. 

2  For  statutes  authorizing  an  addition  to  the  ration  in  the  case  of  patients  in  hos- 
pital who  are  too  sick  to  be  subsisted  on  the  army  ration,  and  for  a  similar  increa  e 
in  case  of  enlisted  men  in  camp  during  recovery  from  low  conditions  of  health,  con- 
sequent upon  service  in  unhealthy  regions  or  in  debilitating  climates,  see  the  act  of 
February  26,  1900  (31  Stat.  L.,  212). 

*For  regulations  governing  such  purchases  see  paragraph  1638  Army  Regulations 
of  1901. 


MILITARY    LAWS    OF  *THE    UNITED    STATES.  359 

medical  and  hospital  supplies  at  its  contract  prices  to  the 
National  Home  for  Disabled  Volunteer  Soldiers.  •  Act  of 
June  11,  1896  (29  Stat.  L.,  44$). 

THE    HOT    SPRINGS    RESERVATION    IN   ARKANSAS. 
THE    ARMY    AND    NAVY    HOSPITAL. 

936.  The  Secretary  of  the  Interior    .*     *     *     is  hereby  TO^Sto'£S 
authorized  to  continue  to  furnish  to  the  bath  houses  lo-  ^vltiSn.  the 
cated  off  the  permanent  reservation  at  Hot  Springs,  Ar- 
kansas, a  sufficient  amount  of  hot  water  for  drinking  and 

bathing -purposes:   Provided,  That  furnishing  such  bath  ^Army^nd 
houses  shall  in  no  way  interfere  with  the  supply  of  KotjJ,JJg  Hospital 
water  necessary  for  the  use  of  the  Army  and  Navy  Hos-  i^^'^pSia, 
pita!  and  for  the  bath  houses  located  upon  the  permanent 
reservation  subject  to  any  further  action  of  Congress  on 
the  subject.1     Joint  resolution  No.  lh  March  3,  1887  (24 
Stat.  L.,  647). 

937.  The  Secretary  of  the  Interior  is  hereby  authorized  A^ot   springs, 
and  directed  to  utilize  the  hot  water  upon  the  reservation  fumtshedmftnree 
at  Hot  Springs,  Arkansas,  not  necessary  for  the  Army  and  JJJJ^nal  bath 
Navy  Hospital,  the  bath  houses  erected  and  to  be  erected  26J'i^v826Iap' 
upon  said  reservation,  and  the  bath  houses  now  erected  and 619- 
furnished  with  hot  water  by  authority  of  the  Secretary  off 

said  reservation,  by  permitting  its  use  by  not  exceeding 
three  bath  houses  to  be  erected  by  individuals  below  and 
off  said  Hot  Springs  Reservation  (the  expense  of  obtaining 
said  water  to  be  borne  by  the  proprietors  of  said  bath 
houses),  said  water  to  be  furnished  under  the  same  restric- 
tions and  regulations  as  now  govern  the  supply  of  hot 
water  furnished  to  the  bath  houses  above  and  off  said  res- 
ervation, and  that  the  water  rents  for  all  bath  houses  be 
increased  to  thirty  dollars  per  tub  per  annum:  Provided,  Newhousesnot 
That  the  new  bath  houses  which  may  be  so  erected  shall  persons  inter- 

,    ,  i  nii  ested   in  houses 

not  be  owned  or  controlled  by  any  person,  company,  or  on  reservatiom. 
corporation  which  may  be  the  owner  or  interested  in  any 
other  bath  house  on  or  near  the  Hot  Springs  Reservation; 
and  if  the  ownership  or  control  of  any  such  bath  house  be 
transferred  to  any  person  or  corporation  owning  or  inter- 
ested in  any  other  bath  house  on  or  near  said  reservation, 
the  Secretary  of  the  Interior  shall,  for  that  cause,  deprive 
said  bath  house  of  the  hot  water,  and  also  any  other  bath 
house  in  which  any  such  person  or  corporation  shall  be  in- 

1For  statutes  creating  the  reservation  on  Hot  Springs  Mountain,  Arkansas,  see  sec- 
tion 4  of  the  act  of  March  3,  1877  (19  Stat.  L.,  378);  act  of  December  16,  1878  (20 
ibid.,  258),  and  section  3,  act  of  June  16,  1880  (21  ibid.,  289). 


360  MILITARY    LAWS    OF   THE    UNITED   STATES. 

terested,  and  shall  cancel  any  lease  from  the  United  States 
which  any  such  person  or  corporation  may  hold  or  be  in- 
terested in.  Joint  resolution  No.  8,  March  £6,  1888  (25 
Stat.  Z.,  619). 

^  Estebushment     933.  That  one  hundred  thousand  dollars  be,  and  hereby 
*8?  appropriated  for  the  erection  of  an  Army  and  Navy  Hos- 
l  at  Hot  Springs,  Arkansas,  which  shall  be  erected  by 

22,  p.  121.  anc[  under  the  direction  of  the  Secretary  of  War,  in  accord- 
ance with  plans  and  specifications  to  be  prepared  and  sub- 
mitted to  the  Secretary  of  War  by  the  Surgeons-General 
of  the  Army  and  Navy;  which  hospital,  when  in  a  con- 
dition to  receive  patients,  shall  be  subject  to  such  rules, 
regulations,  and  restrictions  as  shall  be  provided  by  the 
Proviso.  President  of  the  United  States:  Provided  further,  That 
such  hospital  shall  be  erected  on  the  Government  reserva- 
tion at  or  near  Hot  Springs,  Arkansas.1  Act  of  June  30, 
188%(M  Stat.  I,.,  181). 
Estimates.  939.  Estimates  for  this  service  shall  hereafter  be  sub- 

24fpg245'.1886' v'niitted  as  a  part  of  the  military  establishment.2     Act  of 
August  4,  1886  (24  Stat.  Z., 


THE    ARMY    MEDICAL    MUSEUM. 

THE    LIBRARY    OF   THE    SURGEON-GENERAL'S    OFFICE. 

940.  For  the  purchase  of  the  property  in  Washington 
14,  p.  23.'  City,  known  as  Ford's  Theater,  for  the  deposit  and  safe- 

keeping of  documentary  papers  relating  to  the  soldiers  of 
the  Army  of  the  United  States,  and  of  the  museum  of 
the  Medical  and  Surgical  Department  of  the  Army,3 
*  *  *  dollars.  Act  of  April  7, 1866,  (14  Stat.  Z.,  23). 

1  For  regulations  prepared  under  the  authority  conferred  by  this  statute  see  General 
Orders,  No.  60,  A.  G.  O.,  of  1892,  and  the  orders  amendatory  thereof.  Under  the  pres- 
ent regulations  for  the  government  of  the  Army  and  Navy  General  Hospital  at  Hot 
Springs,  Ark.,  civil  employees  of  the  Government  are  not  eligible  to  admission.  Dig. 
Opin.  J.  A.  G.,  par.  1454. 

Under  the  act  of  June  30,  1882  (22  Stat.  L.,  121),  and  the  regulations  made  by  the 
President  in  pursuance  thereof,  enlisted  men  of  the  Army  undergoing  treatment  in 
the  Army  and  Navy  Hospital  at  Hot  Springs,  Ark.,  are  entitled  to  commutation  of 
rations  at  the  rate  of  30  cents  per  day  only,  and  not  at  the  rate  of  40  cents  per  day 
under  General  Orders,  No.  137  A.  G.  0.,  of  July  26,  1899.  6  Compt.  Dec.,  642. 

2The  act  of  August  4,  1886  (24  Stat.  L.,  245) ,  contained  the  requirements  that  the 
sums  therein  appropriated  should  be  disbursed  under  the  direction  of  the  Secretary 
of  War.  Appropriations  for  the  construction  and  repair  of  hospitals  since  that  of 
June  13,  1890  (26 Stat.  L.,  154),  have  been  applicable  to  the  Army  and  Navy  Hos- 
pital at  Hot  Springs,  Ark. 

The  United  States  not  being  vested,  by  reservation  or  cession,  with  exclusive  juris- 
diction over  the  site  of  the  General  Hospital  at  Hot  Springs,  though  owning  the  land, 
held,  in  November,  1892,  that  the  courts  and  judicial  officers  of  Arkansas  had  sub- 
stantially the  same  jurisdiction  and  authority  to  issue  and  execute  process  to  and  upon 
the  military  and  naval  persons  stationed  or  commorant  at  the  hospital,  as  in  cases 
of  civilians  there  resident  or  commorant.  Dig.  Opin.  J.  A.  G.,  par.  1456. 

3  The  museum  and  library  are  supported  by  annual  appropriations  of  Congress. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  361 

941.  Binding  for  the  departments  of  Government  shall  be 
done  in  plain  sheep  or  cloth,  except  that  record  and  account 
books  may  be  bound  in  Russia  leather,  sheep  fleshes,  and  Binding. 

,        ~  -  Jftn.  12,  1895,  s. 

skivers  when  authorized  by  the  head  of  a  department:  se,  v.  28,  p.  eoi. 
Provided,  The  libraries  of  the  Surgeon-Generals  office, 
*  *  *  may  have  books  for  the  exclusive  use  of  said 
libraries  bound  in  half  Turkey,  or  material  no  more  ex- 
pensive.1 Sec.  86,  act  of  January  1%,  1895  (28  Stat.  L., 
601). 

ARTIFICIAL   LIMBS. 

Par.  I   Par. 

942.  Artificial  limbs.  |  948-949.  Transportation  to  be  furnished 

943.  To  be  renewed  once  in  three  years.  |  by  Quartermaster-General. 
944-945.  Commutation. 

946.  Commutation  to  be  paid  directly  to 


soldier,  etc. 

947.  Transportation  to  persons  for  whom 
artificial  limbs  are  furnished. 


950.  Trusses. 

951.  Application  for,  how  made. 

952.  Trusses  to  be  purchased  by  Surgeon- 

General. 


942.  Every  officer,   soldier,    seaman,    and  marine  who   Artificial  limbs. 
was  disabled  during  the  war  for  the  suppression  of  the  Once  ^nThTee 
rebellion,  in  the  military  or  naval  service,  and  in  the  line  ye*uiy  2,  ises,  v. 
of  duty,  or  in  consequence  of  wounds  received  or  disease  June  iTSfeo23!' 
contracted  therein,  and  who  was  furnished  by  the  War  june'so!  im^v. 
Department  since  the  seventeenth  day  of  June,  eighteen  23;  ISTG*  v6;  i9^ap. 
hundred  and  seventy,  with  an  artificial  limb  or  apparatus  v.  igfp!  252';  Mar! 
for  resection,  who  was  entitled  to  receive  such  limb  or  1103.   ' A ' 
apparatus  since  said  date,  shall  be  entitled  to  receive  a  new 

limb  or  apparatus  at  the  expiration  of  every  three  years 
thereafter,  under  such  regulations  as  have  been  or  may  be 
prescribed  by  the  Surgeon -General  of  the  Army.2  Act  of 
March  3,  1891  (26  Stat.  Z.,  1103). 

943.  Every  officer,  soldier,  seaman,  and  marine  who,  in    Thesamg 
the  line  of  duty  in  the  military  or  naval  service  of  the  19,  P-  8;  .Aug.  '15, 
United  States,  shall  have  lost  a  limb  or  sustained  bodily  203;  'Mar.  3,  i&i," 

...,.'.,.  -  £    ,  .      ,.      ,    J  v.  26,  p.  1103. 

injuries  depriving  him  of  the  use  of  any  of  his  limbs, 
shall  receive  once  every  three  years  an  artificial  limb  or 
appliance,  or  commutation  therefor,  as  provided  and  lim- 
ited by  existing  laws,  under  such  regulations  as  the  Sur- 

1  The  appropriation  for  "the  library  of  the  Surgeon-General's  office  is  in  terms 
sufficiently  specific  to  include  the  purchase  of  books  of  reference  and  periodicals 
which  are  necessary  for,  or  appropriate  to,  that  library,  notwithstanding  the  provi- 
sions of  section  3  of  the  act  of  March  15,  1898,  which  prohibits  the  purchase  of 
books  of  reference  and  periodicals  for  the  use  of  any  executive  department,  or  other 
Government  establishment  not  under  an    executive  department,  unless   payment 
therefor  is  specifically  provided  for  in  the  application.     6  Compt.  Dec.,  736;  ibid., 
423. 

2  The  clause  added  to  section  4787  of  the  Revised  Statutes  by  the  act  of  February 
27, 1877  (19  Stat.  L.,  240) ,  was  repealed  by  the  act  of  March  3, 1891  (26  Stat.  L.,  1103). 


862  MILITARY    LAWS    OF    THE    UNITED   STATES. 

geon-General  of  the  Army  may  prescribe;  and  the  period 
of  three1  years  shall  be  held  to  commence*  with  the  filing 
of  the  first  application  after  the  seventeenth  day  of  June, 
in  the  year  eighteen  hundred  and  seventy.  Sec.  1,  act  of 
Appropriation  August  15,  1876  (19  Stat.  Z.  ,  203).  The  *  *  *  sums 

to  be   disbursed         y  ' 

by  surgeon-Gen-  *  hereby  appropriated  shall  be  expended  and  dis- 

bursed under  the  direction  of  the  Surgeon-General  of  the 
Army,  and  in  accordance  with  existing  laws.2  Act  of 
March  23,  1876  (19  Stat.  L.,  8). 

ra?eT  ta^umb!      944.  Every  person  entitled  to  the  benefits  of  the  preced- 

etjune  IT,  1870,  mg  section  may,  if  he  so  elects,  receive,  instead  of  such 

P.  ^Bs,8  lug.'  ill  limb  or  apparatus,  the  money  value  thereof,  at  the  follow- 

p8?203C'  30°'  v'  19>  m£  rates,  namely:  For  artificial  legs,  seventy-five  dollars; 

Sec.4788,B.s.  ^  arms?  ftfty  dollars;  for  feet,  fifty  dollars;  for  apparatus 

for  resection,  fifty  dollars. 

^^'  Every  person  in  the  military  or  naval  service  who 
artificial  l°st  a  limb  during  the  war  of  the  rebellion,  or  is  entitled  to 
Febd'27'i877  c  ^e  kenefits  of  section  forty-seven  hundred  and  eighty- 
6%ec**7&^s  seven?  but  from  the  nature  of  his  injury  is  not  able  to  use 
an  artificial  limb,  shall  be  entitled  to  the  benefits  of  section 
forty-seven  hundred  and  eighty-eight,  and  shall  receive 
money  commutation  as  therein  provided. 

to^^aid^df  ®^&  Hereafter  in  case  of  commutation  the  money  shall 
etctlYNo  Sfeeieto  ^e  Pa^  directly  *°  the  soldier,  sailor,  or  marine,  and  no  fee 
agMar  3  1891  v  or  comPensa>tion  shall  be  allowed  or  paid  to  any  agent  or 

26,  Pa  979.         '  attorney.3     Act  of  March  3,  1891  (26  Stat.  L.,  979). 
toS^JeSSSMto     947.  The  Secretary  of  War  is  authorized  and  directed  to 
limbs  are  fifur-  f  urnish  to  the  persons  embraced  by  the  provisions  of  sec- 

tion forty-seven  hundred  and  eighty-seven,  transportation 
305Uv!  H'  1p?842;  to  and  from  their  homes  and  the  place  where  they  may  be 
v^fp.1^6  Aug!  required  to  go  to  obtain  artificial  limbs  provided  for  them 
v^p^^Feb'.  under  authority  of  law. 

27,  1877,  C.  69,  V.  19,  p.  252. 

transportation  948.  The  transportation  allowed  for  having  artificial 
QUuTASehrniastery-  limbs  fitted  shall  be  furnished  by  the  Quartermaster- 
G  secr  21,'  Aug.  is,  General  of  the  Army,  the  cost  of  which  shall  be  refunded 
F8e?b!  27,19i8772(v.;  from  the  appropriations  for  the  purchase  of  artificial  limbs. 

19,  p.  252;  Mar.  3J 

949.  Necessary  transportation   to  have  artificial  limbs 
fitted  shall  be  furnished  by  the  Quartermaster-General  of 


ter-General. 


1  Period  reduced  to  three  years  by  the  act  of  March  3,  1891  (26  Stat.  L.,  1103). 

2  See  XVII,  Opin.  Att.  Gen. 

3  The  requirement  of  section  4789,  Revised  Statutes,  that  the  Commissioner  of  Pen- 
sions shall  be  furnished  by  the  Surgeon-General  with  lists  of  beneficiaries  with  a 
view  to  their  payment,  was  superseded  by  the  the  act  of  August  15,  1876  (19  Stat.  L., 

244),  requiring  payments  on  account  of  artificial  limbs,  etc.,  to  be  made  by  the 
latter  officer. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  363 

the  Army,  the  cost  of  which  shall  be  refunded  out  of  any  18f^c-  ^^g-J£' 

«/  "  •?  lo/o,  v.  iy,  p.  A)4; 

money  appropriated  for  the  purchase  of  artificial  limbs:  |^4t-  ^Sl98'  18 
Provided,  That  this  act  shall  not  be  subject  to  the  provi-    sec.479i,B.s. 
sions  of  an  act  entitled   "an  act  to  increase  pensions," 
approved  June  eighteenth,  eighteen  hundred  and  seventy 
four.     Sec.  2,  act  of  August  15,  1876  (19  Stat.  L.,  £04). 

TRUSSES. 

950.  Every  soldier  of  the  Union  Army,  or  petty  officer,  #£^*££* 
seaman,  or  marine  in  the  naval  service,  who  was  ruptured  20^353 .1879>  v' 
while  in  the  line  of  duty  during  the  late  war  for  the  sup-   Sec- 1176'  K*s- 
pression  of   the  rebellion,   or  who  shall  be  so  ruptured 
thereafter  in  any  war,  shall  be  entitled  to  receive  a  single 

or  double  truss  of  such  style  as  may  be  designated  by 
the  Surgeon -General  of  the  United  States  Army  as  best 
suited  for  such  disability;  and  whenever  the  said  truss  or 
trusses  so  furnished  shall  become  useless  from  wear,  de- 
struction, or  loss,  such  soldier,  petty  officer,  seaman,  or 
marine  shall  be  supplied  with  another  truss  on  making  a 
like  application  as  provided  for  in  section  two  of  the  orig- 
inal act  of  which  this  is  an  amendment:  Provided,  That 
such  application  shall  not  be  made  more  than  once  in  two 
years  and  six  months:  And  provided  further,  That  sections 
two  and  three  of  the  said  act  of  May  twenty -eighth,  eight- 
een hundred  and  seventy-two,  shall  be  construed  so  as  to 
apply  to  petty  officers,  seamen,  and  marines  of  the  naval 
service,  as  well  as  to  soldiers  of  the  Army. 

951.  Application  for  such  truss  shall  be  made  by  the 
ruptured  soldier  to  an  examining  surgeon  for  pensions,  22?  8^  IV?? 'p 
whose  duty  it  shall  be  to  examine  the  applicant,  and  when  1^c>  1177^  B  s 
found  to  have  a  rupture  or  hernia,  to  prepare  and  forward 

to  the  Surgeon-General  an  application  for  such  truss 
without  charge  to  the  soldier. 

952.  The  Surgeon-General  is  authorized  and  directed  top£j£-^8*l[  £* 
purchase  the  trusses  required  for  such  soldiers,  at  whole-  erafgeon"Gen" 
sale  prices,  and  the  cost  of  the  same  shall  be  paid  upon  ^ ^IV8!?'  p' 
the  requisition  of  the  Surgeon -General  out  of  any  moneys  J^c  1178  B  g 
in  the  Treasury  not  otherwise  appropriated. 

HISTORICAL  NOTE. — The  medical  and  surgical  needs  of  the  troops  composing  the 
revolutionary  armies  were,  at  first,  supplied  by  the  surgeons  who  were  attached  to 
the  several  regimental  organizations,  and  no  provision  seems  to  have  been  made  for 
medical  or  surgical  supervision,  for  the  procurement  and  distribution  of  supplies,  or 
for  the  establishment  of  a  general  hospital  service  until  1775,  when,  by  a  resolution 
of  Congress  dated  July  27,  1777,  the  office  of  Director-General  was  established,  who 
was  charged  with  the  duties  subsequently  performed  by  the  Purveyor-General  of 
Medical  Supplies.  The  same  enactment  provided  for  a  medical  staff  composed  of  four 
surgeons  and  twenty  surgeon' a  mates,  for  an  apothecary  and  two  storekeepers,  and 


364  MILITARY    LAWS    OF   THE   UNITED   STATES. 

for  hospital  attendance  at  the  rate  of  one  nurse  for  every  ten  patients.  Under  the 
authority  thus  conferred  several  general  hospitals  were  established  at  points  con- 
veniently near  to  the  several  theaters  of  military  operations.  The  medical  establish- 
ment thus  created  was  modified  by  subsequent  resolutions  of  Congress;  the  changes 
caused  by  the  resolution  of  April  22,  1777,  being  so  extensive  as  to  constitute  a  com- 
plete reorganization  of  the  department.  As  thus  modified,  however,  the  department 
continued  in  existence  until  the  disbandment  of  the  revolutionary  armies  in  1783. 
For  the  ten  years  succeeding  the  organization  of  the  Government  under  the  Con- 
stitution the  medical  and  surgical  necessities  of  the  troops  were  met  by  the  medical 
officers  attached  to  the  several  organizations  constituting  the  military  establishment. 

The  act  of  March  2,  1799  (1  Stat.  L.,  721),  passed  in  contemplation  of  a  war  with 
France,  but  which  was  never  fully  executed,  made  provision  for  a  complete  medical 
establishment  consisting  of  a  physician-general,  an  apothecary-general,  and  a  pur- 
veyor, together  with  such  numbers  of  hospital  surgeons  and  mates  as  the  service 
might  require,  who  were  made  liable  to  duty  in  the  field  as  well  as  in  the  hospitals 
provided  for  in  the  statute.  The  act  of  March  2,  1799,  was  repealed  and  a  Medical 
Department  established  by  section  3  of  the  act  of  February  23,  1802  (2  ibid.,  133), 
which  fixed  the  strength  of  the  department  at  two  surgeons  and  twenty-five  surgeon's 
mates,  who  were  "to  be  attached  to  garrisons  and  posts,  and  not  to  corps."  During 
the  war  of  1812  the  necessities  of  the  case  were  met  by  a  temporary  increase  of  the 
department  and  by  the  allowance  of  surgeons  to  regiments  called  into  the  service 
for  the  period  of  the  war.  By  section  7  of  the  act  of  March  3,  1813  (ibid.,  819),  a 
physician  and  Surgeon-General  was  authorized,  whose  powers  and  duties  were  to  be 
prescribed  by  the  President  of  the  United  States.  The  office  of  apothecary-general 
was  created  by  the  act  of  April  24,  1816  (3  ibid.,  297),  but  was  abolished  by  the  act 
of  March  3,  1821.  The  office  of  Surgeon-General  was  created  by  section  2  of  the  act 
of  April  14,  1818  (ibid.,  426). 

At  the  general  reduction  of  1821  the  Medical  Department  was  reorganized  and 
made  to  consist  of  one  Surgeon-General,  eight  surgeons,  and  forty-five  assistant  sur- 
geons. Sec.  2,  act. of  March  2,  1821,  3  ibid.,  615.  By  the  act  of  June  28,  1832  (4 
ibid.,  500),  four  surgeons  and  ten  surgeon's  mates  were  added.  The  act  of  June  30, 
1834  (ibid.,  714) ,  contained  a  requirement  that  all  candidates  for  appointment,  or  for 
promotion  to  the  grade  of  surgeon,  should  pass  a  professional  examination  as  a  con- 
dition precedent  to  such  appointment  or  promotion.  By  this  enactment  the  pay  of 
surgeons  was  fixed  at  that  allowed  to  majors,  assistant  surgeons  were  to  receive  for  the 
first  five  years'  service  the  pay  of  first  lieutenants,  and  after  five  years'  service  the  pay 
of  captains.  The  examination  for  promotion  to  the  grade  of  surgeon  was  to  take 
place  after  five  years'  service  in  the  grade  of  assistant  surgeon.  By  section  33  of  the 
act  of  July  5,  1838  (5  ibid.,  256),  seven  additional  surgeons  were  authorized,  but  by 
section  4  of  the  act  of  August  23,  1842  (ibid.,  512),  a  reduction  of  two  surgeons  and 
ten  assistant  surgeons  was  ordered,  the  displaced  officers  being  allowed  three  months' 
pay  when  honorably  discharged. 

At  the  outbreak  of  the  war  with  Mexico,  under  authority  conferred  by  section  6 
of  the  act  of  February  11,  1847  (9  ibid.,  123),  two  surgeons  and  twelve  assistant  sur- 
geons were  added  to  the  regular  establishment,  and  regimental  medical  officers  were 
authorized  for  the  volunteer  troops  at  the  rate  of  one  surgeon  and  one  assistant  sur- 
geon to  each  regiment,  their  service  being  restricted  to  the  period  of  the  existing 
war.  By  the  act  of  March  3, 1849  (ibid. ,  351 ) ,  ten  assistant  surgeons  were  authorized, 
and  the  requirement  of  the  act  of  July  19,  1848,  prohibiting  the  filling  of  vacancies 
in  the  department  was  repealed.  By  the  act  of  August  16,  1850  (11  ibid.,  51),  four 
surgeons  and  eight  assistant  surgeons  were  added  to  the  establishment;  the  force  of 
hospital  stewards  was  increased  to  such  number  as  the  service  might  require,  not  to 
exceed  one  to  each  military  post;  and  cooks  and  nurses,  detailed  from  the  enlisted 
men,  were,  for  the  first  time,  allowed  extra-duty  pay  for  service  in  post  hospitals. 

At  the  outbreak  of  the  war  of  the  rebellion  regimental  medical  officers  were  again 
authorized,  one  surgeon  and  one  assistant  being  allowed  to  each  regiment;  by  the 
act  of  July  2,  1862  (12  Stat,  L.,  502) ,  an  additional  assistant  was  authorized. 

By  section  3  of  the  act  of  July  22,  1861  (ibid.,  269),  one  surgeon  to  each  brigade 
was  authorized,  but  by  the  act  of  July  2, 1862  (ibid.,  502),  these  officers  were  merged 
in  the  corps  of  forty  surgeons  and  one  hundred  and  twenty  assistant  surgeons  created 
by  that  statute  for  the  period  of  the  war. 

By  the  act  of  June  21,  1861  (ibid.,  378),  four  surgeons  and  four  assistant  surgeons 
were  added  to  the  department.  By  the  act  of  April  16,  1862  ibid.,  378),  the  rank  of 
brigadier-general  was  conferred  upon  the  Surgeon-General;  the  office  of  assistant 
surgeon-general,  with  the  rank  and  pay  of  colonel  of  cavalry  was  created  and  the  addi- 
tion of  ten  surgeons  and  twenty  assistant  surgeons  was  authorized;  a  corps  of  medical 
inspectors  was  created,  consisting  of  one  inspector-general  of  hospitals  (colonel)  and 


MILITARY    LAWS    OF    THE    UNITED    STATES.  365 

eight  assistants  (lieutenant-colonels),  whose  duties  were  denned  by  law,  and  who 
were  to  hold  office  during  the  continuance  of  the  war.  By  the  act  of  December  27, 
1862  (ibid.,  633),  eight  medical  inspectors  were  added  and  authority  was  conferred 
upon  these  officers  to  discharge  enlisted  men  for  disability  contracted  in  the  military 
service.  By  this  statute  a  corps  of  medical  cadets  was  established  which  continued 
to  exist  until  its  gradual  disbandment  was  brought  about  by  the  passage  of  the  gen- 
eral act  of  reorganization  in  1866.  By  the  act  of  May  20,  1862  (ibid.,  378),  six  med- 
ical storekeepers  were  authorized.  By  the  act  of  February  25,  1865  (13  ibid.,  437), 
medical  directors  of  armies  in  the  field  and  of  military  departments  were  allowed  the 
rank  and  pay  of  colonels,  and  those  attached  to  army  corps  the  rank  and  pay  of 
lieutenant-colonels. 

An  ambulance  service  for  the  armies  in  the  field  was  provided  by  the  act  of  March 
11, 1864  ( 13  ibid. ,  20 ) .  It  was  composed  of  officers  and  enlisted  men  detailed  from  the 
several  army  corps  and  was  carried  on  under  the  direction  of  their  respective  medical 
directors.  The  duties  of  the  corps  were  regulated  by  statute,  and  had  to  do,  exclu- 
sively, with  the  transportation  of  the  sick  and  wounded  and  the  removal  of  the 
wounded  from  the  battlefield.  The  corps  ceased  to  exist  at  the  disbandment  of 
the  volunteer  armies  in  1865. 

At  the  general  reorganization  of  1866  (sec.  17,  act  of  July  28,  1866,  14  ibid.,  334), 
the  strength  of  the  department  was  fixed  at  one  Surgeon-General,  one  assistant 
surgeon-general,  one  chief  medical  purveyor,  and  four  assistant  purveyors  (lieutenant- 
colonels),  sixty  surgeons  (majors),  one  hundred  and  fifty  assistant  surgeons,  and  five 
medical  storekeepers;  it  was  also  provided  that  three  years'  service,  instead  of  five, 
should  be  required  of  assistant  surgeons  before  attaining  the  grade  of  captain.  The 
act  of  March  3,  1869  (15  ibid.,  318),  contained  a  requirement  prohibiting  appoint- 
ments and  promotions  in  the  staff  until  otherwise  ordered  by  Congress;  but  this 
requirement  was  repealed  as  to  the  Medical  Department  by  section  4  of  the  act  of 
June  23,  1874  (18  ibid.,  244),  which  fixed  the  strength  of  the  medical  establishment 
as  follows:  One  Surgeon-General,  one  assistant  surgeon-general,  and  one  chief  medical 
purveyor  (colonel),  two  assistant  medical  purveyors  (lieutenant-colonels),  fifty  sur- 
geons, and  one  hundred  and  fifty  assistant  surgeons,  who  were  to  receive  the  rank  of 
captain  after  five  years'  service,  and  five  medical  storekeepers;  the  number  of  con- 
tract surgeons  was  fixed  in  this  statute  at  seventy-five.  By  the  act  of  June  26,  1876 
(19  ibid.,  61),  the  number  of  assistant  surgeons  was  fixed  at  one  hundred  and  twenty- 
five,  and  the  corps  of  medical  storekeepers  was  discontinued,  the  reduction  in  both 
cases  being  accomplished  by  a  requirement  forbidding  the  filling  of  vacancies  until 
the  prescribed  limit  of  numbers  had  been  reached.  By  this  statute  the  number  of 
surgeons  with  the  rank  of  colonel  was  increased  to  four,  and  the  number  with  the 
rank  of  lieutenant-colonel  to  eight,  the  vacancies  thus  created  to  be  filled  by  promo- 
tion according  to  seniority. 

By  the  act  of  March  1,  1887  (24  ibid.,  435),  the  Hospital  Corps  was  created;  by  the 
act  of  July  27,  1892  (27  ibid.,  276) ,  the  titles  of  office  in  the  Medical  Department  were 
rearranged,  officers  holding  the  rank  of  colonels  being  arranged  as  assistant  surgeons- 
general  and  those  having  the  rank  of  lieutenant-colonels  as  deputy  surgeons-general, 
and  thereafter  medical  officers  were  to  be  assigned  by  the  Secretary  of  War  to  such 
duties  as  the  necessities  of  the  service  might  require.*  By  the  act  of  August  18,  1894 
(28  ibid.,  403),  the  number  of  assistant  surgeons  was  reduced  to  one  hundred  and  ten; 
but  by  the  act  of  May  12,  1898  (930  ibid.,  406),  the  number  of  officers  of  this  grade 
was  increased  to  one  hundred  and  twenty-five,  and  authority  was  conferred  upon  the 
Surgeon-General  to  employ  such  number  of  contract  surgeons  as  might  be  necessary. 

By  section  18  of  the  act  of  February  2,  1901  (31  Stat.  L.,  752),  the  permanent 
strength  of  the  department  was  fixed  at  one  Surgeon-General  with  the  rank  of 
brigadier-general,  eight  assistant  surgeons-general  with  the  rank  of  colonel,  twelve 
deputy  surgeons-general  with  the  rank  of  lieutenants-colonel,  sixty  surgeons  with  the 
rank  of  major,  and  two  hundred  and  forty  assistant  surgeons  with  the  rank  of  captain 
and  first  lieutenants  mounted.  A  Nurse  Corps  ( female ) ,  and  a  corps  of  dental  contract 
surgeons  were  also  added  to  the  department. 


CHAPTER  XXII. 


THE    CORPS    OF    ENGINEERS. 


Par.  i     Par. 

953-972.  The  Corps  of  Engineers.  I  1091-1097. 

973-976.  Civil  engineers,  draftsmen,  etc. 
977.  Chief  of  Engineers  to  use  Congres-  !  1098-1103. 
sional  Library.  1104-1106. 

978-994.  The     public      buildings     and 

grounds.  '  1107-1110. 

995-1010.  The  Washington  Aqueduct.         1111-1113. 

1011-1020.  The  Engineer  Commissioner  j  1114-1117. 

of  the  District  of  Columbia. 

1021-1028.  The  Light-House  Board.  j  1118-1121. 

1029-1043.  The  Mississippi    River  Com-  !  1122-1131. 

mission. 

1044-1048.  The  Missouri  River  Commis- 
sion, i  1132-1133. 
1049-1081.  The  California   D6bris  Com-  I  1134-1146. 

mission. 
1082-1085.  The  Isthmian  Canal  Commis-  |  1147-1150. 

sion. 
1086-1090.  Fortifications. 


The  navigable  waters  of  the 
United  States. 

River  and  harbor  works. 

Contracts  and  purchases. 
Lands. 

Miscellaneous  provisions. 

Operation  of  canals,  etc. 

Bridges  over  navigable  wa- 
ters. 

Harbor  lines. 

Injuries  to  Government 
works;  obstructions  to  nav- 
igation. 

The  same,  sunken  vessels. 

Deposits  in  New  York  Har- 
bor. 

Harbor  regulations  for  the 
District  of  Columbia. 


THE    CORPS    OF    ENGINEERS. 


Par. 

953.  Organization. 

954-959.  Appointments,  promotions,  ex- 
aminations. 
960.  Transfers;  limits  of  duty. 


Par. 


I  961-970.  Enlisted  men  of  engineers. 

971.  Pontoons,  vehicles,  tools,  arms,  etc. 

972.  Travel  expenses. 


ORGANIZATION. 

composition^      953    The  Corps  of  Engineers  shall  consist  of  one  Chief 
s'IecVii36iPR7^'  °^  Engineers  with  the  rank  of  brigadier-general,  seven 
colonels,  fourteen  lieutenant-colonels,  twenty-eight  majors, 
forty  captains,  forty   first  lieutenants,  and  thirty  second- 
lieutenants.2     Sec.  2%,   Act  of  February  2,  1901  (31  Stat., 
Z.,  754). 

1  For  a  note  containing  the  statutory  history  of  the  Corps  of  Engineers  see  end  of 
chapter. 

2  Section  22  of    the  act    of   February  2,  1901    (31  Stat.   L.,   754),   contained   the 
requirement  that  "vacancies  remaining  in  the  grades  of  first  and  second  lieutenant 
may  be  filled  by  transfer  of  officers  of  the  Regular  Army,  subject  to  such  profes- 
sional examination  as  may  be  approved  by  the  Secretary  of  War." 

366 


MILITARY    LAWS    OF    THE    UNITED    STATES.  367 

APPOINTMENTS  —  PROMOTIONS  —  EXAMINATIONS. 

954.  The  Chief  of  Engineers  shall  be  selected  as  now 
orovidedby  law.1     Hid. 

955.  Hereafter  vacancies  iu  the  Corps  of  Engineers  in 
all  other  grades  above  that  of  second  lieutenant  shall  be 
filled,  as   far   as    possible,    by    promotion   according  to 
seniority  from  the  Corps  of  Engineers.     Ibid. 

956.  Vacancies  in  the  grade  of  second  lieutenant  not 
tilled  by  transfer  shall  be  left  for  future  promotions  from 
the  corps  of   cadets  at  the  United  States  Military  Acad- 
emy.    Ibid. 

957.  When  any  lieutenant  of  the  Corps  of  Engineers  W 
Ordnance  Corps   has   served  fourteen  years' 

service  as  lieutenant,  he  shall  be  promoted  to  the  rank  of  98Msar9  3v  1 
captain  on  passing  the  examination  provided  by  the  pre- 
ceding  section,2  but  such  promotion  shall  not  authorize  an 
appointment  to  fill  any  vacancy,  when  such  appointment  m  R 

would  increase  the  whole  number  of  officers  in  the  corps 
beyond  the  number  fixed  by  law;  nor  shall  any  officer  be 
promoted  before  officers  of  the  same  grade  who  rank  him 
in  his  corps. 

FXAMINATIONS   FOR   PROMOTION. 


958.  No  ofiicer  of  the  Corps  of  Engineers  or  Signal  Corps 

below  the  rank  of  field  officer  shall  be  promoted  to  a  higher  78Msar3)3'v181623;  £ 
grade  until  he  shall  have  been  examined  and  approved  by  ^^t^Sf1 
a  board  of  three  engineers,  senior  to  him  in  rank.     If  an    Sec*  12*6»B'S- 
engineer  officer  fail  on  such  examination  he  shall  be  sus- 
pended from  promotion  for  one  year,  when  he  shall  be 
reexamined  before  a  like  board.     In  case  of  failure  on  such 
reexamination,  he  shall  be  dismissed  from  the  service.3 
Sec.  7,  act  of  October  1,  1890  (26  Stat.  Z.,  653). 

959.  The  examination  of  officers  of  the  Corps  of  En-    Examination 

j   f\  j  T^  u  a*  of  en&ineer  or 

gineers  and  Ordnance  Department  who  were  officers  or  ordnance  officers 

..  .  who  served  dur- 

enhsted  men  in  the  regular  or  volunteer  service,  either  iningtherebeiiion. 

-VT  \       ^/r      •        ^  i  <•     Subjects. 

the  Army,  Navy,  or  the  Marine  Corps,  during  the  war  of    sec.  2,  July  27, 

the  rebellion,  shall  be  conducted  by  boards  composed  in 

the  same  manner  as  for  the  examination  of  other  officers  of 

their  respective  corps  and  department;  and  the  examina- 

tions shall  embrace  the  same  subjects  prescribed  for  all 

other  officers  of  similar  grades  in  the  Corps  of  Engineers 

1  Section  1193,  Revised  Statutes. 

2  Section  1206,  Revised  Statutes. 

3  For  statutory  regulations  in  respect  to  examinations  for  promotions,  see  the  titlt 
"Examinations  for  promotion"  in  the  chapter  entitled  THE  STAF    DEPARTMENTS. 


368  MILITARY    LAWS    OF    THE    UNITED    STATES. 

and'  Ordnance  Department,  respectively.     Sec.  2,  act  of 
July  27,  1892  (27  Stat.  Z.,  276). 


TRANSFERS. 


flnStsof  dutyrs:  960.  Engineers  shall  not  assume  nor  be  ordered  on  any 
2o^a?t'  es'v^'p'  duty  beyond  the  line  of  their  immediate  profession,  except 
36s'ec.ii68,B.s.  ^7  the  special  order  of  the  President.  They  may,  at  the 

discretion  of  the  President,  be  transferred  from  one  corps 

to  another,  regard  being  paid  to  rank. 

ENLISTED   MEN    OF   ENGINEERS. 

961>  The  enlisted  force  of  the  Corps  of  Engineers  shall 
Si  i86i  •  s5?  "f  consist  of  one  band  and  three  battalions  of  engineers. 
tffi(&&  Sec-  n->  act  of  February  2,  1901  (31  Stat.  Z.,  750). 

144;  'July  28,  1866J  s.  20,  v.  14,  p.  335;  Mar.  2,  1899,  s.  7,  v.  30.  p.  979;  Feb.  2,  1901,  s.  11,  v.  31,  p.  750. 

theaArmyMnaer.2!  962-  Tne  enlisted  force  provided  in  section  eleven  of  this 
^'FelV2,i9bi;act  and  tne  oncers  serving  therewith  shall  constitute  a 
a.  22,  v.  si,  p!  754.'  part  Of  the  ijne  Of  the  Army.  Sec.  22,  act  of  February  2, 

1901(31  Stat.  Z.,  754). 

FebQ2  1901  s.      963.  The  engineers'  band  shall  be  organized  as  now  pro- 
11,  v.  si,  p.  750.     yided  by  law  for  bands  of  infantry  regiments.     Sec.  11, 

act  of  February  2,  1901  (31  Stat.  Z.,  750).. 

Sar  8*1899  g4      964.  Each  infantry  band  shall  consist  of  one  chief  musi- 

v.3o,p.977.       'cian,  one  principal  musician,  one  drum  major,  who  shall 

have  the  pay  and  allowances  of  a  first  sergeant,  four  ser- 

geants, eight  corporals,  one  cook,  and  twelve  privates. 

Sec.  4,  act  of  March  2,  1899  (30  Stat.  Z.,  977). 

Engineer  bat-     965.  Each  battalion  of  engineers  shall  consist  of  oneser- 

talion. 

Feb.  2,  1901,  s.  geant-ma]or,   one  quartermaster-sergeant,  and  four  com- 

panies.    Sec.  11,  act  of  February  2,  1901  (31  Stat.  Z.  ,  750). 

officers  of  bat-     966.  Battalion  adjutants,  battalion  quartermasters,  and 

July  ^28,  1866,  c.  appropriate  officers  to  command  thb  (Xttnpanies  and  fat- 

336';SMay  \5*i8&,  talions  of  engineer  soldiers   shall  be  detailed   from   the 

S^Aug!  f  i86i;  Corps  of  Engineers.     Sec.  11,  act  of  February  2,  1901  (31 

c.  42,  s.  4,  v.'  12,  p!  cy^/  7"  7KA\ 
287:  Aug.  6,  1861,  otM.  L.  ,  <5U). 
c.  57,s.2,  v.12,  p.  317.  Sec.1156,  R.S. 

^Batte        ;aff,      9g7    officers  detailed  from  the  Corps  of  Engineers  to 

sec?ii56,n.s.  serve  as  battalion  adjutants  and  battalion  quartermasters 

and  commissaries  shall,  while  so  serving,  receive  the  pay 

and  allowances  herein  authorized  for  battalion  staff  officers 

of  infantry  regiments.     Ibid. 

^Engineer  com-      968    Each  company  of  engineers  shall  consist  of  one 

secfii65,B.s.  first  sergeant,  one  quartermaster-sergeant  with  the  rank, 
pay,  and  allowances  of  sergeant,  eight  sergeants,  ten  cor- 
porals, two  musicians,  two  cooks,  thirty-eight  first-class 
and  thirty  -eight  second-class  privates.  Tbid. 


MILITARY    LAWS    OF   THE    UNITED    STATES.  369 

969.  The  President  may,  in  his  discretion,  increase  the  j^ease> 
number  of  sergeants  in  any  company  of  engineers  to 
twelve,  and  the  number  of  corporals  to  eighteen,  the  num- 
ber of  first-class  privates  to  sixty-four,  and  the  number  of 
second-class  privates  to  sixty  -four,  but  the  total  number  of 
enlisted  men  authorized  for  the  whole  Army  shall  not,  at 
any  time,  be  exceeded.  Ibid. 

THE    BATTALION    OF    ENGINEERS. 

1.  One  company  of  bombardiers,  sappers,  and  miners  was  authorized  by  the  act  of 
April  29,  1812  (2  Stat.  L.,  720),  to  be  officered  from  the  Corps  of  Engineers;  this 
company  was  disbanded  at  the  general  reduction  of  1821,  act  of  March  2,  1821  (2 
ibid.,  615).     A  similar  company,  to  be  officered  in  thesame  manner,  was  authorized 
by  the  act  of  May  15,  1846  (9  ibid.,  12);  three  additional  companies  were  provided 
for  in  section  4  of  the  act  of  August6,  1861  (10  ibid.,  317).     A  sergeant-major,  quar- 
termaster-sergeant, and  commissary-sergeant  were  authorized  by  section  4  of  the  act 
of  June  20,  1864  (11  ibid.,  144).     By  section  20  of  the  act  of  July  28,  1866  (14  ibid., 
335)  ,  the  enlisted  establishment  of  the  Corps  of  Engineers  was  'fixed  at  five  com- 
panies, with  the  battalion  sergeant-major  and  quartermaster-sergeant  already  author- 
ized by  law.     The  grade  of  battalion  commissary  -sergeant  was  discontinued  by  sec- 
tion 10  of  the  act  of  July  15,  1870  (15  ibid.,  318).     Section  7  of  the  act  of  March  2, 
1899  (30  Stat.  L.,  979),  contained  the  requirement  that  the  battalion  of  engineers  and 
the  officers  serving  therewith  should  constitute  a  part  of  the  line  of  the  Army;   this 
provision  was  reenacted  in  section  22  of  the  act  of  February  1,  1901  (31  Stat.  L.,  754)  ;  by 
section  11  of  the  same  enactment  the  enlisted  force  of  the  Engineer  Corps  was  increased 
to  three  battalions  of  engineer  troops  and  a  band. 

2.  For  the  organization  of  the  infantry  band,  see  paragraph  964,  ante. 


970.  The  enlisted  men  of  the  engineer  battalion  shall  be 
instructed  in  and  perform  the  duties  of  sappers,  miners,  21^4^'  l*fi 
and  pontoniers,  and  shall  aid  in  giving  practical  instruction  ^4g'v3'  i26pC287 
in  those  branches  at  the  Military  Academy.     They  may  be^\?'if^pC8i7 
detailed  by  the  Chief  of   Engineers  to  oversee  and  aidff  v3'^1?^ 
laborers  upon  fortifications  and  other  works  in  charge  of  Sec>  l 

the  Engineer  Corps,  and,  as  fort  keepers,  to  protect  and 
repair  finished  fortifications. 

971.  The  Chief  of  Engineers  is  authorized,  with  the  ap- 

proval  of  the  Secretary  of  War,  to  regulate  and  determine  S^of  pomoons 
the  number,  quality,  form,  and  dimensions  of  the  necessary  tojjjy  eff  1846  c 
vehicles,  pontoons,  tools,  implements,  arms,  and  other  2M-  1'^  P-  j| 
supplies  for  the  use  of  the  battalions  of  engineer  soldiers. 


s.   2,  v.  12,  p.  317;  July    28,  1866,  c.  299,  s.  20,v.l4, 
p.  335;  Feb.  2,  1901,  s.  11,  v.  31,  p.  750.   Sec.  1152,  R.  S. 


972.    For    travel    expenses    of     officers    on    journey 
approved  by  the  Chief  of  Engineers  and  made  for  the  31Mpar^|'  1901'  v< 
purpose  of  instruction,  one  thousand  five  hundred  dollars: 
Provided,  That  the  traveling  expenses  herein  provided  for 
shall  be  in  lieu  of  mileage  or  other  allowances.     Act  of 
March  2,  1901  (31  Stat.  Z.,  908). 
22924—08  -  24 


370 


MILITARY    LAWS    OF    THE    UNITED    STATES. 


CIVIL    ENGINEERS,    DRAFTSMEN,    ETC. 


Par. 

973.  Employment. 

974.  Names,  etc.,  to  be  reported  to  Con- 

gress. 


Par. 


975.  Employment  of  retired  officers. 

976.  Draftsmen,  etc. ,  in  Engineer  Bureau, 


Employment  of 
civil  engineers. 
Mar.    29,    1867, 
v.  15,  p. 


973.  The  Chief  of  Engineers  may,  with  the  approval  of 
e  Secretary  of  War,  employ  such  civil  engineers,  not 
ec.  5253,  R.  s.  exceeding  five  in  number,  for  the  purpose  of  executing  the 
surveys  and  improvements  of  western  and  northwestern 
rivers,  ordered  by  Congress,  as  may  be  necessary  to  the 
proper  and  diligent  prosecution  of  the  same;  and  the  per- 
sons so  employed  may  be  allowed  a  reasonable  compensa- 
tion for  their  services,  not  to  exceed  the  sum  of  three 
thousand  dollars  a  year. 

974'  Tlie  Secretary  of  War  shall  report  to  Congress,  at 


re^i?epd0oyfflceenrs0f 


Auge6C"i886  8  *ts  nex^  an(^  each  succeeding  session  thereof,  the  name 
s,  v.  24,  p.  335.  anc[  piace  of  residence  of  each  civilian  engineer  employed 
in  the  work  of  improving  rivers  and  harbors  by  means 
and  as  the  result  of  appropriations  made  in  this  and  suc- 
ceeding river  and  harbor  appropriation  bills,  the  time  so 
employed,  the  compensation  paid,  and  the  place  at  and 
work  on  which  employed.  Sec.  8,  act  of  August  5,  1886 
(24  Stat.  Z.,  335). 

975.  Section  2  of  the  act  making  appropriations  for  the 
s.  ?!Ive28!'p1235:  legislative,  executive,  and  judicial  expenses  of  the  Gov- 
ernment for  the  fiscal  year  ending  June  thirtieth,  eighteen 
hundred  and  ninety -five,  and  for  other  purposes,1  ap- 
proved July  thirty-first,  eighteen  hundred  and  ninety- 
four,  shall  not  be  so  construed  as  to  prevent  the  employ- 
ment of  any  retired  officer  of  the  Army  or  Navy  to  do 
work  under  the  direction  of  the  Chief  of  Engineers  of  the 
United  States  Army  in  connection  with  the  improvement 
of  rivers  and  harbors  of  the  United  States,  or  the  pay- 
ment by  the  proper  officer  of  the  Treasury  of  any  amounts 
agreed  upon  as  compensation  for  such  employment.  Sec- 
tion 7,  act  of  June  3,  1896  (28  Stat.  Z.,  235). 

inDJffi%moefncehfef  976,  And  [for]  the  services  of  skilled  draftsmen,  civil 
°fMayiS?i896, v. engineers,  and  such  other  services  as  the  Secretary  of 
29,  p.  163.  War  may  deem  necessary  may  be  employed  only  in  the 

office  of  the  Chief  of  Engineers  to  carry  into  effect  the 
various  appropriations  for  rivers1  and  harbors,  fortifica- 
tions, and  surveys  to  be  paid  from  such  appropriations: 
Provided,  That  *  the  Secretary  of  War  shall  each 

Section  2,  act  of  July  31,  1894  (28  Stat.  L.,  205),  par.  167,  ante. 


MILITARY    LAWS    OF    THE    UNITED    STATES. 


371 


year,  in  the  annual  estimates,  report  to  Congress  the  num- 
ber of  persons  so  employed  and  the  amount  paid  to  each.1 
Act  of  May  28,  1896  (29  Stat.  Z.,  163). 

977.  The  Joint  Committee  of  Congress  on  the  Library 
is  authorized   to   extend   the   use   of  the   books    in 
Library  of  Congress  to     *     *     *     the  Chief  of  Engineers  R^ 
of  the  Corps  of  Engineers  United  States  Army,  resident 
in  Washington,  on  the  same  conditions  and  restrictions 
as  members  of  Congress  are  allowed  to  use  the  Library. 
J.  R.<  No.  41,  August  28,  1890  (26  Stat.  Z.,  678). 


Chief  of  Engi- 
neers may   use 
thp  books  in  Library 
tue  of  Congress. 


THE    PUBLIC    BUILDINGS    AND    GROUNDS. 


Par. 

978.  Chief  of  Engineers  to  have  charge. 

979.  Estimates. 

980.  Employees,  restriction. 

981.  Control  of  banks  of  Potomac. 

982.  Regulations,  by  whom  made. 

983.  Playgrounds  for  children. 

984.  Watchmen  in  public  squares. 

985.  Ailanthus  trees,  prohibition. 

986.  Propagation  of  plants  and  shrubs. 


Par. 

987.  Annual  report  of  buildings,  etc. 

988.  Furniture  for  Executive  Mansion. 

989.  Annual  inventory. 

990.  991.  Washington   Monument,    care, 

etc. 

992.  Washington  Monument  Society. 

993.  Extra  pay  prohibited. 

994.  Rules  for  use  of  aqueduct  bridge. 


978.  The  Chief  of  Engineers  shall  have  charge  of  the    chief  of  Engi- 

•i  T  i  •        i       T^«        •  /•     i  •      neers   to   have 

public  buildings  and  grounds  in  the  District  or  Columbia,  charge  of  public 

,    ,.  .    buildings  and 

under  such  regulations  as  may  be  prescribed  by  the  Presi-  grounds. 
dent  through  the  War  Department,  except  those  buildings  242^gi5'v8i<)>  P' 
and  grounds  which  are  otherwise  provided  for  by  law.2      f^^sV'v^iI' 

p.  466.      Sec.'l797,  B.S.' 

lrrhe  acts  of  August  5,  1882  (22  Stat.  L.,  240),  and  March  3,  1883  (22  Stat.  L.,  552), 
contained  a  similar  provision,  the  amount  in  each  case  being  fixed  at  $75,000.  For 
a  continuation  of  the  same  provision  see  the  act  of  July  7,  1884  (23  Stat.  L.,  181),  in 
which  the  amount  appropriated  was  fixed  at  $56,000;  the  acts  of  March  3,  1885  (23 
Stat.  L.,  412),  July  31,  1886  (24  Stat.  L.,  195),  March  3, 1887  (24  Stat.  L.,  617) ,  July  11, 
1888  (25  Stat.  L.,  280) ,  February  26,  1889  (25  Stat.  L.,  730),  July  11,  1890  (26 Stat.  L., 
252),  March  3,  1891  (26  Stat.  L.,  932),  July  16,  1892  (27  Stat.  L.,  208),  and  March  3, 
1893  (27  Stat.  L.,  699),  in  which  the  amount  appropriated  was  fixed  at  $60,000; 
July  31,  1894  (28  Stat.  L.,  188),  March  2,  1895  (28  Stat.  L.,  789),  and  May  28,  1896 
(29  Stat.  L.,  163),  February  19,  1897  (ibid.,  562),  March  15,  1898  (30  Stat.  L.,  300), 
February  24,  1899  (ibid.,  872),  and  April  17,  1900  (31  Stat.  L.,  115),  in  which  the 
amount  appropriated  was  fixed  at  $72,000. 

The  cost  of  services  and  articles  needed  in  the  office  of  the  Chief  of  Engineers  is 
not  properly  chargeable  to  any  appropriation  for  river  and  harbor  improvements,  or 
for  fortifications,  or  to  any  other  appropriation  for  the  military  establishment,  unless 
expressly  authorized  by  law.  3  Dig.  2d  Compt.  Dec.,  321. 

2  The  act  of  August  14,  1876,  transferred  the  duties  relating  to  the  care  and  super- 
intendence of  the  Capitol  building  to  the  Architect  of  the  Capitol,  by  the  following 
provision:  "That  the  Architect  of  the  Capitol  shall  have  the  care  and  superintend- 
ence of  the  Capitol,  including  lighting,  and  shall  submit,  through  the  Secretary  of  the 
Interior,  estimates  thereof :  And  provided  further,  That  all  the  duties  relative  to  the 
Capitol  building  heretofore  performed  by  the  Commissioner  of  Public  Buildings  and 
Grounds  shall  hereafter  be  performed  by  the  Architect  of  the  Capitol,  whose  office 
shall  be  in  the  Capitol  building."  The  act  of  March  3,  1877,  contained  the  following 
provision  on  the  same  subject:  ' '  The  Architect  of  the  Capitol  shall  hereafter  have  the 


372  MILITARY    LAWS    OF    THE    UNITED    STATES. 

appfo?riaffonsnd      979>  ^11  estimates  for  public  buildings  and  grounds  in 
242^15'  v8™  p'  cnarge  of  tne  Chief  of  Engineers  shall  be  approved  and 
57|ec  1798  K  s  submitted  by  the  Secretary  of  War,  through  the  Treasury 
Department,  as  other  estimates,  to  the  two  Houses  of  Con- 
gress; and  all  appropriations  which  have  been  or  may  be 
hereafter  made  for  repairs  or  improvements  of  the  public 
buildings  and  grounds  in  the  District  of  Columbia,  and 
now  in  charge  of  the  Chief  of  Engineers,  shall  be  expended 
under  the  direction  of  the  Secretary  of  War. 
Employees  in     980.  The  Chief  of  Engineers  in  charge  of  public  build- 

officeof  public  .  .  ,. fe     .       ,  A  i         •      C •        /E  j 

buildings.          ings  and  grounds  is  authorized  to  employ  in  his  office  and 

Mar.  3,  1871,  c.  ...  .  ,    J       ,        ,. 

113,  s.  i,  v.  16,  p.  about  the  public  buildmgfs  and  grounds  under  his  control 

479;  May  8,  1872,  &  ,  , 

c.i40,s.i,v.i7,p.  such  number  01  persons  for  such  employments,  and  at  such 

65;  Jan.  20,  1874,  .  '  ~ 

c.  11,  v.  is,  p.  4.   rates  of  compensation,  as  may  be  appropriated  for  by  Con- 
Sec.  1799,  B.  S.  J  J 

gress  from  year  to  year. 

THE    POTOMAC    PARK. 

banTof^the  p£  981-  Tne  f ollowing-described  property  shall  be  placed 
t0M«r'  i  15  v  under  the  immediate  jurisdiction  and  control  of  the  Chief 

31  HT.  o,  JLoyy,  v.  « 

so,  p.  HOG.  Of  Engineers  of  the  United  States:  The  banks  of  the 
Potomac  River  from  the  north  line  of  the  Arsenal  grounds 
to  the  southern  curb  line  of  N  street  south;  also  five  hun- 
dred linear  feet  of  shore  line  in  the  flushing  reservoir  at 
the  foot  of  Seventeenth  street  west,  and  west  from  the 
western  curb  of  said  street,  including  a  levee  one  hundred 
feet  wide.  Act  of  March  3,  1899  (30  Stat.  L.,  1106}. 
Regulations  982.  That  said  Commissioners  and  the  Chief  of  Engineers 

same.  of  the  United  States  Army  are  hereby  authorized  and 

empowered  to  make  all  needful  rules  and  regulations  for 
the  government  and  proper  care  of  all  the  property  placed 
in  their  charge  and  under  their  respective  control  by  the 
provisions  of  section  one  of  this  act,  and  to  annex  such 
reasonable  penalties  to  said  rules  and  regulations  as  will 

care  and  superintendence  of  the  Capitol,  including  lighting,  and  shall  submit  through 
the  Secretary  of  the  Interior,  annually,  estimates  thereof." 

The  officer  in  charge  of  the  public  buildings  and  grounds  shall  have  the  rank,  payt 
and  emolument  of  a  colonel.  Act  of  March  3,  1873  (17  Stat.  L.,  535).  Funds  for  the 
execution  of  this  statute  have  been  provided  in  subsequent  acts  of  appropriation. 

The  act  of  June  30,  1898  (30  Stat.  L.,  533)  contained  a  requirement  directing  an 
investigation  to  be  made  as  to  the  feasibility  of  filtering  the  water  supply  of  the  city 
of  Washington,  and  the  Chief  of  Engineers  was  required  to  be  associated,  as  consult- 
ing engineer,  with  the  officer  charged  with  the  conduct  of  the  investigation  and  the 
preparation  of  the  report. 

By  the  act  of  March  3,  1899  (30  Stat  L.,  1120),  the  Chief  of  Engineers  was  charged 
with  the  direction  of  the  construction  of  the  new  building  for  the  use  of  the  Govern- 
ment Printing  Office. 

By  the  act  of  March  2,  1893  (27  Stat.  L.,  532),  the  Chief  of  Engineers  was  made,  ex 
officio,  a  member  of  a  commission  to  determine  upon  a  plan  for  highways  within  the 
District  of  Columbia. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  373 

secure  their  enforcement;  and  also  to  make  and  enforce 
rules  and  regulations  in  regard  to  building  and  repairing 
wharves,  the  rental  thereof,  and  the  rate  of  wharfage.1 
All  rents  so  collected  shall  be  covered  into  the  Treasury 
of  the  United  States,  one-half  to  be  placed  to  the  credit  of 
the  United  States  and  one-half  to  the  credit  of  the  District 
of  Columbia.  No  lease  made  under  the  provisions  of  this 
act  shall  extend  beyond  the  period  of  ten  years.2 

That  the  Secretary  of  War  is  authorized  to  grant  per- 
mission to  the  Department  of  Agriculture  for  the  tempo- 
rary occupation  of  such  area  or  areas  of  Potomac  Park, 
not  exceeding  a  total  of  seventy-five  acres  in  extent,  as 
may  not  be  needed  in  any  one  season  for  the  reclamation 
or  park  improvement,  the  said  areas  to  be  used  by  the 
Department  of  Agriculture  as  testing  grounds:  Provided, 
That  nothing  herein  contained  shall  be  construed  to  change 
the  essential  character  of  the  lands  so  used,  which  lands 
shall  continue  to  be  a  public  park,  as  provided  in  the  act 
of  Congress  approved  March  third,  eighteen  hundred  and 
ninety-seven :  And  provided  further,  That  said  area  or 
areas  shall  be  vacated  by  the  Department  of  Agriculture 
at  the  close  of  any  season  upon  the  request  of  the  Secre- 
tary of  War:  And  provided  further,  That  the  entire  park 
shall  remain  under  the  charge  of  the  Secretary  of  War. 

983.  The   officer    in    charge   of    public  buildings   and  clJ11^oundfor 
grounds  may  authorize  the  temporary  use  of  a  portion  of  v ^ ^  f^  1890> 
the  Monument  Grounds,  or  grounds  south  of  the   Execu- 
tive  Mansion   or  other   reservations   in   the  District  of 
Columbia,  for  a  children's  playground,  under  regulations 

to  be  prescribed  by  him.  Act  of  August  30,  1890  (£6, 
Stat.  L.,  371). 

984.  Hereafter  all  watchmen  provided  for  by  the  Uni ted  h  watchmen,  to 
States  Government  for  service  in  any  of  the  public  squares  po^er*6     1882 
and  reservations  in  the  District  of  Columbia  shall  have v-  *i  P-  ^ 
and  perform  the  same  powers  and  duties  as  the  Metro- 
politan police  of  the  said  District.3     Act  of  August  5, 1882 

(M  Stat.  L.,%57). 

985.  No  more  ailanthus  trees  shall  be  purchased  for  ortnfegilanthus 
planted  in  the  public  grounds.  IO^P^O?  1853' v* 

Sec.  1830,  B.S. 

1  For  jurisdiction  of  the  Commissioners  of  the  District  of  Columbia  over  certain 
wharf  property  and  public  spaces  in  the  District  of  Columbia,  see  the  act  of  March 
3,  1899  (30  Stat.  L.,  1377),  paragraph  1019  post. 

2  The  Chief  of  Engineers  is  not  and  never  has  been  vested  with  authority  to  grant 
licenses  for  the  erection  of  wharves  along  the  river  front  of  the  city  of  Washington. 

3 The  authority  of  the  Metropolitan  police  was  extended  to  include  "all  public 
squares  and  places"  by  the  act  of  July  21,  1876  (19  Stat.  L.,  102);  see,  also,  act  of 
March  3,  1877  (19  Stat.  L.,  346). 


374  MILITARY    LAWS    OF   THE    UNITED   STATES. 

986-  Hereafter  only  such  trees,  shrubs,  and  plants  shall 


prjunfat2od  1878  ^e  propagated  at  the  greenhouses  and  nursery  as  are  suit- 

v.  20,  p.  220.        a'D}e  f  or  planting  in  the  public  reservations,  to  which  pur- 

pose only  the  said  productions  of  the  greenhouses  and 

nursery  shall  be  applied.     Act  of  June  W,  1878  (20  Stat. 

L., 


Reports.  987.   The  Chief  of  Engineers  shall,  as  superintendent  of 

Mar.  3,1829,  C.        ,,..,.,,. 

51,  s.  3,  v.  4,  p.  363;  public    buildings    and    grounds,    and   as    superintendent 
242fs.  15,  v.ib,p!  of  the  Washington  Aqueduct,  annually  submit  the  follow- 

573;  Mar.  3,  1859,  .  *         o  .«  w        •       .• 

c.  84,  s.  i,  v.n,p.  ing  reports  to  the  Secretary  of  War  in  time  to  accompany 

435;    June  25,    ,     •  ,  £     ,       ^        .,  „  r  ,  J 

1860,  c.  211,  s.  i,  the  annual  message  of  the  President  to  Congress,  namely: 

'sec.i8i2,  R.S.      First.  A  report  of  his  operations  for  the  preceding  year, 

with  an  account  of  the  manner  in  which  all  appropriations 

for  public  buildings  and  grounds  have  been  applied,  in- 

cluding a  statement  of  the  number  of  public  lots  sold,  or 

remaining  unsold  each  year,  of  the  condition  of  the  public 

buildings  and  grounds,  and  of  the  measures  necessary  to 

be  taken  for  the  care  and  preservation  of  all  public  prop- 

erty under  his  charge. 

Furniture  for     988.  All  furniture  purchased  for  the  use  of  the  Presi- 

8ioScu  n  dent's  House  shall  be,  as  far  as  practicable,  of  domestic 

May  22,  1826,  s.  . 

2,  v.  4,  p.  194.      manufacture. 


inventory  'of     989.  Hereafter  a  complete  inventory,  in  proper  books, 
ecutive  Mansion,  shall  be  made  annually  by  the  steward,  under  the  direc- 

April  17,  1900,  ,.  .  -,,  ~>  .  i  /.  i  i.        i      «i  T 

v.  31,  p.  97.  tion  01  the  omcer  in  charge  or  public  buildings  and 
grounds,  of  all  the  public  property  in  and  belonging  to 
the  Executive  Mansion,  showing  when  purchased,  use  to 
which  applied,  cost,  condition,  and  final  disposition,  to  be 
submitted  to  Congress  with  annual  report  of  the  officer  in 
charge  of  public  buildings  and  grounds.1  Act  of  April 
17,  1900  (31  Stat.  L.,  97). 

THE    WASHINGTON    MONUMENT. 


M^umhentgcare  990<  ^or  ^e  care  an(*  maintenance  of  the  Washington 
nance  mainte-^onumen^  an(^  ^ne  °Peration  of  the  elevator  and  machin- 
secretaryofwierrer3r  connected  therewith,  namely:  For  one  custodian,  at 
25°pt'533>  1888)  v'  one  nundred  dollars  per  month,  one  steam  engineer,  at 
eighty  dollars  per  month;  one  assistant  steam  engineer, 

xln  view  of  the  requirements  of  the  acts  of  August  14,  1876  (19  Stat.  L.,  147)  ,  and 
March  3,  1877  (ibid.,  298,  note  to  paragraph  978,  ante),  which  operated  to  define  and 
restrict  the  jurisdiction  of  the  Architect  of  the  Capitol,  it  may  be  doubted  whether 
the  provision  of  section  1832,  Revised  Statutes,  requiring  a  report  to  be  made  to  that 
officer  is  now  operative.  The  acts  above  referred  to,  taken  in  connection  with  sec- 
tion 1797  of  the  Revised  Statutes,  would  seem  to  vest  jurisdiction  over  public  build- 
ings outside  the  Capitol  grounds  in  the  Chief  of  Engineers  and  the  officer  charged, 
under  his  direction,  with  their  immediate  superintendence  and  control. 


MILITARY    LAWS    OJ    THE    UNITED    STATES.  375 

at  sixty  dollars  per  month;  one  fireman,  at  fifty  dollars 
per  month;  one  assistant  fireman,  at  forty-five  dollars 
per  month;  one  conductor  of  car,  at  seventy-five  dollars  per 
month;  one  attendant  on  floor,  at  forty-five  dollars  per 
month;  one  attendant  on  top,  at  forty-five  dollars  per 
month;  three  night  and  day  watchmen,  at  sixty  dollars 
each  per  month;  *  *  *  to  be  expended  under  the 
direction  of  the  Secretary  of  War,  who  is  hereby  and 
hereafter  charged  with  the  custody,  care,  and  protection 
of  the  monument.  Act  of  October  8, 1888  (25  Stat.  L. ,  533). 

991.  The  joint  commission  created  by  the  act  of  August  ^p^S^ 
second,  eighteen  hundred  and  seventy-six,  for  the  comple-    lbid- 

tion  of  the  Washington  Monument,  having  completed  the 
work  intrusted  to  it,  is,  at  its  own  request,  dissolved,  and 
the  unexpended  balances  of  appropriations  for  this  work, 
as  well  as  the  amount  herein  appropriated,  shall  be  ex- 
pended under  the  direction  of  the  Secretary  of  War.  Ibid. 

992.  The    Washington     National    Monument    Societv    Washington 

.     ,  &  /  National   Monu- 

is  hereby  continued  with  the  same  powers  as  provided  inment  society 
the  act  of  August  second,  eighteen  hundred  and  seventy- 
six,  creating  the  joint  commission  aforesaid;  and  the  Sec- 
retary of  War  is  hereby  directed  to  set  apart  a  room  for 
the  deposit  of  the  archives  of  the  Washington  National 
Monument  Society  (as  also  for  the  records  of  the  joint 
commission  dissolved)  and  for  the  continuous  use  of  said 
society  in  the  building  now  being  erected  by  the  said 
society  with  funds  collected  by  it  for  its  use  and  for  the 
public  comfort.  Ibid. 

993.  No  pay  or  compensation  other  than  is  fixed  by  this  hi^1>t^  pay  prc> 
title  shall  be  allowed  to  any  officer,  employee,  or  laborer  25iUsyiV8i6'c' 
embraced  within  the  provisions  thereof.1  25|ec  18§|  R'g 

994.  The  Chief  Engineer  is  hereby  directed  to  notify  the  fofufeUofa'aq^! 
Washington  and  Georgetown  Railway  Company  to  remove  dtj£ar  "3^875  v 
their  railway  track  from  the  Washington  aqueduct  bridge  18>  P-  st- 
over Rock  Creek,  within  one  year  from  the  date  of  said 

notice;  and  said  company  shall  make  such  removal  within 
the  year  aforesaid,  and  have  the  right  to  lay  their  tracks 
along  Twenty-sixth  street  from  Pennsylvania  avenue  to 
M  street  north,  and  thence  along  M  street  into  George- 
town, to  connect  with  their  tracks  on  Bridge  street;  and 
said  Chief  Engineer  may  establish  and  publish  regulations 
prohibiting  the  passage  of  heavily  loaded  wagons  and  car- 
riages over  said  bridge.  Act  of  March  3,  1875  (18  Stat. 
Z.,  393). 

1  Title  XXI,  Revised  Statutes. 


376 


MILITARY    LAWS    OF    THE    UNITED    STATES. 


THE   WASHINGTON   AQUEDUCT. 


Par. 

995.  Chief  engineer  to  superintend. 

996.  Duties. 

997.  No  extra  compensation. 

998.  Offices. 

999.  Kecords. 

1000.  Reports. 

1001.  Regulation  of  water  supply. 

1002.  Decisions  of  Chief  of  Engineers. 

1003.  Expenditure  of  appropriations. 


Par. 

1004.  Use  of  water  in  public  buildings. 

1005.  Diversion  of  water  prohibited. 

1006.  Lands  about  reservoir. 

1007.  Opening  of  pipes;  penalty. 

1008.  Breaking  pipes;  penalty. 

1009.  Contamination  of  water. 

1010.  Pipes  for  public  buildings  and  for 

District  of  Columbia, 


ne^ettof  ^ave  995>  The  Chief  of  Engineers  shall  have  the  immediate 
fnTon0^^8^-811?6^11^11^61106  °f  the  Washington  Aqueduct,  together 
duct.  with  all  rights,  appurtenances,  and  fixtures  connected 

84Msari,3v.1iif  p,  with  the  same,  and  belonging  to  the  United  States,  and 
c?ai?8.ei? V*8i2i  of  all  other  public  works  and  improvements  in  the  Dis- 
ise?*0?.  ie??ars.  I  trict  of  Columbia  in  which  the  Government  has  an  inter- 
»?wf£'£?n,  est,  and  which  are  not  otherwise  specially  provided  for  by 

3,'v.  15, 'p-  12-         l^l 
Sec.  1800,  R.S.  law. 

ma^Ve^pre-  ^96.  He  shall  obey,  in  the  discharge  of  the  duties  men- 
deirted  by  Presi"  tioned  in  the  preceding  section,  such  regulations,  pursuant 
45M*y42'  v8 ?'  p'  t°  law>  as  maJ  ^e  prescribed  by  the  President,  through  the 
c^^gV'v18!?'  Department  of  War. 

p'.  435; '  June'  25*,  1860,  c.  211,  s.  1,  v.  12,  p.  106;  Mar. 

Sec.  1801, R.S.  30,  1867,  c.  20,  s.  3,  v.  15,  p.  12. 

Chief  of  Engi- 
neers not  to  re- 


998.  He  shall  be  furnished  official  apartments  in  one  of 

A 


997<  ^ne  Chief  of  Engineers  shall  receive  no  compen- 
tfon6  compensa"  sation,  other  than  his  regular  pay  as  an  officer  of  the 
84Msari3V1n9'c'C°rP8  °^  Engineers,  for  the  services  required  of  him 
48|ec  1807  R  s  un(^er  ^ne  provisions  of  this  title. 

Apartments, 

stationery,  etc.  .  . 

Mar.  3,  1859,  c.  the  public  buildings  in  the  city  of  Washington,  as  may  be 

435.  '  '     directed  by  the  President,  and  shall  be  supplied  by  the 

'  Government  with  the  stationery,  instruments,  books,  and 

furniture  which  may  be  required  for  the  performance  of 

his  duties. 

He  shall  keep  in  his  office  a  complete  record  of  all 
nd  other  property  connected  with  or  belonging 
ec  1809  R  s  Washington  Aqueduct  and  other  public  works  under 

his  charge,  together  with  accurate  plans  and  surveys  of 
the  public  grounds  and  reservations  in  the  District  of 
Columbia.2 


ertvetorbe°ker<tp 
84?*i8V  u  c> 


1  But  see  paragraph  1014,  post,  for  compensation  of  Engineer  Commissioner. 

2  For  reports  and  estimates  required  of  the  Chief  of  Engineers  in  connection  with 
the  superintendence  of  the  Washington  Aqueduct,  see  paragraphs  64  and  987,  ante. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  377 

1000.  The  Chief  of  Engineers  shall,  as  Superintendent  J^^g^  c. 
*  *  *  of  the  Washington  Aqueduct,  annually  submit  l^.8^^^- 
the  following  reports  to  the  Secretary  of  War  in  time  to  £;  2j*|.s-  j£v;  ^j 
accompany  the  annual  message  of  the  President  to  Con-  }?59pC'4^'.s  j^ 

®>>  1860>  c-  211'  s-'1'  v.  12,  'p.  106. 
Sec.  1812,B.S. 


Second.  A  report  of  the  condition,  progress,  repairs, 
casualties,  and  expenditures  of  the  Washington  Aqueduct 
and  other  public  works  under  his  charge. 

1001.  He  and  his  necessary  assistants  are  empowered  to^ 
use  all  lawful  means  for  the  discharge  of  their  duties;  and, 
particularly,  he  shall  have  full  control  over  the  Washington 
Aqueduct,  to  regulate  the  manner  in  which  the  authorities  cyk  s.  i,  v.'n,  p.' 
of  the  District  of  Columbia  may  tap  the  supply  of  'water  to    sec.  ISIO,R.S. 
the  inhabitants  thereof;  and  he  shall  stop  the  same  when- 

ever it  is  found  to  be  no  more  than  adequate  to  the  wants 
of  the  public  buildings  and  grounds, 

1002.  His  decision  on  all  questions  concerning  the  supply 
of  water,  as  provided  in  the  preceding  section,  shall  be  sub- 

ject  to  appeal  to  the  Secretary  of  War  only.  Ej?£e8ni859  c 

84,  s.  1,  v'.  11,  p.  436! 
Sec.  1811,B.S. 

1003.  All  moneys  appropriated  or  hereafter  appropriated  tio^P  pf  ™  paq^ 
for  the  Washington  Aqueduct,  and  for  the  other  public  expended"  h°w 
works  in  the  District  of  Columbia,  not  otherwise  expressly  84^arj  3'v1^f19>  c> 
provided  for  by  law,  shall  be  expended  under  the  direction  ^; 

of  the  Secretary  of  War.  P-  62°:  Mar-  30'  1867'  c-  20- 

1004.  All  officers  in  charge  of  public  buildings  in  the 
District  of  Columbia  shall  cause  the  flow  of  water  in  the  ^^^  1883> 
buildings  under  their  charge  to  be  shut  off  from  five  o'clock 

post  meridian  to  eight  o'clock  ante  meridian:  Provided, 
That  the  water  in  said  public  buildings  is  not  necessarily 
in  use  for  public  business.  Act  of  March  3,  1883  (27  Stat. 
L.,615). 

1005.  No  portion  of  the  water  conveved  or  to  be  con-    Diversion  of 

*  water    prohib- 

veyed  through  or  by  means  of  the  Washington  Aqueduct,  ite(i- 


.     t 

or  any  appurtenance  thereof,  shall  be  diverted  to  the  sup-  27.  P-  644- 
ply  or  use  of  any  building,  premises,  or  establishment 
located  outside  of  the  existing  limits  of  the  District  of 
Columbia,  Act  of  March  3,  1893  (27  Stat.  L.,  5U). 

1006.  The  lands   belonging  to  the   United  States  and  re^n0drs  about 
lying  around  the  receiving-reservoir  shall  hereafter  be  con-  br^°gcek  Creek 
trolled  in  connection  with  the  Washington  Aqueduct,  and  18*pa39f  '  1875'  v> 
shall  be  under  the  charge  and  control  of  the  officer  in 
charge  of  said  aqueduct.     Act  of  March  3,  1875  (18  Stat. 
L.,393}. 


378 


MILITARY    LAWS    OF   THE    UNITED   STATES. 


Willful,  etc., 
breaking,  etc.,oi 


10°7.  No  person,  unless  by  consent  of  the  Chief  of  Engi- 
peMarty3, 1859,  c.  neers  m  charge  of  the  public  buildings  and  works,  shall 
84^8.  5,  v.  11,  p.  tap  or  Open  tne  mams  or  pipes  laid  or  hereafter  to  be  laid 
sec. isos,  R.S.  by  ^ne  United  States,  under  a  penalty  of  not  less  than 
fifty  nor  more  than  five  hundred  dollars. 

1008.  Every  person  who  maliciously  breaks,  injures,  de- 
c.  faces,  or  destroys  any  main  or  pipe,  bend,  branch,  valve, 
436.8'  6>  v>  U|  p'  hydrant,  service  pipe,  or  any  other  fixture  used  for  the  dis- 
Sec.i804,n.s.  tribution  of  water  throughout  the  streets  and  avenues,  or 
for  its  introduction  into  the  houses,  tenements,  or  buildings 
of  Washington  and  Georgetown,  shall  be  punishable  by 
imprisonment  in  the  county  jail  for  not  more  than  two 
years. 

m?kinci°water     1®®9.  Every  person  who  maliciously  commits  any  act  by 

iDMare3  1859  c  reason  °^  which  the  supply  of  water,  or  any  part  thereof,  to 

84^s.  7,  V.  11,'  P.  the  cities  of  Washington  and  Georgetown  becomes  impure, 

sec. isoe,  B.S.  filthy,  or  unfit  for  use,  shall  be  fined  not  less  than  five 

hundred  nor  more  than  one  thousand  dollars,  or  imprisoned 

at  hard  labor  in  the  District  of  Columbia  not  more  than 

three  years  nor  less  than  one  year. 

pipes  for  use  of      1010.  No  greater  number  of  main  pipes  of  the  Washing- 
blic  buildings.  jun-ui'J  *   ± 

3, 1859,  c.  ton  Aqueduct  shall  be  laid  at  the  expense  of  the  United 
States  than  are  sufficient  to  furnish  the  public  buildings, 
offices,  and  grounds  with  the  necessary  supply  of  water. 
The  cost  of  any  main  pipe,  for  the  supply  of  water  to  the 
inhabitants  of  Washington  and  Georgetown,  must  be  paid 
by  the  District  of  Columbia  in  the  manner  provided  by  law. 


pub: 

84,  s.  6,  v.  11,"  p. 
436. 
Sec.  1805,  U.S. 


ENGINEER    COMMISSIONER   OF    THE    DISTRICT   OF   COLUMBIA. 


ASSISTANTS   TO    ENGINEER    COMMISSIONER. 


Par. 

1011.  The  District  Commissioners. 

1012.  The  same;  appointment. 

1013.  Salary. 

1014.  Compensation   of   Engineer  Com- 

missioner. 

1015.  Detail;  rank. 


Par. 

1016.  Assistants    to    Engineer   Commis- 

sioner. 

1017.  Estimates. 

1018.  Powers  of  Commissioners. 

1019.  Control  of  wharf  property. 


0f°h?DtetSof     1011<  Within  twenty  days  after  the  approval  of  this  act 

C?neerbicomm?s-  ^ne  President  of  the  United  States,  by  and  with  the  advice 

sioner.  an(j  consent  of  the  Senate,  is  hereby  authorized  to  appoint 

2,  v.  20,  p'.  io3.'    |wo  persons,  who,  with  an  officer  of  the  Corps  of  Engineers 

of  the  United  States  Army,  whose  lineal  rank  shall  be  above 

that  of  captain,  shall  be  Commissioners  of  the  District  of 

Columbia,  and  who,  from  and  after  July  first,  eighteen 

hundred  and  seventy -eight,  shall  exercise  all  the  powers 


MILITARY    LAWS    OF    THE    UNITED    STATES.  379 

and  authority  now  vested  in  the  Commissioners  of  said 
District,  except  as  are  hereinafter  limited  or  provided, 
and  shall  be  subject  to  all  restrictions  and  limitations  and 
duties  which  are  now  imposed  upon  said  Commissioners. 
The  Commissioner  who  shall  be  an  officer  detailed,  from 
time  to  time,  from  the  Corps  of  Engineers,  by  the  Presi- 
dent, for  this  duty,  shall  not  be  required  to  perform  any 
other,  nor  shall  he  receive  any  other  compensation  than 
his  regular  pay  and  allowances  as  an  officer  of  the  Army.1 
Sec.  2,  act  of  June  11,  1878  (W  Stab.  L.,  103). 

1012.  The  two  persons  appointed  from  civil  life  shall,  sioc^s; 
at  the  time  of  their  appointment,  be  citizens  of  the  United 
States,  and  shall  have  been  actual  residents  of  the  District 

of  Columbia  for  three  years  next  before  their  appointment, 
and  have,  during  that  period,  claimed  residence  nowhere 
else,  and  one  of  said  three  Commissioners  shall  be  chosen 
president  of  the  Board  of  Commissioners  at  their  first 
meeting,  and  annually  and  whenever  a  vacancy  shall 
occur  thereafter;  and  said  Commissioners  shall  each  of 
them,  before  entering  upon  the  discharge  of  his  duties, 
take  an  oath  or  affirmation  to  support  the  Constitution  of 
the  United  States,  and  to  faithfully  discharge  the  duties 
imposed  upon  him  by  law.  Ibid. 

1013.  Said  Commissioners  appointed  from  civil  life  shall 
each  receive  for  his  services  a  compensation  at  the  rate  of 
five  thousand  dollars  per  annum,  and  shall,  before  enter- 
ing upon  the  duties  of  the  office,  each  give  bond  in  the  sum 
of  fifty  thousand  dollars,  with  surety  as  is  required  by 
existing  law.     The  official  term  of  said  Commissioners 
appointed  from  civil  life  shall  be  three  years,  and  until 
their  successors  are  appointed  and  qualified;  but  the  first 
appointment  shall  be  one  Commissioner  for  one  year  and 
one  for  two  years,  and  at  the  expiration  of  their  respective 
terms  their  successors  shall  be  appointed  for  three  years. 
Neither  of  said  Commissioners,  nor  any  officer  whatsoever 
of  the  District  of  Columbia,  shall  be  accepted  as  surety 
upon  any  bond  required  to  be  given  to  the  District  of 
Columbia;  nor  shall  any  contractor  be  accepted  as  surety 
for  any  officer  or  other  contractor  in  said  District.     Ibid. 

1014.  Hereafter  the  Engineer   Commissioner  shall   te 
entitled  to  receive  such  compensation,  in  addition  to  Ms 
army  pay  and  allowances,  as  will  make  his  compensation  21> p-  46°- 


1  Repealed  as  to  the  salary  of  the  Engineer  Commissioner  by  the  act  of  March  3, 
1881,  par.  1014,  post,  which  fixes  his  compensation  at  five  thousand  dollars  per  annum. 
The  act  of  June  11,  1878,  repealed  the  requirement  of  the  act  of  June  20,  1874  (18 
Stat.  L.,  117),  which  authorized  the  detail  of  an  officer  of  the  Corps  of  Engineers  to 
act  as  engineer  of  the  District  of  Columbia. 


380  MILITARY    LAWS    OF   THE    UNITED   STATES. 

equal  to  five  thousand  dollars  per  annum,  and  a  sum  suffi- 
cient to  pay  said  additional  compensation  is  hereby  appro- 
priated. Act  of  March  3,  1881  (21  'Stat.  Z.,  460). 

1015.  Hereafter  such  Engineer  Commissioner  may,  in 
the  discretion  of  the  President  of  the  United  States,  be 

iiis1890'  v'  26>  P'  detailed  from  among  the  captains  or  officers  of  higher 
grade  having  served  at  least  fifteen  years  in  the  Corps  of 
Engineers  of  the  Army  of  the  United  States.  Joint  reso- 
lution No.. 7,  December  24,  1890  (26  Stat.  Z.,  1113). 

antehraeuthaorizesd:     ™W'  The  President  of  the  United  States  may  detail 

28fpg246.1894'  v'  f rom  the  Engineer  Corps  of  the  Army  not  more  than  three 
officers,  juniors  to  the  engineer  officer  belonging  to  the 
Board  of  Commissioners  of  said  District,  to  act  as  assistants 
to  said  Engineer  Commissioner  in  the  discharge  of  the 
special  duties  imposed  upon  him  by  the  provisions  of  this 
act.1  Act  of  August  7,  1894  (%8  Stat.  Z.,  246). 
juneiMsVs, v.  1017.  The  said  Commissioners  shall  submit  to  the  Sec- 

20,  p.  KM.  retary  of  the  Treasury  for  the  fiscal  year  ending  June 

thirtieth,  eighteen  hundred  and  seventy-nine,  and  annually 
thereafter,  for  his  examination  and  approval,  a  statement 
showing  in  detail  the  work  proposed  to  be  undertaken  by 
them  during  the  fiscal  year  next  ensuing,  and  the  estimated 
cost  thereof;  also  the  cost  of  constructing,  repairing,  and 
maintaining  all  bridges  authorized  by  law  across  the 
Potomac  River  within  the  District  of  Columbia,  and  also 
all  other  streams  in  said  District;  the  cost  of  maintaining 
all  public  institutions  of  charity,  reformatories,  and 
prisons  belonging  to  or  controlled  wholly  or  in  part  by  the 
District  of  Columbia,  and  which  are  now  by  law  supported 
wholly  or  in  part  by  the  United  States  or  District  of  Colum- 
bia; and  also  the  expenses  of  the  Washington  Aqueduct 
and  its  appurtenances;  and  also  an  itemized  statement  and 
estimate  of  the  amount  necessary  to  defray  the  expenses 
of  the  government  of  the  District  of  Columbia  for  the 
next  fiscal  year:  Provided,  That  nothing  herein  contained 
shall  be  construed  as  transferring  from  the  United  States 
authorities  any  of  the  public  works  within  the  District  of 
Columbia  now  in  the  control  or  supervision  of  said  author- 
ities. Act  of  June  11,  1878  (20  Stat.  Z.,  104). 
powers  of  pis-  1018.  The  Commissioners  of  the  District  of  Columbia 

eioners.  Limita-  shall  have  all  the  powers  and  be  subject  to  all  the  duties 
June  10,  1879,  and  limitations  provided  in  chapter  eight  of  the  Revised 

v  21   p  9 

Statutes  of  the  United  States  relating  to  the  District  of 

1This  statute  replaces  the  provisions  contained  in  section  5,  act  of  June  11,  1878 
(20  Stat.  L.,  107),  which  authorized  the  detail  of  two  officers  of  engineers,  junior  in 
rank  to  the  Engineer  Commissioner,  as  assistants  to  that  officer. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  381 

Columbia,  excepting  such  powers  and  duties  as  belong 
to  the  Chief  of  Engineers:1  Provided,  That  water-main 
taxes  and  water  rents  shall  be  uniform  in  said  District. 
Act  of  June  10,  1879  (21  Stat.  Z.,  9). 

1019.  With  the  exceptions  hereinafter  provided,  the  control  of 
Commissioners  of  the  District  of  Columbia  shall  have  the  Ttc&1 
exclusive  charge  and  control  of  all  wharf  property  belong-  v.  30,  p.  1377. 
ing  to  the  United  States  or  to  the  District  of  Columbia 
within  said  District,  including  all  the  wharves,  piers,  bulk- 
heads, and  structures  thereon  and  waters  adjacent  thereto 
within  the  pier  lines,  and  all  slips,  basins,  docks,  water 
fronts,  land  under  water,  and  structures  thereon,  and  the 
appurtenances,  easements,  uses,  reversions,  and  rights  be- 
longing thereto,  which  are  now  owned  or  possessed  by  the 
United  States  or  the  District  of  Columbia,  or  to  which 
they  or  either  of  them  is  or  ma}T  become  entitled,  or  which 
they  or  either  of  them  may  acquire  under  the  provisions 
hereof  or  otherwise;  and  said  Commissioners  of  the  Dis- 
trict of  Columbia  shall  have  exclusive  charge  and  control 
of  the  repairing,  building,  rebuilding,  maintaining,  alter 
ing,  strengthening,  leasing^  and  protecting  said  property 
and  every  part  thereof,  and  all  the  cleaning,  dredging, 
and  deepening  necessary  in  and  about  the  same  within  the 
pier  lines.  Said  Commissioners  are  also  hereby  author- 
ized and  empowered  to  make  all  needful  rules  and  regula- 
tions for  the  government  and  control  of  all  wharves,  piers, 
bulkheads,  and  structures  thereon,  and  waters  adjacent 
thereto  within  the  pier  lines,  and  all  the  basins,  slips,  and 
docks,  with  the  land  under  water,  in  said  District  not 
owned  by  the  United  States  or  the  District  of  Columbia: 
Provided,  That  the  following-described  property  shall  be 
placed  under  the  immediate  jurisdiction  and  control  of  the 
Chief  of  Engineers  of  the  United  States:  The  banks  of 
the  Potomac  River  from  the  north  line  of  the  Arsenal 
Grounds  to  the  southern  curb  line  of  N  street  south;  also 
five  hundred  linear  feet  of  shore  line  in  the  Flushing  Res- 
ervoir' at  the  foot  of  Seventeenth  street  west,  and  west 
from  the  western  curb  of  said  street,  including  a  levee  one 
hundred  feet  wide.2  Act  of  March  3, 1899  (30  Stat.  Z., 
1377). 


1  For  powers  and  duties  of  the  Commissioners  of  the  District  of  Columbia  in  respect 
to  the  Washington  Aqueduct,  see  paragraph  1018,  ante.  See  also  the  act  of  June  20, 
1874  (18  Stat.  L.,  74),  creating  the  District  Commission. 

8  For  authority  to  make  regulations  in  respect  to  the  wharf  property  and  other 
open  spaces  in  the  District  of  Columbia  vested  in  the  District  Commissioners  and 
the  Chief  of  Engineers  see  par.  982,  ante. 


382 


MILITARY    LAWS    OF   THE    UNITED   STATES. 


THE   LIGHT-HOUSE    BOARD. 


Par. 

1021.  Organization. 

1022.  Detail  of  engineer  officers. 

1023.  Duties. 

1024.  Contracts  and  purchases. 

1025.  The  same;  proposals. 


Par. 

1026.  Inspectors. 

1027.  Restriction  on  compensation. 

1028.  Members,  etc.,  not  to  be  interested 

in  purchases. 


HouhseeBoardht 


1021<  The  President  shall  appoint  two  officers  of  the 
f  high  rank,  two  officers  of  the  Corps  of  Engineers 
ns'ec  4663  R  s  °^  ^e  Army,  and  two  civilians  of  high  scientific  attain- 
ments, whose  services  may  be  at  the  disposal  of  the  Presi- 
dent, together  with  an  officer  of  the  Navy  and  an  officer  of 
engineers  of  the  Army,  as  secretaries,  who  shall  constitute 
the  Light-House  Board. 

superintend-      1022.  The  President  shall  cause  to  be  detailed  from  the 

tion.etc.,  of  light-  Engineer  Corps  of  the  Arm}7,  from  time  to  time,  such  offi- 

°MarS'3,  i83i,  c.  cers  as  may  be  necessary  to  superintend  the  construction 

37,  s.  9,  v.  9,  p.  629.         ,  ',.  ,  ,.     , 

Sec.  4664,  R.s.  and  renovation  of  light-houses. 

contractsmust     1023.  The  Light-  House  Board  shall  cause  to  be  prepared 

be    founded   on  ,        A  ,  .  ,,    .  ,       ,  i        rr» 

official  plans  and  by  the  engineer  secretary  or  the  board,  or  by  sucn  omcer 

on  a  vote  of  the     ,,  .  ,,   ,,        .  ,        ,    ,    .,     ,  \        ,, 

board.  of  engineers  of  the  Army  as  may  be  detailed  for  that  serv- 

Aug.  31,  1852,  c.  .  .  './      ,.  ,.  j, 

112,  s.  14,  v.  10,  p.  ice,  all  plans,  drawings,  specifications,  and  estimates  of 
cost,  of  all  illuminating  and  other  apparatus,  and  of  con- 
struction and  repair  of  towers,  buildings,  &c.,  connected 
with  the  Light-House  Establishment,  and  no  bid  or  con- 
tract shall  be  accepted  or  entered  into  except  upon  the 
decision  of  the  board  at  a  regular  or  special  meeting  and 
through  their  properly  authorized  officers. 
Regulation  of  1024.  All  materials  for  the  construction  and  repair  of 

teriais,  etc.  light-houses,  light  vessels,  beacons,  buoys,  and  so  forth, 
shall  be  procured  by  public  contracts,  under  such  regula- 
tions as  the  board  may  from  time  to  time  adopt,  subject  to 
the  approval  of  the  Secretary  of  the  Treasury,  and  all 
works  of  construction,  renovation,  and  repair  shall  be 
made  by  the  orders  of  the  board,  under  the  immediate 
superintendence  of  their  engineer  secretary,  or  of  such 
engineer  of  the  Army  as  may  be  detailed  for  that  service. 

erec5onamustbe      1025.  No  contract  for  the  erection  of  any  light-house 
e  made  except  after  public  advertisement  for  pro- 
2  1867  c  Posa^s  ^n  sucn  f  orm  and  manner  as  to  secure  general  notice 

149,  s.  i,  V.  14'  p.  thereof,  and  the  same  shall  only  be  made  with  the  lowest 
bidder  therefor,  upon  security  deemed  sufficient  in  the 
judgment  of  the  Secretary  of  the  Treasury.1 

1  For  statutory  requirements  in  respect  to  the  acquisition  of  jurisdiction  over  lands 
proposed  to  be  acquired  for  light-house  purposes,  see  sections  4661  and  4662  of  the 
Revised  Statutes. 


n£nt  forVpropo- 


MILITAEY    LAWS    OF   THE    UNITED   STATES. 


383 


1026.  An  officer  of  the  Army  or  Navy  shall  be  assigned    Light-house  in- 
to each  district  as  a  light-house  inspector,  subject  to  the    Aug.  31,  1352, 

s  12,  v.  10,  p.  120. 

orders  of  the  Light-House  Board;  and  shall  receive  for  'sec.467i,B.s. 

such  service  the  same  pay  and  emoluments  that  he  would 

be  entitled  to  by  law  for  the  performance  of  duty  in  the 

regular  line  of  his  profession,  and  no  other,  except  the 

legal  allowance  per  mile  when  traveling  under  orders  con- 

nected with  his  duties. 

1027.  No  additional  salary  shall  be  allowed  to  any  civil,  UJSn  ^ompenSJ 
military,  or  naval  officer  on  account  of  his  being  employed  etc? 

on  the  Light-House  Board,  or  being  in  any  manner  attached 
to  the  Light-House  Service. 

1028.  No  member  of  the  Light-House  Board,  inspector, 
light-keeper,  or  other  person  in  any  manner  connected 
with  the  Light-House  Service,  shall  be  interested,  either 

directly  or  indirectly,  in  any  contract  for  labor,  materials,  12°^c>  4680?B  s> 
or  supplies  for  the  Light-House  Service,  or  in  any  patent, 
plan,  or  mode  of  construction  or  illumination,  or  in  any 
article  of  supply  for  the  Light-House  Service.1 


sec.  4679,n.  s. 


n  con" 


THE    MISSISSIPPI    RIVER    COMMISSION. 


Par. 

1037.  Material  for  improvements. 

1038.  Water  gauges. 

1039.  Piers  and  cribs. 

1040.  South  Pass;  surveys. 

1041.  The  same;  regulations. 

1042.  The  same;  definition. 

1043.  Snag  boats  on  Upper  Mississippi. 


v-  21'  p-  37- 


1879> 


Par. 

1029.  Establishment. 

1030.  Composition. 

1031.  Location  of  headquarters. 

1032.  Duties;  surveys. 

1033.  The  same;  plans,  estimates. 

1034.  The  same;  works. 

1035.  Engineer  secretary.         • 

1036.  Annual  report. 


1029.  A  commission    is  hereby  created,   to  be  called 

"  The  Mississippi  River  Commission,"  to  consist  of  seven  sl^-ne 
members.     Act  of  June  28,  1879  (21  Stat.  L.  ,  37). 

1030.  The  President  of  the  United  States  shall,  by  and 
with  the  advice  and  consent  of  the  Senate,  appoint  seven 
commissioners,  three  of  whom  shall  be  selected  from  the 
Engineer  Corps  of  the  Army,  one  from  the  Coast  and 
Geodetic  Survey,  and  three  from  civil  life,  two  of  whom 
shall  be  civil  engineers.     And  any  vacancy  which  may 
occur  in  the  commission  shall  in  like  manner  be  filled  by 
the  President  of  the  United  States;  and  he  shall  designate 
one  of  the  commissioners  appointed  from  the  Engineer 
Corps  of  the  Army  to  be  president  of  the   commission. 

1  For  statutes  denning  the  jurisdiction  and  functions  of  the  Light-House  Board,  see 
sections  4653-4680  of  the  Kevised  Statutes,  and  the  act  of  June  23,  1874  (18  Stat.  L., 
221). 


384  MILITARY    LAWS    OF    THE    UNITED   STATES. 

The  commissioners  appointed  from  the  Engineer  Corps 
of  the  Army  and  the  Coast  and  Geodetic  Survey  shall 
receive  no  other  pay  or  compensation  than  is  now  allowed 
them  by  law,  and  the  other  three  commissioners  shall 
receive  as  pay  and  compensation  for  their  services  each 
the  sum  of  three  thousand  dollars  per  annum;  and  the 
commissioners  appointed  under  this  act  shall  remain  in 
office  subject  to  removal  by  the  President  of  the  United 
States,  Sec.  #,  ibid. 

and^eneraleof-  1031-  The  headquarters  and  general  offices  of  said  com- 
ficp|b  i8a?9oi'v  mission  shall  be  located  at  some  city  or  town  on  the  Mis- 
si,  p.  792.  sissippi  River,  to  be  designated  by  the  Secretary  of  War, 
and  the  meetings  of  the  commission,  except  such  as  are 
held  on  Government  boats  during  the  time  of  the  semi- 
annual inspection  trips  of  the  commission,  shall  be  held  at 
said  headquarters  and  general  offices,  the  times  of  said 
meetings  to  be  fixed  by  the  president  of  the  commission, 
who  shall  cause  due  notice  of  such  meetings  to  be  given 
members  of  the  commission  and  the  public.  Act  of  Feb- 
ruary 18,  1901  (31  Stat.  L.,  792).. 

veys  direct  sur"  1032>  &  s^a1^  ke  ^e  ^uty  °^  sa^  commission  to  direct 
an^taii  of  assist- and  complete  such  surveys  of  said  river,  between  the  Head 
sec.  3,  md.  Of  the  Passes  near  its  mouth  to  its  head  waters,  as  may  be 
in  progress,  and  to  make  such  additional  surveys,  exami- 
nations, and  investigations,  topographical,  hydrographical, 
and  hydrometrical,  of  said  river,  and  its  tributaries,  as 
may  be  deemed  necessar}^  by  said  commission  to  carry  out 
the  objects  of  this  act.  And  to  enable  said  commission  to 
complete  such  surveys,  examinations,  and  investigations, 
the  Secretary  of  War  shall,  when  requested  by  said  com- 
mission, detail  from  the  Engineer  Corps  of  the  Army  such 
officers  and  men  as  may  be  necessary,  and  shall  place  in  the 
charge  and  for  the  use  of  said  commission  such  vessel  or 
vessels  and  such  machinery  and  instruments  as  may  be 
under  his  control  and  may  be  deemed  necessary.  And  the 
Secretary  of  the  Treasury  shall,  when  requested  by  said 
commission,  in  like  manner  detail  from  the  Coast  and  Geo- 
detic Survey  such  officers  and  men  as  may  be  necessary, 
and  shall  place  in  the  charge  and  for  the  use  of  said  com- 
mission such  vessel  or  vessels  and  such  machinery  and  in- 
struments as  may  be  under  his  control  and  may  be  deemed 
necessary.  And  the  said  commission  may,  with  the  ap- 
proval of  the  Secretary  of  War,  employ  such  additional 
force  and  assistants,  and  provide,  by  purchase  or  other- 
wise, such  vessels  or  boats  and  such  instruments  and 


MILITARY    LAWS    OF    THE    UNITED    STATES.  385 

means  as  may  be  deemed  necessary.     Sec.  3,  act  of  June 
28,  1879  (21  Stat.  L.,  37). 

1033.  It  shall  be  the  duty  of  said  commission  to  take  into  gjj^fiwd 
consideration  and  mature  such  plan  or  plans  and  estimates 
as  will  correct,  permanently  locate,  and  deepen  the  chan- 
nel and  protect  the  banks  of  the  Mississippi  River;  improve 
and  give  safet}^  and  ease  to  the  navigation  thereof;  prevent 
destructive  floods;  promote  and  facilitate  commerce,  trade, 
and  the  postal  service;  and  when  so  prepared  and  matured,  Report. 
to  submit  to  the  Secretary  of  War  a  full  and  detailed  report 
of  their  proceedings  and  actions,  and  of  such  plans,  with 
estimates  of  the  cost  thereof,  for  the  purposes  aforesaid, 
to  be  by  him  transmitted  to  Congress:  Provided,  That  the 
commission  shall  report  in  full  upon  the  practicability, 
feasibility,  and  probable  cost  of  the  various  plans  known 
as  the  jetty  system,  the  levee  system,  and  the  outlet  system, 
as  well  as  upon  such  others  as  the}r  may  deem  necessary.1 
Sec.  4-)  ibid. 

1  The  duties,  under  the  law,  of  the  Missouri  River  Commission,  composed  partly 
of  civilians,  relate  exclusively  to  certain  work  quite  other  than  the  establishing  of 
harbor  lines.  It  is  therefore  not,  as  a  body,  subject  to  the  directions  of  the  Secre- 
tary of  War  in  the  matter  of  establishing  harbor  lines,  nor  are  the  civilian  members 
subject  individually  to  his  orders.  Thus,  while  they  may  consent  to  establish  such 
lines,  it  is  preferable  for  the  Secretary  to  cause  such  work  to  be  done  through  engi- 
neer officers  of  the  Army.  Dig.  Opin.  J.  A.  G.,  par.  2272. 

Held,  that  the  Mississippi  River  Commission  derived  no  authority,  from  the  stat- 
utes relating  to  its  functions,  to  make  allotments  of  the  moneys  appropriated  by 
Congress  for  the  improvements  proposed.  Its  province  is  to  indicate  to  Congress 
what  improvements  are  needed  and  how  much  should  be  appropriated  therefor.  It 
has  no  authority  to  disburse  money  appropriated.  An  allotment  made  by  it  is  to  be 
treated  by  the  Secretary  of  War  as  a  recommendation  only.  The  Secretary  may 
adopt  the  recommendation,  but  in  the  disbursement  should  not  omit  any  of  the 
works  specially  designated  by  Congress  in  the  appropriation  act.  Ibid.,  par.  2270. 

Held,  that  the  maps  prepared  by  the  Mississippi  Commission,  under  appropriations 
by  Congress,  may  legally  be  disposed  of  at  the  discretion  of  the  commission,  it 
being  evidently  intended  by  Congress  that  the  information  therein  contained  should 
be  made  public  and  circulated  for  the  public  use  and  benefit.  Ibid.,  par.  2269. 

Held  (January,  1891),  that  the  allowances  for  the  traveling  expenses  of  the  civilian 
members  of  the  Mississippi  and  Missouri  River  commissions  were  not  regulated  by 
any  order  of  the  War  Department  regulating  the  allowances  of  civil  employees  of 
the  military  establishment,  but  were  such  as  are  fixed  by  statute.  They  are  not 
thus  necessarily  $4  per  diem,  since  the  statute  law  provides  for  the  reimbursement  of 
their  actual  necessary  outlay,  which  may  be  more  or  less  than  this  allowance.  Ibid., 
par.  2271. 

The  salaries  and  traveling  expenses  of  the  members  of  the  Mississippi  River  Com- 
mission who  are  appointed  from  civil  life  (Congress  having  failed  to  make  a  specific 
appropriation  therefor)  can  not  lawfully  be  defrayed  out  of  the  fund  for  the  Missis- 
sippi River  improvement.  The  application  of  such  fund  to  that  object  would  be 
inconsistent  with  section  3678,  Revised  Statutes.  XVIII  Opin.  Att.  Gen.  463. 

The  traveling  expenses  of  the  three  civilian  members  of  the  Mississippi  River 
Commission  and  of  the  member  appointed  from  the  Coast  and  Geodetic  Survey 
include  their  actual  traveling  expenses  only  for  all  authorized  travel  on  public  duty. 
3  Dig.  Compt.  Dec.,  219. 

In  making  appropriations  for  the  improvement  of  the  Mississippi  River,  Congress 
evidently  contemplates  that  there  shall  be  provided  at  public  expense,  on  the  vessel 
transporting  the  members  of  the  Mississippi  River  Commission  on  their  trips  of 

22924—08 26 


MILITARY    LAWS    OF    THE    UNITED    STATES. 

wOT°ks°nstruct  1034-  Tne  said  commission  may,  prior  to  the  completion 
sec.  5,  ibid.  of  ajj  ^e  surveys  an(J  examinations  contemplated  by  this 
act,  prepare  and  submit  to  the  Secretary  of  War  plans, 
specifications,  and  estimates  of  cost  for  such  immediate 
works  as,  in  the  judgment  of  said  commission,  may  consti- 
tute a  part  of  the  general  system  of  works  herein  contem- 
plated, to  be  by  him  transmitted  to  (Jongress.  Sec.  5,  ibid 
.  1035-  The  Secretary  of  War  may  detail  from  the-  Engi' 
neer  Corps  of  the  Army  of  the  United  States  an  officer  to 
act  as  secretary  of  said  commission.  l  Sec.  6,  iMd. 
Re-  103g  ^he  Secretary  of  War  shall  cause  the  manuscript 
o!'  s'  °f  tne  Annual  Report  of  the  Chief  of  Engineers  and  subor- 
dinate engineers,  relating  to  the  improvement  of  rivers  and 
harbors,  and  the  reports  of  the  Mississippi  and  Missouri 
River  commissions  to  be  placed  in  the  hands  of  the  Public 
Printer  on  or  before  the  fifteenth  day  of  October  in  each 
year.  *  *  •*  Sec.  8,  act  of  August  11,  1888  (25  Stat. 
Z.,400). 

MISCELLANEOUS    PROVISIONS    RESPECTING    THE    MISSISSIPPI    RIVER. 

1037.  Whenever  in  the  prosecution  and  maintenance  of 


obtained**'  h°w  ^ne  improvement  of  the  Mississippi  River  and  other  rivers, 


inspection,  such  table  comforts  only  as  are  generally  provided  by  steamboat  compa- 
nies for  the  traveling  public.  Ibid. 

When  an  appropriation  is  available  for  the  payment  of  accounts  for  "  salaries  and 
traveling  expenses  of  the  Mississippi  River  Commission,  and  for  salaries  and  traveling 
expenses  of  assistant  engineers,  and  for  office  expenses  and  contingencies,"  the  fol- 
lowing expenses  are  properly  payable  therefrom  under  existing  laws:  ( 1 )  The  salaries 
of  the  three  members  of  the  commission  appointed  from  civil  life,  at  the  rate  of  $3,000 
each  per  annum,  and  of  those  only,  the  salaries  of  the  other  members  being  other- 
wise provided  for;  (2)  the  salaries  of  all  civilian  assistant  engineers  employed  under 
the  commission,  but  not  that  of  the  secretary  of  the  commission  or  of  any  other  assist- 
ant engineer  detailed  from  the  Corps  of  Engineers;  (3)  the  actual  traveling  expenses 
only,  for  all  authorized  travel  on  public  duty,  of  the  three  civilian  members  of  the 
commission  and  of  the  member  appointed  from  the  Coast  and  Geodetic  Survey;  (4) 
the  actual  traveling  expenses  only,  for  all  authorized  travel  on  public  duty,  of  all 
civilian  assistant  engineers  employed  under  the  commission;  (5)  the  mileage  of  the 
three  members  of  the  commission  appointed  from  the  Engineer  Corps  of  the  Army, 
at  the  rate  of  8  cents  per  mile,  only  under  circumstances  when  mileage  is  authorized 
by  law,  for  all  travel  required  of  them  by  the  commission  pertinent  to  the  objects  for 
which  it  was  constituted,  travel  so  required  being  travel  under  orders  within  the 
meaning  of  section  2  of  the  act  of  July  24,  1876,  chapter  226;  (6)  the  mileage  of  the 
secretary  of  the  commission  and  of  any  other  assistant  engineer  detailed  from  the 
Corps  of  Engineers  and  employed  under  the  commission,  at  the  rate  of  8  cents  per 
"mile,  only  when  mileage  is  authorized  by  law,  for  all  travel  required  of  them  by  t he- 
commission  pertinent  to  the  objects  for  which  it  was  constituted;  (7)  the  office  expen- 
ses of  the  commission;  (8)  the  contingent  expenses  of  the  commission.  Ibid.,  p.  217. 

Thesalaries  accruing  to  the  civilian  members  of  the  Mississippi  River  Commission, 
during  a  period  when  the  regular  appropriation  for  their  payment  is  not  available,  can 
not  legally  be  paid  from  funds  appropriated  for  the  improvement  of  the  Mississippi 
River,  unless  provision  is  specifically  made  therefor  in  the  act  appropriating  such 
funds.  Ibid.,  p.  218.  See,  also,  XVIII  Opin.  Att.  Gen.,  p.  463. 

1  Vouchers  in  support  of  payments  of  mileage  to  officers  of  the  Army  belonging  to 
or  employed  by  the  Mississippi  River  Commission  should  be  accompanied  by  orders 
for  the  journeys  performed  or  by  other  evidence  that  they  were  required  by  the 
commission  and  were  pertinent  to'  the  objects  for  which  it  was  constituted.  Ibid., 
p.  217. 


MILITARY    LAWS    OF    THE    UNITED   STATES.  .    387 

harbors,  and  public  works  for  which  appropriations  are  iJ^v.^fp^: 
herein  made  it  becomes  necessary  or  proper,  in  the  judg- 
ment of  the  Secretary  of  War,  to  take  possession  of 
material  found  on  bars  and  islands  within  the  river  banks, 
or  other  material  tying  adjacent  or  near  to  the  line  of  any 
of  said  works  and  needful  for  their  prosecution  or  main- 
tenance, the  officers  in  charge  of  said  works  may,  when 
they  can  not  agree  as  to  the  price  with  the  owners  thereof, 
in  the  name  of  the  United  States  take  possession  of  and 
use  the  same  after  first  having  paid  or  secured  to  be  paid 
the  value  thereof,  which  may  have  been  ascertained  in  the 
mode  provided  by  the  laws  of  the  State  wherein  such  prop- 
erty or  material  lies:  Provided,  however,  That  when  the 
owner  of  such  property  or  material  shall  fix .  a  price  for 
the  same  which  in  the  opinion  of  said  officer  in  charge, 
shall  be  reasonable,  he  may  take  the  same  at  such  price 
without  further  delay.  The  Department  of  Justice  shall 
represent  the  interests  of  the  United  States  in  the  legal 
proceedings  under  this  act.  Sec.  6,  act  of  July  5,  188 '4 
(23  Stat.  Z.,  148). 

1038.  The  Secretary  of  War  is  hereby  authorized  and  onw$fer  ffgffgs 
directed  to  have  water  gauges  established,  and  daily  obser-  5^tSiSr  and 
vations  made  of  the  rise  and  fall  of  the  Lower  Mississippi  R^eb40  2^  /g871- 
River  and  its  chief  tributaries,  at  or  in  the  vicinity  of  59|-    .9. 

J  oCC.  •>_•>_,  u.N. 

Saint  Louis,  Cairo,  Memphis,  Helena,  Napoleon,  Provi- 
dence, Vicksburgh,  Red  River  Landing,  Baton  Rouge, 
and  Carrollton,  on  the  Mississippi,  between  the  mouth  of 
the  Missouri  and  the  Gulf  of  Mexico;  and  at  or  in  the 
vicinity  of  Fort  Leaven  worth,  on  the  Missouri;  Rock 
Island,  on  the  Upper  Mississippi;  Louisville,  on  the  Ohio; 
Florence,  on  the  Tennessee;  Jacksonport,  on  the  White 
River;  Little  Rock,  on  the  Arkansas,  and  Alexandria,  on 
the  Red  River,  and  at  such  other  places  as  the  Secretary 
of  War  may  deem  advisable.  The  expenditure  for  the 
same  shall  be  made  from  the  appropriation  for  the  improve- 
ment of  rivers  and  harbors,  but  the  annual  cost  of  the 
observations  shall  not  exceed  the  sum  of  five  thousand 
dollars, 

1039.  The  owners  of  sawmills  on  the  Mississippi  River    Piers  and  cribs 
and  the  Saint  Croix  River  in  the  States  of  Wisconsin  and  Sppi  River.  * 
Minnesota  are  authorized  and  empowered,  under  the  direc-  278,  vr'i?,  p.'eo6; 
tion  of  the  Secretary  of  War,  to  construct  piers  or  cribs  in  f/4 ' 
front  of  their  mill  property  on  the  banks  of  the  river,  for 

the  protection  of  their  mills  and  rafts  against  damage  by 
floods  and  ice:  Provided,  however,  That  the  piers  or  cribs 


388  MILITARY    LAWS    OF   THE    UNITED    STATES. 

so  constructed  shall  not  interfere  with  or  obstruct  the 
navigation  of  the  river.  And  in  case  any  pier  or  jcrib 
constructed  under  authority  of  this  section  shall  at  any 
time  and  for  any  cause  be  found  to  obstruct  the  naviga- 
tion of  the  river  the  Government  expressly  reserves  the 
right  to  remove  or  direct  the  removal  of  it  at  the  cost  and 
expense  of  the  owners  thereof. 

souta'pas^Mis1  1040<  ^or  ^e  PurPose  °f  securing  the  uninterrupted 
sife?P4RAuer'ii  examinati°n8  and  surveys  at  the  South  Pass  of  the  Missis  - 
18  '  V54  S^PP^  Riyer?  as  provided  for  in  the  act  of  March  third,  eight- 


A    rcmtion 
made  permanent,  een  hundred  and  seventy-five,1  the  Secretary  of  War,  upon 

the  application  of  the  Chief  of  Engineers,  is  hereby  author- 
ized to  draw  his  warrant  or  requisition  from  time  to  time 
upon  the  Secretary  of  the  Treasury  for  such  sums  as  may 
be  necessary  to  do  such  work,  not  to  exceed  in  the  aggre- 
gate for  each  year  the  amount  appropriated  in  this  act  for 
such  purpose:  Provided,  however,  That  an  itemized  state- 
ment of  said  expenditures  shall  accompany  the  Annual 
Report  of  the  Chief  of  Engineers.2  Sec.  4,  act  of  Augmt 
11,  1888  (25  Stat.  Z.,  j#4). 

fo?n!^gatVonnof  104L  The  Secretary  of  War  be,  and  is  hereby,  author- 
dSSp&iSre?**'  *ze(*  to  mak'e  sucn  ru^es  an(*  regulations  for  the  navigation 
i  j£c<  5>o^ugxSJ'  °f  ^ne  South  Pass  of  the  Mississippi  River  as  to  him  shall 

looo,  V.  25,  p.  424. 

seem  necessary  or  expedient  for  the  purpose  of  preventing 
any  obstruction  to  the  channel  through  said  South  Pass 
and  any  injury  to  the  works  therein  constructed.     Sec.  o,  act 
of  August  11,  1888  (25  Stat.  Z.,  4&4). 
south  pass.          1042.  The  term  "  South  Pass,"  as  herein  employed,  shall 

Penalty  for  vi-  ,  ,  .  J 

ol?M?'  construed  as  embracing  the  entire  extent  of  channel  be- 

tween the  upper  ends  of  the  works  at  the  head  of  the  Pass 
and  the  outer  or  sea  end  of  the  jetties  at  the  entrance 
from  the  Gulf  of  Mexico;  and  any  willful  violation  of  any 
rule  or  regulation  made  by  the  Secretary  of  War  in  pur- 
suance of  this  act  shall  be  deemed  a  misdemeanor,  for 
which  the  owner  or  owners,  agent  or  agents,  master  or 
pilot  of  the  vessel  so  offending  shall  be  separately  or  col- 
lectively responsible,  and  on  conviction  thereof  shall  be 
punished  by  a  fine  not  exceeding  two  hundred  and  fifty 
dollars  or  by  imprisonment  not  exceeding  three  months, 
at  the  discretion  of  the  court.3  Ibid. 


1 18  Stat.  L.,  464. 

2  Statutory  provision  for  the  termination  of  the  agreement  with  the  late  James  B. 
Eads  for  the  maintenance  of  a  channel  through  the  South  Pass  was  made  in  section  3 
of  the  act  of  June  6,  1900  (31  Stat.  L.,  584) . 

5 See  also  section  3,  act  of  September  19,  1890  (26  Stat.  L.,  452). 


MILITARY    LAWS    OF    THE    UNITED    STATES.  389 


1043.  For  the   purpose  of   securing  the  uninterrupted  u 
work  of  operating  snag  boats  on  the  Upper  Mississippi  pls^V7r'Aug  n 
River,  and  of  removing  snags,  wrecks,  and  other  obstruc-  18l8ppro^ria'«on 
tions  in  the  Mississippi  River,  the  Secretary  of  War,  upon  fumade  perma- 
the  application  of  the  Chief  of  Engineers,  is  hereby  author- 
ized to  draw  his  warrant  or  requisition  from  time  to  time 
upon  the  Secretary  of  the  Treasury  for  such  sums  as  may 
be  necessary  to  do  such  work,  not  to  exceed  in  the  aggre- 
gate for  each  year  the  amounts  appropriated  in  this  act 
for  such  purposes:  Provided,  Jwwever,  That  an  itemized 
statement  of  said  expenses  shall  accompany  the  Annual 
Report  of  the  Chief  of  Engineers.     Sec.  h  act  o 
11,  1888(25  Stat.  Z., 


THE   MISSOURI   RIVER   COMMISSION. 


Par. 

1044.  Establishment, 

1045.  Composition. 

1046.  Duties. 


Par. 


1047.  Supervision  of  expenditures, 

1048.  Annual  report. 


1044.  A  commission   to  be  called  the  Missouri   River    Creation 
Commission  is  hereby  created,  to  consist  of  five  members. 

1045.  The  President  shall  nominate  and,  by  and  with  the 

advice  and  consent  of  the  Senate,  appoint  five  comrnis-    comixwitton. 
sioners,  three  of  whom  shall  be  selected  from  the  Corps  of  23,  p. . 144. 

Ibid,. 

Engineers  of  the  Arm}T  and  two  from  civil  life,  one  of 
whom  at  least  shall  be  a  civil  engineer;  and  he  shall  in  like 
manner  fill  any  vacancy  in  said  commission;  and  he  shall 
designate  one  of  the  commissioners  appointed  from  the 
Corps  of  Engineers  to  be  president  of  the  commission. 
The  commissioners  appointed  from  the  Corps  of  Engineers 
shall  receive  no  other  pay  or  compensation  than  is  allowed 
them  by  law,  and  the  other  two  commissioners  shall  each 
receive  for  their  services  pay  at  the  rate  of  two  thousand 
five  hundred  dollars  per  annum,  out  of  any  money  appro- 
priated for  the  Missouri  River;  and  all  said  commissioners 
shall  remain  in  office  subject  to  removal  by  the  President 
of  the  United  States.1  TUd. 

1  The  nomination  to  the  Senate,  as  a  member  of  the  Missouri  River  Commission,  of 
Clarence  L.  Chaffee,  vice  Richard  S.  Berlin,  the  confirmation  of  Mr.  Chaffee  by  the 
Senate,  "agreeably  to  the  nomination,"  the  signing  of  his  commission,  his  taking 
the  oath  of  office,  appearance  at  a  meeting  of  the  commission  and  entering  upon  the 
duties  of  the  office  on  July  6,  1897,  constitute  notice  to  Mr.  Berlin  of  his  removal  on 
that  date.  4  Compt.  Dec.,  466.  Upon  notice  to  the  incumbent  of  an  office  by  a 
person  who  has  been  appointed  thereto  that  he  is  ready  to  assume  the  duties  of  the 
office,  the  removal  of  the  incumbent  is  complete,  and  the  appointee  becomes  invested 
with  the  office  and  entitled  to  the  compensation  thereof.  Ibid.,  601. 


390        .  MILITAEY    LAWS    OF    THE    UNITED    STATES. 


1046.  It  shall  be  the  duty  of  said  commission  to  super- 
intend and  direct  such  improvement  of  said  river  and  to 
carry  into  execution  such  plans  for  the  improvement  of 
the  navigation  of  said  river  from  its  mouth  to  its  head 
waters  as  may  now  be  devised  and  in  progress,  and  to 
continue  and  complete  such  surveys  as  may  now  be  in 
progress,  and  to  make  such  additional  >  surveys,  examina- 
tions, and  investigations,  topographical,  hydrographical, 
and  hydrometrical,  and  to  consider,  devise,  and  mature 
such  additional  plan  of  plans,  and  all  such  estimates  as 
may  be  deemed  necessary  and  best,  to  obtain  and  maintain 
a  channel  and  depth  of  water  in  said  river  sufficient  for 
the  purposes  of  commerce  and  navigation  and  to  accom- 
plish the  objects  of  this  act;  and  to  enable  the  commission 
to  perform  the  duties  assigned  them  the  Secretary  of  War 
is  hereby  authorized  and  directed  to  transfer  to  and  place 
under  the  control  and  superintendence  of  said  commission 
all  such  vessels,  barges,  machinery,  and  instruments,  and 
such  plant  as  may  now  IDC  provided,  devised,  or  in  use  on 
said  river,  from  appropriations  heretofore  made  for  said 
river,  or  other  sources,  and  when  thereto  requested  by 
said  commission  to  detail  from  the  Corps  of  Engineers 
such  officers  and  men  as  may  be  necessary,  and  to  place  in 
the  charge  of  said  commission  any  such  vessels,  machin- 
ery, and  instruments  under  his  control  as  may  be  deemed 
necessary.  And  said  commission  may,  with  the  approval 
of  the  Secretary  of  War,  employ^  such  additional  force  and 
assistants,  and  provide,  by  purchase  or  otherwise,  such 
additional  vessels,  boats,  machinery,  instruments,  and 
means  as  may  be  deemed  necessary;  to  be  paid  for  by 
appropriations  made  or  to  be  made  for  said  river.  IMd. 
supervision  of  1047.  The  said  commission  shall,  under  the  direction  and 
appropriations,  with  the  approval  of  the  Secretary  of  War,  superintend, 
control,  and  expend  for  the  purposes  of  this  act  all  appro- 
priations or  unexpended  balances  heretofore  made  for  the 
improvement  of  said  river,  and  which  may  hereafter  be  made 
for  said  river,  or  so  much  thereof  as  may  be  necessary,  and 
shall  prepare  and  submit,  through  the  Chief  of  the  Engineer 
Corps,  to  the  Secretary  of  War,  to  be  by  him  transmitted 
to  Congress  at  the  beginning  of  the  regular  session  in  De- 
cember of  each  year,  a  full  and  detailed  report  of  all  their 
proceedings  and  actions,  and  of  all  such  plans  and  systems 
of  work  as  may  now  be  devised  and  in  progress  and  carried 
out  by  them,  and  of  all  such  additional  plans  and  systems 
of  works  as  may  be  devised  and  matured  b}^  them,  with 


MILITARY    LAWS    OF    THE    UNITED   STATES. 


391 


full  and  detailed  estimates  of  the  cost  thereof,  and  state- 
ments of  all  expenditures  made  by  them;  and  the  Secretary 
of  War  may  detail  from  the  Corps  of  Engineers  or  other 
corps  of  the  Army  an  officer  to  act  as  secretary  of  the  secretary, 
commission,  to  aid  them  in  their  work;  and  all  money 
hereby  or  hereafter  appropriated  for  the  improvement  of 
said  Missouri  River  shall  be  expended  under  the  direction 
of  the  Secretary  of  War  in  accordance  with  the  plans, 
specifications,  and  recommendations  of  said  commission 
when  such  plans,  specifications,  and  recommendations  shall 
have  been  approved  by  Congress.1  Ibid. 

1048.  The  Secretary  of  War  shall  cause  the  manuscript 
of  the    *  Missouri  River  Commission  to  be  placed  in  S-8'V-26'P- ^ 

the  hands  of  the  Public  Printer  on  or  before  the  fifteenth 
day  of  October  in  each  year.  Sec.  #,  act  of  August  11, 1888 
(25  Stat.  Z.,  400). 


Annual  report. 
August  11, 1888, 


THE    CALIFORNIA   DEBRIS   COMMISSION. 


Par. 

1049.  Establishment. 

1050.  Composition;  compensation. 

1051.  Jurisdiction. 

1052.  Duties. 

1053.  Surveys;  inspections. 

1054.  Condition  of  navigable  channels. 

1055.  Annual  report. 

1056.  Hydraulic  mining  defined. 

1057.  The  same;  petition  to  engage  in. 

1058.  Contents  of  petition. 

1059.  The  same;  joint  petition. 

1060.  The  same;     notice;      publication; 

hearing. 

1061.  Decisions  of  commission  to  be  made 
*  within  thirty  days. 

1062.  Plans  of  works  submitted  to  com- 

mission. 

1063.  Opening  of  works;  conditions. 

1064.  Allotment  of  expenses  of  construc- 

tion. 


1049.  A  commission  is  hereby  created,  to  be  known 
the  California   Debris  Commission,   consisting   of 
members.     The  President  of  the  United  States  shall,  by 

1  The  duties,  under  the  law,  of  the  Missouri  River  Commission,  composed  partly 
of  civilians,  relate  exclusively  to  certain  work  quite  ether  than  the  establishing  of 
harbor  lines.  It  is  therefore  not,  as  a  body,  subject  to  the  directions  of  the  Secretary 
of  War  in  the  matter  of  establishing  harbor  lines,  nor  arc  the  civilian  members  sub- 
ject individually  to  his  orders.  Thus,  while  they  may  consent  to  establish  such 
lines,  it  is  preferable  for  the  Secretary  to  cause  such  work  to  be  done  through  engi- 
neer officers  of  the  Army.  Dig.  Opiii.  J.  A.  G.,  684,  par.  2272. 


Par. 

1065.  Limits  of  debris  washed  away. 

1066.  Modification  of  orders. 

1067.  Forfeiture  of  privilege. 

1068.  Inspection  of  mines. 

1069.  Use  of  public  lands,  etc. 

1070.  Injury  to  works;  penalty. 

1071.  Violations  of  statute;  penalty. 

1072.  Tax  on  gross  proceeds. 

1073.  Debris  fund  created. 

1074.  Consultation  with   State   commis- 

sion. 

1075.  Expenditure  of  debris  fund. 

1076.  Impounding  dams,  etc. 

1077.  Treasurer  to  receive    funds    from 

State  of  California. 

1078.  State  appropriations. 

1079.  The  same;  contractors. 

1080.  The  same;  hired  labor. 

1081.  Travel  expenses  of  commissioners. 


1892>  v- 


392 


MILITARY    LAWS    OF    THE    UNITED    STATES. 


Regulations, 

Sec.  2,  ibid. 


jurisdiction. 


and  with  the  advice  and  consent  of  the  Senate,  appoint  the 
commission  from  officers  of  the  Corps  of  Engineers,  United 
States  Army.  Vacancies  occurring  therein  shall  be  filled 
in  like  manner.  It  shall  have  the  authority  and  exercise 
the  powers  hereinafter  set  forth,  under  the  supervision  of 
the  Chief  of  Engineers  and  direction  of  the  Secretary  of 
War.1  Act  of  March  1,  1892  (27  Stat.  L.  ,  507}. 

1050.  Said    commission    shall    organize    within    thirty 
days  after  its  appointment  by  the  selection  of  such  officers 
as  may  be  required  in  the  performance  of  its  duties,  the 
same  to  be  selected  from  the  members  thereof.     The  mem- 
bers of  said  commission  shall  receive  no  greater  compensa- 
tion than  is  now  allowed  by  law  to  each,  respectively,  as 
an  officer  of  said  Corps  of  Engineers.     It  shall  also  adopt 
rules  and  regulations,  not  inconsistent  with  law,  to  govern 

f  ,  '  ,  '  , 

its  deliberations  ana  prescribe  the  method  or  procedure 
under  the  provisions  of  this  act.  Sec.  2,  ibid. 

1051.  The  jurisdiction  of  said  commission,  in  so  far  as 
the  same  affects  mining  carried  on  by  the  hydraulic  pro- 
cess,   shall   extend  to   all  such  mining  in  the  territory 
drained  by  the  Sacramento  and  San  Joaquin  river  systems 
*u  ^ne  State  of  California.     Hydraulic  mining,  as  defined  in 
section  eight  hereof,  directly  or  indirectly  injuring  the  navi- 
gability of  said  river  systems,  carried  on  in  said  territory 
other  than  as  permitted  under  the  provisions  of  this  act  is 
hereby  prohibited  and  declared  unlawful.     Sec.  3,  ibid. 

1052.  It  shall  be  the  duty  of  said  commission  to  mature 

..  ,  "  .         . 

and  adopt  such  plan  or  plans,  from  examinations  and  sur- 
veys  already  made  and  trom  sucn  additional  examinations 
and  surveys  as  it  may  deem  necessary,  as  will  improve  the 
navigability  of  all  the  rivers  comprising  said  systems, 
deepen  their  channels,  and  protect  their  banks.  Such  plan 
or  plans  shall  be  matured  with  a  view  of  making  the  same 
effective  as  against  the  encroachment  of  and  damage  from 
debris  resulting  from  mining  operations,  natural  erosion, 
or  other  causes,  with  a  view  of  restoring,  as  near  as  prac- 
ticable and  the  necessities  of  commerce  and  navigation  de- 
mand, the  navigability  of  said  rivers  to  the  condition 

1  The  act  of  June  14,  1880  (21  Stat.  L.,  196),  required  the  Secretary  of  War  to  cause 
such  surveys,  etc.  ,  to  be  made  as  would  enable  a  scheme  to  be  devised  to  prevent 
further  injury  to  the  navigable  waters  of  California,  due  to  the  deposit  in  the  same 
of  de"bris  from  the  mines. 

The  members  of  the  California  Debris  Commission  do  not  hold  civil  office  within 
the  meaning  of  section  1222  of  the  Revised  Statutes,  nor  does  section  1224  of  the 
Revised  Statutes  necessitate  their  withdrawal  from  the  Engineer  Corps.  XX  Opin. 
Att.  Gen.,  604. 


mining 
plsecib3t1wa 


Duty  of  com 

mission. 

plans. 


MILITARY    LAWS    OF   THE    UNITED    STATES.  393 

existing  in  eighteen  hundred  and  sixty,  and  permitting 
mining  b}^  the  hydraulic  process,  as  the  term  is  understood 
in  said  State,  to  be  carried  on,  provided  the  same  can  be 
accomplished  without  injury  to  the  navigability  of  said 
rivers  or  the  lands  adjacent  thereto.  Sec.  4->  ibid- 

1053.  It  shall  further  examine,  survey,  and  determine    surveys  of  stor- 
the  utility  and  practicability,  for  the  purposes  hereinafter  bns,  reservoirs, 
indicated,  of  storage  sites  in  the  tributaries  of  said  rivers    sec.6,<wd. 
and  in  the  respective  branches  of  said  tributaries,  or  in  the 
plains,  basins,  sloughs,  and  tule  and  swamp  lands  adjacent 
to  or  along  the  course  of  said  rivers,  for  the  storage  of 
de*bris  or  water  or  as  settling  reservoirs,  with  the  object  of 
using  the  same  by  either  or  all  of  these  methods  to  aid  in 
the  improvement  and  protection  of  said  navigable  rivers 
by  preventing  deposits  therein  of  debris  resulting  from 
mining  operations,  natural  erosion,  or  other  causes,  or  for 
affording  relief  thereto  in  flood  time  and  providing  sufficient 
water  to  maintain  scouring  force  therein  in  the  summer  sea- 
son; and  in  connection  therewith  to  investigate  such  hy-hy^aui1^11^ 
draulic  and  other  mines  as  are  now  or  may  have  been  other  mmes>  etc- 
worked  by  methods  intended  to  restrain  the  debris  and 
material  moved  in  operating  such  mines  by  impounding 
dams,  settling  reservoirs,  or  otherwise,  and  in  general  to 
make  such  study  of  and  researches  in  the  hydraulic  mining 
industry  as  science,  experience,  and  engineering  skill  may 
suggest  as  practicable  and  useful  in  devising  a  method  or 
methods  whereby  such  mining  may  be  carried  on  as  afore- 
said.    Sec.  5,  ibid. 


1054.  The  said  commission  shall  from  time  to  time  note  ..Noting 

tion  of  navigable 

the  conditions  of  the  navigable  channels  of  said  river  sys-ch*nnfl8:..» 

J          Sec.  6,  ^b^d. 

terns,  by  cross-section  surveys  or  otherwise,  in  order  to 
ascertain  the  effect  therein  of  such  hydraulic  mining  oper- 
ations as  may  be  permitted  by  its  orders  and  such  as  is 
caused  by  erosion,  natural  or  otherwise.  Sec.  #,  ibid. 

1055.  Said  commission  shall   submit  to    the  Chief    of 
Engineers,  for  the  information  of  the  Secretary  of  War, 
on  or  before  the  fifteenth  day  of  November  of  each  year,  a 
report  of  its  labors  and  transactions,  with  plans  for  the 
construction,  completion,  and  preservation  of  the  public 
works  outlined  in  this  act,  together  with  estimates  of  the 
cost  thereof,  stating  what  amounts  can  be  profitably  ex- 
pended thereon  each  year.     The  Secretary  of  War  shall 
thereupon  submit  same  to  Congress  on  or  before  the  meet- 
ing thereof.     Sec.  7,  ibid. 


394  MILITARY    LAWS    OF    THE    UNITED    STATES. 

mi'5ng"Snd  1056>  For  the  PurP°ses  of  this  act  "  hydraulic  mining" 
roc6-  and  "  mining  by  the  hydraulic  process,"  are  hereby  de- 
'  clared  to  have  the  meaning  and  application  given  to  said 

terms  in  said  State.     Sec.  £,  ibid. 

me      1057.  The  individual  proprietor   or   proprietors,  or  in 
?omm°i?sion  *  *  h  case  °^  a  corporation  its  manager  or  agent  appointed  for 
sec.  9,  «id.      that  purpose,  owning  mining  ground  in  the  territory  in 
the  State  of  California  mentioned  in  section  three  hereof, 
which  it  is  desired  to  work  by  the  hydraulic  process,  must 
file  with  said  commission  a  verified  petition,  setting  forth 
such  facts  as  will    comply  with  law  and  the  rules  pre- 
scribed by  said  commission.     Sec.  9,  ibid. 

b  JmhiingeSaim      1058.  Said  petition  shall  be  accompanied  by  an  instru- 

accSnmoendum?  ment  duly  executed  and  acknowledged,  as  required  by  the 

infecr°nn?&Vcfc'  law  °^  the  said  State,  whereby  the  owner  or  owners  of 

such  mine  or  mines  surrender  to  the  United  States  the 

right  and  privilege  to  regulate  by  law,  as  provided  in  this 

act,  or  any  law  that  may  hereafter  be  enacted,  or  by  such 

rules  and  regulations   as  may  be   prescribed   by  virtue 

thereof,  the   manner   and   method  in   which   the   debris 

resulting  from  the  working  of  said  mine  or  mines  shall  be 

restrained,  and  what  amount  shall  be  produced  therefrom; 

it  being  understood  that  the  surrender  aforesaid  shall  not 

contents  of  pe-  be  construed  as  in  any  way  affecting  the  right  of  such 

sec.  10,  ibid,     owner  or  owners  to  operate  said  mine  or  mines  by  any 

other  process  or  method  now  in  use  in  said  State:  Pro- 

vided, That  they  shall  not  interfere  with  the  navigability 

of  the  aforesaid  rivers.     Sec.  10,  ibid. 

1059.  The  owners  of  several  mining  claims  situated  so 
as  to  require  a  common  dumping  ground  or  dam  or  other 
restraining  works  for  the  debris  issuing  therefrom  in  one 
or  more  sites  may  file  a  joint  petition  setting  forth  such 
facts  in  addition  to  the  requirements  of  section  nine 
,  hereof;  and  where  the  owner  of  a  hydraulic  mine  or  own- 
ers of  several  such  mines  have  and  use  common  dumping 
sites  for  impounding  debris  or  as  settling  reservoirs, 
which  sites  are  located  below  the  mine  of  an  applicant  not 
entitled  to  use  same,  such  fact  shall  also  be  stated  in  said 
petition.  Thereupon  the  same  proceedings  shall  be  had 
as  provided  for  herein.  Sec.  11,  ibid. 
Notice  of  peti-  1060.  A  notice,  specifying  briefly  the  contents  of  said 

tion,  etc..  to  be          .   .  ,    ,,    .  .     '  .  . 

published.         petition  and  fixing  a  time  previous  to  which  all  proofs  are 
to  be  submitted,  shall  be  published  by  said  commission  in 


io  newspaper  or  newspapers  of  general  circulation  in  the 
communities  interested  in  the  matter  set  forth  therein.  If 
published  in  a  daily  paper  such  publication  shall  continue 


MILITARY    LAWS    OF    THE    UNITED    STATES.  395 

for  at  least  ten  days  ;  if  in  a  weekly  paper,  in  at  least  three 
issues  of  the  same.    Pending  publication  thereof  said  com- 
mission  or  a  committee  thereof  shall  examine  the  mine  and 
premises  described  in  such  petition.     On  or  before  the  time  plan?)  etc.!  may 
so  fixed  all  parties  interested,  either  as  petitioners  or  con-b 
testants,  whether  miners  or  agriculturists,  may  file  affida- 
vits, plans,  and  maps  in  support  of  their  respective  claims. 
Further  hearings,  upon  notice  to  all  parties  of  record,  may    Heariu»s. 
be  granted  by  the  commission  when  necessary.      Sec.  1%, 
ibid. 

1061.  In  case  a  majority  of  the  members  of  said  com- cjj™rabte  De- 
mission, within  thirty  days  after  the  time  so  fixed,  concur th|JJy  ify^id 
in  a  decision  in  favor  of  the  petitioner  or  petitioners,  the 

said  commission  shall  thereupon  make  an  order  directing 
the  methods  and  specifying,  in  detail,  the  manner  in  which 
operations  shall  proceed  in  such  mine  or  mines ;  what  re- 
straining or  impounding  works,  if  facilities  therefor  can 
be  found,  shall  be  built  and  maintained  ;  how  and  of  what 
material ;  where  to  be  located ;  and,  in  general,  set  forth 
such  further  requirements  and  safeguards  as  will  protect 
the  public  interests  and  prevent  injury  to  the  said  navi- 
gable rivers  and  the  lands  adjacent  thereto,  with  such 
further  conditions  and  limitations  as  will  observe  all  the 
provisions  of  this  act  in  relation  to  the  working  thereof 
and  the  payment  of  taxes  on  the  gross  proceeds  of  the 
same :  Provided,  That  all  expense  incurred  in  complying 
with  said  order  shall  be  borne  by  the  owner  or  owners  of 
such  mine  or  mines.  Sec.  13,  ibid. 

1062.  Such  petitioner  or  petitioners  must,  within  a  rea-  beplsu"  mitfed  to 
sonable  time,  present  plans  and  specifications  of  all  works  eo^miff  °£;-d 
required  to  be  built  in  pursuance  of  said  order  for  exami- 
nation, correction,  and  approval  by  said  commission;  and menVSf^orkse~ 
thereupon  work  may  immediately  commence  thereon  under    supervision. 
the    supervision   of    said   commission   or   representative 

thereof  attached  thereto  from  said  Corps  of  Engineers, 
who  shall  inspect  same  from  time  to  time.     Upon  comple-    completion. 
tion  thereof,  if  found  in  every  respect  to  meet  the  require- 
ments of  the  said   order  and   said  approved  plans  and 
specifications,  permission  shall  thereupon  be  granted  to    Permission  to 

x  r  commence  min- 

the  owner  or  owners  of  such  mine  or  mines  to  commence  ins- 
mining  operations,  subject  to  the  conditions  of  said  order 
and  the  provisions  of  this  act.     Sec.  1^  ibid. 

1063.  No  permission  granted  to  a  mine  owner  or  owners^J?0^*1^: 
under  this  act  shall  take  effect,  so  far  as  regards  the  work-  jJons01^  opera" 
ing  of  a  mine,  until  all  impounding  dams  or  other  restrain-    Sec- 15'  *bui- 
ing  works,  if  any  are  prescribed  by  the  order  granting  such 


396  MILITARY    LAWS    OF    THE    UNITED    STATES. 

permission,  have  been  completed,  and  until  the  impounding 
dams  or  other  restraining*  works  or  settling  reservoirs 
provided  by  said  commission  have  reached  such  a  stage 
as,  in  the  opinion  of  said  commission,  it  is  safe  to  use  the 
et?asumctent?ysame:  Provided,  however.  That  if  said  commission  shall  be 
protected.  of  £ne  Opinion  that  the  restraining  and  other  works  already 
constructed  at  the  mine  or  mines  shall  be  sufficient  to  pro- 
tect the  navigable  rivers  of  said  systems  and  the  work  of 
said  commission,  then  the  .owner  or  owners  of  such  mine 
or  mines  may  be  permitted  to  commence  operations.  l  Sec. 
15,  ibid. 

ex^ensSforcon-      1064.  In  case  the  joint  petition  referred  to  in  section 

moif  dumps  °etce^even   ^ere°f  *s  granted,   the  commission  shall  fix    the 

sece'i6'«wa     respective  amounts  to  be  paid  by  each  owner  of  such  mines 

toward  providing  and  building  necessary  impounding  dams 

or  other  restraining  works.     In  the  event  of  a  petition 

being  filed  after  the  entry  of  such  order,  or  in  case  the 

impounding  dam  or  dams  or  other  restraining  works  have 

already  been  constructed  and  accepted  by  said  commission, 

subsequent  the  commission  shall  fix  such  amount  as  mav  be  reason- 
petitioners  to 

Prmi°er  eumping  a^e  ^or  ^e  privilege  of  dumping  therein,  which  amount 
shall  be   divided    between   the   original    owners  of  such 

of^ST^ment  impounding  dams  or  other  restraining  works  in  proportion 

owners>riginalt°  the  amount  respectively  paid  by  each  party  owning 
same.     The  expense  of  maintaining  and  protecting  such 

^Maintenance,  jomt  dams  or  works  shall  be  divided  among  mine  owners 

using  the  same  is  such  proportion  as  the  commission  shall 

Location.        determine.     In  all  cases  where  it  is  practicable,  restraining 

and  impounding  works  are  to  be  provided,  constructed, 

and  maintained  by  mine  owners  near  or  below  the  mine 

or  mines  before  reaching  the  main  tributaries  of  said  navi- 

gable waters.     Sec.  16,  ibid. 

Limit  of  debris      1065.  At  no  time  shall  any  more  debris  be  permitted  to 

washed  away.  ^  . 

sec.  17,  ibid,  be  washed  away  from  any  hydraulic  mine  or  mines  situa- 
ted on  the  tributaries  of  said  rivers  and  the  respective 
branches  of  each,  worked  under  the  provisions  of  this  act, 
than  can  be  impounded  within  the  restraining  works 
erected.  Sec.  17,  ibid. 
etc10^!  orders"  s>  1066.  The  said  commission  may  at  any  time*,  when  the 

sec.  is,  ma.     condition  of  the  navigable  rivers  or  when  the  capacities 


1The  act  ol  March  1,  1893  (27  Stat.  L.,  507),  requiring  certain  conditions  precedent 
to  be  performed  by  persons  desiring  to  engage  in  hydraulic  mining  in  the  territory 
comprised  in  the  Sacramento  and  San  Joaquin  river  systems,  is  to  be  construed  as 
entirely  prohibiting  hydraulic  mining  in  said  territory  until  application  has  been 
made  and  permission  given  in  accordance  with  the  terms  of  the  act.  U.  S.  r.  North 
Bloomfield  Gravel  Mining  Co.,  81  Fed.  Rep.,  243. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  397 

of  all  impounding  and  settling  facilities  erected  by  mine 
owners  or  such  as  may  be  provided  by  Government  au- 
thority require  same,  modify  the  order  granting  the  priv- 
ilege to  mine  by  the  hydraulic  mining  process  so  as  to 
reduce  amount  thereof  to  meet  the  capacities  of  the  facili- 
ties then  in  use,  or  if  actually  required  in  order  to  protect 
the  navigable  rivers  from  damage,  may  revoke  same  until 
the  further  notice  of  the  commission.  Sec.  18,  ibid. 

1067.  An  intentional  violation  on  the  part  of  a  mine    Forfeiture  for 

violating    condi- 

owner  or  owners,  company  or  corporation,  or  the  agents  tions. 
or  employees  of  either,  of  the  conditions  of  the  order 
granted  pursuant  to  section  thirteen,  or  such  modifications 
thereof  as  may  have  been  made  by  said  commission,  shall 
work  a  forfeiture  of  the  privileges  thereby  conferred,  and 
upon  notice  being  served  by  the  order  of  said  commission 
upon  such  owner  or  owners,  company  or  corporation,  or 
agent  in  charge,  work  shall  immediately  cease.  Said  com- 
mission shall  take  necessary  stops  to  enforce  its  orders  in 
case  of  the  failure,  neglect,  or  refusal  of  such  owner  or 
owners,  company  or  corporation,  or  agents  thereof ,  to  com- 
ply therewith,  or  in  the  event  of  any  person  or  persons, 
company  or  corporation  working  by  said  process  in  said 
territory  contrary  to  law.  See.  19,  ibid. 

1068.  Said  commission,  or  a  committee  therefrom,  or 
officer  of  said  corps  assigned  to  duty  under  its  orders, 
shall,  whenever  deemed  necessary,  visit  said  territory  and 
all  mines  operating  under  the  provisions  of  this  act.     A 
report  of  such  examination  shall  be  placed  on  file.     Sec. 
20,  ibid. 

1069.  The  said  commission  is  hereby  granted  the  right,  use  of  public 

*    "  lands  and  mate- 

to  use  any  of  the  public  lands  of  the  United  States,  or  any  naj.^  ^  ^ 
rock,  stone,  timber,  trees,  brush,  or  material  thereon  or 
therein  for  any  of  the  purposes  of  this  act;  and  the  Sec- 
retary of  the  Interior  is  hereby  authorized  and  requested, 
after  notice  has  been  filed  with  the  Commissioner  of  the 
General  Land  Office  by  said  commission,  setting  forth 
what  public  lands  are  required  by  it  under  the  authority 
of  this  section,  that  such  land  or  lands  shall  be  withdrawn 
from  sale  and  entry  under  the  laws  of  the  United  States. 
Sec.  %1,  ibid. 

1070.  Any  person   or   persons  who  willfully  or   mali- 
ciously  injure,  damage,  or  destroy,  or  attempt  to  injure, 
damage,  or  destroy  any  dam  or  other  work  erected  under 
the  provisions  of  this  act  for  restraining,  impounding,  or 
settling  purposes,  or  for  use  in  connection  therewith,  shall 


398  MILITARY    LAWS    OF   THE    UNITED   STATES. 

be  guilty  of  a  misdemeanor,  and  upon  conviction  thereof 
penalty.  shall  be  fined  not  to  exceed  the  sum  of  five  thousand  dol- 
lars or  be  imprisoned  not  to  exceed  five  years,  or  by  both 
such  fine  and  imprisonment  in  the  discretion  of  the  court. 
Sec.  82,  ibid. 

tbJr°aettiaImiji!     1071.  And  any  person  or  persons,  company  or  corpora- 

dez?*c?nor'  tion,  their  agents  or  employees,  who  shall  mine  b}^  the 
hydraulic  process  directly  or  indirectly  injuring  the  navi- 
gable waters  of  the  United  States,  in  violation  of  the  pro- 
visions of  this  act,  shall  be  guilty  of  a  misdemeanor,  and 
upon  conviction  thereof  shall  be  punished  by  a  fine  not 
Penalty.  exceeding  five  thousand  dollars  or  by  imprisonment  not 
exceeding  one  year,  or  by  both  such  fine  and  imprison- 

tivehen  opera~ment  in  the  discretion  of  the  court:  Provided,  That  this 
section  shall  take  effect  on  the  first  day  of  Ma}%  eighteen 
hundred  and  ninety -three.  Ibid. 

1072.  Upon  the  construction  by  the  said  commission  of 
dams  or  other  works  for  the  detention  of  debris  from 
hydraulic  mines  and  the  issuing  of  the  order  provided  for 
by  this  act  to  any  individual,  company,  or  corporation  to 
work  any  mine  or  mines  by  hydraulic  process,  the  indi- 
vidual, company,  or  corporation  operating  thereunder 
working  any  mine  or  mines  by  hydraulic  process,  the 
debris  from  which  flows  into  or  is  in  whole  or  in  part 
restrained  by  such  dams  or  other  works  erected  by  said 
commission,  shall  pay  a  tax  of  three  per  centum  on  the 
gross  proceeds  of  his,  their,  or  its  mine  so  worked;  which 
tax  of  three  per  centum  shall  be  ascertained  and  paid  in 
accordance  with  regulations  to  be  adopted  by  the  Secretary 
of  the  Treasury,  and  the  Treasurer  of  the  United  States 
is  hereby  authorized  to  receive  the  same.  Sec.  23,  ibid. 

fund  "  created1  s     1073.  All  sums  of  money  paid  into  the  Treasury  under 
Expenditures  this  section  shall  be  set  apart  and  credited  to  a  fund  to 

from  same  by  the 

e°SSlssion'  ^e  known  as  the  "  Debris  fund,"  and  shall  be  expended  by 
said  commission  under  the  supervision  of  the  Chief  of 
Engineers  and  direction  of  the  Secretary  of  War,  in 
addition  to  the  appropriations  made  by  law,  in  the  con- 
struction and  maintenance  of  such  restraining  works  and 
settling  reservoirs  as  may  be  proper  and  necessary:  Pro- 
vided, That  said  commission  is  hereby  authorized  to  re- 
ceive and  pay  into  the  Treasury  from  the  owner  or  owners 
of  mines  worked  by  the  hydraulic  process,  to  whom  per- 
mission may  have  been  granted  so  to  work  under  the  pro- 
visions hereof,  such  money  advances  as  may  be  offered  to 
aid  in  the  construction  of  such  impounding  dams  or  other 


MILITAEY    LAWS    OF   THE    CTN1TED   STATES.  399 

restraining  works,  or  settling  reservoirs,  or  sites  therefor, 
as  may  be  deemed  necessary  by  said  commission  to  protect 
the  navigable  channels  of  said  river  systems,  on  condition 
that  all  moneys  so  advanced  shall  be  refunded  as  the  said 
tax  is  paid  into  the  said  debris  fund:  And  provided  further, 
That  in  no  event  shall  the  Government  of  the  United  States 
be  held  liable  to  refund  same  except  as  directed  by  this 
section.  Ibid. 

1074.  For  the  purpose  of  securing  harmony  of  action  m^om mission 
and  economy  in  expenditures  in  the  work  to  be  done  by  ^^f^f  J^ 
the  United  States  and  the  State  of  California,  respectively,  negeJJ  24  ^^ 
the  former  in  its  plans  for  the  improvement  and  protec- 
tion of  the  navigable  streams  and  to  prevent  the  depos- 
iting of  mining  debris  or  other  materials  within  the  same, 

and  the  latter  in  its  plans  authorized  by  law  for  the  recla- 
mation, drainage,  and  protection  of  its  lands,  or  relating 
to  the  working  of  hydraulic  mines,  the  said  commission  is 
empowered  to  consult  thereon  with  a  commission  of  engi- 
neers of  said  State,  if  authorized  by  said  State  for  said 
purpose,  the  result  of  such  conference  to  be  reported  to 
the  Chief  of  Engineers  of  the  United  States  Army,  and  if 
by  him  approved  shall  be  followed  by  said  commission. 
Sec.  ^4,  ibid. 

1075.  Said  commission,  in  order  that  such  material  as  & 

is  now  or  may  hereafter  be  lodged  in  the  tributaries  of  £  bree 
the  Sacramento  and  San  Joaquin  river  systems,  resulting  above  %>adtCof 
from  mining  operations,  natural  erosion,  or  other  causes, 
shall  be  prevented  from  injuring  the  said  navigable  rivers 
or  such  of  the  tributaries  of  either  as  may  be  navigable  and 
the  land  adjacent  thereto,  is  hereby  directed  and  empow- 
ered, when  appropriations  are  made  therefor  by  law,  or 
sufficient  money  is  deposited  for  that  purpose  in  said  debris 
fund,  to  build  at  such  points  above  the  head  of  navigation 
in  said  rivers  and  on  the  main  tributaries  thereof,  or 
branches  of  such  tributaries,  or  at  any  place  adjacent  to 
the  same  which,  in  the  judgment  of  said  commission  will 
effect  said  object  (the  same  to  be  of  such  material  as  will 
insure  safety  and  permanency),  such  restraining  or  im- 
pounding dams  and  settling  reservoirs,  with  such  canals, 
locks,  or  other  works  adapted  and  required  to  complete 
same.  Sec.  25,  ibid. 

1076.  The  recommendations  contained  in  Executive  Doc- 
ument  Numbered  Two  hundred  and  sixty -seven,  Fifty-fi 
Congress,  second  session,  and  Executive  Document  Num- 
bered  Ninety-eight,  Forty-seventh  Congress,  first  session, 


400  MILITARY    LAWS    OF    THE    UNITED    STATES. 

as  far  as  they  refer  to  impounding  dams,  or  other  restrain- 
ing works,  are  hereby  adopted,  and  the  same  are  directed 
18'  to  be  made  the  basis  of  operations.  The  sum  of  fifteen 
thousand  dollars  is  hereby  appropriated,  from  moneys  in 
the  Treasury  not  otherwise  appropriated,  to  be  immedi- 
ately available,  to  defray  the  expenses  of  said  commission. 
Ibid. 

theunitedrstetes     1077'  Tlie  Treasurer  of   the  United   States  is  hereby 
to  receive  funds  authorized  to  receive  from  the  State  of  California,  through 

appropriated  bv  >  e 

g^^teof0a"*the  debris  commission  of  said  State,  or  other  officer 
29Jun232' 18%I  v'  thereunto  duly  authorized,  any  and  all  sums  of  money  that 
have  been,  or  may  hereafter  be,  appropriated  by  said  State 
for  the  purposes  herein  set  forth.  And  said  sums  when 
so  received  are  hereby  appropriated  for  the  purposes  above 
named,  to  be  expended  in  the  manner  above  provided.  A.ct 
of  June  3,  1896  (29  Stat.  Z.,  838). 

ure*o?iState'  a  d  1078.  For  the  purpose  of  carrying  out  the  following  pro- 
propriations.  vision  of  the  river  and  harbor  act  of  eighteen  hundred  and 
ninety -six:  "For  the  construction  of  restraining  barriers 
for  the  protection  of  the  Sacramento  and  Feather  rivers  in 
California,  two  hundred  and  fifty  thousand  dollars,  such 
restraining  barriers  to  be  constructed  under  the  direction 
of  the  Secretary  of  War  in  accordance  with  the  recommen- 
dations of  the  California  Debris  Commission,  pursuant  to 
the  provisions  of  and  for  the  purposes  set  forth  in  sec 
tion  twenty -five  of  the  act  of  the  Congress  of  the  United 
States  entitled,  'An  act  to  create  the  California  Debris 
Commission  and  regulate  hydraulic  mining  in  the  State  of 
California,'  approved  March  firrt,  eighteen  hundred  and 
ninety-three:  Provided,  That  the  Treasurer  of  the  United 
States  be,  and  he  is  hereby,  authorized  to  receive  from 
the  State  of  California,  through  the  debris  commission  of 
said  State,  or  other  officer  thereunto  duly  authorized,  any 
and  all  sums  of  money  that  have  been  or  may  hereafter 
•  be  appropriated  by  said  State  for  the  purposes  herein  set 
forth.  And  said  sums  when  so  received  and  hereby  appro- 
priated for  the  purposes  above  named,  to  be  expended  in 
the  manner  above  provided,"  and  for  the  further  purpose 
of  making  available  to  the  United  States  the  appropriation, 
or  any  part  thereof,  made  by  the  provisions  of  an  act  of 
the  legislature  of  the  State  of  California,  approved  March 
seventeenth,  eighteen  hundred  and  ninety-seven,  entitled 
"An  act  to  amend  an  act  entitled  'An  act  to  provide  for 
the  appointment,  duties,  and  compensation  of  a  debris 


MILITARY    LAWS    OF   THE    UNITED   STATES.  401 

commissioner,  and  to  make  appropriation  to  be  expended 
under  his  directions  in  the  discharge  of  his  duties  as  such 
commissioner,  approved  March  twenty-fourth,  eighteen 
hundred  and  ninety-three,'"  and  of  said  amended  act,  the 
Secretary  of  War  is  hereby  authorized, -in  the  preparation 
for  and  construction  of  the  proposed  works  authorized 
and  appropriated  for  by  the  aforesaid  provisions,  to  enter 
into  an  agreement  that  the  contractor  shall  look  solely  to  thttg  Contractor 
the  State  of  California  for  one-half  of  such  expense,  to  be  £  stote°for°hai:f 
paid  out  of  said  State  appropriation,  and  the  United  States  expense8> etc- 
shall  in  no  manner  be  liable  for  said  one-half.     Act  of 
July  1,  1898  (30  Stat.  Z.,  631). 

1079.  The  provisions   of   an  act  of   Congress   entitled  l(Sl^&  £l 
"An  act  making  appropriations  for  sundry  civil  expenses  Sne-hal/ oncost 
of  the  Government  for  the  fiscal  year  ending  June  thirtieth,  ^j&Sx^-im,  v. 
eighteen  hundred  and  ninety-nine,  and  for  other  purposes,"  30>  p* 1148> 
approved  July  first,  eighteen  hundred  and  ninety-eight, 
authorizing  the  Secretary  of  War,  in  expending  certain 
specified  appropriations  in  the  preparation  for  and  con- 
struction of  certain  works  for  the  restraining  or  impound- 
ing of  mining  debris  in  the  State  of  California,  to  enter 

into  a  contract  or  contracts  wherein  the  contractor  or  con- 
tractors shall  look  solely  to  that  State  for  one-half  of  such 
expense,  and  that  the  United  States  shall  in  no  wise  be 
liable  for  said  one-half,  are  hereby  extended  to  any  appro- 
priations, when  made,  that  may  hereafter  be  made  for 
said  purposes.1  Act  of  March  3,  1899  (30  Stat.  Z.,  liy$). 

1080.  The  Secretary  of  War,  in  carrying  out  the  pro- 
visions  of  any  act  of  Congress  providing  for  the  restrain- 
ing  or  impounding  of  mining  debris  in  California,  may,  in 
his  discretion,  when  in  his  judgment  the  aggregate  of  ap- 
propriations already  made  by  said  State  and  Congress  and 
available  therefor  are  sufficient  to  complete  the  same, 
undertake  the  works  necessary  thereto  by  hired  labor  and 
by  purchase  of  supplies  and  materials  therefor,  and  may 
accept  payments  on  account  thereof  as  the  work  progresses 
under  and  according  to  the  provisions  of  the  acts  of  the 
legislature  of  said  State  for  such  purposes.     Ibid. 

1081.  Officers  of  the  commission  traveling  on  duty  in 
connection  with  the  commission's  work  may  be  paid  their  ^prohibited  e~ 
actual  traveling  expenses  in  lieu  of  mileage  allowed  by    Ibid" 

law,  and  shall  hereafter  receive  no  mileage.  Act  of  March 
3,  1899  (30  Stat.  Z.,  1109). 

*The  act  of  July  1,  1898  (30  Stat.  L.,  631),  contained  a  similar  requirement. 
22924—08 26 


402  MILITARY    LAWS    OF   THE    UNITED   STATES. 

THE   ISTHMIAN   CANAL   COMMISSION. 

commission.  1082  The  president  of  the  United  States  of  America  be, 
3  ^a3o,  pA8i5o.8' an^  he  *s  hereby,  authorized  and  empowered  to  make  full 
and  complete  investigation  of  the  Isthmus  of  Panama  with 
a  view  to  the  construction  of  a  canal  by  the  United  States 
across  the  same  to  connect  the  Atlantic  and  Pacific  oceans; 
that  the  President  is  authorized  to  make  investigation  of 
any  and  all  practicable  routes  for  a  canal  across  said  Isthmus 
of  Panama,  and  particularly  to  investigate  the  two  routes 
known  respectively  as  the  Nicaraguan  route  and  the 
Panama  route,  with  a  view  to  determining  the  most  prac- 
ticable and  feasible  route  for  such  calial,  together  with  the 
proximate  and  probable  cost  of  constructing  a  canal  at  each 
of  two  or  more  of  said  routes.  And  the  President  is  further 
authorized  to  investigate  and  ascertain  what  rights,  privi- 
leges and  franchises,  if  any,  may  be  held  and  owned  by  any 
corporations,  associations,  or  individuals,  and  what  work, 
if  any,  has  been  done  by  such  corporations,  associations, 
or  individuals  in  the  construction  of  a  canal  at  either  or 
any  of  said  routes,  and  particularly  at  the  so-called  Nicara- 
guan and  Panama  routes,  respectively;  and  likewise  to 
ascertain  the  cost  of  purchasing  all  of  the  rights,  privileges, 
and  franchises  held  and  owned  by  any  such  corporations, 
associations,  and  individuals  in  any  and  all  of  such  routes, 
particularly  the  said  Nicaraguan  route  and  tb^  said  Panama 
route;  and  likewise  to  ascertain  the  probable  or  proxi- 
mate cost  of  constructing  a  suitable  harbor  at  each  of  the 
termini  of  said  canal,  with  the  probable  annual  cost  of 
maintenance  of  said  harbors,  respectively.  And  generally 
the  President  is  authorized  to  make  such  full  and  complete 
investigation  as  to  determine  the  most  feasible  and  prac- 
ticable route  across  said  Isthmus  for  a  canal,  together  with 
the  cost  of  constructing  the  same  and  placing  the  same  under 
the  control,  management,  and  ownership  of  the  United 
States.  Sec.  3,  act  of  March  3, 1899  (30  Stat.  L.,  1150). 
empSylSTeJc11'  1083-  To  enable  the  President  to  make  the  investiga- 
sec.  4,  ibid,  tions  and  ascertainments  herein  provided  for  he  is  hereby 
authorized  to  employ  in  said  service  any  of  the  engineers 
of  the  United  States  Army,  at  his  discretion,  and,  likewise, 
to  employ  any  engineer  in  civil  life,  at  his  discretion,  and 
any  other  persons  necessary  to  make  such  investigation, 
and  to  fix  the  compensation  of  any  and  all  of  such  engi- 
neers and  other  persons.  Sec.  h  ibid. 


MILITARY    LAWS    OF    THE    UNITED    STATES. 


403 


1084.  For  the  purpose  of  defraying  the  expenses 
sary  to  be  incurred  in  making  the  investigations  herein  pro-  8i°£c  5  md 
vided  for  there  is  hereby  appropriated,  out  of  any  money 
in  the  Treasury  not  otherwise  appropriated,  the  sum  of 
one  million  dollars,  or  so  much  thereof  as  may  be  neces- 
sary, to  be  disbursed  by  order  of  the  President.     Sec.  5, 


1085.  The  President  is  hereby  requested  to  report  to    Sec-  MMi 
Congress  the  results  of  such  investigations,  together  with 
his  recommendations  in  the  premises.     Sec.  6,  ibid. 


FORTIFICATIONS. 


Par. 

1086.  Procurement  of  sites. 

1087.  Donations  of  land. 

1088.  Procedure  in  emergency. 


Par. 

lu«9.  Disbursements. 
1090.  Injury  to   mines,   torpedoes,  etc. ; 
penalty. 


1086.  Hereafter  the  Secretary  of  War  may  cause  pro-ofps^ecsurement 
ceedings  to  be  instituted  in  the  name  of  the  United  States  ^fij8' 1890' v- 
in  any  court2  having  jurisdiction  of  such  proceedings  for 

lSee  also  the  title  "Board  of  Ordnance  and  Fortification,"  in  the  chapter  entitled 
THE  ORDNANCE  DEPARTMENT.  See  also  par.  696,  ante. 

The  act  of  February  10,  1875,  contained  the  following  provision:  " For  torpedoes 
for  harbor  defenses  and  the  preservation  of  the  same,  and  for  torpedo  experiments 
in  their  application  to  harbor  and  land  defense,  and  for  instruction  of  engineer  bat- 
talion in  their  preparation  and  application,  fifty  thousand  dollars:  Provided,  That 
the  money  herein  appropriated  for  torpedoes  shall  only  be  used  in  the  establishment 
and  maintenance  of  torpedoes  to  be  operated  from  shore  stations  for  the  destruction 
of  an  enemy's  vessel  approaching  the  shore  or  entering  the  channels  and  fairways  of 
harbors,"  which  was  repeated  in  the  acts  of  February  10,  1875,  June  20,  1876,  March 
3,  1877,  March  23,  1878,  March  3,  1879,  May  4,  1880,  March  3,  1881,  and  May  19, 
1882.  The  act  of  March  3,  1883,  contained  the  requirement  that  "one-half  of  the 
money  herein  appropriated  may  be  used  in  the  purchase  of  torpedoes  of  the  latest 
improvement." 

If,  in  the  opinion  of  the  Chief  of  Engineers,  a  contemplated  building  will  be  an 
appliance  necessary  in  the  operation  of  submarine  mines  for  the  defense  of  harbors, 
or  will,  when  completed,  be  used  in  operating  such  mines,  or  in  such  a  way  as  to 
render  their  operation  possible  for  the  defense  of  harbors,  the  cost  of  its  erection  is 
chargeable  to  the  appropriation  for  torpedoes  for  harbor  defense.  3  Compt.  Dec. ,  30. 

2  A  proceeding  to  condemn  lands  for  the  use  of  the  United  States  under  this  statute 
is  properly  brought  in  a  district  court  of  the  United  States.  In  such  proceeding 
the  practice  should  be  in  substantial  conformity  with  that  pursued  in  the  courts  of 
the  State  in  which  the  lands  are  situated,  when  similar  proceedings  are  there  insti- 
tuted. U.  S.  v.  Engeman,  45  Fed.  Rep.,  546. 

The  manner  in  which  the  power  of  eminent  domain  of  the  United  States  shall  be 
exercised  is  a  matter  of  legislative  discretion,  and  Congress,  by  the  act  of  August  1, 
1888  (25  Stat,  L.,  357),  has  vested  in  the  United  States  circuit 'and  district  courts  of 
the  district  in  which  land  is  situated  jurisdiction  of  proceedings  authorized  to  be 
instituted  by  any  public  officer  to  condemn  such  land  for  public  purposes.  By  the 
act  of  August  18;  1890  (26  Stat.  L.,  316),  the  Secretary  of  War  is  authorized  to  cause 
proceedings  to  be  instituted  for  the  condemnation  of  land  for  military  purposes  "in 
any  court  having  jurisdiction  of  such  proceedings."  Held,  that  said  acts  are  in pari 
materia,  and  upon  an  application  by  the  Secretary  of  War,  under  the  latter  act,  the 
Attorney-General  may,  at  his  election,  cause  proceedings  to  be  instituted  for  the 
condemnation  of  land  for  military  purposes  in  either  the  State  or  Federal  courts. 
Chappell  v.  U.  S.,  81  Fed.  Rep.,  764. 

Where  land  proposed  to  be  conveyed  by  a  State  to  the  United  States  for  the  pur- 


404  MILITARY    LAWS    OF   THE    UNITED    STATES. 

the  acquirement,  by  condemnation,  of  any  land,  or  right 
pertaining  thereto,  needed  for  the  site,  location,  construc- 
tion, or  prosecution  of  works  for  fortifications  and  coast 
defenses,  such  proceedings  to  be  prosecuted  in  accordance 
with  the  laws  relating  to  suits  for  the  condemnation  of 
property  of  the  States  wherein  the  proceedings  may  be 
instituted:  Provided,  That  when  the  owner  of  such  land 
or  rights  pertaining  thereto  shall  fix  a  price  for  the  same, 
which,  in  the  opinion  of  the  Secretary  of  War,  shall  be 
reasonable,  he  may  purchase  the  same  at  such  price  with- 
out further  delay.  Act  of  August  18,  1890(26  Stat.  L., 
316). 

Donations.  1Q87.  The  Secretary  of  War  is  hereby  authorized  to  ac- 

cept on  behalf  of  the  United  States  donations  of  lands  or 
rights  pertaining  thereto  required  for  the  above-mentioned 
purposes.  Ibid. 

case°CofUremer-      1088.  In  case  of  emergency  when,  in  the  opinion  of  the 

gejn<KNo.  is.      President,  the  immediate  erection  of  an}T  temporary  fort 

3oApr737.'189b'v'or  fortification   is   deemed  important  and   urgent,   such 

temporary  fort  or  fortification  may  be  constructed  upon 

the  written  consent  of  the  owner  of  the  land  upon  which 

such  work  is  to  be  placed;  and  the  requirements  of  section 

three  hundred  and  fifty-five  of  the  Revised  Statutes  shall 

not  be  applicable  in  such  cases.     Joint  resolution  No.  18, 

of  April  11,  1898  (30  Stat.  L.,  737). 

Disbursements.      1089.  It  shall  be  the  duty  of  the  engineer  superintending 
162,  s.  27,  v.  5,  p.  the  construction  of  a  fortification,  or  ensragfed  about  the 

260;  July  7,  1838, 

c.  194,  v.5,  p.  308.  execution  of  any  other  public  work,  to  disburse  the  moneys 
'  applicable   to  the   same;   but   no   compensation  shall  be 
allowed  him  for  such  disbursements.1 


pose  of  fortifications  was  described  in  the  proffered  deed  as  extending  to  the  sea  and 
in  a  line  along  the  sea,  held  that  such  a  deed  would  convey  only  land  extending  to 
and  bounded  by  a  high-water  mark,  and  advised  that  the  grant  should  be  so 
expressed  as  specifically  to  include  the  shore  to  low- water  mark,  and  should  also 
embrace  such  water-covered  lands  as  would  be  sufficient  to  prevent  the  erection,  by 
the  authority  of  the  State,  of  structures  that  might  interfere  with  the  proper  use  of 
the  land  for  purposes  of  fortifications.  Dig.  Opin.  J.  A.  G.,  par.  1560. 

1  When  an  engineer  officer  is  sent  to  any  military  department,  fortress,  garrison,  or 
post,  a  duplicate  of  his  orders  will  be  sent  to  the  commanding  officer.  On  his  arrival 
the  engineer  officer  will  communicate  his  orders,  and  necessary  facilities  for  execut- 
ing them  will  be  afforded  by  the  commanding  officer.  While  so  on  duty,  without 
being  especially  put  under  the  direction  of  the  commanding  officer,  the  engineer 
officer  will  be  furnished  with  copies  of  all  orders  and  regulations  of  the  command 
relative  to  etiquette  and  police,  and  with  the  countersign  when  quartered  within  a 
chain  of  sentinels.  The  engineer  officer  will  report  to  the  commanding  officer  when 
relieved  from  duty  within  the  limits  of  the  command.  Par.  1689,  A.  R.,  1901. 

Engineer  officers  engaged  in  the  construct! on  of  fortifications  or  other  public  works 
are  entitled  to  the  same  allowances  of  quarters,  mess  rooms,  and  kitchens,  with  fuel 
for  the  same,  as  are  provided  by  regulations  for  officers  at  garrisoned  posts.  Par.  1690, 
ibid. 

When  the  Chief  of  Engineers  is  satisfied  that  any  fortification  is  in  all  respects 
complete  so  far  as  the  functions  of  his  department  are  concerned,  he  will  give  notice 


MILITARY    LAWS    OF    THE    UNITED    STATES.  405 


1090.  Any  person  who  shall  willfully,  wantonly,  or  mail-  nto  e 
ciously  trespass  upon,  injure,  or  destroy  any  of  the  works  doje^  etc' 
or  property  or  material  of  any  submarine  mine  or  torpedo,  30  P- 
or  fortification  or  harbor-defense  system  owned  or  con- 
structed or  in  process  of  construction  by  the  United  States, 
or  shall  willfully  or  maliciously  interfere  with  the  operation 
or  use  of  any  such  submarine  mine,  torpedo,  fortification, 
or  harbor-defense  s}^stem,  or  shall  knowingly,  willfully  or 
wantonly  violate  any  regulation  of  the  War  Department 
that  has  been  made  for  the  protection  of  such  mine,  tor- 
pedo, fortification  or  harbor-defense  system  shall  be  pun- 
ished, on  conviction  thereof  in  a  district  court  of  the  United 
States  for  the  district  in  which  the  offense  is  committed, 
by  a  fine  of  not  less  than  one  hundred  nor  more  than  five 
thousand  dollars,  or  with  imprisonment  for  a  term  not 
exceeding  five  years,  or  with  both,  in  the  discretion  of  the 
court.  Act  of  July  7,  1898  (30  Stat.  Z.,  717). 

THE    NAVIGABLE    WATEKS    OF    THE    UNITED    STATES. 


Par.  i    Par. 


1095.  Rivers  in  Alabama. 

1096.  The  Maquoketa  River,  Iowa. 

1097.  The  Cuivre  River,  Missouri. 


1091.  Navigable  rivers. 

1092.  Rivers  in  Louisiana. 

1093.  The  Iowa  River. 

1094.  The  Des  Moines  River. 

1091.  All  navigable  rivers,  within  the  territory  occupied 
by  the  public  lands,  shall  remain  and  be  deemed  public 
highways  ;  and,  in  all  cases  where  the  opposite  banks  of  29^aJ  y8 11' 
any  streams  not  navigable  belong  to  different  persons,  the^^'^  ^fp3'^27' 
stream  and  the  bed  thereof  shall  become  common  to  both.    Sec-24'6^-s. 

1092.  All  the  navigable  rivers  and  waters  in  the  former    Rivers  in  Lou- 
Territories  of  Orleans  and  Louisiana  shall  be  and  forever    Mar.' 3,  mi,  c. 

,  ,.      ,   .     ,  46,s.l2,v.2,p.606. 

remain  public  highways.  Sec.525i,R.s. 

thereof  to  the  Secretary  of  War,  that  it  may  be  turned  over  for  occupation  by  the 
troops.  Until  its  completion  has  been  announced,  no  work  will  be  occupied  by 
troops  except  by  the  special  order  of  the  Secretary  of  War.  Par.  1486,  A.  R.  1895. 

No  alterations  will  be  made  in  any  fortification  or  in  its  casemates,  quarters,  bar- 
racks, magazines,  storehouses,  or  any  other  building  belonging  to  it,  nor  will  any 
building  of  any  kind  or  work  of  earth,  masonry,  or  timber  be  erected  within  the 
fortification  or  within  a  mile  of  its  exterior,  except  under  the  direction  of  the  Chief 
of  Engineers  United  States  Army  and  by  authority  of  the  Secretary  of  War.  Par. 
1691,  A.  R.,  1901. 

1  The  doctrine  of  the  common  law  as  to  the  navigability  of  waters  has  no  applica- 
tion in  this  country.  Here  the  ebb  and  flow  of  the  tide  do  not  constitute  the  usual 
test,  as  in  England,  or  any  test  at  all  of  the  navigability  of  waters.  The  test  by  which 
to  determine  the  navigability  of  waters  in  our  rivers  is  found  in  their  navigable  capac- 
ity. Those  rivers  are  navigable  rivers  in  law  which  are  navigable  in  fact.  ^  Rivers 
are  navigable  in  fact  when  they  are  used,  or  are  susceptible  of  being  used,  in  their 
ordinary  condition,  as  highways  for  commerce,  on  which  trade  and  travel  are,  or 
may  be  conducted,  in  the  customary  modes  of  trade  and  travel  on  waters;  and  they 
constitute  navigable  waters  of  the  United  States,  within  the  meaning  of  the  acts  of 
Congress,  in  contradistinction  from  the  navigable  waters  of  the  States,  when  they  form, 


406  MILITAEY    LAWS    OF   THE    UNITED    STATES. 

The  Iowa  river.  1093.  So  much  of  the  Iowa  River  within  the  State  of 
Res.  NO.  55,  v.  is!  Iowa  as  lies  north  of  the  town  of  Wapello  shall  not  be 
1870,  c.' 92,  v.  ie|  deemed  a  navigable  river  or  public  highway,  but  dams 

Sec.'5248,R.s.  arid  bridges  may  be  constructed  across  it. 

in  their  ordinary  condition,  by  themselves,  or  by  uniting  with  other  waters,  a  con- 
tinued highway  over  which  commerce  may  be  carried  on  with  other  States  or  foreign 
countries  in  the  customary  modes  in  which  such  commerce  is  Conducted  by  water. 
The  Daniel  Ball,  10  Wall,  557;  The  Montello,  11  Wall.,  411;  Ex  parte  Boyer,  109 
U.  S.,  629. 

If  a  river  is  not  of  itself  a  highway  for  commerce  with  other  States  or  foreign  coun- 
tries, or  does  not  form  such  highway  by  its  connecton  with  other  waters,  and  is  only 
navigable  between  different  places  within  the  State,  it  is  not  a  navigable  water  of  the 
United  States,  but  only  a  navigable  water  of  a  State.  The  Montello,  11  Wall.,  411. 

The  right  to  regulate  commerce  includes  the  right  to  regulate  navigation,  and  hence 
to  regulate  and  improve  navigable  rivers  and  ports  on  such  rivers.  So.  Car.  v.  Ga., 
93  U.  S.,  4;  Oilman  v.  Philadelphia,  3  Wall.,  713. 

In  the  case  of  the  Willamette  Bridge  Co.  v.  Hatch  (125  U.  S.,  1),  it  was  held  that 
clauses  similar  to  that  contained  in  the  ordinance  of  1787  (1  Stat.  L.,  52,  note)  to  the 
effect  that  "the  navigable  waters  leading  into  the  Mississippi  and  the  St.  Lawrence, 
and  the  carrying  places  between  them,  shall  be  common  highways  and  forever  free, 
as  well  to  the  inhabitants  of  the  said  territory  as  to  the  citizens  of  the  United  States 
and  those  of  any  other  States  that  may  be  admitted  into  the  Confederacy,  without 
any  tax,  impost,  or  duty  therefor  "  (see  also  act  of  February  14, 1859, 11  Stat.  L.,  383), 
do  not  refer  to  physical  obstructions,  but  to  political  regulations  which  would  hamper 
the  freedom  of  commerce,  '  and  can  not  be  regarded  as  establishing  the 

police  power  of  the  United  States  over  such  river,  or  as  giving  the  Federal  courts 
jurisdiction  to  hear  and  determine,  according  to  Federal  law,  every  complaint  that 
may  be  made  of  an  impediment  in,  or  an  encroachment  upon,  the  navigation  of  these 
rivers.  *  Nor  does  the  expenditure  of  money  in  improving  navigation  of  such 

rivers  import  an  assumption  of  police  power. 

When  Congress,  in  the  exercise  of  its  exclusive  power  to  direct  how  the  public  money 
shall  be  employed,  has  appropriated  a  certain  sum  to  be  devoted,  without  exceptions 
or  provisos,  to  a  certain  specific  internal  improvement,  it  devolves  upon  the  Executive 
Department  of  the  Government,  charged  as  it  is  with  the  execution  of  the  laws  enacted 
by  the  Legislature,  to  proceed  with  the  work  under  the  appropriation,  without  enter- 
taining any  question  as  to  the  expediency  of  the  expenditure.  Thus  where  Congress 
had  made  in  general  terms  an  appropriatioi*  of  a  specific  amount  for  improving  a  cer- 
tain river,  advised  that  it  was  for  the  officer  charged  with  the  improvement  simply 
to  do  the  work,  without  delaying,  to  raise  or  consider  questions  or  claims  of  title  to 
the  land,  etc.,  to  be  affected  by  the  improvement;  such  matters  being  quite  beyond 
the  province  of  an  executive  official  under  the  circumstances.  Dig.  Opin.  J.  A.  G., 
par.  1487. 

The  United  States  is  not  the  owner  of  the  soil  of  the  beds  of  navigable  waters  [see 
the  definition  of  the  term  "navigable  waters  of  the  United  States,"  in  The  Daniel 
Ball,  10  Wall.,  557;  Ex  parte  Boyer,  109  U.  S.,  629],  nor  of  the  shores  of  tide  wa^rs 
below  high-water  mark,  nor  of  the  shores  of  waters  not  affected  by  the  tide  below 
the  ordinary  water  line  of  the  same,  except  as  it  may  have  become  grantee  of  such 
soil  from  the  State  or  from  individuals.  The 'property  and  jurisdiction  in  and  over 
the  beds  and  shores  of  navigable  waters  is  in  general  in  the  State,  or  in  the  individual 
riparian  owner  [Pollard  r.  Hagan,  3  How.,  212;  Barney  v.  Keokuk,  94  U.  S.,  337; 
Gilman  v.  Philad.,  3  Wall.,  713;  South  Carolina  r.  Georgia,  93  U.  S.,  4;  VI  Opin. 
Att.  Gen.,  172;  VII  ibid.,  314;  XVI  ibid.,  479].  But  under  the  power  to  regulate 
commerce  Congress  may  assume,  as  it  has  recently  assumed,  the  power  so  to  regulate 
navigation  over  navigable  waters  within  the  States  as  to  prohibit  its  obstruction  and 
to  cause  the  removal  of  obstructions  thereto,  and  such  power  when  exercised  is 
' '  conclusive  of  any  right  to  the  contrary  asserted  under  State  authority.  [Wisconsin 
v.  Duluth,  96  U.  S.,  379].  In  exercising  this  power  it  can  not  divest  rights  of  title  or 
occupation  in  a  State  or  individuals,  but  these  rights  are  left  to  be  enjoyed  as  before, 
subject,  however,  to  the  paramount  public  right  of  freeing  navigation  from  obstruc- 
tion, possessed  and  exercised  by  the  United  States  through  Congress.  In  the  execu- 
tion of  the  laws  relating  to  obstructions  to  navigation  the  Secretary  of  War  has  no 
general  authority,  but  only  such  as  may  have  been  vested  in  him  by  legislation  of 
Congress,  especially  in  the  river  and  harbor  appropriation  acts.  Ibid.,  par.  1773. 

As  between  the  United  States  and  a  State,  the  soil  of  the  bed  of  navigable  waters 
and  of  the  shores  of  tide  waters  below  high- water  mark,  or — on  rivers  not  reached 


MILITARY   LAWS    OF   THE    UNITED   STATES.  407 

1094.  The  Des  Moines  River  shall  forever  remain  free  RTheDesMoines 
from  any  toll,  or  other  charge  whatever,  for  any  property  1QW.  8, is^c. 
of  the  United  States,  or  persons  in  their  service,  passing  Jan^ 20'  ISTO.C.?,' 
along  the  same.  Sec. 52*6,  E.S. 

by  the  tide — the  soil  of  the  shores  below  the  ordinary  water  line  (as  not  affected  by 
freshet  or  unusual  drought)  belongs  to  the  State.  But  natural  accretions  to  land 
owned  by  private  individuals  belong  to  the  owners  of  the  land.  Thus,  held,  that  the 
accretions  to  Hog  Island,  in  the  mouth  of  the  Missouri  River,  belonged,  not  to  the 
United  States  or  to  the  State  of  Missouri,  but  to  the  owner  of  the  island.  Ibid.,  pars. 
1559, 1711  and  1712. 

WThere  the  title  to  tide  lands  along  the  shores  of  a  State  is  vested  in  such  State  by 
virtue  of  its  sovereignty,  and  tide  lands  along  the  shores  of  any  Territory  are  held  in 
trust  by  the  General  Government  for  the  future  State,  nevertheless  the  rule  now  is 
that,  during  the  Territorial  period,  the  United  States  holds  the  permanent  dtle  to  tide 
lands  and  may  make  grants  thereof.  Carroll  v.  Prince,  81  Fed.  Rep.,  138;  Shively  v. 
Bowlby,  152  U.  S.,  1;  Mann  v.  Land  Co.,  153,  ibid.,  273. 

Held,  that  it  was  doubtful  whether  "floatable"  streams,  i.  e.,  streams  capable  only 
of  being  used  for  floating  saw  logs,  timber,  etc.,  not  being  navigable  in  a  general 
sense,  were  included  in  the  term  ' '  navigable  waters  of  the  United  States, ' '  as  employed 
in  statutes  providing  that  dams  shall  not  be  constructed  in  such  waters  without  the 
permission  of  the  Secretary  of  War.  But  held,  that  it  was  clearly  competent  for  Con- 
gress, under  the  commerce  clause  of  the  Constitution,  to  exercise  legislation  over  such 
streams  as  highways  of  interstate  commerce.  Dig.  Opin.  J.  A.  G.,  par.  1793.  See 
also  Martin?-.  Waddell,  16  Pet.,  367;  Pollards  Hagan,  3  How.,  212;  Pennsylvania 
v.  Wheeling  Bridge  Co.,  13  How.,  518;  Den  v.  Jersey  Co.,  15  How.,  426. 

POWER   OF   THE   STATES. 

Until  the  dormant  power  of  the  Constitution  is  awakened  and  made  effective  by 
appropriate  legislation  the  reserved  power  of  the  State  is  plenary,  and  its  exercise  in 
good  faith  can  not  be  made  the  subject  of  review  by  this  court.  Gilman  v.  Philadel- 
phia, 3  Wall.,  713.  The  power  to  construct  work  of  rivers  and  harbor  improvement 
in  the  navigable  waters  of  the  United  States,  as  an  incident  of  the  power  to  regulate 
commerce  "covering  as  it  does  a  wide  field,  and  embracing  a  great  variety  of  sub- 
jects, some  of  which  will  call  for  uniform  rules  and  national  legislation,  while  others 
can  best  be  regulated  by  rules  suggested  by  the  varying  circumstances  of  differing 
places,  and  limited  in  their  operation  to  such  places  respectively;  and  to  the  extent 
required  by  these  last  cases,  the  power  to  regulate  commerce  may  be  exercised  by 
the  States."  Ibid.  However,  Congress  may  interpose  whenever  it  shall  be  deemed 
necessary,  by  either  general  or  special  laws.  It  may  regulate  all  bridges  over  navi- 
gable waters,  remove  offending  bridges,  and  punish  those  who  shall  thereafter  erect 
them.  Ibid.  It  is  for  Congress  to  determine  when  its  full  power  shall  be  brought 
into  activity,  and  as  to  the  regulations  and  sanctions  which  shall  be  provided.  U.  S. 
v.  New  Bedford  Bridge,  1  Woodbury  and  Minot,  420,  421;  U.  S.  r.  Cornet,  12  Pet., 
72;  N.  Y.  v.  Milne,  11  Pet,  102,  155;  The  Wheeling  Bridge  Cases,  13  How.,  518;  18 
ibid.,  521. 

A  State  has  power  to  change  the  channels  of  rivers  within  the  State  for  purposes 
of  internal  improvement.  Withers  v.  Buckley,  20  How.,  84;  So.  Car.  v.  Ga.,  93 
U.  S.,  4.  In  the  absence  of  legislation  by  Congress,  a  State  statute  authorizing  the 
erection  of  a  dam  across  a  navigable  river  which  is  wholly  within  its  limits  is  not 
unconstitutional.  Wilson  v.  Blackbird  Creek  Marsh  Co. ,  2  Pet. ,  245 ;  Pound  v.  Turck, 
95  U.  S.,  459. 

Acts  of  Congress  merely  making  appropriations  for  the  improvement  of  a  river 
lying  within  a  State  do  not  operate  as  an  inhibition  against  State  legislation  authoriz- 
ing the  construction  of  booms,  dams,  piers,  etc.,  so  as  to  make  unlawful  such  struc- 
tures when  erected  under  State  authority.  U.  S.  v.  Bellingham  Bay  Boom  Co.,  81 
Fed.  Rep. ,  658.  To  bring  obstructions  and  nuisances  in  navigable  waters  lying  within 
a  State  within  the  cognizance  of  the  Federal  courts,  there  must  be  some  statute  of 
the  United  States  directly  applicable  to  such  streams.  Ibid.,  58;  Wilson  v.  Marsh 
Co.,  2  Peters,  245,  252;  Gilman  v.  Philadelphia,  3  Wallace,  713;  The  Passaic  Bridges, 
ibid.,  782,  793;  Pound  v.  Turck,  95  U.  S.,  459;  Escanaba  and  L.  M.  Transpn.  Co.  v. 
Chicago,  107  U.  S.,  78,  83;  Cardwell  v.  Bridge  Co.,  113  U.  S.,  205,  208;  Bridge  Co. 
v.  Hatch,  125  U.  S.,  8.  The  act  of  September  19,  1890  (26  Stat.  L.,  426),  which,  in 
section  10,  prohibits  the  creation  of  any  obstruction  not  "affirmatively  authorized 
by  law"  to  the  navigable  capacity  of  waters  over  which  the  United  States  has  juris- 


408  MILITARY    LAWS    OF    THE    UNITED    STATES. 

1095-  The  Tennessee,  Coosa,  Cahawba,  and  Black  War- 


frMay°23,  1828,'  c.  rior  Rivers,  within  the  State  of  Alabama,  shall  be  forever 
^ree  fr°m  toU  f°r  a^  property  belonging  to  the  United 
States,  and  for  all  persons  in  their  service,  and  for  all  citi- 
zens of  the  United  States,  except  as  to  such  tolls  as  may 
be  allowed  by  act  of  Congress.1 

iQ96.  The  assent  of  Congress  is  given  to  the  construc- 
i  ^on  °^  bridges  across  the  Maquoketa  River,  within  the 
vsec'  52io'R  s  State  of  Iowa,  with  or  without  draws,  as  may  be  provided 
by  the  laws  of  that  State.2 

diction,  was  not  retroactive  so  as  to  make  unlawful  the  continuance  of  a  boom  con- 
structed prior  to  its  passage,  under  the  authority  of  a  State  law.  U.  S.  v.  Bellingham 
Bay  Boom  Co.,  81  Fed.  Rep.,  658;  U.  S.  v.  Burns,  54  Fed.  Rep.,  351,  362. 

The  authority  conferred  upon  the  Secretary  of  War  by  the  act  of  June  29,  1888 
(25  Stat.  L.,  209),  does  not  extend  to  the  waters  of  the  Hudson  River  as  far  distant 
as  Troy,  Albany,  and  New  Baltimore.  The  term  "tributary  waters,"  as  used  in  that 
act,  covers  only  such  parts  of  the  river  as,  in  a  broad  sense,  can  be  regarded  as 
connected  with"  that  harbor.  XIX  Opin.  Att.  Gen.,  317. 

The  waters  of  the  East  River  comprise  navigable  waters  of  the  United  States  lying 
wholly  within  the  limits  of  a  State.  XX  Opin.  Att.  Gen.,  479. 

The  Chicago  River  is  navigable  and  under  control  of  Congress;  but  until  that  body 
acts  the  State  of  Illinois  has  authority,  and  may  vest  in  the  city  of  Chicago  jurisdic- 
tion over  the  construction  of  a  bridge  within  the  city  limits.  Escanaba  Co.  v.  Chicago, 
107  U.  S.,  678.  The  State  of  Michigan  authorized  the  improvement  of  a  river  wholly 
within  that  State,  and  the  exaction  of  the  tolls  for  the  use  of  the  river  so  improved. 
Held,  that  the  statute  did  not  impair  the  contract  contained  in  the  ordinance  of  1787, 
giving  the  people  the  right  to  use  the  waters  leading  into  the  St.  Lawrence  free  of 
duty,  tax,  or  impost.  Sands  v.  Manistee  River  Imp.  Co.,  123  U.  S.,  288;  Ruggles 
v.  The  same,  ibid.  ,.297. 

1  Tide  lands.  —  In  this  country  waters  to  be  navigable  in  law  must  be  capable  of 
navigation  in  fact  as  a  highway  for  commerce.     [Where  evidence  as  to  the  character 
of  a  stream  is  conflicting,  whether  it  is  a  navigable  stream  within  the  meaning  of 
section  3  of  the  act  of  July  13,  1892  (27  Stat.  L.,  110),  is  a  question  of  law  and  fact 
for  the  jury.     Leovy  v.  U.  S.,  92  Fed.  Rep.,  344.]     A  bay  or  arm  of  one  of  the  Great 
Lakes,  some  4,000  acres  in  extent,  of  the  average  depth  of  not  more  than  2  feet  and 
rarely  more  than  3  feet,  covered  with  grass  and  rushes  in  summer,  and  which  was 
surveyed  and  patented  to  the  State  as  swamp  land  is  not  navigable  water,  but  merely 
a  marsh,  and  subject  to  private  ownership.     Toledo  Liberal  Shooting  Club  v.  Erie 
Shooting  Club  Co.,  90  Fed.  Rep.,  680;  Barney  v.  Keokuk,  94  U.  S.,  324;  The  Daniel 
Ball,  10  Wallace,  557-563;  The  Montello,  20  Wallace,  430-441. 

The  title  to  tide  lands  along  the  shores  of  a  State  is  vested  in  such  State  by  virtue 
of  its  sovereignty,  and  tide  lands  along  the  shores  of  any  Territory  are  held  in  trust 
by  the  General  Government  for  the  future  State;  nevertheless,  the  rule  now  is  that 
during  the  Territorial  period  the  United  States  holds  the  permanent  title  to  tide 
lands,  and  may  make  grants  thereof.  Carroll  v.  Price,  81  Fed.  Rep.,  137;  Shively  v. 
Bowlby,  152  U.  S.,  1;  Mann  v.  Land  Co.,  153  U.  S.,  273. 

Marshes  and  mud  shoals  on  the  sides  of  harbors  and  streams  within  the  influence 
of  the  tides  may  be  granted  by  the  State  to  private  parties  when  this  can  be  done 
without  interfering  with  the  public  rights  of  navigation  in  the  streams  and  harbors 
themselves,  and  in  South  Carolina  marsh  lands  of  this  character  have  always  been 
treated  as  subject  to  grant.  But  as  to  public  navigable  streams  themselves,  the 
sovereign  holds  them  in  trust  for  the.  public  use,  and  can  make  no  valid  grant 
thereof,  such  as  would  hinder  or  impede  the  rights  of  the  public  therein.  Chisolm 
v.  Caines,  7  Fed.  Rep.,  285;  Illinois  Central  R.  R.  Co.,  14  U.  S.,  45;  Shively  v. 
Bowlby,  152  U.  S.,  548;  Lowndes  v.  Board,  153  ibid.,  758;  Hardin  v.  Jordan,  140  ibid., 
371;  City  of  Hoboken  v.  Pennsylvania  R.  R.  Co.,  124  ibid.,  56. 

Wharves  come  within  admiralty  jurisdiction.  In  England  wharf  property  may 
extend  to  low-  water  mark;  in  this  country  to  the  point  of  navigability.  Cliffords 
Case,  34Ct.  Cls.,223. 

2  Riparian  rights.  —  The  rights  of  riparian  owners  of  land  situated  upon  navigable 
rivers  are  to  "be  measured  by  the  rules  and  decisions  of  the  courts  of  the  State  in 
which  the  land  is  situated,  whether  it  be  one  of  the  original  States  or  a  State  admitted 


MILITARY    LAWS    OF   THE    UNITED    STATES.  409 


1097.  Cuivre  River,  in  the  counties  of  Lincoln  and  Saint 
Charles,  in  the  State  of  Missouri,  being  the  dividing  line,  ^MJ^J;  1900, 
is  hereby  declared  not  to  be  a  navigable  stream,  and  shall  v-  81«  p-  50- 
be  so   treated  by  the  Secretary  of  War   and   all  other 
authorities.     Act  of  March  23,  1900  (31  Stat.  Z.,  50). 


PRELIMINARY   SURVEYS — ESTIMATES REPORTS. 

Par.  I  Par. 

1098.  Reports.  |  1102.  Estimates. 

1099,  1100,  1101.  Restriction  on  surveys,      1103.  Annual  reports. 

etc. 

1098.  In  every  case  where  surve}rs  are  made,  the  report    5u|°2tsi882  v 
thereon  shall  embrace  such    information  concerning  the 22>  p- 213- 
commercial  importance,  present  and  prospective,  of  the 

after  the  adoption  of  the  Constitution.  St.  Anthony  Falls  Water  Power  Co.  v.  St. 
Paul  Water  Commissioner,  168  U.  S.,  349;  Martin  v.  Waddell,  16  Peters,  367;  Pol- 
lard v.  Hagan,  3  Howard,  212;  Goodtitle  v.  Kibbe,  9  Howard,  471;  Barney  v.  Keo- 
kuk,  94  U.  S.,  324;  The  Genesee  Chief,  12  Howard,  443;  St.  Louis  v.  Myers,  113  U.  S., 
566;  Packer  v.  Bird,  137  U.  S.,  661;  Hardin  v.  Jordan,  140  U.  S.,  371;  St.  Louis  v. 
Rutz,  138  U.  S.,  226,  242;  Kaukauna  Water  Power  Co.  v.  Green  Bay  and  Mississippi 
Canal  Co.,  142  ibid.,  254;  City  of  Janesville  v.  Carpenter,  77  Wisconsin,  288,  300; 
Shively  v.  Bowlby,  152  U.  S.,  1. 

The  royal  charters  granted  by  the  English  Crown  to  the  founders  of  the  Atlantic 
colonies  conveyed  to  the  grantees  both  the  territory  described  and  the  powers  of 
government;  and,  under  such  charters,  the  dominion  or  property  in  the  navigable 
waters  and  in  the  soil  under  them  passed  as  a  part  of  the  prerogative  rights  annexed 
to  the  political  powers  conferred  on  the  patentees,  and  in  their  hands  were  intended 
to  be  a  trust  for  the  common  use  and  benefit  of  the  new  communities,  and  not  as 
private  property  which  could  be  parceled  out  and  sold;  and,  on  the  Revolution, 
such  rights  became  vested  in  the  several  States  for  like  purposes,  where  such  as  were 
not  surrendered  by  the  Constitution  to  the  Federal  Government  remain.  Morris  v. 
U.  S.,  174  U.S.,  196. 

Taking  of  lands  for  public  use. — When  the  Government,  for  the  purpose  of  improv- 
ing the  navigation  of  a  river,  takes  possession  of  submerged  land  which  is  in  the  use 
and  possession  of  a  citizen  under  a  right  derived  from  the  State,  it  takes  private  prop- 
erty for  a  public  use,  and  must  compensate  the  owner  therefor.  Brown  v.  U.  S.,  81 
Fed.  Rep.,  55. 

Acts  done  in  the  proper  exercise  of  governmental  powers,  and  not  directly  encroach- 
ing upon  private  property,  although  their  consequences  may  impair  its  use,  are  not 
a  taking  within  the  meaning  of  the  constitutional  provision  which  forbids  the  taking 
of  such  property  for  public  use  without  just  compensation  therefor.  Transportation 
Co.  v.  Chicago,  99  U.  S.,  635;  XVIII  Opin.  Att.  Gen.,  64.  The  United  States  may 
occupy  and  use  soil  within  the  bed  of  a  river  for  the  improvement  of  the  navigation 
of  such  river,  such  occupation  and  use  not  giving  rise  to  a  question  under  the  law  of 
eminent  domain,  the  soil  being  held  by  its  owners  subject  to  the  higher  right  of  the 
United  States  in  respect  to  the  navigation  of  the  river.  XVIII  Opin.  Att.  Gen.,  64; 
High  Bridge  Lumber  Co.  v.  U.  S.,  9  Fed.  Rep.,  320;  Cooley,  Constitutional  Limita- 
tions, pp.  541-543;  Railroad  Co.  v.  Bingham,  87  Tenn.,  522;  Smith  v.  Washington, 
20  Howard,  135;  Transportation  Co.  v.  Chicago,  99  U.  S.,  635-641. 

Section  6  of  the  act  of  June  3,  1896  (29  Stat.  L.,  235),  contained  the  requirement 
that  the  "Secretary  of  War  is  hereby  authorized  and  directed  to  cause  to  be  made 
and  transmitted  to  the  first  session  of  the  Fifty-fifth  Congress  a  compilation  giving  a 
complete  list  of  all  the  preliminary  examinations  that  have  heretofore  been  made, 
date  of  report,  with  a  statement  as  to  each,  whether  favorable  or  unfavorable  for 
survey;  also  a  complete  list  of  all  surveys  that  have  heretofore  been  made,  with  a 
statement  as  to  each,  whether  favorable  for  adoption  or  unfavorable,  and  date  of 
report,  amount  recommended  for  completion  and  amount  recommended  for  each  to 
be  expended  during  the  fiscal  year  beginning  July  first,  eighteen  hundred  and  ninety- 


410  MILITARY   LAWS    OF   THE   UNITED   STATES. 

improvement  contemplated  thereby,  and  such  general  com- 
mercial statistics  as  the  Secretary  of  War  may  be  able  to 
procure.1     Act  of  August  2,  1882  (22  Stat.  Z.,  213). 
su?vlys!cetcn  on      1099.  No  preliminary  examination,2  survey,  project,  or 
s.  vvn3o3p.ii49!  estimate  for  new  works  other  than  those  designated  in  this 
or  some  prior  act  or  resolution  shall  be  made.     Sec.  2,  act 
of  March  3,  1899  (30  Stat.  Z.,  1149). 

J^esame.  1100.  After  the  regular  or  formal  report  on  any  exam- 

ination, survey,  project,  or  work  under  way  or  proposed 
is  submitted,  no  supplemental  or  additional  report  or  esti- 
mate for  the  same  fiscal  year  shall  be  made  unless  ordered 
by  a  concurrent  resolution  of  Congress.  Sec.  2,  act  of 
March  3,  1899  (30  Stat.  Z.,  1149). 

eight,  by  both  the  Chief  of  Engineers  and  the  engineer  in  charge;  also  a  complete 
list  of  all  projects  now  under  construction  or  maintenance,  together  with  the  year 
when  adopted,  and  if  modified,  when,  the  total  amount  expended  on  each  project 
and  estimate  of  amount  required  to  complete  the  same,  and  amount  recommended  by 
the  Chief  of  Engineers  and  by  the  engineer  in  charge  to  be  expended  during  the  fiscal 
year  beginning  July  first,  eighteen  hundred  and  ninety-eight,  the  amount  appropri- 
ated for  each  project  by  this  act,  making  reference  to  the  report  of  the  Chief  of  Engi- 
neers where  report  of  each  project  is  given,  together  with  a  statement  containing  the 
amount  of  the  unexpended  balance  to  the  credit  of  each  project  July  first,  eighteen 
hundred  and  ninety-seven,  whether  under  construction,  work  suspended,  or  appro- 
priation made  and  work  not  commenced;  also  the  total  amounts  appropriated  here- 
tofore for  the  improvement  and  maintenance  of  the  rivers  and  the  total  amounts 
heretofore  appropriated  for  the  improvement  and  maintenance  of  harbors  in  each 
river  and  harbor  act;  also  the  total  amount  of  appropriation  by  States  for  the  improve- 
ment of  rivers  and  harbors."  The  report  above  required  was  furnished  to  Congress 
by  the  Chief  of  Engineers  on  May  13,  1898.  Document  No.  482,  H.  R.,  55th  Con- 
gress, 2d  session. 

Section  2  of  the  act  of  June  3,  1896  (29  Stat.  L.,  234),  contained  the  requirement 
that  "The  Secretary  of  War  is  directed  to  cause  to  be  prepared  a  compilation  of  all 
general  laws  that  have  been  enacted  from  time  to  time  by  Congress  for  the  mainte- 
nance, protection,  and  preservation  of  the  navigable  waters  of  the  United  States 
which  are  now  in  force,  and  to  submit  the  same  to  Congress  at  its  session  in  December 
next,  together  with  such  recominendation  as  to  revision,  emendation,  or  enlargement 
of  the  said  laws  as,  in  his  judgment,  will  be  advantageous  to  the  public  interest." 

aThis  provision  was  repeated  in  the  acts  of  July  5,  1884  (23  Stat.  L.,  153),  August 
5,  1886  (24  ibid.,  335),  August  11,  1888  (25  ibid.,  433),  and  September  19,  1890  (26 
ibid.,  464). 

2Theactsof  July  13,  1892  (27  Stat.  L.,  115),  and  August  7,  1894  (28  ibid.,  369), 
contained  the  requirement  that  "The  preliminary  examinations  ordered  in  this  act 
shall  be  made  by  the  local  engineer  in  charge  of  the  district,  or  an  engineer  detailed 
for  the  purpose;  and  such  local  or  detailed  engineer  and  the  division  engineer  of  the 
locality  shall  report  to  the  Chief  of  Engineers,  first,  whether,  in  their  opinion,  the 
harbor  or  river  under  examination  is  worthy  of  improvement  by  the  General  Govern- 
ment, and  shall  state  in  such  report  fully  and  particularly  the  facts  and  reasons  on 
which  they  base  such  opinions,  including  the  present  and  prospective  demands  of 
commerce;  and,  second,  if  worthy  of  improvement  by  the  General  Government,  what 
it  will  cost  to  survey  the  same,  with  a  view  of  submitting  plan  and  estimate  for  its 
improvement;  and  the  Chief  Engineer  shall  submit  to  the  Secretary  of  War  the 
reports  of  the  local  and  division  engineers,  with  his  views  thereon  and  his  opinion 
of  the  public  necessity  or  convenience  to  be  subserved  by  the  proposed  improvement; 
and  all  such  reports  of  preliminary  examinations,  with  such  recommendations  as  he 
may  see  proper  to  make,  shall  be  transmitted  by  the  Secretary  of  War  to  the  House 
of  Representatives,  and  are  hereby  ordered  to  be  printed  when  so  made."  The  acts 
of  August  2,  1882  (22  Stat.  L.,  213),  July  5,  1884  (23  ibid.,  153),  Augusts,  1886  (25 
ibid.,  433),  September  19,  1890  (26  ibid.,  464),  August  17,  1894  (28  ibid.,  372),  and 
June  3,  1896  (29  ibid.,  234),  contained  similar  requirements. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  411 

1101.  The  Government   shall  not  be   deemed  to  have    SS.8*1116- 
entered  upon  any  project  for  the  improvement  of   any 
waterway  or  harbor  mentioned  in  this  act  until  funds  for 

the  commencement  of  the  proposed  work  shall  have  been 
actually  appropriated  by  law.1  Sec.  8,  act  of  March  3, 
1899  (30  Stat.  Z.,  111,9). 

1102.  Hereafter  the   Secretary  of  War  shall  annually    Estimates. 

June  4,  1897,  v. 

submit  estimates  in  detail  for  river  and  harbor  improve-  so,  p.  48. 
ments  required  for  the  ensuing  fiscal  year  to  the  Secretary 
of  the  Treasury,  to  be  included  in,  and  carried  into  the  sum 
total  of,  the  Book  of  Estimates.2     Act  of  June  4,  1897  (30 
Stat.  L.,  48). 

1103.  The  Secretary  of  War  shall  cause  the  manuscript    Annual  report 

J  of  Chief  of  En- 


of  the  annual  report  of  the  Chief  of  Engineers  and  sub- 

Sec.  8,  Aug.  11, 

ordinate  engineers,  relating  to  the  improvement  of  rivers  isss,  v.  25^.424. 

and  harbors,  and  the  report  of  the  Mississippi  and  Mis- 

souri River  commissions  to  be  placed  in  the  hands  of  the 

Public  Printer  on  or  before  the  fifteenth  day  of  October 

in  each  year,  and  the  Public  Printer  shall  cause  said  reports 

to  be  printed,  with  an  accurate  and  comprehensive  index 

thereof,  on  or  before  the  first  Monday  in  December  in 

each  year,  for  the  use  of  Congress.     Sec.  #,  act  of  August 

11,  1888  (25  Stat.  Z., 


CONTRACTS  AND  PURCHASES. 

Par.  Par. 

1104.  Application  of  appropriations;  con-  I  1105.  Two  or  more  works  in  one  contract. 

tracts.  !  1106.  Purchases  of  lands. 


1104.  It  shall  be  the  duty  of  the  Secretary  of  War  to 
apply  the  money  herein  and  hereafter  appropriated  f  or 
improvements  of  rivers  and  harbors,  other  than  surveys, 
estimates,  and  gaugings,  in  carrying  on  the  various  works, 
by  contract  or  otherwise,  as  may  be  most  economical  and 
advantageous  to  the  Government.  Where  said  works  are 
done  by  contract,  such  contract  shall  be  made  after  suffi-  Contracts- 
cient  public  advertisement  for  proposals,  in  such  manner 
and  form  as  the  Secretary  of  War  shall  prescribe;  and 
such  contracts  shall  be  made  with  the  lowest  responsible 
bidders,  accompanied  by  such  securities  as  the  Secretary 
of  War  shall  require,  conditioned  for  the  faithful  prosecu- 

]For  a  similar  provision  gee  section  14,  act  of  August  1,  1888  (25  Stat.  L.,  433), 
and  section  13,  act  of  August  17,  1894  (28  ibid.,  371). 

2  The  act  of  March  3,  1893  (27  Stat.  L.,  603),  contained  a  similar  requirement. 

3  See  also  the  chapter  entitled  CONTRACTS  AND  PURCHASES,  the  requirements  of  which 
prevail  in  all  purchases  in  behalf  of  the  United  States  except  those  expressly  excepted 
in  this  chapter. 


412  MILITARY    LAWS    OF    THE    UNITED    STATES. 

tion  and  completion  of  the  work  according  to  such  con- 
tract.1    Sec.  3,  act  of  August  11,  1888  (25  Stat.  Z.,  $3). 
wJrksmaybe°iFn      1105-  Nothing  contained  in  section  thirty-seven  hundred 
one  contract  etc.  an(j  seventeen  of  the  Revised  Statutes  of  the  United  States, 

xt.  o.jSGC.  o/l/, 

?'2534'  7^dified;nor  in  section  three  of  the  river  and  harbor  act  of  August 
>  eleventh,  eighteen  hundred  and  eighty-eight,  shall  be  so 
construed  as  to  prohibit  or  prevent  the  cumulation  of  two 
or  more  works  of  river  and  harbor  improvement  in  the 
same  proposal  and  contract,  where  such  works  are  situated 
in  the  same  region  and  of  the  same  kind  or  character. ' 
Sec.  2,  act  of  September  19,  1890  (26  Stat.  Z.,  458). 

1  The  appropriation  of  money  for  the  improvement  of  a  harbor  on  a  navigable 
river  confers  discretionary  power  upon  the  Secretary  of  War  as  to  the  means  by 
which  such  improvement  shall  be  effected.     So.  Car.  v.  Ga.,  93  U.  S.,  4.     The  opera- 
tions of  the  Government  in  this  regard  have  been  conducted  by  the  Bureau  of  Engi- 
neering, as  part  of  the  War  Department,  to  which  Congress  has  confided  the  execution 
of  its  wishes  in  all  those  matters.          *    *    It  can  not  be  necessary  to  say  that,  when 
a  public  work  of  this  character  has  been  inaugurated  or  adopted  by  Congress  and  its 
management  placed  in  control  of  its  officers,  there  exists  no  right  in  any  other  branch 
of  the  Government  to  forbid  the  work  or  to  require  the  undoing  of  what  has  been 
done  or  to  prescribe  the  manner  in  which  it  shall  be  conducted.     Wisconsin  v.  Du- 
luth,  96  U.  S.,  379.     For  these  purposes  Congress  possesses  all  the  powers  which 
existed  in  the  States  before  the  adoption  of  the  Constitution,  and  which  have  always 
existed  in  the  Parliament  of  England.     Gilman  v.  Philadelphia,  3  Wall.,  713. 

Where  an  officer  or  agent,  charged  under  the  Secretary  of  War  and  the  Chief  of 
Engineers  with  the  duty  of  making  purchases  out  of  the  appropriations  for  river  and 
harbor  improvements,  certifies  that  the  prices  paid  were  the  lowest  market  rates 
and  the  mode  of  expenditure  adopted  the  most  economical  and  advantageous  to  the 
Government,  and  the  Chief  of  Engineers  approves  his  account  so  far  as  relates  to 
the  necessity  and  expediency  of  the  expenditures  and  the  prices  paid,  it  is  not 
within  the  province  of  the  accounting  officers  to  call  in  question  the  degree  of  wis- 
dom or  skill  which  may  have  accompanied  the  exercise  of  administrative  discretion. 
3  Compt.,  Dec.  22.  It  is  the  duty  of  the  proper  officers  of  the  War  Department  to 
determine  when  such  an  emergency  exists  requiring  immediate  delivery  of  property 
necessary  for  river  and  harbor  improvements  as  will  authorize  its  purchase  in  open 
market  without  advertisement.  Discretionary  power  in  this  respect  is  vested  by 
law  in  the  War  Department,  and  the  exercise  of  such  discretion  is  not  properly 
re  viewable  by  the  accounting  officers.  3  Dig.  2nd  Compt.,  Dec.,  par.  1116. 

2  This  provision  was  repeated  in  the  act  of  August  5,  1886  (24  Stat.  L.,  330). 

For  instructions  of  the  Comptroller  of  the  Treasury  respecting  the  rendition  of 
accounts  of  disbursing  officers  of  the  Corps  of  Engineers,  see  Vol.  IV,  Compt.  Dec. ,  727. 

Appropriations  for  continuing  the  improvement  of  rivers  and  harbors,  not  being 
limited  to  a  particular  fiscal  year  and  being  made,  by  section  5  of  the  act  of  June  20, 
1874  (18  Stat.  L.,  110),  available  until  otherwise  ordered  by  Congress,  may  be  used 
for  the  payment  of  expenses  properly  incurred  at  any  time  after  the  work  for  which 
they  are  made  was  authorized.  II  Compt.  Dec.,  496. 

An  appropriation  made  for  the  improvement  of  a  river  by  dredging  can  not  be 
used  to  build  a  training  wall  as  part  of  the  improvement.  Ill  Compt.  Dec.,  32;  see 
also  II  Compt.  Dec.,  256. 

Contractors  making  rock  excavations  on  Government  property  for  river  improve- 
ments are  to  be  considered,  so  far  as  regards  their  duty  to  avoid  injuring  third  per- 
sons, as  owrners  of  the  premises,  and  are  not  required  to  use  extraordinary  care,  such 
as  covering  their  blasts,  but  only  ordinary  care.  Passengers  on  river  steamboats, 
which  are  permitted  to  land  near  the  place  where  such  blasting  is  carrried  on  with 
the  express  understanding  that  the  boat  owner  must  assume  all  responsibility,  are 
to  be  regarded  as  there  by  mere  permission  or  sufferance  and  at  their  own  peril,  if 
ordinary  care  is  used.  Smith  v.  Day,  86  Fed.  Rep.,  62;  Morgan  v.  Penn.  R.  R.  Co., 
7  Fed.  Rep.,  78;  Eisenberg  v.  Railway  Co.,  33  Missouri  Appeals,  91;  Transit  Co.  v. 
Rourke,  10  Illinois  Appeals,  478;  Railroad  Co.  v.  Griffin,  100  Indiana,  223.  One 
who  goes  voluntarily,  in  the  prosecution  of  his  own  business,  on  public  lands  where 
improvements  are  going  on  or  are  being  made  by  contractors,  knowing  that  blasting 


MILITAEY    LAWS    OF    THE    UNITED    STATES.  413 


PURCHASE   OF    LANDS. 


1106.  The  Secretary  of  War  may  cause  proceedings  to 
be  instituted,  in  the  name  of  the  United  States,  in  any  ^ve^erX  im' 
court  having  jurisdiction  of  such  proceedings,  for  the  ac-  25Aprg|4' 1888' v' 
quirement  by  condemnation  of  any  land,  right  of  way,  or 
material  needed  to  enable  him  to  maintain,  operate,  or  pros- 
ecute works  for  the  improvement  of  rivers  and  harbors  for 
which  provision  has  been  made  by  law;  such  proceedings 
to  be  prosecuted  in  accordance  with  the  laws  relating  to 
suits  for  the  condemnation  of  property  of  the  States 
wherein  the  proceedings  maybe  instituted:  Provided,  how- 
ever, That  when  the  owner  of  such  land,  right  of  way,  or 
material  shall  fix  a  price  for  the  same,  which  in  the  opinion 
of  the  Secretary  of  War  shall  be  reasonable,  he  may  pur- 
chase the  same  at  such  price  without  further  delay :  And 
provided  further,  That  the  Secretary  of  War  is  hereby  au- 
thorized to  accept  donations  of  lands  or  materials  required 
for  the  maintenance  or  prosecution  of  such  works.1  Act  of 
April  24,  1888  (25  Stat.  Z.,  94). 

is  going  on  there,  assumes  the  risks  incident  to  the  prosecution  of  the  work  with 
ordinary  care,  though  he  is  there  by  the  sufferance  or  permission  of  the  contractors. 
Smith  v.  Day  et  al.,  86  Fed.  Rep.,  62. 

The  surgical  and  hospital  expenses  of  a  civil  employee  injured  in  the  course  of  his 
service  upon  a  Government  work  are  not  a  proper  charge  against  the  Government 
in  the  absence  of  express  statutory  provision  therefor.  1  Compt.  Dec.,  2;  ibid.,  181; 
ibid.,  271. 

The  continuous-contract  system.— By  the  act  of  June  3,  1896  (29  Stat.  L.,  207),  the 
construction  of  works  of  river  and  harbor  improvement  by  the  continuous-contract 
system  was  authorized  by  Congress.  The  practice  has  been  followed  in  subsequent 
acts  of  appropriation.  The  application  of  this  system  to  a  particular  work  involves 
the  establishment  of  a  limit  of  cost  in  the  act  authorizing  it  to  be  undertaken,  and 
the  authorization  of  the  execution  of  contracts  for  the  whole  or  a  part  of  the  work  of 
construction,  subject  to  the  restriction  that  the  amount  expended  in  any  fiscal  year 
shall  not  exceed  the  sum  specifically  appropriated  by  Congress,  such  sum  being  in 
general  a  certain  per  cent  of  the  entire  estimated  cost  of  construction. 

1  For  general  provisions  in  respect  to  the  acquisition  of  land  by  the  United  States, 
see  the  act  of  August  1,  1888,  and  the  chapters  entitled  THE  PUBLIC  LANDS  and  THE 
DEPARTMENT  OP  JUSTICE.  The  acts  of  June  14,  1880  (21  Stat.  L.,  193),  and  March  3, 
1881  (ibid.,  482),  authorized  the  expenditure  of  funds  in  the  acquisition  of  sites  for 
river  and  harbor  improvements,  by  voluntary  purchase  or  condemnation,  under  the 
direction  of  the  Secretary  of  War,  with  the  proviso  ' '  that  if  the  owners  of  such  lands 
shall  refuse  to  sell  them  at  reasonable  prices,  then  the  prices  to  be  paid  shall  be 
determined  and  the  title  and  jurisdiction  procured  in  the  manner  prescribed  by  the 
laws  of  the  State  in  which  such  lands  or  sites  are  situated." 

In  a  suit  brought  in  a  United  States  court  to  condemn  land  for  use  in  connection 
with  the  work  of  improving  a  river,  the  expenses  of  taking  the  jury  to  view  the  land 
are  payable  from  the  appropriation  of  the  Department  of  Justice  made  for  the 
expenses  of  the  United  States  courts,  and  not  from  the  War  Department  appropria- 
tion for  the  improvement  in  connection  with  which  the  land  is  needed.  II  Compt. 
Dec.,  201. 


414  MILITARY    LAWS    OF    THE    UNITED    STATES. 


MISCELLANEOUS   PROVISIONS. 


Par. 

1107.  Commercial  statistics. 

1108.  Reports  of  deterioration. 


Par. 


1109.  Fishways. 

1110.  Mileage. 


stat?stic?atrriier      1107-  Owners,   agents,   masters,   and  clerks  of  vessels 
works. h  a  r  b  ° r  arriving  at  or  departing  from  localities  where  works  of 
v.F2e!'  p21>766?9v.'  river  and  harbor  improvement  are  carried  on  shall  furnish, 
14,  pp.  vs.  421.     on  application  of  the  persons  in  local  charge  of  the  works, 
a  comprehensive  statement  of  vessels,  passengers,  freight, 
and  tonnage.     That  every  person  or   persons  offending 
against  the  provisions  of  this  act  shall,  for  each  and  every 
offense,  be  liable  to  a  fine  of  one  hundred  dollars,  or  im- 
prisonment not  exceeding  two  months,  to  be  enforced  in 
any  district  courtan  the  United  States  within  whose  terri- 
torial jurisdiction  such  offense  may  have  been  committed. 
Act  of  February  21,  1891  (26  Stat.  L.,  766). 

terioffin°f  de~  H08.  The  Secretary  of  War  shall  cause  the  Chief  of 
. S'  Engineers  of  the  United  States  Army,  in  submitting  his 
annual  reports  to  Congress  with  regard  to  works  of  river 
and  harbor  improvement  under  his  charge,  to  state  what 
deterioration,  if  any,  has  taken  place  by  destruction, 
decay,  obstructions,  or  otherwise,  in  connection  with  any 
of  such  works,  together  with  an  estimate  of  the  cost  of 
rebuilding  or  repairing  such  works  or  removing  such 
obstructions;  and  he  shall  also  cause  the  said  Chief  of 
Engineers  to  recommend,  with  his  reasons  therefor,  the 
discontinuance  of  appropriations  for  any  river  and  harbor 
work  which  he  may  deem  unworthy  of  further  improve- 
ment.1 Sec.  7,  act  of  March  8,  1899  (30  Stat.  Z.,  1150). 
ii,  H09-  Whenever  the  improvements  provided  for  by  this 
1888,  v.  25,  p.  425.  ac^  or  ^Qgg  wnich  have  heretofore  been  prosecuted  by  the 
United  States,  or  may  hereafter  be  undertaken,  shall  be 
found  to  operate  (whether  by  lock  and  dam  or  otherwise) 
as  obstructions  to  the  passage  of  fish,  the  Secretary  of  War 
may,  in  his  discretion,  direct  and  cause  to  be  constructed 
practical  and  sufficient  fishways,  to  be  paid  for  out  of  the 
general  appropriations  for  the  streams  on  which  such  fish- 

1  The  act  of  March  3, 1899  (30  Stat.  L.,  1149),  contains  the  requirement  that  "  appro- 
priations made  for  the  respective  works  herein  named,  or  so  much  thereof  as  may 
be  necessary,  may,  in  the  discretion  of  the  Secretary  of  War,  be  used  for  the  repair 
and  restoration  of  said  works  whenever  from  any  cause  they  have  become  seriously 
impaired,  as  well  as  for  the  further  improvement  of  said  works." 

Section  5  of  the  act  of  July  13,  1892  (27  Stat.  L.,  88),  contained  the  requirement 
that  no  money  thereafter  appropriated  for  works  of  river  and  harbor  improvement 
should  be  expended  for  dredging  inside  harbor  lines  duly  established  under  the 
authority  conferred  by  the  statutes  above  set  forth. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  415 

ways  may  be  constructed.1    Sec.  11,  act  of  August  11, 1888 
(25  Stat.  L.,  J$5). 

1110.  In   determining  the   mileage   of   officers   of   ^JSSSS^^ 
Corps  of  Engineers  traveling  without  troops  on  duty  con-  jand-grant  roads, 
nected  with  works  under  their  charge,  no  deduction  shall  isfv^p.1^' s" 
be  made  for  such  travel  as  may  be  necessary  on  free  or 
bond-aided  or  land-grant  railways.2     Sec.  15,  act  of  Sep- 
tember 16,  1890  (26  Stat.  L.,  456). 

OPERATION    OF    CANALS    AND    OTHER  WORKS    OF    IMPROVEMENT. 

Par. 


1113.  Regulations  to  be  posted. 


Par. 

1111.  Tolls  not  to  be  levied  or  collected 

on  canals. 

1112.  Use  of  canals,  etc.,  to  be  regnlated 

by  Secretary  of  War. 

1111.  No  tolls  or  operating  charges  whatsoever  shall  be  ^erfednor  co£ 
levied  or  collected  upon  any  vessel  or  vessels,  dredges,  or  £gted  on  canals- 
other  passing  water  craft  through  any  canal  or  other  work  18|JC;T  ^^\$ 

1  Held  (April,  1887),  that  under  the  acts  appropriating  money  for  the  improve- 
ment of  the  Columbia  River,  to  be  expended  under  the  direction  of  the  Secretary  of 
War,  the  Secretary,  while  authorized  to  make  regulations  for  the  prosecution  and 
protection  of  the  works  of  improvement,  was  not  empowered  to  require,  by  such 
regulations,  the  removal  of  fish-traps  and  pound  nets  as  obstructions  to  navigation; 
that  it  wras  not  within  the  province  of  the  Secretary  of  War  to  determine  what  is  or 
what  may  become  an  obstruction  to  navigation,  and  cause  to  be  removed  the  one  or 
prohibited  the  other  by  a  mere  order  or  regulation,  in  the  absence  of  authority 
given  by  specific  legislation  of  Congress.  Dig.  Opin.  J.  A.  G.,  par.  1781. 

A  fish  weir,  so  constructed  as  in  a  measure  to  obstruct  the  navigation  of  navigable 
waters,  can  not  legally  be  placed  in  such  waters  without  the  authority  of  the  Secre- 
tary of  War,  who,  by  section  7,  act  of  September  19,  1890,  is  empowered  to  grant 
permission  for  the  purpose.  And  so  of  a  boom  desired  to  be  placed  in  a  navigable 
river.  Ibid.,  par.  1784. 

2 The  mileage  allowance  of  officers  of  the  Corps  of  Engineers  when  traveling  on  duty 
connected  with  river  and  harbor  improvements,  being  an  expense  necessarily  inci- 
dental to  and  incurred  on  account  of  such  work,  is  properly  payable  from  the  appro- 
priations therefor  and  not  from  the  appropriation  "Pay  of  the  Army,"  at  the  special 
rates  prescribed  by  arm}-  acts  for  mileage  payable  from  said  appropriation.  3  Dig.  2d 
Compt.  Dec.,  par.  290. 

Officers  of  the  Corps  of  Engineers,  or  those  on  engineer  duty,  traveling  on  service 
connected  with  fortifications  or  works  of  public  improvement,  will  be  paid  their 
travel  allowances  from  the  special  appropriations  for  the  work.  When  traveling  on 
any  other  duty,  the  mileage  will  be  paid  by  that  branch  of  the  service  intrusted  with 
such  paymen<ke  for  the  Army.  Par.  1693,  A.  R.,  1901. 

The  provision  in  the  act  of  March  15,  1898  (30  Stat.  L.,  321),  that  "the  maximum 
sum  to  be  allowed  and  paid  to  any  officer  of  the  Army  shall  be  seven  cents  per  mile," 
applies  to  all  officers  of  the  Army,  including  officers  of  the  Corps  of  Engineers.  4 
Compt.  Dec.,  711.  An  officer  of  the  Army  traveling  under  orders  and  using  a  con- 
veyance upon  which  transportation  and  subsistence  are  furnished  or  paid  for  by  the 
Government  is  not  entitled  to  mileage.  Ibid.,  429. 

The  movements  of  an  army  officer  assigned  to  duty  requiring  him  to  move  from 
place  to  place  within  the  area  of  the  district  where  his  duties  lie,  for  which  he  is  fur- 
nished Government  transportation,  do  not  constitute  "travel"  within  the  meaning 
of  the  law  allowing  mileage  for  travel  under  orders.  Ibid.,  86. 

The  expense  for  transportation  to  a  point  not  located  on  a  railroad,  incurred  by  an 
officer  of  the  Inspector-General's  Department  in  inspecting  unserviceable  river  and 
harbor  material,  is  properly  payable  from  the  appropriation  for  the  rivei  and  harbor 
work.  3  Compt.  Dec.,  3. 


416  MILITARY    LAWS    OF    THE    UNITED    STATES. 

for  the  improvement  of  navigation  belonging  to  the  United 
States;  and  for  the  purpose  of  preserving  and  continuing 
the  use  and  navigation  of  said  canals,  rivers,  and  other  pub- 
lic works  without  interruption,  the  Secretary  of  War,  upon 
actuaTSpenses  ^ne  application    of   the  chief  engineer  in  charge  of  said 
TepSi^&ufhoT-  works,  is  hereby  authorized  to  draw  his  warrant  or  requisi- 
tion from  time  to  time  upon  the  Secretary  of  the  Treasury 
to  pay  the  actual  expenses  of  operating  and  keeping  said 
works  in  repair,  which  warrants  or  requisitions  shall  be 
paid  by  the  Secretary  of  the  Treasury,  out  of  any  money  in 
the  Treasury  not  otherwise  appropriated:  Provided^  Jtow- 
ever,  That  an  itemized  statement  of  said  expenses  shall 
accompany  the  annual  report  of  the  Chief  of  Engineers.1 
use  of  canals,      1H2.  It  shall  be  the  duty  of  the  Secretary  of  War  to 

etc.,  to  be  regu-  .  J  J 

lated  by  secre-  prescribe  such  rules  and  regulations  for  the  use,  adminis- 
sec.  4,  Aug.  17,  tration,  and  navigation  of  any  or  all  canals  and  similar 

1894,  v.  28,  p.  362. 

works  of  navigation  that  now  are,  or  that  hereafter  may  be, 
owned,  operated,  or  maintained  by  the  United  States  as  in 
his  judgment  the  public  necessity  may  require.2 

Regulations  to  1113.  Such  rules  and  regulations  shall  be  posted,  in  con- 
be  posted. 

spicuous  and  appropriate  places,  for  the  information  of  the 

public;  and  every  person  and  every  corporation  which  shall 
knowingly  and  willfully  violate  such  rules  and  regulations 
shall  be  deemed  guilty  of  a  misdemeanor  and,  on  conviction 
thereof  in  any  district  court  in  the  United  States  within 
whose  territorial  jurisdiction  such  offense  may  have  been 
committed,  shall  be  punished  by  a  fine  not  exceeding  five 

xThe  indefinite  appropriation  made  by  section  4  of  the  act  of  July  5,  1884  (23 
Stat.  L.,  147),  is  not  applicable  to  river  and  harbor  improvements  generally,  but  only 
to  a  particular  class  of  public  works,  such  as  canals,  locks,  etc. ,  in  the  use  of  which 
both  operating  expenses  and  expenses  for  repairs  are  necessarily  incurred.  XVIII 
Opin.  Att.  Gen.,  188. 

The  effect  of  this  statute  is  to  repeal  so  much  of  sections  5245,  5247,  5249,  and  5255, 
Revised  Statutes,  as  authorizes  the  imposition  of  tolls  or  other  charges  for  the  use 
of  canals  or  other  works  of  river  and  harbor  improvement  erected  at  the  expense  of 
the  United  States.  Section  5255  vested  the  management  of  the  Louisville  and  Port- 
land Canal  in  the  Secretary  of  the  Treasury  at  reduced  rates  of  toll.  The  tolls  were 
still  further  reduced  by  the  act  of  May  11,  1874  (18  Stat.  L.,  43) ,  and  the  control  of 
the  canal  transferred  to  the  Secretary  of  War,  who,  by  the  act  of  July  5,  1884  (23 
Stat.  L.,  148),  was  given  authority  to  make,  post,  and  enforce  regulations  for  the  use 
of  the  canal,  and  this  legislation  was  repeated  in  the  act  of  September  30,  1888  (25 
Stat.  L.,  497).  The  acts  of  May  18,  1880  (21  Stat.  L.,  141),  and  August  2,  1882  (22 
Stat.  L.,  209) ,  contained  a  provision  that  no  tolls  or  operating  charges  should  be  lev- 
ied upon  or  collected  from  vessels,  dredges,  or  other  water  craft  passing  through  any 
canal  or  other  improvement  of  navigation  belonging  to  the  United  States. 

2 Section  7  of  the  act  of  July  5,  1884  (23  Stat,  L.,  148),  authorized  the  Secretary  of 
War  to  prescribe  ru^es  and  regulations  for  the  use  and  administration  of  the  Des 
Moines  Rapids  Canal,  the  Saint  Marys  Falls  Canal,  and  the  Louisville  and  Portland 
Canal.  Section  14  of  the  act  of  September  19,  1890  (27  Stat.  L.,  455),  provides  that 
the  dry  dock  constructed  at  the  Des  Moines  Rapids  Canal  shall  constitute  an  inte- 
grant part  of  the  said  canal,  and  makes  the  provisions  of  section  7,  above  cited, 
applicable  to  the  same.  See  also  Dig.  Opin.  J.  A.  G.,  534,  par.  17. 


MILITAEY    LAWS    OF    THE    UNITED    STATES.  417 

hundred  dollars,  or  by  imprisonment  (in  the  case  of  a  natu- 
ral person)  not  exceeding  six  months,  in  the  discretion  of 
the  court.1  Sec.  4,  act  of  August  17, 1894  (®$  Stat.  L. 


BRIDGES,  ETC.,  OVER   THE   NAVIGABLE  WATERS  OF  THE   UNITED   STATES. 


Par.  i   Par. 


1114.  Bridges,  dams,  etc. 

1115.  Obstructions     to     navigation     by 

bridges,  piers,  etc. 


1116.  Drawbridges. 

1117.  The  same,  regulations  for  operation. 


1114.  It  shall  not  be  lawful  to  construct  or  commence  the  etc.ridges>  dams' 


construction  of  any  bridge,  dam,  dike,  or  causeway  over  s  ^c^0  3^  JJU' 

or  in  &ny  port,  roadstead,  haven,  harbor,  canal,  navigable 

river,  or  other  nayigable  water  of  the  United  States  until 

the  consent  of  Congress  to  the  building  of  such  structures 

shall  have  been  obtained  and  until  the  plans  for  the  same 

shall  have  been  submitted  to  and  approved  by  the  Chief 

of  Engineers  and  by  the  Secretary  of  War:  Provided, 

That  such  structures  may  be  built  under  authority  of  the 

legislature  of  a  State  across  rivers  and  other  Waterways 

the  navigable  portions  of   which   lie  wholly  within  the 

limits  of  a  single  State,  provided  the  location  and  plans 

thereof  are  submitted  to  and  approved  by  the  Chief  of 

Engineers  and  by  the  Secretary  of  War  before  construc- 

tion  is   commenced:    And  provided  further,  That  when 

plans  for  any  bridge  or  other  structure  have  been  approved 

by  the  Chief  of  Engineers  and  by  the  Secretar}^  of  War, 

it  shall  not  be  lawful  to  deviate  from  such  plans  either 

1  In  view  of  the  decision  of  the  Supreme  Court  in  the  case  of  the  United  States  v. 
Eaton  (144  U.  S.,  677),  it  maybe  doubted  whether  regulations  prepared  in  con- 
formity to  this  statute  can  have  the  penal  character  which  it  undertakes  to  confer. 
It  was  held  in  that  case  that  "regulations  prescribed  by  the  President  and  by  heads 
of  Departments,  under  authority  of  Congress,  may  be  regulations  prescribed  by  law 
so  as  to  lawfully  support  acts  done  under  them  and  in  accordance  with  them;  but  it 
does  not  follow  that  a  thing  required  by  them  is  a  thing  so  required  by  law  as  to 
make  a  neglect  to  do  the  thing  a  criminal  offense  in  a  citizen,  where  a  statute  does 
not  distinctly  make  the  neglect  in  question  a  criminal  offense."  U.  S.  v.  Eaton,  144 
U.  S.,  88;  Caha  v.  U.  S.,  152  U.  S.,  212,  220.  It  is  a  principle  of  the  criminal  law  that 
an  offense  which  may  be  the  subject  of  criminal  procedure  is  an  act  "  committed  or 
omitted  in  violation  of  a  public  law,  either  forbidding  or  commanding  it."  U.  S.  v. 
Eaton,  144  U.  S.,  87;  IV  American  and  English  Cyclcpedia  of  Law,  642;  IV  Black- 
stone  Com.,  5.  In  Morrill  v.  Jones  (106  U.  S.,  466),  it  was  held  that  the  Secretary  of 
the  Treasury  could  not  alter  or  amend  a  statute  by  executive  regulation;  "much 
more  does  this  principle  apply  to  a  case  where  it  is  sought  substantially  to  pre- 
scribe a  criminal  offense  by  the  regulation  of  a  Department."  That  Congress  can 
not  delegate  legislative  power  to  the  President  is  a  principle  universally  recognized 
as  vital  to  the  integrity  and  maintenance  of  the  system  of  government.  Field  v. 
Clark,  143  U.  S.,  649.  The  enforcement  of  the  law  may  be  made  to  depend  upon  a 
condition  to  be  ascertained  by  an  executive  officer,  but  such  an  exception  to  the 
uniform  operation  of  the  laws  is  not  a  grant  of  legislative  power.  Dunlap  v.  U.  S.,  33 
C.  Cls.  R,  135.  For  an  opinion  to  the  contrary  of  that  above  expressed,  however, 
see  U.  S.  v.  Ormsbee,  74  Fed.  Kep.,  207. 

22924—08  -  27 


418  MILITARY    LAWS    OF    THE    UNITED    STATES. 

before  or  after  completion  of  the  structure  unless  the 
modification  of  said  plans  has  previously  been  submitted 
to  and  received  the  approval  of  the  Chief  of  Engineers 
and  of  the  Secretary  of  War. l  Sec.  9,  act  of  March  3, 
1899  (30  Stat.  L.,  1160.) 

T     1H5.  Whenever  the  Secretary  of  War  shall  have  good 
.  reason  to  believe  that  any  railroad  or  other  bridge  now 
is,  v.  so,  p.  1153.  constructed,  or  which  may  hereafter  be  constructed,  over 

1For  enforcement  clause  see  section  17,  act  of  March  3,  1899,  paragraph  1132,  post. 
The  power  of  Congress  to  legislate  for  the  prevention  and  removal  of  physical 
obstructions  to  navigation  in  public  rivers  in  general,  (a)  having  been  allowed  to  lie 
dormant  for  nearly  a  century,  began  to  be  exercised  in  section  8  of  the  act  of  July 
5,  1884,  followed  by  the  more  explicit  legislation  on  the  subject  of  sections  9  and  10 
of  the  act  of  August  11,  1888;  such  power  having  been  previously  left  to  be  exer- 
cised by  the  States.  (6)  But  these  acts,  in  providing  for  the  remoyal  of  obstructions  to 
navigation  caused  by  bridges,  by  requiring  their  alteration,  etc.,  do  not  empower  the 
Secretary  of  War  to  resort  to  military  force  to  effect  the  purpose.  They  leave  the 
execution  of  their  provisions  to  the  law  officers  and  the  courts.  They  make  it 
the  duty  of  the  Secretary  of  War,  whenever  the  owners  or  responsible  parties,  after 
having  oeen  notified  to  do  so,  neglect  to  so  alter  a  bridge  as  to  abate  the  obstruction, 
to  apprize  the  Attorney-General,  who  is  thereupon  required  to  initiate  the  proceed- 
ings specified  in  the  statute,  (c)  Dig.  Opin.  J.  A.  G. ,  par.  613. 

The  power  thus  assumed  by  Congress  is  more  fully  exercised  in  sections  4,  5,  and 
7  of  the  act  of  September  19,  1890. 

A  distinctive  feature  of  this  act  is  that  it  in  effect  precludes  States  from  authorizing 
the  construction  of  bridges  over  navigable  waters  wnich  are  not  wholly  within  their 
territorial  limits,  and  provides  that  it  shall  not  be  lawful  to  commence  the  construc- 
tion of  a  bridge  over  navigable  water  of  the  United  States  under  any  act  of  a  State 
legislature  "  until  the  location  and  plan  of  such  bridge"  has  "been  submitted  to  and 
approved  by  the  Chief  of  Engineers  and  by  the  Secretary  of  War."  Held,  under 
this  provision,  that  the  authority  of  a  State  for  the  erection  ot  a  bridge  over  navigable 
water  within  the  State  must  be  shown  as  a  condition  precedent  to  the  approval  by 
the  Secretary  of  War.  Ibid. 

Section  7  of  the  act  of  September  19,  1890  (reenacted  in  section  3,  act  of  July  13, 
1892),  clearly  shows  that  Congress  did  not  intend  to  vest  the  Secretary  of  War  with 
discretion  to  approve  the  plans  of  any  bridge  proposed  to  be  constructed  by  State 
authority,  except  where  such  bridge  was  to  be  over  navigable  water  lying  wholly 
within  the  State.  And  held  that  the  fact  that  the  title  to  the  soil  under  the  water 
was  vested  in  a  municipality  of  the  State  did  not  affect  the  power  of  the  State  to 
grant  the  necessary  authority.  The  title  is  distinct  from  the  right  of  conservation. 
Though  the  title  be  vested  in  a  town,  there  exists  in  the  State,  by  reason  of  its  sov- 
ereignty, "  a  jus  publicum  ot  passage  and  repassage,  with  consequent  power  of  con- 
servation," under  (d)  which  it  may  concede  the  authority  required  by  the  statute. 
Ibid.,  p.  199,  par.  3. 

Section  7  of  the  act  of  1890,  in  leaving  the  matter  of  the  authorization  and  con- 
struction of  bridges  over  navigable  waters  wholly  within  States  entirely  to  the  juris- 
diction of  the  State,  except  in  so  far  as  to  require  the  approval  by  the  Chief  of 
Engineers  and  by  the  Secretary  of  War  of  the  location  and  plan  of  the  bridge,  indi- 
cates that  Congress  did  not  desire  to  exercise  any  further  control  over  the  subject. 
So,  upon  an  application  for  the  approval  by  the  Secretary  of  War  of  the  plans  of  a 
bridge  over  the  Harlem  River  which  is  wholly  within  the  State  of  New  York,  held 
that  the  fact  of  the  unusual  importance  of  this  stream,  and  of  its  immediate  connec- 
tions with  great  interstate  waterways  and  the  sea,  did  not  except  it  from  the  jurisdic- 
tion of  the  State  under  the  statute  or  make  necessary  any  special  or  additional  legis- 
lation by  Congress  for  the  authorization  or  control  of  its  system  of  bridges.  Ibid., 
par.  616. 

a  As  to  the  constitutionality  of  the  exercise  of  this  power  by  Congress,  see  Miller  v.  Mayor  of  New 
York,  109 U.S.,  393-394. 

b See  Willamette  Iron  Bridge  Co.  v.  Hatch,  126  U.  S.,  1. 

cSee  U.  S.  v.  Rider,  50  Fed.,  406,  where  it  was  held  (by  Sage,  U.  S.  Dist.  J.)  that  the  act  of  1888,  s.  9 
and  10,  was  unconstitutional  in  delegating  to  the  Secretary  of  War  "powers  exclusively  vested  in 
Congress."  It  is  to  be  regretted  that  this,  being  a  criminal  case,  could  not  have  been  appealed  to  the 
Supreme  Court. 

d  VI  Opin.  Atty.  Gen.,  178, 


MILITAEY    LAWS    OF   THE    UNITED   STATES.  419 

any  of  the  navigable  waterways  of  the  United  States  is 
an  unreasonable  obstruction  to  the  free  navigation  of  such 
waters  on  account  of  insufficient  height,  width  of  span,  or 
otherwise,  or  where  there  is  difficulty  in  passing  the  draw 
opening  or  the  draw  span  of  such  bridge  by  rafts,  steam- 
boats, or  other  water  craft,  it  shall  be  the  duty  of  the  said 
Secretary,  first  giving  the  parties  reasonable  opportunity 
to  be  heard,  to  give  notice  to  the  persons  or  corporations 
owning  or  controlling  such  bridge  so  to  alter  the  same  as 
to  render  navigation  through  or  under  it  reasonably  free, 
easy,  and  unobstructed;  and  in  giving  such  notice  he  shall 
specify  the  changes  recommended  by  the  Chief  of  Engi- 
neers that  are  required  to  be  made,  and  shall  prescribe  in 
each  case  a  reasonable  time  in  which  to  make  them.  If  at 
the  end  of  such  time  the  alteration  has  not  been  made,  the 
Secretary  of  War  shall  forthwith  notify  the  United  States 
district  attorney  for  the  district  in  which  such  bridge  is 
situated,  to  the  end  that  the  criminal  proceedings  herein- 
after mentioned  may  be  taken.  If  the  persons,  corpora- 
tion, or  association  owning  or  controlling  any  railroad  or 
other  bridge  shall,  after  receiving  notice  to  that  effect,  as 
hereinbefore  required,  from  the  Secretary  of  War,  and 
within  the  time  prescribed  by  him,  willfully  fail  or  refuse 
to  remove  the  same  or  to  comply  with  the  lawful  order  of 
the  Secretary  of  War  in  the  premises,  such  persons,  cor- 
poration, or  association  shall  be  deemed  guilty  of  a  mis- 
demeanor, and  on  conviction  thereof  shall  be  punished  by 
a  fine  not  exceeding  five  thousand  dollars,  and  every 
month  such  persons,  corporation,  or  association  shall  re- 
main in  default  in  respect  to  the  removal  or  alteration  of 
such  bridge  shall  be  deemed  a  new  offense,  and  subject 
the  persons,  corporation,  or  association  so  offending  to 
the  penalties  above  prescribed:  Provided,  That  in  any 
case  arising  under  the  provisions  of  this  section  an  appeal 
or  writ  of  error  may  be  taken  from  the  district  courts  or 
from  the  existing  circuit  courts  direct  to  the  Supreme 
Court  either  by  the  United  States  or  by  the  defendants.1 
Sec.  18,  act  of  March  3,  1899  (30  Stat.  L.,  1153). 

xThis  section  replaces  sections  4  and  5  of  the  act  of  September  19,  1890  (26  Stat. 
L.,  453),  in  pari  materia.  In  the  case  of  the  United  States  v.  The  City  of  Moline  (82 
Fed.  Rep.,  592),  decided  by  the  United  States  district  court  for  the  northern  district 
of  Illinois  in  1897,  it  was  held  that  section  4  of  the  act  of  September  19,  1890,  was 
not  unconstitutional;  see  also  Rider  v.  U.  S.,  178  U.  S.,  251,  and  Lake  Shore  R.  R. 
Co.  v.  Ohio,  165  U.  S.,165. 

The  power  of  Congress  to  regulate  bridges  over  navigable  waters  is  paramount,  and 
where  it  comes  into  conflict  with  that  of  a  State,  the  latter  necessarily  becomes  inef- 
fective. Yet,  until  Congress  acts,  and  by  appropriate  legislation  assumes  control  of 
the  subject,  the  power  of  a  State  over  bridges  across  navigable  waters  is  plenary. 
Case  of  Railroad  Bridge  at  St.  Paul,  Minn.,  XVIII  Opin.  Atty.  Gen.,  164;  Wilson  v. 


420  MILITAKY    LAWS    OF    THE    UNITED    STATES. 


us 


snaU  ^e  the  duty  of  all  persons  owning,  operat- 

|ec.  5  Aug.  i?  in§o  an(^  tending  the  drawbridges  now  built,  or  whicn 
1894,  v.  28,  p.  362.  may  hereafter  be  built  across  the  navigable  rivers  and 
other  waters  of  the  United  States,  to  open,  or  cause  to  be 
opened,  the  draws  of  such  bridges  under  such  rules  and 
regulations  as  in  the  opinion  of  the  Secretary  of  War  the 
public  interests  require  to  govern  the  opening  of  draw- 
bridges for  the  passage  of  vessels  and  other  water-crafts, 
and  such  rules  and  regulations,  when  so  made  and  pub- 
lished, shall  have  the  force  of  law.  Every  such  person 
who  shall  willfully  fail  or  refuse  to  open,  or  cause  to  be 
opened,  the  draw  of  any  such  bridge  for  the  passage  of  a 
boat  or  boats,  or  who  shall  unreasonably  delay  the  opening 
of  said  draw  after  reasonable  signal  shall  have  been  given, 
as  provided  in  such  regulations,  shall  be  deemed  guilty  of 
a  misdemeanor,  and  on  conviction  thereof  shall  be  pun- 
ished by  a  fine  of  not  more  than  two  thousand  dollars  nor 
less  than  one  thousand  dollars,  or  by  imprisonment  (in  the 
case  of  a  natural  person)  for  not  exceeding  one  year,  or  by 
both  such  fine  and  imprisonment,  in  the  discretion  of  the 
court:  Provided,  That  the  proper  action  to  enforce  the  pro- 
visions of  this  section  may  be  commenced  before  any  com- 
missioner, judge,  or  court  of  the  United  States,  and  such 
commissioner,  judge,  or  court  shall  proceed  in  respect 
thereto  as  authorized  by  law  in  case  of  crimes  against  the 
United  States.1  Sec.  5,  act  of  Augmt  17,  1894  (%8  Stat. 
Z., 


The  Blackbird  Marsh  Co.,  2  Peters,  250;  Gilman  v.  Philadelphia,  3  Wallace,  713; 
Pound  v.  Turck,  95  U.  S.,  459;  Escanaba  Co.  v.  Chicago,  107  U.  S.,  678;  Bridge  Co.  v. 
U.  S.,  105  U.  S.,  470;  Miller  v.  The  Mayor,  109  U.  S.,  385;  Gloucester  Ferry  Co.  v. 
Pennsylvania,  114  U.  S.,  196;  Luxton  v.  North  River  Bridge  Co.,  153  U.  S.,  525. 

By  the  act  of  February  19,  1869  (15  Stat.  L.,  272),  the  construction  of  a  drawbridge 
over  the  Connecticut  River  at  Middletown,  Conn. ,  was  authorized  by  Congress.  The 
State  statute  authorizing  the  construction  of  the  bridge,  of  which  the  act  above  referred 
to  was  in  the  nature  of  a  confirmation  and  approval  by  Congress,  required  draws  l '  not 
less  than  130  feet  in  width  in  the  clear,"  and  the  bridge  was  to  be  located  and  con- 
structed in  such  manner  and  according  to  such  plans  as  should  be  approved  by  a 
board  of  engineers  to  be  appointed  by  the  superior  court.  The  bridge  was  built 
accordingly  under  the  supervision  and  with  the  approval  of  a  board  of  engineers  of 
which  two  of  the  members  were  Generals  McCIellan  and  Gillmore.  The  draw  space 
was  130  feet  wide  in  the  clear  between  the  abutments  down  to  the  level  of  low  water; 
below  that,  the  riprap,  sloping  outward  from  the  piers,  diminished  the  clear  space 
toward  the  bottom  of  the  river.  Held,  that  the  contemporaneous  construction  of  the 
act  as  requiring  the  full  width  down  to  the  level  of  low  water  only,  the  projection  of 
the  riprap  foundation  below  being  approved  by  the  board  of  engineers  and  con- 
firmed by  the  court,  was  neither  unreasonable  nor  so  plainly  contrary  to  the  require- 
ments of  the  act  or  the  public  needs  as  to  render  the  bridge,  approved  as  above,  an 
unlawful  structure.  Gildersleeve  et  al.  v.  The  New  York,  New  Haven  and  Hartford 
R.  R.  Co.,  82  Fed.  Rep.,  763;  St.  Louis  and  St.  Paul  Packet  Co.  v.  Keokuk  and  H. 
Bridge  Co.,  31  Fed.  Rep.,  755;  Hannibal  and  St.  Joseph  R.  R.  Co.  v.  Missouri  River 
Packet  Co.,  125  U.  S.,  260. 

1  When  a  bridge  over  a  navigable  river  is  authorized  by  a  State  legislature,  reserv- 
ing a  right  to  require  a  draw  in  the  bridge  on  a  certain  contingency,  Congress,  on 


MILITARY    LAWS    OF    THE    UNITED    STATES.  421 

1117.  Whenever,  in  the  opinion  of  the  Secretary  of 
War,  the  public  interests  require  it,  he  may  make  rules 
and  regulations  to  govern  the  opening  of  drawbridges  for 
the  passage  of  vessels  and  other  water-crafts,  and  such 
rules  and  regulations,  when  so  made  and  published,  shall 
have  the  force  of  law,  and  any  violation  thereof  shall  be 
punished  as  hereinbefore  provided.1  Ibid. 

HARBOR    LINES. 

Par. 


1120.  Restriction  on  dredging. 

1121.  Harbor  lines  in  District  of  Columbia. 


Par. 

1118.  Establishment  of  harbor  lines. 

1119.  Permits  for  extensions,  etc. 

1118.  Where  it  is  made  manifest  to  the  Secretary  of 

War  that  the  establishment  of  harbor  lines  is  essential  to  nMvar303'pls 
the  preservation  of  and  protection  of  harbors  he  may,  and 
is  hereby,  authorized  to  cause  such  lines  to  be  established, 
beyond  which  no  piers,  wharves,  bulkheads,  or  other 
works  shall  be  extended  or  deposits  made,  except  under 
such  regulations  as  may  be  prescribed  from  time  to  time 
by  him.2  Sec.  11,  act  of  March  3, 1899  (30  Stat.  Z.,  1151). 

1119.  Whenever  the  Secretary  of  War  grants  to  any 
person  or  persons  permission  to  extend  piers,  wharves, 
bulkheads,  or  other  works,  or  to  make  deposits  in  any 
tidal  harbor  or  river  of  the  United  States  beyond  any-  har- 
bor lines  established  under  authority  of  the  United  States, 

he  shall  cause  to  be  ascertained  the  amount  of  tide  water  ibui. 
displaced  by  any  such  structure,  or  by  any  such  deposits, 
and  he  shall,  if  he  deem  it  necessary,  require  the  parties  to 
whom  the  permission  is  given  to  make  compensation  for 
such  displacement  either  by  excavating  in  some  part  of 
the  harbor,  including  tide-water  channels  between  high 
and  low  water  mark,  to  such  extent  as  to  create  a  basin 
for  as  much  tide  water  as  may  be  displaced  by  such  struc- 

assuming  control  of  the  river,  may  require  the  construction  of  a  draw  in  the  bridge 
upon  the  happening  of  such  a  contingency,  without  providing  for  compensation  to 
the  bridge  owners.  U.  S.  v.  City  of  Moline,  82  Fed.  Rep.,  592.  As  every  bridge  con- 
structed over  the  navigable  waters  of  the  United  States  constitutes  an  obstruction  to 
the  free  navigation  thereof,  and  as  the  Congress  is,  by  the  Constitution,  made  the 
exclusive  judge  of  the  extent  and  amount  of  the  obstruction  that  shall  be  authorized 
in  any  case,  that  body  reserves  to  itself  the  right  to  authorize  the  construction  of 
bridges  over  such  waters.  The  nearest  approach  to  general  legislation  on  this  sub- 
ject will  be  found  in  the  act  of  February  14,  1883  (22  Stat.  L.,  414),  authorizing  the 
construction  of  bridges  across  the  Ohio  River. 

/The  fact  that  States  on  either  side  of  a  navigable  river  have  in  force  statutes  pro- 
hibiting the  doing  of  certain  kinds  of  work  on  Sunday  does  not  relieve  the  owner  of 
a  bridge  spanning  the  river  from  the  duty  of  opening  the  draw  on  Sunday  to  admit 
the  passage  of  vessels  engaged  in  commerce  on  the  river.  Boland  v.  Combination 
Bridge  Co.,  94  Fed.  Rep.,  888.  See  also  note  1  to  paragraph  1115,  ante. 

2 This  section  replaces  section  12  of  the  act  of  September  19,  1890  (26  Stat,  L.,  455), 
in  ~>ari  materia. 


422 


MILITARY    LAWS    OF    THE    UNITED    STATES. 


tion  °n 


ring 


linc8 


Mar.  3,  1899, 
8,  v.  30,  p.  1378. 


ture  or  by  such  deposits,  or  in  any  other  mode  that  may 
be  satisfactory  to  him.1  Ibid. 

112°-  No  money  appropriated  for  the  improvement  of 
1'^61*8  and  harbors  in  this  act  or  hereafter  shall  be 
expended  for  dredging  inside  of  harbor  lines  duly  estab- 
lished. Sec.  5,  act  of  July  13,  1892  (27  Stat.  L\,  111). 

1121-  The  harbor  lines  of  the  District  of  Columbia  shall 
be  determined  by  the  Chief  of  Engineers,  United  States 
Army,  and  the  Commissioners  of  the  District  of  Columbia, 
subject  to  the  approval  of  the  Secretary  of  War.  Sec.  3, 
act  of  March  3,  1899  (30  Stat.  L.,  1378). 


INJURIES    TO    GOVERNMENT   WORKS. 


OBSTRUCTIONS   TO    NAVIGATION. 


Par. 

1122.  Obstructions  to  navigation. 

1123.  Penal  clauses. 

1124.  Deposits  in  navigable  waters. 

1125.  Use  of  public  works,  permits. 

1126.  Anchoring  vessels,  etc. 

1 127.  Penal  clauses. 


navigation0118  to 


Par. 

1128.  Floating  loose  timber  and  logs. 

1129.  The  same,  regulations  for  floating. 

1130.  Right  to  amend. 

1131.  Civil  actions  not  affected. 

1132.  Department  of  Justice  to  conduct 

proceedings. 


s.  10^30.  3p.iiti.'n£ 


creati°n  of  any  obstruction  not  affirmatively 
authorized  by  Congress  to  the  navigable  capacit}T  of  any 
of  the  waters  of  the  United  States  is  hereby  prohibited, 
and  it  shall  not  be  lawful  to  build  or  commence  the  build- 
anJ  wharf,  pier,  dolphin,  boom,  weir,  breakwater, 
bulkhead,  jetty,  or  other  structures  in  any  port,  road- 
stead, haven,  harbor,  canal,  navigable  river,  or  other 
water  of  the  United  States  outside  established  harbor  lines, 
or  where  no  harbor  lines  have  been  established,  except 
on  plans  recommended  by  the  Chief  of  Engineers  and 
authorized  by  the  Secretary  of  War;  and  it  shall  not  be 
lawful  to  excavate  or  fill  or  in  any  manner  to  alter  or 
modify  the  course,  location,  condition,  or  capacity  of  any 
port,  roadstead,  haven,  harbor,  canal,  lake,  harbor  of  ref- 
uge, or  inclosure  within  the  limits  of  any  breakwater,  or 
of  the  channel  of  any  navigable  water  of  the  United  States, 
unless  the  work  has  been  recommended  by  the  Chief  of 
Engineers  and  authorized  by  the  Secretary  of  War  prior 

1  For  penalty  for  violations  of  this  section  see  section  12  of  the  act  of  March  3,  1899 
(30  Stat.  L.,  1151),  paragraph  1123,  post.  This  section  replaces  section  9,  act  of 
August  17,  1894  (28  Stat.  L.,  364).  Section  17  of  the  act  of  March  3,  1899  (30  ibid., 
1153),  contains  the  requirement  that  the  Department  of  Justice  shall  conduct  the 
legal  proceedings  necessary  to  the  enforcement  of  the  provisions  of  sections  9  to  16, 
inclusive,  of  that  enactment. 


MILITARY    LAWS    OF   THE    UNITED   STATES.  423 

to  beginning  the  same.1  Sec.  10 ',  act  of  March  3, 1899  (30 
Stat.  Z.,  1151). 

1123.  Every  person  and  every  corporation  that  shall    gS^JJgf68* 
violate  any  of  the  provisions  of  sections  nine,  ten,  and 

eleven  of  this  act  shall  be  deemed  guilty  of  a  misdemeanor, 
and  on  conviction  thereof  shall  be  punished  by  a  fine  not 
exceeding  twenty -five  hundred  dollars  nor  less  than  five 
hundred  dollars,  or  by  imprisonment  (in  the  case  of  a 
natural  person)  not  exceeding  one  year,  or  by  both  such 
punishments,  in  the  discretion  of  the  court.  And,  further, 
the  removal  of  any  such  structures  or  parts  of  structures 
erected  in  violation  of  the  provisions  of  the  said  sections 
may  be  enforced  by  the  injunction  of  any  circuit  court 
exercising  jurisdiction  in  any  district  in  which  such  struc- 
tures may  exist,  and  proper  proceedings  to  this  end  may 
be  instituted  under  the  direction  of  the  Attorney -General 
of  the  United  States.2  Sec.  12,  act  of  March  3,  1899  (30 
Stat.  Z.,  1151). 

1124.  It   shall   not  be  lawful  to   throw,  discharge,  or    Deposits  in 
deposit,  or  cause,  suffer,  or  procure  to  be  thrown,  dis-  waters. g  a 
charged,  or  deposited  either   from  or  out  of   any  ship,  g.isfvfso.p.iiw! 
barge,  or  other  floating  craft  of  any  kind,  or  from  the 

shore,  wharf,  manufacturing  establishment,  or  mill  of  any 
kind,  any  refuse  matter  of  any  kind  or  description  what- 
ever other  than  that  flowing  from  streets  and  sewers  and 
passing  therefrom  in  a  liquid  state,  into  any  navigable 

1This  section  replaces  section  9  of  the  act  of  September  19,  1890  (26  Stat.  L.,  454), 
and  section  3  of  the  act  of  July  13,  1892  (27  ibid.,  110),  inpari  materia.  In  the  case 
of  Leovy  v.  U.  S. ,  it  was  decided  by  the  circuit  court  of  appeals  for  the  fifth  circuit,  in 
February,  1899,  that  the  replaced  section  of  the  act  of  July  13,  1892,  was  constitu- 
tional, and  that  a  State  had  no  authority,  under  its  police  power,  to  close  any  navigable 
water  of  the  United  States,  though  located  wholly  within  the  limits  of  the  State,  for 
the  purpose  of  reclamation  of  swamp  lands,  without  the  consent  of  the  Federal  Gov- 
ernment. Leovy  y.  U.  S.,  92  Fed.  Rep.,  344.  When  Congress  has  assumed  juris- 
diction over  a  navigable  river  lying  wholly  within  one  State,  Congress  has  power  to 
order  obstructions  to  navigation  removed,  even  though  their  construction  was  author- 
ized by  the  State.  U.  S.  v.  City  of  Moline,  82  Fed.  Rep.,  592.  But  the  right  of 
Congress  to  remove  the  obstruction  does  not,  of  itself,  exempt  the  Government  of 
the  United  States  from  the  duty  of  making  just  compensation  for  such  property 
rights  as  are  taken.  Monongahela  Nav.  Co.  v.  U.  S.,  148  U.  S.,  622. 

Wharves  are  a  peculiar  kind  of  property,  which,  though  standing  on  terra  firma, 
are  so  far  marine  in  their  uses  and  purposes  as  to  come  within  admiralty  jurisdiction. 
In  England  it  is  generally  held  that  they  extend  to  the  low-water  mark.  In  this 
country,  with  the  extending  of  admiralty  jurisdiction  to  our  inland  seas  and  navi- 
gable rivers,  it  has  been  held  that  they  may  extend  to  the  point  of  navigability. 
The  owner  has  not  an  unlimited  property  in  them.  If  the  wharf  be  not  reserved  for 
his  actual  use,  or  of  some  one  acquiring  the  right  under  him,  it  is  open  to  the  public, 
and  any  vessel  may  make  fast  to  and  use  it.  Neither  can  the  owner  charge  an 
unreasonable  price  for  wharfage.  Clifford  v.  U.  S.,  34  Court  of  Claims,  223,230; 
The  Genesee  Chief,  12  Howard,  443;  Dutton  v.  Strong,  1  Black,  1;  Cannon  v.  New 
Orleans,  20  Wallace,  577;  Ex  parte  Easton,  95  U.  S.,  8;  Packet  Co.  v.  Keokuk,  ibid, 
80;  Packet  Co.  v.  St.  Louis,  100  U.  S.,  423. 

3  See  note  to  paragraph  1119,  ante;  see  also  paragraph  1132,  post. 


424  MILITARY    LAWS    OF    THE    UNITED    STATES. 

water  of  the  United  States,  or  into  any  tributary  of  any 
navigable  water  from  which  the  same  shall  float  or  be 
washed  into  such  navigable  water;  and  it  shall  not  be  law- 
ful to  deposit,  or  cause,  suffer,  or  procure  to  be  deposited 
material  of  any  kind  in  any  place  on  the  bank  of  any  navi- 
gable water,  or  on  the  bank  of  any  tributary  of  any  navi- 
gable water,  where  the  same  shall  be  liable  to  be  washed 
into  such  navigable  water,  either  by  ordinary  or  high 
tides,  or  by  storms  or  floods,  or  otherwise,  whereby  navi- 
gation shall  or  may  be  impeded  or  obstructed:  Provided, 
That  nothing  herein  contained  shall  extend  to,  apply  to,  or 
prohibit  the  operations  in  connection  with  the  improve- 
ment of  navigable  waters  or  construction  of  public  works, 
considered  necessary  and  proper  by  the  United  States 
officers  supervising  such  improvement  or  public  work: 
And  provided  further,  That  the  Secretary  of  War,  when- 
ever in  the  judgment  of  the  Chief  of  Engineers  anchorage 
and  navigation  will  not  be  injured  thereby,  may  permit 
the  deposit  of  any  material  above  mentioned  in  navigable 
waters,  within  limits  to  be  denned  and  under  conditions  to 
be  prescribed  by  him,  provided  application  is  made  to  him 
prior  to  depositing  such  material;  and  whenever  any  per- 
mit is  so  granted  the  conditions  thereof  shall  be  strictly 
complied  with,  and  any  violation  thereof  shall  be  unlaw- 
ful.1 Sec.  13,  act  of  March  3,  1899  (30  Stat.  L.,  115%). 
works  etcpublic  H25.  It  shall  not  be  lawful  for  any  person  or  persons 
sec.  14,  ibid,  ^o  take  possession  of  or  make  use  of  for  any  purpose, 
or  build  upon,  alter,  deface,  destroy,  move,  injure,  ob- 
struct by  fastening  vessels  thereto  or  otherwise,  or  in  any 
manner  whatever  impair  the  usefulness  of  any  sea  wall, 
bulkhead,  jetty,  dike,  levee,  wharf,  pier,  or  other  work 
built  by  the  United  States,  or  any  piece  of  plant,  floating 
or  otherwise,  used  in  the  construction  of  such  work  under 
the  control  of  the  United  States,  in  whole  or  in  part,  for 
the  preservation  and  improvement  of  any  of  its  naviga- 
ble waters  or  to  prevent  floods,  or  as  boundaiy  marks, 
tide  gauges,  surveying  stations,  buoys,  or  other  estab- 
lished marks,  nor  remove  for  ballast  or  other  purpose? 
any  stone  or  other  material  composing  such  works:  Pro 
vided,  That  the  Secretary  of  War  may,  on  the  recommen- 
dation of  the  Chief  of  Engineers,  grant  permission  for 
the  temporary  occupation  or  use  of  any  of  the  aforemen- 
tioned public  works  when  in  his  judgment  such  occupation 

^his  section  replaces  section  6  of  the  act  of  Sept/ir>ber  1«,  1890  (20  Stat.  L.,  426), 
in  pari  materia. 


MILITARY    LAWS    OF   THE    UNITED    STATES.  425 

or  use  will  not  be  injurious  to  the  public  interest.1  Sec. 
14,  ibid. 

1126.  It  shall  not  be  lawful  to  tie  up  or  anchor  vessels  sefsn^coringves- 
or  other  craft  in  navigable  channels  in  such  a  manner  as    Sec- 15>  md- 
to  prevent  or  obstruct  the  passage  of  other  vessels  or 

craft;  or  to  voluntarily  or  carelessly  sink,  or  permit  or 
cause  to  be  sunk,  vessels  or  other  craft  in  navigable  chan- 
nels; or  to  float  loose  timber  and  logs,  or  to  float  what  is 
known  as  sack  rafts  of  timber  and  logs  in  streams  or  chan- 
nels actually  navigated  by  steamboats  in  such  manner  as 
to  obstruct,  impede,  or  endanger  navigation.  And  when- 
ever a  vessel,  raft,  or  other  craft  is  wrecked  and  sunk  in 
a  navigable  channel,  accidentally  or  otherwise,  it  shall  be 
the  duty  of  the  owner  of  such  sunken  craft  to  immediately 
mark  it  with  a  buoy  or  beacon  during  the  day  and  a  lighted 
lantern  at  night,  and  to  maintain  such  marks  until  the 
sunken  craft  is  removed  or  abandoned,  and  the  neglect  or 
failure  of  the  said  owner  so  to  do  shall  be  unlawful;  and  it 
shall  be  the  duty  of  the  owner  of  such  sunken  craft  to 
commence  the  immediate  removal  of  the  same,  and  prose- 
cute such  removal  diligently,  and  failure  to  do  so  shall  be 
considered  as  an  abandonment  of  such  craft,  and  subject 
the  same  to  removal  by  the  United  States  as  hereinafter 
provided  for.2  Sec.  15,  ibid. 

1127.  Every  person  and  every  corporation  that  shall    fJ£a1V5£fs' 
violate,  or  that  shall  knowingly  aid,  abet,  authorize,  or 
instigate  a  violation  of  the  provisions  of  sections  thir- 
teen, fourteen,  and  fifteen  of  this  act  shall  be  guilty  of  a 
misdemeanor,  and  on  conviction  thereof  shall  be  punished 

by  a  fine  not  exceeding  twenty-five  hundred  dollars  nor 
less  than  five  hundred  dollars,  or  by  imprisonment  (in  the 
case  of  a  natural  person)  for  not  less  than  thirty  days  nor 

1  This  section  replaces  section  3  of  the  act  of  August  14, 1876  (19  ibid.,  132, 139),  and 
section  9  of  the  act  of  September  19,  1890  (26  Stat.  L.,  426).     Section  9  of  the  act  of 
March  3,  1899,  contained  a  provision  directing  the  Secretary  of  War  "to  cause  to  be 
prepared  and  reported  to  Congress  a  list  of  all  piers,  wharves,  and  other  structures 
or  property  pertaining  to  river  and  harbor  works  belonging  to  the  Government  of 
the  United  States  now  occupied  by  private  corporations  or  persons,  together  with 
the  terms  upon  which  such  piers,  wharves,  or  other  property  are  occupied,  and  the 
date  of  the  agreement  or  permission  to  occupy  the  same,  and  shall  make  such  recom- 
mendations as  he  may  deem  desirable  in  connection  therewith." 

2  The  construction,  without  the  authority  of  the  Secretary  of  War,  of  weirs  in  a 
harbor,  which  is  navigable  water  of  the  United  States,  outside  of  established  harbor 
lines  (or  where  there  are  no  harbor  lines  established),  is,  under  section  7,  act  of 
September  19,  1890,  unlawful  when  the  same  will  be  detrimental  to  navigation. 
And  whether  or  not  the  persons  who  constructed  such  weirs  had  any  license  from 
the  town  is  immaterial.     Dig.  Opin.  J.  A.  G.,  par.  1783. 

The  United  States  may  avail  itself  of  the  remedy  by  injunction  to  protect  from 
injury  improvements  in  navigable  waters  made  under  the  authority  of  Congress. 
XVII  Opin.  Att.  Gen.,  279;  U.  S.  v.  Duluth,  4  Dillon,  469. 


426  MILITARY    LAWS    OF   THE    UNITED   STATES. 

more  than  one  year,  or  by  both  such  fine  and  imprison- 
ment, in  the  discretion  of  the  court,  one-half  of  said  fine 
to  be  paid  to  the  person  or  persons  giving  information 
which  shall  lead  to  conviction.  And  any  and  every  mas- 
ter, pilot,  and  engineer,  or  person  or  persons  acting  in 
such  capacity,  respectively,  on  board  of  any  boat  or  vessel 
who  shall  knowingly  engage  in  towing  any  scow,  boat,  or 
vessel  loaded  with  any  material  specified  in  section  thir- 
teen of  this  act  to  any  point  or  place  of  deposit  or  dis- 
charge in  any  harbor  or  navigable  water,  elsewhere  than 
within  the  limits  defined  and  permitted  by  the  Secretary 
of  War,  or  who  shall  willfully  injure  or  destroy  any  work 
of  the  United  States  contemplated  in  section  fourteen  of 
this  act,  or  who  shall  willfully  obstruct  the  channel  of  any 
waterway  in  the  manner  contemplated  in  section  fifteen 
of  this  act,  shall  be  deemed  guilty  of  a  violation  of  this 
act,  and  shall  upon  conviction  be  punished  as  hereinbefore 
provided  in  this  section,  and  shall  also  have  his  license 
revoked  or  suspended  for  a  term  to  be  fixed  by  the  judge 
before  whom  tried  and  convicted.  And  any  boat,  vessel, 
scow,  raft,  or  other  craft  used  or  employed  in  violating 
any  of  the  provisions  of  sections  thirteen,  fourteen,  and 
fifteen  of  this  act  shall  be  liable  for  the  pecuniaiy  penal- 
ties specified  in  this  section,  and  in  addition  thereto  for 
the  amount  of  the  damages  done  by  said  boat,  vessel, 
scow,  raft,  or  other  craft,  which  latter  sum  shall  be  placed 
to  the  credit  of  the  appropriation  for  the  improvement  of 
the  harbor  or  waterway  in  which  the  damage  occurred, 
and  said  boat,  vessel,  scow,  raft,  or  other  craft  may  be  pro- 
ceeded against  summarily  by  way  of  libel  in  any  district 
court  of  the  United  States  having  jurisdiction  thereof.1 
Sec.  16,  ibid. 

gs^tc6  1128-  Tne  prohibition  contained  in  section  fifteen2  of 
*^72' 1900' v-  the  river  and  harbor  act  approved  March  third,  eighteen 
hundred  and  ninety-nine,  against  floating  loose  timber  and 
logs,  or  sack  rafts,  so  called,  of  timber  and  logs  in  streams 
or  channels  actually  navigated  by  steamboats,  shall  not 
apply  to  any  navigable  river  or  waterway  of  the  United 
States  or  any  part  thereof  whereon  the  floating  of  loose 
timber  and  logs  and  sack  rafts  of  timber  and  logs  is  the 
principal  method  of  navigation.  But  such  method  of 
navigation  on  such  river  or  waterway  or  part  thereof 
shall  be  subject  to  the  rules  and  regulations  prescribed  by 

1  This  section  replaces  section  10  of  the  act  of  September  19,  1890  (26  Stat.  L.,  454). 

2  Paragraph  1126,  ante. 


MILITARY    LAWS    OF   THE    UNITED   STATES.  427 

the  Secretary  of  War  as  hereinafter  provided.  Act  of 
May  9,  1900  (31  Stat.  Z.,  17$). 

1129.  The  Secretary  of  War  shall  have  power,  and  he  fl oae| 
is  hereby  authorized  and   directed,  within  the   shortest  JJ^ 
practicable  time  after  the  passage  hereof,  to  prescribe  tegjcof2 
rules  and  regulations,  which  he  may  at  any  time  modify, 

to  govern  and  regulate  the  floating  of  loose  timber  and 
logs,  and  sack  rafts  (so  called)  of  timber  and  logs  and  other 
methods  of  navigation  on  the  streams  and  waterways,  or 
any  thereof,  of  the  character,  as  to  navigation,  in  section 
one  hereof  described.  The  said  rules  and  regulations  shall 
be  so  framed  as  to  equitably  adjust  conflicting  interests 
between  the  different  methods  or  forms  of  navigation; 
and  the  said  rules  and  regulations  shall  be  published  at 
least  once  in  such  newspaper  or  newspapers  of  general 
circulation  as  in  the  opinion  of  the  Secretary  of  War  shall 
be  best  adapted  to  give  notice  of  said  rules  and  regula- 
tions to  persons  affected  thereby  and  locally  interested 
therein.  And  all  modifications  of  said  rules  and  regula- 
tions shall  be  similarly  published.  And  such  rules  and 
regulations,  when  so  prescribed  and  published  as  to  any 
such  stream  or  waterway,  shall  have  the  force  of  law,  and 
any  violation  thereof  shall  be  a  misdemeanor,  and  every 
person  convicted  of  such  violation  shall  be  punished  by  a 
fine  of  not  exceeding  two  thousand  five  hundred  dollars 
nor  less  than  five  hundred  dollars,  or  by  imprisonment  (in 
case  of  a  natural  person)  for  not  less  than  thirty  days  nor 
more  than  one  year,  or  by  both  such  fine  and  imprison- 
ment, in  the  discretion  of  the  court:  Provided,  That  the 
proper  action  to  enforce  the  provisions  of  this  section 
may  be  commenced  before  any  commissioner,  judge,  or 
court  of  the  United  States,  and  such  commissioner,  judge, 
or  court  shall  proceed  in  respect  thereto  as  authorized  by 
law  in  the  case  of  crimes  or  misdemeanors  committed 
against  the  United  States.  Sec.  8,  ibid. 

1130.  The  right  to  alter,  amend,  or  repeal  this  act  at 
any  time  is  hereby  reserved.     Sec.  3,  ibid. 

1131.  This  act  shall  not,  nor  shall  any  rules  or  regula- nocti^1ect^tions 
tions  prescribed  thereunder,  in   any  manner  affect  any    sec.4,twd. 
civil  action  or  actions  heretofore   commenced  and  now 

pending  to  recover  damages  claimed  to  have  been  sus- 
tained by  reason  of  the  violation  of  any  of  the  terms  of 
said  section  fifteen,  as  originally  enacted,  or  in  violation 
c,  any  other  law.1  Sec.  4,  ibid. 

lTbe  act  of -March  3,  1899  (30  Stat.  L.,  1155),  contains  a  similar  requirement. 


428  MILITARY   LAWS    OF   THE    UNITED   STATES. 

jmteicertSeicon-  1132'  The  Department  of  Justice  shall  conduct  the  legal 
ceeCdingfal  pr°  proceedings  necessary  to  enforce  the  foregoing  provisions 
i7?var3o!'p8ii53S'  °^  sections  nine  to  sixteen,  inclusive,  of  this  act;  and  it 
shall  be  the  duty  of  district  attorneys  of  the  United  States 
to  vigorously  prosecute  all  offenders  against  the  same 
whenever  requested  to  do  so  by  the  Secretary  of  War  or 
by  any  of  the  officials  hereinafter  designated,  and  it  shall 
furthermore  be  the  duty  of  said  district  attorneys  to  report 
to  the  Attorney-General  of  the  United  States  the  action 
taken  by  him  against  offenders  so  reported,  and  a  trans- 
script  of  such  reports  shall  be  transmitted  to  the  Secretary 
of  War  by  the  Attorney-General;  and  for  the  better 
enforcement  of  the  said  provisions  and  to  facilitate  the 
detection  and  bringing  to  punishment  of  such  offenders, 
the  officers  and  agents  of  the  United  States  in  charge  of 
river  and  harbor  improvements,  and  the  assistant  engineers 
and  inspectors  employed  under  them  by  authority  of  the 
Secretary  of  War,  and  the  United  States  collectors  of  cus- 
toms and  other  revenue  officers,  shall  have  power  and 
authority  to  swear  out  process  and  to  arrest  and  take  into 
custody,  with  or  without  process,  any  person  or  persons 
who  may  commit  any  of  the  acts  or  offenses  prohibited  by 
the  aforesaid  sections  of  this  act,  or  who  may  violate  any 
of  the  provisions  of  the  same:  Provided,  That  no  person 
shall  be  arrested  without  process  for  any  offense  not  com- 
mitted in  the  presence  of  some  one  of  the  aforesaid  officials: 
And  provided  further,  That  whenever  any  arrest  is  nmde 
under  the  provisions  of  this  act,  the  person  so  arrested 
shall  be  brought  forthwith  before  a  commissioner,  judge, 
or  court  of  the  United  States  for  examination  of  the 
offenses  alleged  against  him;  and  such  commissioner,  judge, 
or  court  shall  proceed  in  respect  thereto  as  authorized  by 
law  in  case  of  crimes  against  the  United  States.  Sec.  17. 
act  of  March  3, 1899  (SO  Stat.  L.,  1153}. 


OBSTRUCTION   OF   NAVIGATION   BY    SUNKEN   VESSELS,    ETC. 


Par. 


1132a.  Sunken  vessels,  removal. 


Par. 


1133.  Removal  of  wrecks,  etc. ;  sale. 


se?suetcen  ves"  1132a.  Whenever  the  navigation  of  any  river,  lake,  har- 
19^30  Vii&. S  ^or'  sound?  bav?  canal,  or  other  navigable  waters  of  the 
United  States  shall  be  obstructed  or  endangered  by  any 
sunken  vessel,  boat,  water  craft,  raft,  or  other  similar 
obstruction,  and  such  obstruction  has  existed  for  a  longer 
period  than  thirty  days,  or  whenever  the  abandonment  of 


MILITARY   LAWS    OF   THE   UNITED   STATES.  429 

such  obstruction  can  be  legally  established  in  a  less  space 
of  time,  the  sunken  vessel,  boat,  water  craft,  raft,  or  other 
obstruction  shall  be  subject  to  be  broken  up,  removed, 
sold,  or  otherwise  disposed  of  by  the  Secretary  of  War  at 
his  discretion,  without  liability  for  any  damage  to  the 
owners  of  the  same:  Provided,  That  in  his  discretion,  the 
Secretary  of  War  may  cause  reasonable  notice  of  such 
obstruction  of  not  less  than  thirty  days,  unless  the  legal 
abandonment  of  the  obstruction  can  be  established  in  a 
less  time,  to  be  given  by  publication,  addressed  "To  whom 
it  may  concern,"  in  a  newspaper  published  nearest  to  the 
locality  of  the  obstruction,  requiring  the  removal  thereof: 
And  provided  also,  That  the  Secretary  of  War  may,  in  his 
discretion,  at  or  after  the  time  of  giving  such  notice,  cause 
sealed  proposals  to  be  solicited  by  public  advertisement, 
giving  reasonable  notice  of  not  less  than  ten  days,  for  the 
removal  of  such  obstruction  as  soon  as  possible  after  the 
expiration  of  the  above  specified  thirty  days'  notice,  in 
case  it  has  not  in  the  meantime  been  so  removed,  these  pro- 
posals and  contracts,  at  his  discretion,  to  be  conditioned 
that  such  vessel,  boat,  water  craft,  raft,  or  other  obstruc- 
tion, and  all  cargo  and  property  contained  therein,  shall 
become  the  property  of  the  contractor,  and  the  contract 
shall  be  awarded  to  the  bidder  making  the  proposition 
most  advantageous  to  the  United  States :  Provided,  That 
such  bidder  shall  give  satisfactory  security  to  execute  the 
work:  Provided  further,  That  any  money  received  from 
the  sale  of  any  such  wreck,  or  from  any  contractor  for 
the  removal  of  wrecks,  under  this  paragraph  shall  be 
covered  into  the  Treasury  of  the  United  States.1  Sec. 
19,  act  of  March  3,  1899  (30  Stat.  Z.,  1154). 

1133.  Under  emergency,  in  the  case  of  any  vessel,  boat,  w^cS^Ic!1  °f 
water  craft,  or  raft,  or  other  similar  obstruction,  sinking    Sec<  20j  Md- 
or  grounding,  or  being  unnecessarily  delayed  in  any  Gov- 
ernment canal  or  lock,  or  in  any  navigable  waters  men- 
tioned in  section  nineteen,   in  such  manner  as  to  stop, 
seriously  interfere  with,  or  specially  endanger  navigation, 
in  the  opinion  of  the  Secretary  of  War,  or  any  agent  of 
the  United  States  to  whom  the  Secretary  may  delegate 
proper  authority,  the  Secretary  of  War  or  any  such  agent 
shall  have  the  right  to  take  immediate  possession  of  such 

1  Owners  of  a  vessel  who  scuttle  and  sink  her  in  a  harbor  while  on  fire,  for  the 
purpose  of  saving  her  rigging  and  spars,  and  abandoning  her  to  the  underwriters, 
may  be  compelled  to  remove. the  hull,  as  an  obstruction  to  navigation,  under  sec- 
tion 10  of  the  act  of  September,  19,  1890.  U.  S.  v.  Hall,  63,  Fed.  Rep.,  472. 


430  MILITARY   LAWS    OF   THE    UNITED   STATES. 

boat,  vessel,  or  other  water  craft,  or  raft,  so  far  as  to 
remove  or  to  destroy  it  and  to  clear  immediately  the  canal, 
lock,  or  navigable  waters  aforesaid  of  the  obstruction 
thereby  caused,  using  his  best  judgment  to  prevent  any 
unnecessary  injury;  and  no  one  shall  interfere  with  or 
prevent  such  removal  or  destruction:  Provided,  That  the 
officer  or  agent  charged  with  the  removal  or  destruction 
of  an  obstruction  under  this  section  may  in  his  discretion 
give  notice  in  writing  to  the  owners  of  any  such  obstruc- 
tion requiring  them  to  remove  it:  And  provided  further, 
That  the  expense  of  removing  any  such  obstruction  as 
aforesaid  shall  be  a  charge  against  such  craft  and  cargo; 
and  if  the  owners  thereof  fail  or  refuse  to  reimburse  the 
United  States  for  such  expense  within  thirty  days  after 
notification,  then  the  officer  or  agent  aforesaid  may  sell 
the  craft  or  cargo,  or  any  part  thereof  that  may  not  have 
been  destroyed  in  removal,  and  the  proceeds  of  such  sale 
shall  be  covered  into  the  Treasury  of  the  United  States. 
Sec.  20,  ibid. 

Such  sum  of  money  as  may  be  necessary  to  execute  this 
section  and  the  preceding  section  of  this  act  is  hereby 
appropriated  out  of  any  money  in  the  Treasury  not  other- 
wise appropriated,  to  be  paid  out  on  the  requisition  of  the 
Secretary  of  War. 

All  laws  or  parts  of  laws  inconsistent  with  the  fore- 
going sections  ten  to  twenty,  inclusive,  of  this  act  are 
hereby  repealed:  Provided,  That  no  action  begun,  or 
right  of  action  accrued,  prior  to  the  passage  of  this  act 
shall  be  affected  by  this  repeal.  Sec.  20,  ibid. 


DEPOSITS   IN   NEW   YORK   HARBOR. 


Par. 


1134.  Deposits  in  New  York  Harbor  for- 

bidden; penalty. 

1135.  Punishment  of  officer  of  boat. 

1136.  Supervisors  to   designate  place  of 

deposit;  permits. 

1137.  Penalty  for  discharging  elsewhere. 

1138.  Boats  to   carry  name  painted   on 

stern. 


Par. 


1139.  Inspectors. 

1140.  Bribery;  penalty. 

1141.  Return  of  permits;  penalty. 

1142.  Disposal  of  matter  dredged. 

1143.  Supervisor  of  harbor. 

1144.  Fishing  in  ship  channels  forbidden. 

1145.  Penalties. 

1146.  Arrests. 

Harbor  injurf  1134.  The  placing,  discharging,  or  depositing,  by  any 
forbiddtnS-itepen-  process  or  in  any  manner,  of  refuse,  dirt,  ashes,  cinders, 
alsec  3  Aug  5  mu(*>  sand,  dredgings,  sludge,  acid,  or  any  other  matter 
1886,  v.  24,  p. 329;  Of  any  kind,  other  than  that  flowing  from  streets,  sewers, 

sec.  1,  June  29,  J  ~ 

1888,  v.  25,  p.  209.  and  passing  therefrom  in  a  liquid  state,  in  the  tidal  waters 
of  the  harbor  of  New  YorkA  or  its  adjacent  or  tributary 


MILITARY   LAWS   OF   THE    UNITED   STATES.  431 

waters,  or  in  those  of  Long  Island  Sound,  within  the  limits 
which  shall  be  prescribed  by  the  supervisor  of  the  harbor, 
is  hereby  strictly  forbidden,  and  every  such  act  is  made  a 
misdemeanor,  and  every  person  engaged  in  or  who  shall 
aid,  abet,  authorize,  or  instigate  a  violation  of  this  section, 
shall,  upon  conviction,  be  punishable  by  a  fine  or  impris- 
onment, or  both,  such  fine  to  be  not  less  than  two  hundred 
and  fifty  dollars  nor  more  than  two  thousand  five  hundred 
dollars,  and  the  imprisonment  to  be  not  less  than  thirty 
days  nor  more  than  one  year,  either  or  both  united,  as  the 
judge  before  whom  conviction  is  obtained  shall  decide,  one 
half  of  said  fine  to  be  paid  to  the  person  or  persons  giving 
information  which  shall  lead  to  conviction  of  this  misde- 
meanor.1 Sec.  1,  act  of  June  29,  1888  (25  Stat.  L.,  209). 

1135.  Any  and  every  master  and  engineer,  or  person  or    Punishment  of 

r  . J  .  officer  of  boat. 

persons  acting  in  such  capacity,  respectively,  on  board  of    sec.  2,  June  29, 

*  ...  .  01  •  •         1888,  v.  25,  p.  209. 

any  boat  or  vessel,  wno  snail  knowingly  engage  in  towing 
any  scow,  boat,  or  vessel  loaded  with  any  such  prohibited 
matter  to  any  point  or  place  of  deposit,  or  discharge  in  the 
waters  of  the  harbor  of  New  York,  or  in  its  adjacent  or 
tributary  waters,  or  in  those  of  Long  Island  Sound,  or  to 
any  point  or  place  elsewhere  than  within  the  limits  defined 
and  permitted  by  the  supervisor  of  the  harbor  hereinafter 
mentioned,  shall  be  deemed  guilty  of  a  violation  of  this 
act,  and  shall,  upon  conviction,  be  punishable  as  herein- 
before provided  for  offenses  in  violation  of  section  one  of 
this  act,  and  shall  also  have  his  license  revoked  or  suspended 
for  a  term  to  be  fixed  by  the  judge  before  whom  tried  and 
convicted.2  Sec.  2,  act  of  June  29,  1888  (25  Stat.  L.,  209). 

1136.  In  all  cases  of  receiving  on  board  of  any  scows  01' 
boats  such  forbidden  matter  or  substance  as  herein  de- 
scribed,  the  owner  or  master,  or  person  acting  in 

capacity  on  board  of  such  scows  or  boats,  before  proceed-  isKv!  28,  p.86o. 

1  The  Erie  and  Atlantic  basins,  in  New  York  Harbor,  are  private  property,  but 
they  are  also  navigable  waters  of  the  United  States,  and  the  owners  of  trie  soil  under 
the  water  hold  the  title  subject  to  the  rights  of  the  public  to  navigate  such  waters, 
and  are  therefore  not  empowered  to  fill  in  the  basins  and  deprive  the  public  of  their 
use.  Moreover  they  are  waters  over  which  the  United  States  has  expressly  assumed 
jurisdiction,  in  prohibiting,  by  the  act  of  June  29,  1888,  the  dumping  of  deposits  "in 
the  tidal  waters  of  the  harbor  of  New  York,  or  its  adjacent  or  tributary  waters, 
within  the  limits  which  shall  be  prescribed  by  the  supervisor  of  the  harbor."  Held, 
that  the  subsequent  establishment,  under  section  12,  of  the  act  of  August  11, 1888,  of 
harbor  lines  in  that  harbor  outside  these  basins  did  not  oust  this  jurisdiction,  but 
that  the  act  of  June  29,  1888,  was  still  in  force.  Dig.  Opin.  J.  A.  G.,  par.  1786. 

Held,  that  the  prohibition,  by  section  6,  act  of  September  19,  1890,  of  the  dumping 
of  ballast,  could  not  legally  be  enforced  in  New  York  Harbor  beyond  the  three-mile 
limit.  Ibid.,  par.  1787.  See  also  XX  Opin.  Att.  Gen.,  293. 

2 The  act  of  June  29, 1888,  25  Stat.  L.,  209,  as  amended  by  the  act  of  August  18, 
1894  (28  Stat.  L.,  360),  prohibiting  the  deposit  of  refuse  in  New  York  Harbor  without 
a  permit  from  the  supervisor  of  the  harbor,  is  a  valid  exercise  of  the  police  powers 
of  Congress  over  navigation  and  commerce.  U.  S.  v.  Romard,  89  Fed.  Kep.,  156. 


432 


MILITARY    LAWS    OF   THE    UNITED   STATES. 


Permits. 


penalty. 


ing  to  take  or  tow  the  same  to  the  place  of  deposit,  shall 
apply  for  and  obtain  from  the  supervisor  of  the  harbor 
appointed  hereunder  a  permit  defining  the  precise  limits 
within  which  the  discharge  of  such  scows  or  boats  may  be 
made;  and  it  shall  not  be  lawful  for  the  owner  or  master, 
or  person  acting  in  such  capacity,  of  any  tug  or  towboat, 
to  tow  or  move  any  scow  or  boat  so  loaded  with  such  for- 
bidden matter  until  such  permit  shall  have  been  obtained; 
and  every  person  violating  the  foregoing  provisions  of  this 
section  shall  be  deemed  guilty  of  a  misdemeanor,  and  on 
conviction  thereof  shall  be  punished  by  a  fine  of  not  more 
than  one  thousand  nor  less  than  five  hundred  dollars,  and 
in  addition  thereto  the  master  of  any  tug  or  towboat  so 
offending  shall  have  his  license  revoked  or  suspended  for 
a  term  to  be  fixed  by  the  judge  before  whom  tried  and 
convicted.  Sec.  3,  act  of  August  17, 1894  (®$  Stat.  L. ,  360). 

1137.  And  any  deviation  from  such  dumping  or  discharg- 
ing place  specified  in  such  permit  shall  be  a  misdemeanor, 
and  the  owner  and  master,  or  person  acting  in  the  capacity 
of  master,  of  any  scows  or  boats  dumping  or  discharging 
such  forbidden  matter  in  any  place  other  than  that  speci- 
fied in  such  permit  shall  be  liable  to  punishment  therefor, 
as  provided  in  section  one  of  the  said  act  of  June  twenty- 
ninth,  eighteen  hundred  and  eighty-eight;  and  the  owner 
and  master,  or  person  acting  in  the  capacity  of  master, 
of  any  tug  or  towboat  towing  such  scows  or  boats  shall  be 
liable  to  equal  punishment  with  the  owner  and  master,  or 
person  acting  in  the  capacity  of  master,  of  the  scows  or 
boats;  and,  further,  every  scowman  or  other  employee  on 
board  of  both  scows  and  towboats  shall  be  deemed  to  have 
knowledge  of  the  place  of  dumping  specified  in  such  per- 
mit, and  the  owners  and  masters,  or  persons  acting  in  the 
capacity  of  masters,  shall  be  liable  to  punishment,  as  afore- 
said, for  any  unlawful  dumping,  within  the  meaning  of  this 
act  or  of  the  said  act  of  June  twenty-ninth,  eighteen  hun- 
dred and  eighty-eight,  which  may  be  caused  by  the  negli- 
gence or  ignorance  of  such  scowman  or  other  employee; 
and,  further,  neither  defect  in  machinery  nor  avoidable 
accidents  to  scows  or  towboats,  nor  unfavorable  weather, 
nor  improper  handling  or  moving  of  scows  or  boats  of  any 
kind  whatsoever,  shall  operate  to  release  the  owners  and 
masters  and  employees  of  scows  and  towboats  from  the 
penalties  hereinbefore  mentioned.     Ibid. 

1138.  Every  scow  or  boat  engaged  in  the  transportation 
of  dredgings,  earth,  sand,  mud,  cellar  dirt,  garbage,  or  other 


MILITARY    LAWS    OF    THE    UNITED   STATES. 


433 


Ibid. 


Duties. 
Arresl*. 


offensive  material  of  any  description  shall  have  its  name 
or  number  and  owner's  name  painted  in  letters  and  num- 
bers at  least  fourteen  inches  long  on  both  sides  of  the  scow 
or  boat;  these  names  and  numbers  shall  be  kept  distinctly 
legible  at  all  times,  and  no  scow  or  boat  not  so  marked 
shall  be  used  to  transport  or  dump  any  such  material.  Ibid. 

1139.  The  supervisor  of  the  harbor  of  New  York,  desig-  Inspectors. 
nated  as  provided  in  section  five  of  the  said  act  of  June 
twenty-ninth,  eighteen  hundred  and  eighty-eight,  is  author- 
ized and  directed  to  appoint  inspectors  and  deputy  inspect- 
ors, and,  for  the  purpose  of  enforcing  the  provisions  of 
this  act  and  of  the  act  aforesaid,  and  of  detecting  and 
bringing  to  punishment  offenders  against  the  same,  the 
said  supervisor  of  the  harbor,  and  the  inspectors  and 
deputy  inspectors  so  appointed  by  him,  shall  have  power 
and  authority: 

First.  To  arrest  and  take  into  custody,  with  or  without 
process,  any  person  or  persons  who  may  commit  any  of  the 
acts  or  offenses  prohibited  by  this  section  and  by  the  act 
of  June  twenty-ninth,  eighteen  hundred  and  eighty-eight, 
aforesaid,  or  who  may  violate  any  of  the  provisions  of  the 
same:  Provided,  That  no  person  shall  be  arrested  without 
process  for  any  offense  not  committed  in  the  presence  of 
the  supervisor  or  his  inspectors  or  deputy  inspectors,  or 
either  of  them:  .And  provided  further,  That  whenever  any 
such  arrest  is  made  the  person  or  persons  so  arrested  shall 
be  brought  forthwith  before  a  commissioner,  judge,  or  court 
of  the  United  States  for  examination  of  the  offenses  alleged 
against  him;  and  such  commissioner,  judge,  or  court  shall 
proceed  in  respect  thereto  as  authorized  by  law  in  case  of 
crimes  against  the  United  States. 

Second.  To  go  on  board  of  any  scow  or  towboat  engaged 
in  unlawful  dumping  of  prohibited  material,  or  in  moving 
the  same  without  a  permit  as  required  in  this  section  of 
this  act,  and  to  seize  and  hold  said  boats  until  they  are 
discharged  by  action  of  the  commissioner,  judge,  or  court 
of  the  United  States  before  whom  the  offending  persons 
are  brought. 

Third.  To  arrest  and  take  into  custody  any  witness  or    custody  of  wit- 
witnesses  to  such  unlawful  dumping  of  prohibited  material, 
the  said  witnesses  to  be  released  under  proper  bonds. 

Fourth.  To  go  on  board  of  any  towboat  having  in  tow   Accompanying 
scows  or  boats  loaded  with  such  prohibited  material,  and 
accompany  the  same  to  the  place  of  dumping,  whenever 
22924—08 28 


Secure    of 
Tioats. 


towboats. 


434  MILITAEY    LAWS    OF    THE    UNITED    STATES. 

such  action  appears  to  be  necessary  to  secure  compliance 
with  the  requirements  of  this  act  and  of  the  act  aforesaid. 

etc?wo?ksnggas'  Fifth.  To  enter  gas  and  oil  works  and  all  other  manu- 
facturing works  for  the  purpose  of  discovering  the  disposi- 
tion made  of  sludge,  acid,  or  other  injurious  material,  when- 
ever there  is  good  reason  to  believe  that  such  sludge,  acid, 
or  other  injurious  material  is  allowed  to  run  into  the  tidal 
waters  of  the  harbor  in  violation  of  section  one  of  the  afore- 
said act  of  June  twenty-ninth,  eighteen  hundred  and 
eighty-eight.  Ibid. 

^Bribery;  pen-  H4Q.  Every  person  who,  directly  or  indirectly,  gives  any 
ibid.  sum  of  mOney  or  other  bribe,  present,  or  reward,  or  makes 

any  offer  of  the  same  to  any  inspector,  deputy  inspector,  or 
other  employee  of  the  office  of  the  supervisor  of  the  harbor 
with  intent  to  influence  such  inspector,  deputy  inspector, 
or  other  employee  to  permit  or  overlook  any  violation  of 
the  provisions  of  this  section  or  of  the  said  act  of  June 
twenty-ninth,  eighteen  hundred  and  eighty-eight,  shall,  on 
conviction  thereof,  be  fined  not  less  than  five  hundred  dol- 
lars nor  more  than  one  thousand  dollars,  and  be  imprisoned 
not  less  than  six  months  nor  more  than  one  year.  Ibid. 

m5s.turn  °f  Per  1141,  Every  permit  issued  in  accordance  with  the  provi- 
sions of  this  section  of  this  act  which  may  not  be  taken  up 
by  an  inspector  or  deputy  inspector  shall  be  returned  within 
forty-eight  hours  after  issuance  to  the  office  of  the  super- 
visor of  the  harbor;  such  permit  shall  bear  an  indorsement 
by  the  master  of  the  towboat,  or  the  person  acting  in  such 
capacity,  stating  whether  the  permit  has  been  used,  and  if 
Penalty.  8O^  the  time  and  place  of  dumping.  Any  person  violating 
the  provisions  of  this  section  shall  be  liable  to  a  fine  of  not 
more  than  five  hundred  dollars  nor  less  than  one  hundred 
dollars.  Ibid. 

maVte?  dredged*     1142-  A11  mudi  dirt>  sand?  dredgings,  and  material  of 

i888Cv425Upe2io'  every  kind  and  description  whatever  taken,  dredged,  or 
excavated  from  any  slip,  basin,  or  shoal  in  the  harbor  of 
New  York,  or  the  waters  adjacent  or  tributary  thereto,  and 
placed  on  any  boat,  scow,  or  vessel  for  the  purpose  of  being 
taken  or  towed  upon  the  waters  of  the  harbor  of  New  York 
to  a  place  of  deposit,  shall  be  deposited  and  discharged  at 
such  place  or  within  such  limits  as  shall  be  defined  and 
specified  by  the  supervisor  of  the  harbor,  as  in  the  third 
section  of  this  act  prescribed,  and  not  otherwise.  Every 
person,  firm,  or  corporation  being  the  owner  of  any  slip, 
basin,  or  shoal,  from  which  such  mud,  dirt,  sand,  dredgings, 
and  material  shall  be  taken,  dredged,  or  excavated,  and 


MILITARY    LAWS    OF    THE    UNITED    STATES.  435 

every  person,  firm,  or  corporation  in  any  manner  engaged  in 
the  work  of  dredging  or  excavating  any  such  slip,  basin,  or 
shoal,  or  of  removing  such  mud,  dirt,  sand,  or  dredgings 
therefrom,  shall  severally  be  responsible  for  the  deposit 
and  discharge  of  all  such  mud,  dirt,  sand,  or  dredgings  at 
such  place  or  within  such  limits  so  defined  and  prescribed 
by  said  supervisor  of  the  harbor;  and  for  every  violation 
of  the  provisions  of  this  section  the  person  offending  shall 
be  guilty  of  an  offense  against  this  act,  and  shall  be  pun- 
ished by  a  fine  equal  to  the  sum  of  five  dollars  for  every 
cubic  yard  of  mud,  dirt,  sand,  dredgings,  or  material  not 
deposited  or  discharged  as  required  by  this  section.  Any 
boat  or  vessel  used  or  employed  in  violating  any  provision 
of  this  act  shall  be  liable  to  the  pecuniary  penalties  im- 
posed thereby,  and  may  be  proceeded  against  summarily 
by  way  of  libel  in  any  district  court  of  the  United  States 
having  jurisdiction  thereof.1  Sec.  h  act  of  June  29, 1888, 
(86  Stat.  L.,  210). 

Supervisor    •£ 

1143.  A  line  officer  of  the  Navy  shall  be  designated  by 
the  President  of  the  United  States  as  supervisor  of  the 
harbor,  to  act  under  the  direction  of  the  Secretary  of  War 
in  enforcing  the  provisions  of  this  act,  and  in  detecting 
offenders  against  the  same.     This  officer  shall  receive  the 
sea  pay  of  his  grade,  and  shall  have  personal  charge  and 
supervision  under  the  Secretary  of  War,  and  shall  direct 
the  patrol  boats  and  other  means  to  detect  and  bring  to 
punishment  offenders  against  the  provisions  of  this  act. 
Sec.  <5,  ibid. 

1144.  It  shall  be  unlawful  for  any  person  or  persons  to  in 
engage  in  fishing  or  dredging  for  shell  fish  in  any  of  the  °sec.  2?lug.  17, 
channels  leading  to  and  from  the  harbor  of  New  York,  or 

to  interfere  in  any  way  with  the  safe  navigation  of  those 
channels  by  ocean  steamships  and  ships  of  deep  draft. 

1145.  Any  person  or  persons   violating  the  foregoing    iud. 
provisions  of  this  section  shall  be  deemed  guilty  of  a  mis- 
demeanor, and  on  conviction  thereof  shall  be  punished  by 
fine  or  imprisonment,  or  both,  such  fine  to  be  not  more 
than  two  hundred  and  fifty  dollars  nor  less  than  fifty  dol- 
lars, and  the  imprisonment  to  be  not  more  than  six  months 

1  Where  ashes  are  dumped,  in  an  unlawful  place,  from  the  deck  of  an  ocean  steamer 
by  her  firemen,  presumably  acting  under  orders  from  some  superior  officer  of  the 
steamer,  the  steamer  at  the  time  being  engaged  in  performing  a  freighting  voyage  to 
sea,  and  the  dumping  of  ashes  accumulated  at  her  furnace  being  a  necessary  inci- 
dent of  her  navigation,  the  statute  takes  effect  and  renders  the  steamer  liable  as 
having  herself  violated  the  law.  The  Bombay,  46  Fed.  Rep.,  665.  See  also  case  of 
the  Anjer  Head,  46  Fed.  Rep.,  664.  See  also  Dig.  Opin.  J.  A.  G.,  par.  1787;  and  XX 
Opin.  Att.  Gen.,  293. 


436 


MILITARY   LAWS    OF   THE    UNITED   STATES. 


Arrests. 


Process. 


nor  less  than  thirty  days,  either  or  both  united,  as  the 
judge  before  whom  conviction  is  obtained  shall  decide. 
Ibid. 

1146.  It  shall  be  the  duty  of  the  United  States  super- 
visor of  the  harbor  to  enforce  this  act,  and  the  deputy 
inspectors  of  the  said  supervisor  shall  have  authority  to 
arrest  and  take  into  custody,  with  or  without  process,  any 
person  or  persons  who  may  commit  any  of  the  acts  or 
offenses  prohibited  by  this  act:  Provided,  That  no  person 
shall  be  arrested  without  process  for  any  offense  not  com- 
mitted in  the  presence  of  the  supervisor  or  his  inspector 
or  deputy  inspectors,  or  either  of  them:  And  provided 
proceedings,  further,  That  whenever  any  such  arrest  is  made  the  per- 
son or  persons  so  arrested  shall  be  brought  forthwith  before 
a  commissioner,  judge,  or  court  of  the  United  States  for 
examination  of  the  offenses  alleged  against  him;  and  such 
commissioner,  judge,  or  court  shall  proceed  in  respect 
thereto  as  authorized  by  law  in  case  of  crimes  against  the 
United  States.  Sec.  2,  act  of  August  17,  1894  (%8  Stat. 
L.,360). 


HARBOR   REGULATIONS   FOR   THE    DISTRICT   OF   COLUMBIA. 


Par. 


1147.  District  Commissioners  to  prepare 

regulations. 

1148.  Unlawful  deposits  forbidden. 


Par. 

1149.  Penalty. 

1150.  Limitation. 


1^7.  It  shall  be  unlawful  for  any  owner  or  occupant  of 
trictof Columbia.  any  wharf  or  dock,  any  master  or  captain  of  any  vessel,  or 
29,  p.  126.'          any  person  or  persons  to  cast,  throw,  drop,  or  deposit  any 
ballast,  dirt,  oyster  shells,  or  ashes  in  the  water  in  any  part 
of  the  Potomac  River  or  its  tributaries  in  the  District  of 
Columbia,  or  on  the  shores  of  said  river  below  high-water 
mark,  unless  for  the  purpose  of  making  a  wharf,  after 
permission  has  been  obtained  from  the  Commissioners  of 
the  District  of  Columbia  for  that  purpose,  which  wharf 
shall  be  sufficiently  inclosed  and  secured  so  as  to  prevent 
injury  to  navigation.     Act  of  May  19,  1896  (29  Stat.  L., 
126). 
unlawful    de-     1148.  It  shall  be  unlawful  for  any  owner  or  occupant  of 

posits  forbidden.  . 

sec.  2,  ibid.  any  wharf  or  dock,  any  captain  or  master  of  any  vessel,  or 
any  other  person  or  persons  to  cast,  throw,  deposit,  or  drop 
in  any^  dock  or  in  the  waters  of  the  Potomac  River  or  its 
tributaries  in  the  District  of  Columbia  any  dead  fish,  fish 
offal,  dead  animals  of  any  kind,  condemned  oysters  in  the 


MILITARY    LAWS    OF   THE    UNITED   STATES.  437 

shell,  watermelons,  cantaloupes,  vegetables,  fruits,  shav- 
ings, hay,  straw,  ice,  snow,  filth,  or  trash  of  any  kind 
whatsoever.  Sec.  2,  ibid. 

1149.  Any  person  or  persons  violating  any  of  the  pro- 
visions  of  this  act  shall  be  deemed  guilty  of  a  misdemeanor, 
and  on  conviction  thereof  in  the  police  court  of  the  District 
of  Columbia  shall  be  punished  by  a  fine  not  exceeding  one 
hundred  dollars  or  by  imprisonment  not  exceeding  six 
months,  or  by  both  such  punishments,  in  the  discretion  of 
the  court.     Sec.  3,  ibid. 

1150.  Nothing  in  this  act  contained  shall  be  construed 
to  interfere  with  the  work  of  improvement  in  or  along  the 
said  river  and  harbor,  under  the  supervision  of  the  United 
States  Government.     Sec.  h  ibid. 

HISTORICAL  NOTE. — Legislative  provision  for  the  services  of  engineer  officers  with 
the  Revolutionary  armies  was  made  at  a  relatively  early  stage  in  the  progress  of  the 
war  by  a  resolution  of  Congress  of  June  16,  1775,  which  authorized  the  employment 
of  engineer  officers  at  the  headquarters  of  the  Army  and  in  the  several  departments. 
Col.  R.  Gridley  was  appointed  Chief  Engineer  by  General  Washington,  and  his  serv- 
ices were  recognized  and  continued  in  that  capacity  by  a  resolution  of  Congress  dated 
January  16,  1776.  The  difficulty  of  obtaining  trained  engineers  in  the  Continental 
establishment  made  it  necessary  to  secure  such  services  abroad,  and  the  action  of  the 
American  commissioners  in  Paris,  in  employing  several  members  of  the  French  corps 
of  engineers,  was  approved  by  Congress  in  a  resolution  dated  July  8,  1777.  A  corps 
of  engineers  was  subsequently  established  by  the  resolution  of  March  11,  1779,  and 
M.  Duportail,  an  officer  of  the  Royal  Engineers  of  France,  was  placed  at  its  head, 
with  the  rank  of  brigadier-general.  This  corps  continued  in  service  until  the  close 
of  the  war,  not  having  been  disbanded  until  November,  1783. 

A  Corps  of  Artillerists  and  Engineers  was  established  by  the  act  of  May  9,  1784 
(1  Stat.  L.,  366).  This  organization  was  required  to  be  "completed"  by  the  act  of 
March  3,  1795  (ibid.,  430),  and  an  additional  regiment  of  artillerists  and  engineers 
was  added  to  the  establishment  by  the  actof  April  27, 1798  (ibid.,  552).  The  seven- 
teenth and  eighteenth  sections  of  the  act  of  March  3, 1799  (ibid.,  755),  passed  in  con- 
templation of  war  with  France,  authorized  the  appointment  of  two  engineers  ' '  distinct 
from  the  corps  of  artillerists  and  engineers,"  with  the  rank  and  pay  of  lieutenant- 
colonels,  and  conferred  power  upon  the  President,  in  his  discretion,  to.  appoint  an 
inspector  of  fortifications,  who  was  to  have  the  rank  of  major  and  was  to  be  selected 
from  the  artillerists  and  engineers,  or  from  civil  life.  If  he  was  appointed  from  the 
existing  corps  he  was  to  retain  his  office  and  was  to  rise  ' '  therein  in  the  same  man- 
ner as  if  he  had  never  been  appointed  to  the  said  office  of  inspector." 

The  functions  of  the  artillerists  and  engineers  were  dissociated  by  the  act  of 
March  6,  1802  (2  ibid.,  132),  which  created  a  regiment  of  artillery  and  authorized 
the  President  to  organize  and  establish  a  Corps  of  Engineers  to  consist  of  one  major, 
two  captains,  two  first  lieutenants,  two  second  lieutenants,  and  ten  cadets;  provision 
was  made  in  the  same  enactment  for  the  gradual  expansion  of  the  corps  by  a  clause 
conferring  authority  upon  the  President  to  make  promotions  ' '  without  regard  to 
rank"  until  the  corps  should  consist  of  one  colonel,  one  lieutenant-colonel,  two 
majors,  four  captains,  four  first  lieutenants,  and  four  second  lieutenants.  By  the  act 
of  April  29,  1812  (2  ibid.,  720),  two  captains,  two  first  lieutenants,  two  second 
lieutenants,  "to  be  taken  from  the  subaltern  officer  of  engineers,"  and  one  paymaster 
and  a  company  of  bombardiers,  sappers,  and  miners  were  added  to  the  existing 
establishment.  The  composition  of  this  corps  was  not  changed  by  the  acts  of 
March  3,  1815  (3  ibid.,  224),  and  April  4,  1818  (ibid.,  426),  for  the  reduction  and 
reorganization  of  the  staff,  nor  was  its  organization  modified  at  the  general  reduction 
of  March  2,  1821  (ibid.,  615). 

By  section  2  of  the  act  of  July  5,  1838  (5  Stat.  L.,  256),  a  Corps  of  Topographical 
Engineers  was  established,  and  the  President  was  authorized  to  increase  the  Corps  of 
Engineers  by  the  addition  of  one  lieutenant-colonel,  two  majors,  six  captains,  six  first 
lieutenants,  and  six  second  lieutenants,  and  the  pay  of  engineer  officers  was  fixed  at 


438  MILITARY    LAWS    OF   THE   UNITED   STATES. 

the  rates  established  by  law  for  officers  of  dragoons.  By  section  3  of  the  act  of  July 
5,  1838,  the  paymaster  authorized  by  the  act  of  April  12,  1808,  was  transferred  to  the 
Pay  Department.  A  second  company  of  engineer  soldiers  was  adcfed  to  the  corps 
by  section  4  of  the  act  of  May  15  1846  (9  ibid.,  12).  By  the  act  of  March  3,  1851 
(ibid.,  62),  the  President  was  authorized  to  employ  officers  of  engineers  on  light- 
house duty,  and  by  sections  of  the  act  of  August  31,  1852  (10  ibid.,  119),  officers  of 
the  corps  were  required  to  be  attached  to  the  Light-House  Board  as  member  and 
engineer  secretary,  respectively.  By  section  9  of  the  act  of  March  3, 1853  ( ibid. ,  119), 
lieutenants  of  engineers,  after  fourteen  years'  continuous  service,  were  to  be  entitled 
to  the  pay  and  allowances  of  captains.  By  section  3  of  the  act  of  August  5,  1861 
(12  ibid.,  287),  three  first  lieutenants  and  three  second  lieutenants  were  added,  and 
the  organization  of  three  additional  companies  of  engineer  soldiers  was  authorized  by 
the  act  of  August  6,  1861  (ibid.,  317);  two  lieutenant-colonels  and  four  majors  were 
added  to  the"  strength  of  the  corps,  "by  regular  promotion."  The  Corps  of  Topo- 
graphical Engineers  was  discontinued  by  the  act  of  March  3,  1863  (ibid.,  743),  and 
its  officers  were  merged  in  the  Corps  of  Engineers.  Examinations  were  also  required, 
in  all  grades  below  that  of  field  officer,  as  a  condition  precedent  to  promotion.  The 
composition  of  the  corps  was  fixed,  by  the  same  enactment,  at  one  brigadier-general, 
four  colonels,  ten  lieutenant-colonels,  twenty  majors,  thirty  captains,  thirty  first  lieu- 
tenants, and  ten  second  lieutenants.  By  section  19  of  the  act  of  July  28,  1866  (4 
ibid.,  333),  the  strength  of  the  corps  was  fixed  at  one  brigadier-general,  six  colonels, 
twelve  lieutenant-colonels,  twenty -four  majors,  thirty  captains,  twenty -six  first  lieu- 
tenants, and  ten  second  lieutenants.  By  section  6,  of  the  act  of  March  3,  1869 
(15  ibid.,  31 8),  appointments  and  promotions  in  the  several  departments  of  the  staff 
were  suspended  until  otherwise  directed  by  Congress.  This  requirement  was  removed, 
however,  as  to  all  officers  below  the  grade  of  brigadier-general  by  the  act  of  June  10, 
1872  (17  ibid.,  382),  and  repealed  as  to  the  Chief  of  Engineers  by  the  act  of  June 
30,  1879  (21  ibid.,  45).  By  the  act  of  July  5,  1898  (30  ibid.,  652),  the  strength  of 
the  Corps  of  Engineers  was  fixed  at  one  brigadier-general,  seven  colonels,  fourteen 
lieutenant  colonels,  twenty-eight  majors,  thirty-five  captains,  thirty  first  lieutenants, 
and  twelve  second  lieutenants. 

By  section  22  of  the  act  of  February  2, 1901  (31  Stat.  L.,  754),  the  permanent  strength 
of  the  department  was  fixed  at  one  Chief  of  Engineers  with  the  rank  of  brigadier- 
general,  seven  colonels,  fourteen  lieutenant-colonels,  twenty-eight  majors,  forty  cap- 
tains, forty  first  lieutenants,  and  thirty  second  lieutenants.  The  enlisted  force  was 
also  increased  by  the  addition  of  two  battalions  of  engineer  troops.  It  was  also  pro- 
vided that  the  troops  of  the  three  engineer  battalions  and  the  officers  of  Engineers 
assigned  to  duty  therewith  should  constitute  a  part  of  the  line  of  the  Army. 

THE   CORPS   OF  TOPOGRAPHICAL   ENGINEERS. 

The  act  of  March  3,  1813  (2  Stat.  L.,  819),  authorized  the  appointment  of  eight 
topographical  engineers  with  the  rank  of  major  of  cavalry  and  eight  assistants  with 
the  rank  of  captain  of  infantry;  but  this  force  was  reduced  to  two  majors  by  the  act 
of  March  3,  1815  (ibid.,  224).  By  the  act  of  April  24,  1816  (ibid.,  297),  three  majors 
and  two  assistants  with  the  rank  of  captain  were  authorized  for  each  division  of  the 
Army.  On  July  2,  1818,  these  officers  were  merged,  by  general  orders,  in  the  Corps 
of  Engineers.  In  August,  1818,  a  topographical  bureau  was  established  in  the  War 
Department,  the  duties  of  the  bureau  being  performed  by  officers  detailed  from  the 
line.  By  the  act  of  April  30,  1824  (4  ibid.,  22),  civil  assistants  were  authorized  to  be 
employed,  and  on  June  21,  1831,  the  Topographical  Bureau  was  formally  constituted, 
in  general  orders,  as  a  separate  office  of  the  War  Department. 

The  Corps  of  Topographical  Engineers  eo  nomine  was  established  by  section  4  of 
the  act  of  July  5,  1838  (5  Stat.  L.,  256),  to  consist  of  one  colonel,  one  lieutenant- 
colonel,  four  majors,  ten  captains,  ten  first  lieutenants,  and  ten  second  lieutenants, 
who  were  to  be  appointed  by  selection  from  the  Corps  of  Engineers,  from  the  line  of 
the  Army,  and  from  the  civil  engineers  authorized  by  the  act  of  April  30,  1824.  The 
corps  as  thus  constituted  was  increased  by  section  2  of  the  act  of  August  5,  1861  (12 
ibid.,  287),  by  the  addition  of  three  first  lieutenants  and  three  second  lieutenants, 
and,  by  the  act  of  August  6,  1861  (ibid.,  317),  by  the  addition  of  two  lieutenant- 
colonels,  four  majors,  and  one  company  of  engineer  soldiers.  The  corps  was  discon- 
tinued by  the  act  of  March  3,  1863  (9  Stat.  L.,  743),  its  officers  being  merged  in  the 
Corps  of  Engineers. 


CHAPTER  XXIII. 


THE  ORDNANCE  DEPARTMENT l— THE  BOARD  OF  ORD- 
NANCE AND  FORTIFICATION,  ARMS,  ARMORIES,  AND 
ARSENALS. 


Par. 

1151.  Organization. 

1152,  1153.  Appointments,     promotions, 

examinations. 
1154-1156.  Details. 

1157-1161.  Miscellaneous  requirements. 
1162-1165.  Ordnance  sergeants,  enlisted 

men. 

1166-1168.  Duties. 
1169-1171.  Purchases. 
1172-1176.  Accountability  for  property; 

regulations. 


Par. 

1177-1181.  Sales. 

1182-1184.  Loans,  gratuitous  issues. 

1185-1188.  Board  for  testing  rifled  can- 
non. 

1189.  Miscellaneous  purchases. 

1190-1204.  Arms,  armories  and  arsenals. 

1205-1208.  The  United  States  testing  ma- 
chine. 

1209-1217.  The  Board  of  Ordnance  and 
Fortification. 


ORGANIZATION. 


1151.  The  Ordnance  Department  shall  consist  of  one 
Chief  of  Ordnance  with  the  rank  of  brigadier-general, 
four  colonels,  six  lieutenant-colonels,  twelve  majors, 
twenty  -four  captains,  and  twentj^-four  first  lieutenants, 
the  ordnance  storekeeper,  and  the  enlisted  men,  including 
ordnance-sergeants,  as  now  authorized  by  law.  All  va- 
cancies created  or  caused  by  this  section  shall,  as  far  as 
possible,  be  filled  by  promotion  according  to  seniority  as 
now  prescribed  by  law.  Sec.  23,  act  of  February  2,  1901 
(31  Stat.  L.,  754). 


>|2ne 


23  1374 


F        1901  s 
23>  v-  81>  p-  764- 


PROMOTIONS  —  EXAMINATIONS   FOR   PROMOTION. 


1152.  No     *     *     *    promotion  in  said  department  shall 
hereafter  be  made  until  the  oflicer  or  person  so     *     *     *  s-  6>  v-  18>P-  245< 
promoted   shall  have  passed   a   satisfactor}^  examination 

1  For  note  containing  a  statutory  history  of  the  Ordnance  Department  see  end  of 
chapter. 

439 


440  MILITARY    LAWS   OF   THE   UNITED   STATES. 

before  a  board  of  ordnance  officers  senior  to  himself.1 
Sec.  5,  act  of  June  23,  187  %  (18  Stat.  Z.,  £05);  act  of 
February  0,  1901  (31  ibid.,  75  Jf). 

Feb^^Soi',  s.  1153.  So  long  as  there  remain  any  officers  holding  per- 
26,  v.  31,  p.  755.  manent  appointment  in  the  *  *  Ordnance  Depart- 
ment *  *  *  they  shall  be  promoted  according  to 
seniority  in  the  several  grades,  as  now  provided  by  law, 
and  nothing  herein  contained  shall  be  deemed  to  apply  to 
vacancies  which  can  be  filled  by  such  promotions  or  to  the 
periods  for  which  officers  so  promoted  shall  hold  their 
appointments.2  Sec.  26,  act  of  February  2,  1901  (31  Stat. 
£.,  755). 

DETAILS. 

/Ma08"  1154.  When  any  vacancy,  except  that  of  the  chief  of  the 

department  or  corps,  shall  occur,  which  can  not  be  filled 
by  promotion  as  provided  for  in  this  section,  it  shall  be 
filled  by  detail  from  the  line  of  the  Army.  Hid. 

howmade8ame;  1155.  Such  details  shall  be  made  from  the  grade  in  which 
the  vacancies  exist,  under  such  system  of  examination  as 
the  President  may  from  time  to  time  prescribe.3  Ibid. 

terhe  same;  115g  ^  officers  so  detailed  shall  serve  for  a  period  of 
four  years,  at  the  end  of  which  time  they  shall  return  to 
duty  with  the  line,  and  officers  below  the  rank  of  lieutenant- 
colonel  shall  not  again  be  eligible  for  selection  in  any  staff 
department  until  they  have  served  two  years  with  the  line. 
Hid. 

MISCELLANEOUS   REQUIREMENTS. 


1157-  The  Principal  assistant  in  the  Ordnance  Bureau 
°f  Ord"  shall  receive  a  compensation,  including  pay  and  emolu- 
i9Fpb243>1877>v'men^s>  n°t  exceeding  that  of  a  major  of  ordnance. 
Rank  of'  ord-      1158.  The  ordnance  storekeeper  at  Springfield  armory 

nance    store-  .  J 

keepers.  shall  have  the  rank  of  ma]  or  of  cavalry,  and  the  ordnance 

1  The  system  of  examinations  above  prescribed  now  applies  to  such  officers  only  as 
held  commissions  in  the  department  on  February  2,  1901;  vacancies  which  may 
hereafter  occur  are  required  to  be  filled  in  accordance  with  the  system  of  details 
prescribed  in  section  26  of  the  act  of  February  2,  1901  ..     See,  in  this  connection,  the 
title  Details  to  the  Staff  in  the  chapter  entitled  THE  STAFF  DEPARTMENTS. 

Examinations  for  promotions  in  this  department  are  now  regulated  by  the  acts  of 
June  23,  1874  (18  Stat.  L.,  245),  October  1,  1890  (26  ibid.,  562),  and  July  27,  1892  (27 
ibid.,  276). 

Vacancies  in  the  lowest  grade  in  the  Ordnance  Department  are  filled  by  the 
appointment  of  officers  from  the  line  of  the  Army  who  have  passed  a  satisfactory 
examination  of  the  kind  prescribed  in  this  section.  The  conditions  of  appointment 
and  examination  are  set  forth  in  paragraphs  1489  and  1490  of  the  Army  Regulations 
of  1895. 

2  For  enactment  authorizing  the  promotion  of  lieutenants  of  ordnance  to  the  grade 
of  captain  after  fourteen  years'  service  see  paragraph  957,  ante;  for  requirements  in 
rsspect  to  examinations  for  promotion  see  the  chapter  entitled  THE  STAFF  DEPART- 
MENTS. 

8  For  statutory  regulations  respecting  details  in  the  several  staff  departments  see 
the  title  Details  to  the  Staff  in  the  chapter  entitled  THE  STAFF  DEPARTMENT. 


MILITARY    LAWS    OF    THE    UNITED    STATES. 


441 


storekeeper  now  on  duty  in  Washington  as  disbursing  offi-  145f 
cer  and  assistant  to  the  Chief  of  Ordnance,  United  States  ^ 
Army,  shall  hereafter  have  the  rank  of  major.  All  other  ^7| 
ordnance  storekeepers  shall  have  the  rank  of  captain  of  j^  68>i8%24v: 


BS 


cavalry.     Act  of  June  6,  1896  (89  Stat.  L.  ,  260.  )  l  2  Vc.nso,  K.S. 

1159.  Any  number,  not  exceeding  six,  of  the  ordnance 
storekeepers  maybe  authorized  to  act  as  paymasters 
armories  and  arsenals.2 

1160.  When  a  vacancy  shall  occur  through  death,  retire-  ke°^cre  dl 
ment,  or  other  separation  from  active  service,  in  the  office  ti  jj-^f^  1899  v 
of  storekeeper  in  the  Quartermaster's  Department  an 
Ordnance  Department,  respectively,  now  provided  for  by 

law,  said   offices  shall  cease  to   exist.      Act  of  March  2, 
1899  (30  Stat.  L.,  977).     February  8,  1901  (31  ibid.,  748.) 

1161.  A  chief  ordnance  officer  may  be  assigned  to  the  staff 

of  an  army  or  a  corps  commander,  and  while  so  assigned  vij^ns'7 
shall  have  the  rank,  pay,  and  allowance  of  a  lieutenant-  ^  P-  72°- 
colonel.     A  chief  ordnance  officer  may  be  assigned  to  the 
staff  of  a  division  commander,  and  while  so  assigned  shall 
have  the  rank,  pay,  and  allowances  of  a  major.     Act  of 
July  7,  1898  (30  Stat.  Z., 


g  andndi- 


ORDNANCE-SERGEANTS — ENLISTED   MEN. 


Par. 


1162.  Ordnance-sergeants,  duties. 

1163.  The  same,  selection. 


Par. 

1164.  Enlisted  men  of  ordnance. 

1165.  Detail  of  artificers. 


1162.  There  shall  be  an  ordnance-sergeant  for  each  mili-  gean^-a  number 
tary  post,  whose  duty  it  shall  be  to  take  care  of  the  ord-  ^fy^J 'isee  c 
nance,  arms,  ammunition,  and  other  military  stores  at  such  |jg:  ^"5*  lfy$ 
post,  under  the  direction  of  the  commanding  officer,  and  ^467' s-  2» v- 4>  p- 
according  to  regulations  prescribed  by  the  Secretary  of    Sec.ii09,R.s. 
War.3 

1163.  Ordnance-sergeants  shall  be  selected  by  the  Sec-    Jow ^gted. 
retary  of  War  from  the  sergeants  of  the  line  who  shall  f^V'is???^! 
have  served  faithfully  for  eight  years,  including  four  years  19)sJc.2iiio  K.S. 

1See  the  title  Examinations  for  Promotion  in  the  chapter  entitled  THE  STAFF 
DEPARTMENTS. 

2  But  one  of  these  officers  now  remains  in  service;  the  office  will  cease  to  exist  upon 
the  occurrence  of  a  vacancy  under  the  operation  of  the  act  of  Feb.  2,  1901.     See  par. 
1160,  post. 

3  For  pay  and  allowances  of  ordnance-sergeants,  see  the  chapters  entitled  THE  PAY 
DEPARTMENT,  THE  QUARTERMASTER'S  DEPARTMENT,  and  THE  SUBSISTENCE  DEPARTMENT. 

The  Army  appropriation  act  of  June  16,  1892,  provided  "that  sergeants  of  ord- 
nance shall  receive  the  same  allowances  of  clothing  as  other  sergeants  in  like  staff 
departments."  Held  that  this  provision  entitled  these  sergeants  to  receive,  free  of 
cost,  a  certain  number  of  units  of  the  different  articles  that  go  to  make  up  their  cloth- 
ing, or,  when  the  allowance  was  expressed  in  dollars  and  cents,  the  amount  which 
such  articles  would  cost  when  made  up  in  the  form  and  style  required  for  such  ser- 
geants. Dig.  Opin.  J.  A.  G.,  par.  1864. 


442  MILITARY   LAWS    OF   THE    UNITED   STATES. 

in   the  grade   of   noncommissioned  officer,  and   shall  be 
assigned  to  their  stations  by  him. 

n  H64.  The  Chief  of  Ordnance  may  enlist  as  many  sergeants 
8:°^  or(^nance'  corP°ra^s  °f  ordnance,  and  first  and  t  second 
Ju^y5,i862,'c.i33,'  class  privates  of  ordnance  as  the  Secretary  of  War  may 
juiyV28,  1866  c!  direct. 

335';  JuneS.l&S;  C.  458,  s.  5,  v.  18,  p.  245;  Feb. 
Sec.  1162,  B.S.  27,  1877,  c.  69,  v.  19,  p.  242. 

Detail  of  artifi-     1165.  The  Chief  of  Ordnance,  subject  to  the  approval  of 
Feb.  8,  1815,  c.  the  Secretary  of  War,  shall  organize  and  detail  to  reei- 

38,s.r4,v.3,J).203;  * 

Feb. 27,1877,  c.69,ments,   corps,   or  garrisons   such  numbers   of   ordnance 
'sec. lies,' B.S.  enlisted  men,  furnished  with  proper  tools,  carriages,  and 
apparatus,  as  may  be  necessary,  and  shall  make  regula- 
tions for  their  government. 


Par. 

1166.  Duties  of  Chief  of  Ordnance. 


DUTIES. 


Par. 


1168.  Depots 


1167.  Issues. 

0f]oidnSaSfcehief  1166>  ^  s^a^  be  ^6  ^u^r  °*  ^e  Chief  of  Ordnance  to 
38Fse8'v'3181^k)3'  furnis^  estimates,  and,  under  the  direction  of  the  Secretary 
s'«c.  ii64,  B.  s.  Of  \\rar?  to  make  contracts  and  purchases,  for  procuring 
the  necessary  supplies  of  ordnance  and  ordnance  stores  for 
the  use  of  the  armies  of  the  United  States;  to  direct  the 
inspection  and  proving  of  the  same,  and  to  direct  the  con- 
struction of  all  cannon  and  carriages,  ammunition  wagons, 
traveling  forges,  artificers'  wagons,  and  of  every  imple- 
ment and  apparatus  for  ordnance,  and  the  preparation  of 
all  kinds  of  ammunition  and  ordnance  stores  constructed 
or  prepared  for  said  service.1 

i5be8  isis  c      1167-  The  Cllief  of  Ordnance,  or  the  senior  officer  of  that 
°|-  corps  for  any  district,  shall  execute  all  orders  of  the  Secre- 
tary of  War,  and,  in  time  of  war,  the  orders  of  any  general 
or  field  officer  commanding  an  army,  garrison,  or  detach- 
ment, for  the  supply  of  all  ordnance  and  ordnance  stores 
for  garrison,  field,  or  siege  service. 
geP°Jf-1s1,  „      1168.  The  Chief  of  Ordnance,  under  the  direction  of  the 

J-6D.  o,  loJu,    C. 

8^.9ii65  PB?S.'  Secretary  of  War,  may  establish  depots  of  ordnance  and 
ordnance  stores  in  such  parts  of  the  United  States  and  in 
such  numbers  as  may  be  deemed  necessary.2 

1  For  powers  and  duties  of  this  office  in  respect  to  the  care  and  accountability  of 
ordnance  and  ordnance  stores,  see  paragraphs  1172-1176  post. 

2  CLERICAL   SERVICES. 

The  employment  of  clerical  services  in  the  Ordnance  Department  is  regulated  in 
the  annual  acts  of  appropriation.  The  amount  to  be  expended  for  such  services 
was  fixed  at  $65,000  by  the  acts  of  March  3, 1883,  July  5, 1884,  and  March  3, 1885;  at 


Par. 


MILITARY    LAWS    OF   THE    UNITED   STATES.  443 

PURCHASES. 

Par. 

1171.  Material  for  cartridge  bags. 


1169.  General  purchases. 

1170.  Purchases  of  steel. 

1169.  Hereafter,  except  in  cases  of  emergency  or  where  ch^Jgeral    pur" 
it  is  impracticable  to  secure  competition,  the  purchase  of  g^^f' 1901>  v< 
all  supplies  for  the  use  of  the  various  departments  and 

posts  of  the  Arm}7'  and  of  the  branches  of  the  army  serv- 
ice shall  only  be  made  after  advertisement,  and  shall  be 
purchased  where  the  same  can  be  purchased  the  cheapest, 
quality  and  cost  of  transportation  and  the  interests  of  the 
Government  considered;  but  every  open-market  emer- 
gency purchase  made  in  the  manner  common  among 
business  men  which  exceeds  in  amount  two  hundred  dol- 
lars shall  be  reported  for  approval  to  the  Secretary  of  War 
under  such  regulations  as  he  may  prescribe.1  Act  of 
March  3,  1901  (31  Stat.  Z.,  905). 

1170.  No  contract  for  the  expenditure  of  any  portion  of  st(fe"rchases    of 
the    money  herein   provided,  or    that  may  be  hereafter  MF®b-7|*'1891'v- 
provided  for  the  purchase  of  steel  shall  be  made  until  the 

same  shall  have  been  submitted  to  public  competition  by 
the  Department  by  advertisement.  Act  of  February  %4> 
1891Z  (26  Stat.  Z.,  769). 

1171.  When,  in  the  opinion  of  the  Secretaiy  of  War,  it 
is  necessary  to  purchase  material  abroad  for  the  manufac- 
ture of  sacks  for  artillery  cartridges,  it  shall  be  admitted 
free  of  duty.     Act  of  March  15, 1898  (30  Stat.  Z.,  326). 

$60,000  by  the  acts  of  June  30,  1886,  February  9,  1887,  September  22,  1888,  March  2, 
1889,  June  13, 1890,  February  24, 1891,  July  16, 1892,  February  27, 1893,  August  6, 1894, 
February  12,  1895,  March  16,  1896,  March  2, 1897,  and  March  15, 1898.  This  restric- 
tion is  suspended,  during  the  existing  war  with  Spain,  by  the  act  of  June  7, 1898  (30 
Stat.  L.,  434),  and  subsequent  enactments  of  similar  character. 

^his  enactment  replaces  the  act  of  August  6,  1891  (28  Stat.  L.,  242),  authorizing 
open-market  purchases,  not  exceeding  two  hundred  dollars  in  amount,  in  the  man- 
ner common  among  business  men.  For  general  provisions  respecting  the  procure- 
ment of  supplies  and  services,  see  the  chapters  entitled  CONTRACTS  AND  PURCHASES. 

The  act  of  June  7, 1898  (30  Stat.  L.,  434),  contained  the  requirement  that  "during 
the  existing  war  the  Bureau  of  Ordnance  of  the  War  Department  is  authorized  to 
purchase  without  advertisement  such  ordnance  and  ordnance  stores  as  are  needed 
for  immediate  use,  and  when  such  ordnance  and  ordnance  stores  are  to  be  manufac- 
tured then  to  make  contracts  without  advertisement  for  such  stores  to  be  delivered 
as  rapidly  as  manufactured."  By  section  3  of  the  act  of  February  24,  1900  (31  Stat. 
L.  33) ,  this  authority  was  extended  to  June  30,  1901. 

2The  act  of  May  7,  1898  (30  Stat.  L.,  401),  contains  the  requirement  "thatno  con- 
tract for  oil-tempered  and  annealed  steel  for  high-power  coast-defense  guns  and  mor- 
tars shall  be  made  at  a  price  exceeding  twenty-three  cents  per  pound."  The  same 
statute  confers  authority  upon  the  Secretary  of  War,  at  his  discretion,  to  expend  a 
portion  of  the  money  appropriated  for  oil-tempered  and  annealed  steel  for  the  pur- 
chase of  material  for  steel-wire  seacoast  guns.  The  acts  of  March  3,  1899  (30  Stat. 
L.,  1251),  and  May  25,  1900  (31  ibid.,  184),  contain  similar  requirements;  those  of 
March  3,  1899,  and  May  25,  1900,  restricted  the  price  to  be  paid  for  steel  to  twenty-two 
cents  per  pound. 


444  MILITARY    LAWS    OF   THE    UNITED    STATES. 


ACCOUNTABILITY    FOR   PROPERTY. 


Par. 


1172.  Reports  of  stores. 

1173.  Returns  of  ordnance. 

1174.  Regulations. 


Par. 


1175.  Reports  of  damages. 

1176.  Cost  of  repairs. 


semiannual  re-      1172.  The  Chief  of  Ordnance  shall,  half  yearly,  or  of  tener 

Feb.  s,  1815,  c.  if  so  directed,  make  a  report  to  the  Secretary  of  War  of 

Febl 27,1877,  c.  69,' all  the  officers  and  enlisted  men  in  his  department  of  the 

V.  19,  p.  242. 

Sec.  1167, K.S.  service,  and  of  all  ordnance  and  ordnance  stores  under  his 
control. 

n^eturnsoford-      1173,  Every  officer  of  the  Ordnance  Department,  every 

i9Feb2427>  1877>  v'  01*dnance  storekeeper,  every  post  ordnance-sergeant,  each 
sec.  ii67,K.s.  keeper  of  magazines,  arsenals,  and  armories,  every  assistant 
and  deputy  of  such,  and  all  other  officers,  agents,  or  persons 
who  shall  have  received  or  may  be  entrusted  with  any 
stores  or  supplies,  shall  quarterly,  oroftener  if  so  directed, 
and  in  such  manner  and  on  such  forms  as  m&y  be  directed 
or  prescribed  by  the  Chief  of  Ordnance,  make  true  and 
correct  returns  to  the  Chief  of  Ordnance  of  all  ordnance 
arms,  ordnance  stores,  and  all  other  supplies  and  property 
of  every  kind  received  by  or  entrusted  to  them  and  each  of 
them,  or  which  may  in  any  manner  come  into  their  and 
each  of  their  possession  or  charge.  Act  of  February  27 , 
1877  (19  Stat.  L.,242). 

re?umsationsf°r     1174<  Tne  ^nief  of  Ordhance,  subject  to  the  approval  of 

Secdii67  R  s  ^ne  Secretary  of  War,  is  herebj7  authorized  and  directed 

to  draw  up  and  enforce  in  his  department  a  system  of 

•  rules  and  regulations  for  the  government  of  the  Ordnance 

Department,  and  of  all  persons  in  said  department,  and 
for  the  safe-keeping  and  preservation  of  all  ordnance 
property  of  every  kind,  and  to  direct  and  prescribe  the 
time,  number,  and  forms  of  all  returns  and  reports,  and 
to  enforce  compliance  therewith.1  Ibid. 

1  For  statutory  provisions  on  the  subject  of  property  returns,  see  the  act  of  March 
29,  1894  (28  Stat.  L.,  42) ;  see  also  the  chapter  entitled  THE  PUBLIC  PROPERTY. 

It  is  required,  in  general  and  comprehensive  terms  by  section  1167,  Revised  Stat- 
utes, that  all  officers,  persons,  etc.,  who  may  be  entrusted  with  any  ordnance  stores  or 
supplies  shall  make  certain  regular  returns  to  the  Chief  of  Ordnance  of  such  prop- 
erty in  their  possession  or  charge,  according  to  certain  forms  and  regulations  to  be 
prescribed  by  that  officer  with  the  approval  of  the  Secretary  of  War.  The  act  of 
March  3, 1879,  authorizes  and  directs  the  Secretary  of  War,  at  the  request  of  the  head 
of  any  department,  to  issue  arms  and  ammunition,  when  required  for  the  protection 
of  the  public  money  and  property,  "to  be  delivered  to  any  officer"  of  such  depart- 
ment as  may  be  designated  by  the  head  of  the  same,  and  to  be  accounted  for  to  the 
Secretary  of  War.  Held  that  the  provision  of  section  1167  might  properly  be  regarded 
as  applying  to  the  class  of  officers  indicated  in  this  act,  who  therefore  would  prop- 
erly be  required  to  furnish  the  returns  prescribed  by  that  section.  Dig.  Opin.  J.  A. 
G.,  par.  1861. 


MILITARY    LAWS    OF   THE    UNITED    STATES. 


445 


1175.  Every  officer  commanding  a  regiment,  corps,  gar-da^|°grts  oi 
rison,  or  detachment  shall  make,  once  every  two  months,  ss^' 

or  oftener  if  so  directed,  a  report  to  the  Chief  of  Ordnance  Sec- 
stating  all  damages  to  arms,  equipments,  and  implements 
belonging  to  his  command,  noting  those  occasioned  by 
negligence  or  abuse,  and  naming  the  officer  or  soldier 
by  whose  negligence  or  abuse  the  said  damages  were 
occasioned. 

1176.  The  cost  of  repairs  or  damages  done  to  arms,  equip-  toCojt  ^ 
ments,  or  implements  shall  be  deducted  from  the  pay  of  ce° 

any  officer  or  soldier  in  whose  care  or  use  the  same  were    Sec-  i808,B.s. 
when  such  damages  occurred,  if  said  damages  were  occa- 
sioned by  the  abuse  or  negligence  of  said  officer  or  soldier. 


SALES   OF   OBSOLETE   AND   UNSERVICEABLE    MATERIAL. 


Par. 


1180.  Sales  to  States,  credits. 

1181.  Restriction  on  payment  of  freight. 


Par. 

1177.  Sale  of  powder  and  shot. 

1178.  Sale  of  useless  ordnance. 

1179.  Issues  to  States,  credits. 


1177.  The  Secretary  of  War  is  hereby  authorized,  in 

his  discretion,  to  exchange  the  unserviceable  and  unsuit-  j£J|  p°wder  and 
able  powder  and  shot  on  hand  for  new  powder  and  pro-  21Ma4^' 1881>  T' 
jectiles,  or  to  sell  the  same  and  purchase  similar  articles 
with  the  proceeds  of  the  sales ;  and  he  shall  make  statement 
of   his  action  under   this  provision  in    his  next   annual 
report.     Act  of  March  3,  1881  (21  Stat.  Z.,  468). 

1178.  The  Secretary  of  the  Na.vy  is  authorized  to  dis- 
pose  of  the  useless  ordnance  material  on  hand  at  public 
sale  according  to  law.     *     *     *    And  in  the  case  of  the 
sale  of  like  materials  in  the  War  Department,  the  proceeds 

of  which  shall  be  turned  into  the  Treasury,  an  amount 18>  P-  m 
equal  to  the  net  proceeds  of  such  sale  is  hereby  appro- 
priated for  the  purpose  of  procuring  a  supply  of  material 
adapted  in  manufacture  and  caliber  to  the  present  wants 
of  the  war  service:  And  there  shall  be  expended  in  the 
War  Department,  under  this  provision,  not  more  than 
seventy-five  thousand  dollars  in  any  one  year.1  Act  of 
March  3,  1875  (18  Stat.  L.,  388). 

1179.  Hereafter  the  cost  to  the  Ordnance  Department  of  crggjf  tostate8( 
all   ordnance  and   ordnance  stores  issued  to  the  States,  of;MaroQo' 1889>  T' 

"  25,  p.  ooo. 

Territories,  and  District  of  Columbia,  under  the  act  of 

1  For  rules  respecting  the  disposition  of  damaged  stores  or  stores  that  are  unsuit- 
able for  the  public  service,  see  the  chapter  entitled  THE  PUBLIC  PROPERTY;  for  rules 
as  to  the  disposition  of  the  proceeds  of  the  sale  of  condemned  property,  see  the  chap- 
ter entitled  THE  TREASURY  DEPARTMENT. 


446  MILITARY    LAWS    OF   THE    UNITED    STATES. 

February  twelfth,  eighteen  hundred  and  eighty-seven, 
shall  be  credited  to  the  appropriation  for  ' '  manufacture 
of  arms  at  national  armories,"  and  used  to  procure  like 
ordnance  stores,  and  that  said  appropriation  shall  be  avail- 
able until  exhausted,  not  exceeding  two  years. l  Act  of 
March  2,  1889  (25  Stat.  Z.,  833). 

proSdfState8'      1180'  Tlie  cost  of  a11  stores  and  supplies  sold  to  any 

30Mar326 ' 1898>  v'  State  or  Territory  under  section  three  of  the  act  approved 
February  twenty-fourth,  eighteen  hundred  and  ninety - 
seven,  shall  be  credited  to  the  appropriation  from  which 
they  were  procured,  and  remain  available  to  procure  like 
stores  and  supplies  for  the  Army  in  lieu  of  those  sold  as 
aforesaid.  Act  of  March  15,  1898  (30  Stat.  Z.,  326). 

pa^mlfnt11  o"f  H81.  No  part  of  the  appropriations  made  for  the  Ord- 
MarS  1901  v. nance  Department  shall  be  used  in  payment  of  freight 

si,  p.  910.  charges  on  ordnance  or  ordnance  stores  issued  by  said 

department.  Act  of  March  2,  1901  (31  Stat.  Z.,  910) 

LOANS   AND   GRATUITOUS   ISSUES. 

of^oSdemSed      1182-  Tiie  Secretary  of  War  and  the  Secretary  of  the 
authorized et°''^av3r  are  eac^  nereDy  authorized,  in  their  discretion,  to 
29*payi33' 18%' v'  l°an  or  £iye  t°  soldiers'  monument  associations,  posts  of  the 
Grand  Army  of  the  Republic,  and  municipal  corporations 
condemned  ordnance,  guns,  and  cannon  balls  which  may 
not  be  needed  in  the  service  of  either  of  said  Departments. 
Such  loan  or  gift  shall  be  made  subject  to  rules  and  regu- 
lations covering  the  same  in  each  Department,  and  the 
Government  shall  be  at  no  expense  in  connection  with  any 
such  loan  or  gift.     Act  of  May  22, 1896  (29  Stat.  Z.,  133). 
National  Hom?     H83.  The  Chief  of  Ordnance  is  authorized  to  issue  such 
3oMario87318"'  v'  °bsolete  ordnance,  gun  carriages,  and  ordnance  stores,  as 
may  be  needed  for  ornamental  purposes,  to  the  Homes  for 
Disabled  Volunteer  Soldiers,  the  Homes  to  pay  for  trans- 
portation and  such  other  expenses  as  are  necessary.2     Act 
of  March  3,  1899  (30  Stat.  Z.,  1073). 

AMMUNITION   FOR  MORNING   AND   EVENING   GUN. 

1184.  For  firing  the  morning  and  evening  gun  at  military 
^  posts  prescribed  by  General  Orders,  Numbered  Seventy, 
si,  p.  216.  Headquarters  of  the  Army,  dated  July  twenty -third,  eight- 

een hundred  and  sixty-seven,  and  at  National  Home  for 

lrThe  act  of  March  15,  1898  (30  Stat.  L.,  326),  contains  a  similar  requirement. 

2  For  similar  loans,  gifts,  and  issues  of  ordnance  to  National  Military  Park,  see  the 
chapter  entitled  NATIONAL  PARKS.  For  issues  to  colleges,  see  the  title  Details  to  Col- 
leges in  th  chapter  entitled  COMMISSIONED  OFFICERS. 


v. 


MILITARY    LAWS    OF    THE    UNITED    STATES. 


447 


Disabled  Volunteer  Soldiers  and  its  several  Branches, 
including  National  Soldiers'  Home  in  Washington,  District 
of  Columbia,  and  at  Soldiers  and  Sailors'  State  Homes, 
including  material  for  cartridges,  bags,  and  so  forth, 
twenty-five  thousand  dollars.1  Act  of  May  26,  1900(31 
Stat.  X.,  216). 

BOARD    FOR   TESTING    RIFLED    CANNON. 

Par. 


1188.  Expenses    of    officers   at    proving 
grounds. 


Par. 

1185.  Public  tests. 

1186.  Calibers,  weights,  lengths  of  bore, 

etc.,  to  be  furnished  to  makers. 

1187.  Sales  of  s.  b.  guns  for  experimental 

purposes. 

1185.  That  hereafter  all  rifled  cannon  of  any  particular 
material,  caliber,  or  kind,  made  at  the  cost  of  the  United  etc^ly  5  1884 
States,   shall   he  publicly  subjected  to  the  proper  test, 2>  v-  ^ p- 169- 
including  such  rapid  firing  as  a  like  gun  would  be  likely 

to  be  subjected  to  in  actual  battle,  for  the  determination 
of  the  endurance  of  the  same  to  the  satisfaction  of  the 
President  of  the  United  States  or  such  persons  as  he  may 
select;  and  he  is  hereby  authorized  to  select  not  to  exceed 
five  persons,  who  shall  be  skilled  in  such  matters;  and  if 
such  gun  shall  not  prove  satisfactory,  they  shall  not  be 
put  to  use  in  the  Government  service.  Sec.  8,  act  of  July 
5,  1884(23  Stat.  Z.,  159). 

1186.  It  shall  be  the  duty  of  the  Secretary  of  War  to    caiiber,etc.,of 

.,  .  ..  .  .  ...  guns     required 

cause  tne  various  calibers,  lengths  01  bore,  greatest  and  for  service  to  be 

determined    b  y 

least  admissible  weights  of  guns  for  each  caliber,  together  secretary   of 
with  the  greatest  and  least  weights  of  projectiles  for  each    sec.  i,  ibid. 
caliber,  of  all  the  various  calibers  required  for  the  service, 
together  with  the  number  of  each  caliber  of  gun  required 
to  be  determined,  and  to  make  the  same  known  to  manu- 
facturers of  ordnance  on  their  application  and  to  report 
the  same  to  Congress  at  its  next  session  for  its  approval. 
Sec.  1,  ibid. 

1187.  That  the  Secretary  of  War  and  the  Secretary  of 
the  Navy  are  hereby  authorized  to  sell  to  projectors 

methods  of  conversion,  for  experimental  purposes  only ,  *  *fy  5>  lm 
any  smooth-bore  cannon  on  hand  required  by  them,  at 
prices  which  shall  not  be  less  than  have  been  received  from 
auction  sales  for  such  articles,  and  deliver  the  same  at  the 
cost  of  the  Government,  at  the  nearest  convenient  place  for 

1  The  annual  acts  of  appropriation  since  that  of  September  22,  1888  (25  Stat.  L 
488),  have  contained  a  similar  provision. 


448  MILITARY    LAWS    OF    THE    UNITED    STATES. 

shipment  or  public  transportation;  the  cost  of  delivery  to 
be  deducted  from  the  proceeds  of  sales,  and  the  balance  to 
be  covered  into  the  Treasury  of  the  United  States.  Sec. 
3,  act  of  July  5,  1884  (23  Stat.  Z.,  169). 

Expenses  of     1188.  For  the  necessary  expenses  of  officers  while  tem- 

°  May25,  i9oo,  v.  porarily   employed   on   ordnance   duties  at  the  proving 

ground  and  absent  from  their  proper  stations,  at  the  rate 

of  two  dollars  and  fifty  cents  per  diem  while  so  employed, 

*     *     *     dollars.1     Act  of  May  %5,  1900(31  Stat.  Z.,  186.) 

MISCELLANEOUS   PURCHASES. 


breech-ioad\n°|  1189<  ^he  Secretary  of  War  is  hereby  authorized  and 
iare  e^ailber8  au-^^rec^e(^  ^°  Purc^ase  under  contract,  after  due  advertise- 
thsecZ62d'Au  lg  ment  inviting  proposals,  and  at  prices  which  the  Board 
1890,  v.  26,  p.  319.'  Of  Ordnance  and  Fortification  shall  adjudge  to  be  fair  to 
the  manufacturer  and  for  the  interest  of  the  United  States, 
twenty  -five  eight-inch,  fifty  ten-inch,  and  twenty  -five 
twelve-inch  guns,  all  of  which  guns  shall  be  breech-load- 
ing single-charge  steel  guns,  and  of  weight  and  dimensions 
to  be  prescribed  by  the  Board,  and  shall  fulfill  the  condi- 
tions hereinafter  provided:  Provided^  That  if  two  or  more 
persons,  citizens  of  the  United  States,  submit  proposals  to 
furnish  said  guns,  either  in  part  or  in  whole,  at  prices  not 
materially  different  from  each  other,  contracts  may  be 
awarded,  in  such  proportion^  among  the  citizens  submit- 
ting such  proposals  as  the  Secretary  of  War  may  direct. 
One  type  gun  of  each  of  the  above-mentioned  caliber,  with 
the  proper  supply  of  ammunition  therefor,  shall  be  pre- 
sented for  test  at  such  place  and  within  such  time  as  the 
contract  shall  provide,  and  shall  be  subjected  to  such  tests 
in  respect  to  accuracy,  range,  power,  endurance,  and  general 
efficiency  as  the  Board  of  Ordnance  and  Fortification  shall 
have  prescribed.  All  the  other  guns  of  each  caliber,  with 
the  proper  supply  of  ammunition,  shall  be  delivered  at  such 
place  and  within  such  times  as  the  contract  shall  provide, 
and  shall  be  subjected  to  the  ordinary  service  test  of  ten 
rounds  with  the  full  charge  and  weight  of  projectile,  which 
shall  develop  the  standard  power  prescribed  for  the  gun. 
If  the  type  gun  sustains  the  prescribed  test  to  the  satisfac- 
tion of  the  Board  of  Ordnance  and  Fortification,  it  and 
each  of  the  other  guns  which  sustains  the  ordinary  service 

1  This  provision  has  appeared  in  the  several  acts  of  appropriation  for  fortifications, 
etc.,  since  that  of  February  24,  1891  (26  Stat,  L.,  768).  See  note  to  paragraph  1217, 
post. 


MILITARY   LAWS   OF  THE   UNITED   STATES.  449 

test,  and  the  ammunition  expended  in  such  tests,  shall  be 
accepted  under  the  contract.  All  guns  manufactured 
under  these  contracts,  including  the  type  guns,  shall  be 
subjected  to  inspection  at  all  stages  of  manufacture,  and 
no  change  whatever  shall  be  made  in  the  material,  mode 
of  manufacture,  or  dimensions  of  the  guns  for  service  from 
those  employed  in  the  type  gun  without  the  approval  of 
the  Secretary  of  War.  Payment  for  each  gun  and  ammu- 
nition for  testing  same,  including  cost  of  transportation, 
shall  be  made  upon  the  satisfactory  completion  of  the  pre- 
scribed test  for  that  gun.  All  tests  of  guns  shall  be  made 
in  the  presence  of  the  Board  and  of  the  person  presenting 
the  gun,  or  his  authorized  agent,  and  due  regard  shall  be 
paid  to  suggestions  offered  by  him  which  respect  the 
mode  of  making  such  test. 

Under  the  provisions  of  this  sections  there  shall  not 
be  expended  or  contract  or  contracts  entered  involving  the 
Government  in  an  aggregate  expenditure  exceeding  three 
million  seven  hundred  and  seventy-five  thousand  dollars, 
nor  an  expenditure  on  the  part  of  the  Government  in  any 
one  fiscal  year  in  excess  of  one  million  dollars.  And  all 
guns  and  materials  purchased  under  the  authority  of  this 
section  shall  be  of  American  manufacture  and  furnished 
by  citizens  of  the  United  States:  Provided  further,  That 
contracts  may  be  made  for  not  exceeding  one-fourth  of  the  Maximum  Pa- 

,  .  ,     ,   „  ,    ciflc    coast  con- 

guns  herein  provided  for,  to  be  constructed  on  the  Pacific  tracts. 

coast,  in  the  discretion  of  the  Secretary  of  War.  Sec.  2, 
act  of  August  18,  1890  (26  Stat.  Z.,  319). 

Section  two  of  "An  act  making  appropriations  for  for-   The  same;  limit 

.  of  expenditure. 

tmcations  and  other  works  of  defense,  for  the  armament  26Feb^}' 1891>  Vt 
thereof,  for  the  procurement  of  heavy  ordnance  for  trial 
and  service,  and  for  other  purposes,"  approved  August 
eighteenth,  eighteen  hundred  and  ninety,  is  hereby  modi- 
fied and  enlarged  so  that  the  amount  authorized  to  be 
expended  thereunder  be  increased  to  four  million  two  hun- 
dred and  fifty  thousand  dollars,  to  be  expended  on  the  terms 
and  conditions  and  for  the  purposes  therein  set  forth,  except 
that  fifty  thousand  of  said  sum  shall  be  reserved  to  cover 
all  expenses  other  than  the  powder  and  projectiles  incident 
to  the  tests  and  inspection  of  the  guns,  and  also  that  the 
Secretary  of  War  be  authorized  to  contract  thereunder  for 
such  less  number  of  guns  than  one  hundred  as  he  may  ni2neberoef  heavy 
deem  for  the  best  interests  of  the  Government.  Act  0 
February  %  1891  (26  Stat.  L.,  770). 
22924—08 29 


450  MILITARY   LAWS    OF   THE   UNITED   STATES. 


ARMS,    ARMORIES,    AND   ARSENALS. 


Par. 

1190.  Armories,  officers,  workmen. 


Par. 


1199.  Exemption  from  service  as  jurors. 


1191.  Pay  of  officers,  clerks,  etc. ,  at  armo-  |  1200.  No  money  to  be  expended  in  per- 

ries, fecting  inventions. 

1192.  When  paid;  who  to  give  bond. 

1193.  Annual  accounts  to  Congress. 

1194.  Arsenals  may  be  abolished. 

1195.  Distribution  of  arms  to  States,  etc. 

1196.  Leaves  of  absence  to  employees. 

1197.  Enticing  away  workmen;  penalty. 

1198.  Workmen  guilty  of  certain  miscon- 

duct. 


1201.  Patents  for  inventions. 

1202.  Magazine  arms. 

1203.  Replacing  ordnance,  etc. 

1204.  Issues  of  arms,  etc.,  to  Executive 

Departments. 


1190>  At  eac^  arsenal  there  shall  be  established  a  national 
v.'i!p9352:,armory'  in  which  there  shall  be  employed  one  superintend- 
K?s'2^v  21pl849o:en^  W^°  shall  be  an  officer  of  the  Ordnance  Department, 
26?gs  i'  v8io  p'  t°  t>e  designated  by  the  President;  one  master-armorer, 


be  appointed  by  the  President,  and  as  many 
31|ec.  lees,  R.  s.  workmen  as  the  Secretary  of  War  may,  from  time  to  time, 

deem  necessary. 

ci?rkysftcffiacte5-  1191-  The  ordnance  officer  in  charge  of  any  national  ar- 
mAugS23  1842  c  mory  shall  receive  no  compensation  other  than  his  regular 
MirS'32i^57'c'io6;Pav  as  an  officer  of  the  corps;  the  master-armorers  shall 
AugVe  i86ip'c257;  receiye  fifteen  hundred  dollars  per  annum  each;  the  inspect- 
Mai-V2!^1^  ors  an(^  c^erks,  each,  eight  hundred  dollars  per  annum, 
467>june2^i874'exceP^  the  clerks  of  the  armory  at  Springfield,  Massachu- 
vs18cpi663,R.s.  setts,  who  shall  receive  sixteen  hundred  and  fifty  dollars 

per  annum. 

whoeito  ^ve     H92.  The  several  compensations  fixed  by  the  preceding 

b°Aug  23  1842  c  se°tion  for  master-armorers  and  inspectors  shall  be  paid 

^eS^iew'Sr!1!'  quarter-yearly.     All  military  storekeepers  and  paymasters 

shall  give  bond  and  security  for  the  faithful  discharge  of 

their  duties,  in  such  sum  as  may  be  prescribed   by  the 

Secretary  of  War. 

count?  uto]  con-  H93.  An  annual  account  of  the  expenses  of  the  national 
2  1794  c  armories  shall  be  laid  before  Congress,  together  with  an 
weViMs'  account  of  the  arms  made  and  repaired  therein. 

1194<  ^e  Secretary  of  War  is  authorized  to  abolish  such 
98^1  v  H?3'  c>  °^  ^e  arsenals  of  the  United  States  as,  in  his  judgment, 

useless  or  unnecessary. 

1^5.  All  the  arms  procured  in  virtue  of  any  appropri- 
etl  r  23  1808  c  ati°n  authorized  by  law  for  the  purpose  of  providing  arms 
Mar  tl856Pc'i69:an(^  e'luipments  for  the  whole  body  of  the  militia  of  the 
s'&ee.i°6fe'?£'s.  ^^n^ted  States  shall  be  annually  distributed  to  the  several 
States  of  the  Union  according  to  the  number  of  their  Rep- 
resentatives and  Senators  in  Congress,  respectively;  and 


MILITARY    LAWS    OF    THE    UNITED    STATES.  451 

all  arms  for  the  Territories  and  for  the  District  of  Columbia 
shall  be  annually  distributed  in  such  quantities,  and  under 
such  regulations,  as  the  President  may  prescribe.  All  such 
arms  are  to  be  transmitted  to  the  several  States  and  Terri- 
tories by  the  United  States. 

LEAVES  OF  ABSENCE  TO  EMPLOYEES. 

1196.  Each  and  every  employee  of  the  navy -yards,  gun  se^vtoSemPioy- 
f actories,  naval  stations,  and  arsenals  of  the  United  States  ee|,-eb  1  1901  v 
Government  be,  and  is  hereby,  granted  fifteen  working  31>  P-  ™- 
days'  leave  of  absence  each  year  without  forfeiture  of  pay 

during  such  leave:  Provided,  That  it  shall  be  lawful  to 
allow  pro  rata  leave  only  to  those  serving  twelve  consecu- 
tive months  or  more:  And  provided  further,  That  in  all 
cases  the  heads  of  divisions  shall  have  discretion  as  to  the 
time  when  the  leave  can  best  be  allowed  without  detriment 
to  the  service,  and  that  absence  on  account  of  sickness 
shall  be  deducted  from  the  leave  hereby  granted.  Act  of 
February  1,  1901  (31  Stat.  Z.,  746). 

MISCELLANEOUS  PROVISIONS. 

1197.  If  any  person  procures  or  entices  any  artificer  DrWoS£eS?pS2 
workman,  retained  or  employed  in  any  arsenal  or  armory,  al*J^y  7  1800  c 
to  depart  from  the  same  during  the  continuance  of  his  en- 
gagement,  or  to  avoid  or  break  his  contract  with  the  United 

States,  or  if  any  person,  after  due  notice  of  the  engagement 
of  any  such  workman  or  armorer,  during  the  continuance 
of  such  engagement,  retains,  hires,  or  in  anywise  employs, 
harbors,  or  conceals  such  artificer  or  workman,  he  shall  be 
fined  not  more  than  fifty  dollars,  or  be  imprisoned  not  more 
than  three  months. 

1198.  If  any  artificer  or  workman,  hired,  retained,  or 
employed  in  any  public  arsenal  or  armory,  wantonly  and 
carelessly  breaks,  impairs,  or  destroys  any  implements,    s 
tools,  or  utensils,  or  any  stock,  or  materials  for  making 
guns,  the  property  of  the  United  States,  or  willfully  and 
obstinately  refuses  to  perform  the  services  lawfully  assigned 
to  him,  pursuant  to  his  contract,  he  shall  forfeit  a  sum  not 
exceeding  twenty  dollars  for  every  such  act  of  disobedience 
or  breach  of  contract,  to  be  recovered  in  any  court  having 
competent  jurisdiction  thereof. 

1199.  All  artificers  and  workmen  employed  in  the 

ries  and  arsenals  of  the  United  States  shall  be  exempted.  JUMay  7,  isoo,  c. 
during  their  time  of  service,  from  service  as  jurors  in  any  Mar'^isss.'c^m 

s.  7,  v.  10,  p.  639. 
COUrt.  Sic.  1671,B.S. 


452  MILITARY    LAWS    OF   THE    UNITED   STATES. 

In     120°-  Hereafter  no  money  shall  be  expended  at  said  armo- 


8onsctinginven"  ries  in  toe  perfection  of  patentable  inventions  in  the  manu- 
18^455'  1875'  v  ^acture  of  arms  by  officers  of  the  Army  otherwise  com- 
pensated for  their  services  to  the  United  States.1     Act  of 
March  3,  1875  (18  Stat.  Z.,  455). 

ventSnSteftoribe  1201«  The  Secretary  of  the  Interior  and  the  Commis- 
ice.6  pub~  si°ner  °f  Patents  are  authorized  to  grant  any  officer  of  the 
1883>  Government,  except  officers  and  employees  of  the  Patent 
Office,  a  patent  for  any  invention  of  the  classes  mentioned 
in  section  forty-eight  hundred  and  eighty-six  of  the  Revised 
Statutes,  when  such  invention  is  used  or  to  be  used  in  the 
public  service,  without  the  payment  of  any  fee:  Provided, 
That  the  applicant  in  his  application  shall  state  that  the 
invention  described  therein,  if  patented,  may  be  used  by 
the  Government  or  any  of  its  officers  or  employees  in  the 
prosecution  of  work  for  the  Government,  or  by  any  other 
person  in  the  United  States,  without  the  payment  to  him 
of  any  royalty  thereon,  which  stipulation  shall  be  included 
in  the  patent.2  Act  of  March  3,  1883  (22  Stat.  Z.,  625). 

MANUFACTURE   OF   ARMS.3 

1202.  Manufacture  of  arms  at  the  National  armories,  four 
28AU2426'  1894)V>  hundred  thousand  dollars:  Provided,  That  this  appropria- 
tion shall  be  applicable  to  the  manufacture  of  the  magazine 

1  Where  a  skilled  mechanic  in  the  Government  employment,  in  the  ordinary  course 
of  his  employment,  with  the  aids  furnished  by  the  Government  and  the  suggestion 
and  advice  of  his  superior  officer,  produces  a  device  upon  which  a  patent  is  issued, 
he  can  not  recover  for  its  use  by  the  Government.      Eager  v.  U.  S.,  35  Ct.  Cls., 
556;  Solomon's  Case,  21  ibid.,  479;  Gill's  Case,  22  ibid.,  335;  25  ibid.,  415. 

2  Where  claimants  seek  to  recover  a  royalty  for  the  use  of  a  patented  device,  they 
must  show  a  contract,  express  or  implied.     Where  on  a  claim  for  royalty  it  appears 
that  the  Government  at  no  time  recognized  a  right  in  the  patentees  or  acknowledged 
a  responsibility,  it  must  be  held  that  no  contract  exists.     Russell  and  Livermore  v. 
U.  S.,  35  Ct.  Cls.,  154.      A  contract  to  pay  is  implied  whenever  the  Government, 
acting  through  a  competent  agent,  takes  or  uses  individual  property,  acknowledging 
explicitly  or  tacitly  that  the  property  is  individual  property.     Schillinger  v.  U.  S., 
24  Ct.  Cls.,  278;  155  U.  S.,  163;  Berdan's  Case,  25  Ct.  Cls.,  355;  26  ibid.,  48;  30  ibid., 
491;  156  U.  S.,  552. 

Section  1694  of  the  Revised  Statutes  contained  the  requirement  that  "no  royalty 
shall  be  paid  by  the  United  States  to  any  of  its  officers  or  employees  for  the  use  of 
any  patent  for  the  system,  or  any  part  thereof,  mentioned  in  the  preceding  section 
(section  1674,  Revised  Statutes),  nor  for  any  such  patent  in  which  said  officers  or 
employees  may  be  directly  or  indirectly  interested." 

3  By  section  1673,  Revised  Statutes,  it  was  provided  that  "the  breech-loading  sys- 
tem for  muskets  and  carbines  adopted  by  the  Secretary  of  War,  known  as  '  the 
Springfield  breech-loading  system,'  is  the  only  system  to  be  used  by  the  Ordnance 
Department  in  the  manufacture  of  muskets  and  carbines  for  the  military  service.  '  ' 
Under  authority  conferred  by  the  act  of  February  27,  1893  (27  Stat.  L.,  480),  a  sys- 
tem of  magazine  small  arms  was  adopted  by  the  Secretary  of  War  on  the  recom- 
mendation of  a  board  of  officers  convened  for  that  purpose  in  pursuance  of  General 
Orders,  No.  136,  A.  G.  O.,  of  1890;  the  magazine  arm  thus  adopted  is  officially  known 
as  the  United  States  magazine  rifle,  model  of  1896.     The  above  requirement  was 
repeated  in  the  acts  of  February  12,  1895  (28  Stat.  L.,  682),  March  16,  1896  (29  ibid., 
68),  March  2,  1897,  (ibid.,  617),  and  March  15,  1898  (dO  ibid.,  326). 


MILITARY    LAWS    OF   THE    UNITED    STATES. 


453 


arm  recommended  for  trial  by  the  board,  recently  in  ses- 
sion, and  approved  by  the  Secretary  of  War.  Act  of 
August  6,  1894  (®$  Stat.  Z.,  $1$). 

1203.  On  application  of  the  governor  of  any  State 
Territor}7  the  Secretary  of  War  is  authorized  to  replace  30,  priors!8"'  v 
the  ordnance  and  ordnance  stores  which  the  volunteers 
from  said  State  or  Territory  carried  into  the  service  of 
the  United  States  Army  during  the  recent  war  with  Spain 
and  which  have  been  retained  by  the  United  States.  Act 
of  March  3,  1899  (30  Stat.  Z.,  1073). 

ISSUES   OF   ARMS,  ETC.,  TO   EXECUTIVE   DEPARTMENTS. 


1204.  Upon  the  request  of  the  head  of  any  Department, 
the  Secretary  of  War  be,  and  he  hereby  is,  authorized  and  payments.6  De 
directed  to  issue  arms  and  ammunition  whenever  they  may  2oMPar4io  .1879(  v 
be  required  for  the  protection  of  the  public  money  and 
property,  and  they  may  be  delivered  to  any  officer  of  the 
Department  designated  by  the  head  of  such  Department, 
to  be  accounted  for  to  the  Secretary  of  War,  and  to  be 
returned  when  the  necessity  for  their  use  has  expired. 
Arms  and  ammunition  heretofore  furnished  to  any  Depart- 
ment by  the  War  Department,  for  which  the  War  Depart- 
ment has  not  been  reimbursed,  may  be  receipted  for  under 
the  provisions  of  this  act.  l  Act  of  March  3,  1879  (W  Stat. 
Z.,  1,10). 


THE   UNITED   STATES   TESTING   MACHINE. 


Par. 


1205.  The  United  States  testing  machine. 

1206.  No  compensation  for  officers  of  the 

United  States. 

1207.  Tests  to  be  made;  use  of  machine. 


Par. 


1  208.  Advance  payments  may  be  required 
for  tests;  record  of  tests  shall  be 
furnished  to  American  Society  of 
Civil  Engineers. 


1205.  For  experiments  in  testing  iron  and  steel,  i»du4- 
ing  the  cost  of  any  machine  built  for  such  purpose,  the 
sum  of  fifty  thousand  dollars  is  hereby  appropriated;  and  J£JJ  .1  l 
the  further  sum  of  twenty-five  thousand  dollars  provided  p-  543> 
"for  improved  machinery  and  instruments   for   testing 
American  iron  and  steel"  in  the  act  entitled  "An  act  mak- 
ing appropriations  for  the  support  of  the  Army  for  the  year 
ending  June  thirtieth,  eighteen  hundred  and  seventy-four," 
approved  March  third,  eighteen   hundred  and  seventy- 
three,  is  hereby  continued  and  made  available  for  such 


1  Section  2  of  the  act  of  May  18,  1898  (30  Stat.  L.,  419)  ,  authorized  the  Secretary  of 
War  and  general  officers  commanding  troops  in  Cuba  to  make  certain  issues  of  arms, 
ammunition,  equipments,  etc.,  to  the  Cuban  people  during  the  existence  of  the  war 
with  Spain. 


454  MILITAEY    LAWS    OF    THE    UNITED    STATES. 

purpose;  and  that  the  President  be,  and  hereby  is,  author- 
ized to  appoint  a  board,  to  consist  of  one  officer  of  the 
Engineers  of  the  United  States  Army,  one  officer  of  ord- 
nance of  the  United  States  Army,  one  line  officer  of  the 
United  States  Navy,  one  engineer  of  the  United  States 
Navy,  and  three  civilians,  who  shall  be  experts;  and  it 
shall  be  the  duty  of  said  board  to  convene  at  the  earliest 
practicable  moment,  at  such  place  as  may  be  designated 
by  the  President,  for  the  purpose  of  determining,  by  actual 
tests,  the  strength  and  value  of  all  kinds  of  iron,  steel,  and 
other  metals  which  may  be  submitted  to  them  or  by  them 
produced,  and  to  prepare  tables  which  will  exhibit  the 
strength  and  value  of  said  materials  for  constructive  and 
mechanical  purposes,  and  to  provide  for  the  building  of  a 
suitable  machine  for  establishing  such  tests.  Sec.  4,  act  of 
March  3,  1875  (18  Stat.  Z.,  399). 

ttoVSSoSfrf     1206-  No  officers  in  the  pay  of  the  Government  shall  be 
states. U  n  *  * e  d  entitled  to,  or  receive,  any  additional  compensation  by  rea- 
iw.  son  of  anv  services  rendered  in  connection  with  this  board; 

secretary.  but  one  of  the  civil  experts  shall  act  as  secretary  of  the 
board,  and  shall  be  entitled,  under  this  act,  to  such  com- 
pensation as  the  President  may  deem  proper  and  fit:  Pro- 
vided, That  not  more  than  fifteen  thousand  dollars  of  the 
sum  herein  provided  shall  be  used  for  the  expenses  of  such 
board.1  Ibid. 

an^S;  ise°onf     1207-  The  Secretary  of  War  is  hereby  authorized  to 
mj5iieie2o,  1878, cause  tne  machine  built  for  testing  iron  and  steel  to  be  set  up 
v.  20,  p.  223.       an(j  applied  to  the  testing  of  iron  and  steel  for  all  persons 
who  may  desire  to  use  it,  upon  the  paj^ment  of  a  suitable 
fee  for  each  test;  the  table  of  fees  to  be  approved  by  the 
Secretary  of  War,  and  to  be  so  adjusted  from  time  to  time 
as  to  defray  the  actual  cost  of  the  tests  as  near  as  may  be. 
Act  of  June  20,  1878  (20  Stat.  Z.,  223).     That  hereafter 
the  tests  of  iron  and  steel  and  other  materials  for  indus- 
trial purposes  shall  be  continued,  and  report  thereof  shall 
be  made  to  Congress.     Act  of  March  3,  1885  (23  Stat. 
Z.,  502). 
Advance  pay-     1208.  In  making  tests  for  private  citizens  the  officer 

men  ts  may  be  re- .  to  r 

quired.   Record  m  charge  may  require  payment  in  advance,  and  may  use 

of  tests  shall  be  &  .        ,  .  ,  .  . 

furnished  to  the  funds  so  received  in  making  such  private  tests,  mak- 

ety  of  civil  Engi- ing  full  report  thereof  to  the  Chief  of  Ordnance;  and  the 

June  so,  1882,  v.  Chief  of  Ordnance  shall  give  attention  to  such  programme 

of  tests  as  may  be  submitted  by  the  American  Society  of 

lfThe  act  of  March  3,  1873  (17  Stat.  L.,  543),  contained  an  appropriation  of  $25,000 
for  ''improved  machinery  and  instruments  for  testing  American  iron  and  steel." 


MILITARY    LAWS    OF    THE    UNITED    STATES.  455 

Civil  Engineers,  and  the  record  of  such  tests  shall  be  fur- 
nished said  societ}r  to  be  by  them  published  at  their  own 
expense.1  Act  of  June  SO,  1882  (22  Stat.  L., 


THE    BOARD    OF    ORDNANCE    AND    FORTIFICATION. 


Par. 

1214.  No  member  to  be  interested  in  in- 

vention, etc. 

1215.  Investigations. 

1216.  Right  to  use  inventions. 

1217.  Per  diem  to  officers. 


Par. 

1209.  Organization;  duties. 
1210,1211.  Additional  members;  artillery 
officers. 

1212.  Expenditures. 

1213.  Additional  civilian  member. 

1209.  A  board  to  consist  of  the  commanding  General  of 
the  Army,  an  officer  of  Engineers,  an  officer  of  Ordnance, 

and  an  officer  of  Artillery,  to  be  selected  by  the  Secretary 25-  P-  *^- 
of  War,  to  be  called  and  known  as  the  Board  of  Ordnance 
and  Fortification ;  and  said  Board  shall  be  under  the  direc- 
tion of  the  Secretary  of  War  and  subject  to  his  supervision 
and  control  in  all  respects,  and  shall  have  power  to  pro- 
vide suitable  regulations  for  the  inspection  of  guns  and  Duties. 
materials  at  all  stages  of  manufacture  to  the  extent  neces- 
sary to  protect  fully  the  interests  of  the  United  States, 
and  generally  to  provide  such  regulations  concerning  mat- 
ters within  said  Board's  operations  as  shall  be  necessary 
to  carry  out  to  the  best  advantage  all  duties  committed  to 
its  charge.  Act  of  September  22,  1888  (25  Stat.  Z.,  489). 

1210.  One  additional  member  shall  be  added  to  the  said    Additional 
Board  of  Ordnance  and  Fortification,   who  shall  be  an    Mar.  i,  1901,  v. 
artillery  officer  of  technical  ability  and  experience,  to  be 

selected  by  the  Secretary  of  War.     Act  of  March  1,  1901 
(31  Stat.  Z.,  875). 

1211.  The  Secretary  of  War  is  hereby  authorized  to    Additional 
appoint  two  additional  members  for  the  Board  of  Ord-    Mar.  3/1901,  v. 
nance  and  Fortification,  both  of  whom  shall  be  selected 

from  the  Artillery  Corps.     Act  of  March  3, 1901  (31  Stat. 
L.,910). 

1212.  Subject  to  the  foregoing  provisions  the  expendi-    Expenditures, 
tures  shall  be  made  by  the  several  bureaus  of  the  Wai- 
Department  having  jurisdiction  of  the  same  under  exist- 
ing law.     Act  of  September  22,  1888  (25  Stat.  Z.,  489). 

1213.  One  additional   member   shall  be  added  to  said    Additional  ci- 

.  .          vilian  member. 

Board  of  Ordnance  and  Fortification  who  shall  be  a  civil-    Feb.  24,  i89i,  v. 
ian  and  not  an  exofficer  of  the  Regular  Army  or  Navy, 
and  he  shall  be  nominated  by  the  President,  and,  by  and 
with  the  advice  and  consent  of  the  Senate,  appointed,  and 


1(The  acts  of  March  3,  1883  (22  Stat.  L.,  460),  July  5,  1884  (23  Stat.  L.,  112),  and 
March  3,  1885  (23  Stat.  L.,  502),  contain  a  similar  provision. 


456  MILITAKY   LAWS    OF    THE    UNITED   STATES. 

shall  be  paid  a  salary  of  five  thousand  dollars  per  annum 
and  actual  traveling  expenses  when  traveling  on  duty. 
Act  of  Felyruary  %  1891  (26  Stat.  Z.,  769). 
NO  member  to     1214.  Hereafter  no  person  shall  be  a  member  of  or  serve 

be  interested  m 

device,  etc.,  be-  on  said  Board  who  has  been  or  is  in  any  manner  interested 

fore  Board.  J 

Feb.  is,  1893,  v.  m  any  invention,  device,  or  patent  which,  or  anything 
similar  to  which,  has  been  considered  or  may  be  cons  id 
ered  by  or  come  before  said  Board  for  test  or  adoption  : 
or  who  is  connected  with  or  in  the  employ  of  any  manu- 
facturer who  has  or  shall  have  contracts  with  the  United 
States  for  any  ordnance  materials.     Act  of  February  18. 
1893(27  Stat.  L.,  4,61). 
bythfB?aardOUS     1215<  Tlie  Board  is  authorized  to  make  all  needful  and 


Pr°Per  PUI'chases,  investigations,  experiments,  and  tests, 
^May25,'i9o,  v.  to  ascertain,  with  a  view  to  their  utilization  by  the  Govern- 
ment, the  most  effective  guns,  small  arms,  cartridges,  pro- 
jectiles, fuzes,  explosives,  torpedoes,  armor  plates,  and 
other  implements  and  engines  of  war;  and  to  purchase  or 
cause  to  be  manufactured,  under  authority  of  the  Secre- 
tary of  War,  such  guns,  carriages,  armor  plates,  and  other 
war  material  as  may,  in  the  judgment  of  said  Board,  be 
necessary  in  the  proper  discharge  of  the  duty  herein 
devolved  upon  it  by  the  act  approved  September  twenty  - 
second,  eighteen  hundred  and  eighty-eight.  l  Act  of  May 
,  1900  (31  Stat.  Z.,  186). 

1216.  Before  any  money  shall  be  expended  in  the  con- 
28Apg2i5.1894'  v>  struction  or  test  of  any  gun,  gun  carriage,  ammunition,  or 

lrrhe  act  of  September  22,  1888  (25  Stat.  L.,  489),  restricts  the  expenditures  of  the 
Board  in  respect  to  the  investigations,  tests,  experiments,  etc.  ,  which  may  be  carried 
on  under  its  direction  under  that  statute,  by  the  requirement  that  "the  amount 
expended  and  liabilities  incurred  in  such  purchases,  investigations,  experiments, 
and  tests  shall  not  exceed  five  hundred  thousand  dollars,  which  sum  is  hereby  appro- 
priated '  '  ;  and  that  '  '  said  Board  shall  test,  and  if  found  satisfactory,  shall  purchase  two 
breech-loading  field  guns  of  three  and  two  tenths  inch  bore  of  aluminum  bronze." 

By  several  acts  of  appropriation  the  powers  of  the  Board  of  Ordnance  and  Fortifi- 
cation have  been  reduced  and  defined.  By  the  act  of  February  24,  1891  (26  Stat.  L., 
767),  the  appropriations  of  the  Engineer  Department,  for  gun  and  mortar  batteries 
and  for  sites  of  fortifications,  have  been  withdrawn  from  the  supervision  of  the 
Board;  by  the  act  of  July  23,  1892  (27  Stat.  L.,260),  all  regular  appropriations  of  the 
Ordnance  Department  for  the  armament  of  fortifications  were  similarly  withdrawn 
from  its  supervision.  See,  also,  the  acts  of  February  18,  1893  (27  Stat.  L.,  461), 
August  1,  1894  (28  Ibid.,  215),  March  2,  1895  (Ibid.,  706],  and  June  6,  1896  (29 
Ibid.,  259),  for  similar  provisions  of  statutes  in  which  the  Board  is  specially  charged 
with  the  supervision  of  stated  funds  and  with  the  general  expenditure  of  funds  appro- 
priated for  experimental  purposes. 

The  act  of  March  2,  1889  (25  Stat.  L.,  833),  conferred  authority  upon  the  Board 
of  Ordnance  and  Fortification  '  '  to  examine  and  report  upon  a  site  or  sites  for  ord- 
nance testing  and  proving  ground  to  be  used  in  the  testing  and  proving  of  heavy 
ordnance,  having  in  view  in  the  selection  of  said  site  or  sites  their  accessibility  by 
land  and  water,  means  of  transportation,  and  suitability  for  the  purpose  intended, 
and  also  the  actual  and  reasonable  cost,  and  value  of  the  land  embraced  in  said  site 
or  sites  and  the  least  sum  for  which  the  same  can  be  procured.  Said  Board  shall 
report  thereon  to  the  Secretary  of  War,  to  be  submitted  to  Congress  at  its  next  ses- 
sion; and  in  case  the  said  Board  shall  select  a  site  or  sites  and  recommend  their  pur- 


MILITARY    LAWS    O^    THE    UNITED    STATES.  457 

implements  under  the  supervision  of  the  said  Board,  the 
Board  shall  be  satisfied,  after  due  inquiry,  that  the  Gov- 
ernment of  the  United  States  has  a  lawful  right  to  use  the 
inventions  involved  in  the  construction  of  such  gun,  gun 
carriage,  ammunition,  or  implements,  or  that  the  con- 
struction or  test  is  made  at  the  request  of  a  person  either 
having  such  lawful  right  or  authorized  to  convey  the 
same  to  the  Government.  Act  of  August  1,  1894  (®8 
Stat.  Z.,  $16). 

1217.  For  payment  of  the  necessary  expenses  of  the 
Board,  including  a  per  diem  allowance  to  each 
detailed  to  serve  thereon  when  employed  on  duty  away  26>  P-  768 
from  his  permanent  station,  of  two  dollars  and  fifty  cents 
a  day,  *  *  *  thousand  dollars.1  Act  of  July  23, 
1892  (27  Stat.  Z.,  260). 

chase,  the  Secretary  of  War  is  hereby  authorized  to  secure  written  proposals  for  the 
sale  of  the  land  so  recommended,  until  such  time  as  Congress  may  act  upon  the 
recommendation  of  said  Board  and  of  the  Secretary  of  War." 

To  enable  the  Secretary  of  War,  in  his  discretion,  to  purchase  the  land  adjoining 
the  Government  reservation  at  Sandy  Hook,  New  Jersey,  now  belonging  to  the  gran- 
tees of  the  Highland  Beach  Association  of  New  Jersey,  together  with  the  right  of 
way  from  said  land  to  the  main  line  of  the  Central  Railroad  Company  of  New  Jersey, 
together  with  the  rails,  ties,  switches,  and  all  the  railroad  equipment  on  said  lands, 
twenty-five  thousand  dollars,  or  so  much  thereof  as  may  be  necessary.  Act  of  July 
23,  1892  (27  Stat.  L.,  259). 

That  the  President  is  hereby  authorized  to  appoint  a  board,  to  consist  of  three 
officers  of  the  Army  and  three  officers  of  the  Navy,  who  shall  examine  and  report 
to  the  Secretary  of  War,  for  transmission  to  Congress  for  its  consideration,  what,  in 
their  opinion,  is  the  most  suitable  site  on  the  Pacific  coast,  or  on  the  rivers  or  other 
waters  thereof,  for  the  erection  of  a  plant  for  finishing  and  assembling  the  parts  of 
heavy  guns  and  other  ordnance  for  the  use  of  the  Army  and  Navy.  That  for  the 
payment  of  the  necessary  expenses  of  the  board  to  be  appointed  under  the  foregoing 
provisions  the  sum  of  two  thousand  five  hundred  dollars  is  hereby  appropriated  out 
of  any  money  in  the  Treasury  not  otherwise  appropriated.  Act  of  July  23,  1892 
(27  Stat.  L.,  258). 

1  For  a  similar  provision  see  the  acts  of  February  24, 189JL  (26  Stat.  L.,  768) ;  July  23, 
1892  (27  Stat.  L.,  259) ;  February  18, 1893  (27  Stat.  L.,  460) ;  March  2, 1895  (28  Stat.  L., 
706),  and  June  6,  1896  (29  Stat.  L.,  259).  The  several  acts  of  appropriation  since 
that  of  July  23,  1892,  contain  provisions  for  similar  allowances  to  each  officer  detailed 
to  serve  on  the  Board  of  Ordnance  and  Fortification  when  on  duty  away  from  his 
permanent  station.  The  acts  of  appropriation  since  that  of  August  4,  1894,  contain 
provisions  for  the  necessary  traveling  expenses  of  the  civilian  member  of  the  board 
when  traveling  on  duty  as  contemplated  in  the  act  of  February  24,  1891. 

This  provision  has  appeared  in  all  subsequent  acts  of  appropriation.  An  officer 
who  is  authorized  to  receive  compensation  "  while  necessarily  employed  "  only,  must 
produce  satisfactory  evidence  of  his  employment,  and  of  the  necessity  therefor,  dur- 
ing the  period  for  which  he  claims  compensation.  IV  Comp.  Dec.,  424.  The  Audi- 
tor is  authorized,  and  it  is  his  duty,  to  require  the  production  of  satisfactory  evidence 
of  the  time  of  actual  employment  of  an  officer  who  is  paid  a  per  diem  compensation 
or  allowance.  Ibid.,  479. 

The  mileage  of  officers  of  the  Army  traveling  on  duty  connected  with  the  Board 
of  Ordnance  and  Fortification  is  payable  from  the  appropriation  made  for  the  Board 
as  a  part  of  the  necessary  expenses  incident  to  the  performance  of  the  work.  Ill 
Ibid.,  332.  Officers  of  the  Army  connected  with  the  Board  of  Ordnance  and  Forti- 
fication, when  traveling  on  duty,  should  be  furnished  with  transportation  in  kind  by 
the  Quartermaster' s  Department,  in  accordance  with  War  Department  Circular  No.  8, 
of  1897,  but  whether  the  requests  for  transportation  addressed  to  the  railroad  com- 
panies should  be  issued  by  the  officers  of  the  Quartermaster's  Department  exclu- 
sively is  to  be  determined  by  the  Secretary  of  War.  Ibid.,  590. 


458  MILITAEY   LAWS    OF  THE   UNITED    STATES. 

HISTORICAL  NOTE. — The  duties  in  connection  with  the  procurement,  manufacture, 
and  supply  of  cannon,  small  arms,  and  military  stores,  now  performed  by  the  Ord- 
nance Department,  seem  to  have  been  vested  during  the  Revolutionary  period  in  a 
purveyor  of  public  supplies,  an  office  created  by  Congress,  which  ceased  to  exist  at 
the  close  of  the  war.  With  a  view  to  secure  proper  accountability  and  a  more  effi- 
cient administration  in  this  branch  of  the  military  service,  President  Washington, 
on  January  7,  1794,  recommended  to  Congress  that  the  office  of  Purveyor  of  Public 
Supplies  be  created  and  charged  "with  the  duties  of  receiving,  safe-keeping,  and  dis- 
tributing the  public  supplies."  The  office  thus  recommended  was~ established  by 
the  act  of  February  23,  1795  (1  Stat.  L.,  419),  and  continued  to  exist  until  May  31, 
1812,  when,  its  duties  having  been  transferred  to  the  several  departments  of  the  staff, 
it  was  abolished.  Sec.  9,  act  of  March  28,  1812  (2  ibid,  696). 

The  Ordnance  Department,  eo  nomine,  was  established  by  the  act  of  May  14, 1812 
(ibid.,  732),  and  was  to  consist  of  one  Commissary-General  of  Ordnance,  an  assistant 
commissary-general,  four  deputy  commissaries,  and  as  many  assistant  deputy 
commissanes,  not  exceeding  eight,  as  the  President  might  deem  necessary.  The  Com- 
missary-General of  Ordnance  was  to  have  the  rank  and  pay  of  colonel,  the  assistant 
commissary-general  that  of  lieutenant-colonel,  the  deputy-commissaries  that  of 
major,  and  the  assistant  deputy  commissaries  that  of  captain.  By  the  act  of  February 
8,  1815  (3  ibid.,  203),  the  Department  was  reorganized,  its  duties  were  defined,  and 
its  strength  fixed  at  one  colonel,  one  lieutenant-colonel,  two  majors,  ten  captains, 
ten  first  lieutenants,  and  as  many  enlisted  men,  to  serve  as  armorers,  blacksmiths, 
wheelwrights,  artificers,  etc.,  as  the  Secretary  of  War  might  deem  necessary;  by 
the  same  enactment  the  supervision  of  the  several  armories,  magazines,  and  arsenals 
was  vested  in  the  Ordnance  Department. 

By  section  4  of  the  act  of  March  2,  1821  (3  ibid.,  283) ,  the  Ordnance  Department 
was  merged  in  the  artillery,  one  captain  being  added  to  each  regiment  of  artillery 
for  ordnance  duty.  Although  the  Department  ceased  to  exist,  for  the  time,  as  a 
separate  establishment,  the  duties  pertaining  to  the  ordnance  service  seem  to  have 
continued  to  be  performed  by  officers  of  artillery  detailed  for  the  purpose.  By  the 
act  of  April  5,  1830  (4  ibid.,  504),  the  Ordnance  Department  was  reconstituted,  with 
the  following  commissioned,  strength:  One  colonel,  one  lieutenant-colonel,  two 
majors,  ten  captains,  with  the  pay  and  allowances  of  artillery  officers  of  correspond- 
ing grades,  and  as  many  enlisted  men  as  might  be  required,  not  to  exceed  250.  By 
section  2  of  the  act  of  April  5,  1830,  the  grade  of  ordnance-sergeant  was  established, 
the  number  authorized  to  be  appointed  being  restricted  to  one  for  each  military  post. 
By  section  13  of  the  act  of  July  5,  1838  (5  ibid.,  256),  the  President  was  authorized 
to  add  two  majors  to  the  department  "when  he  may  deem  it  expedient  to  increase 
the  same;"  he  was  also  authorized  to  transfer  ten  first  lieutenants  and  ten  second 
lieutenants  to  the  department  from  the  artillery;  by  the  act  of  July  7,  1838  (ibid., 
308),  the  number  of  lieutenants  thus  authorized  to  be  transferred  was  reduced  to 
twelve.  The  act  of  July  5,  1838,  placed  officers  of  ordnance  on  the  same  footing  in 
respect  to  pay  and  allowances  as  officers  of  dragoons.  By  section  16  of  the  act  of 
March  3,  1847  (9  ibid.,  184),  the  President  was  authorized  to  add  to  the  department, 
under  the  conditions  set  forth  in  the  statute  last  cited,  two  captains  and  six  first 
lieutenants.  By  section  3  of  the  act  of  August  3,  1861  (12  ibid.,  287),  a  chief  of  ord- 
nance, with  the  rank  and  pay  of  Quartermaster-General  (brigadier-general),  one 
colonel,  one  lieutenant-colonel,  and  six  second  lieutenants  were  added  to  the  estab- 
lishment. By  section  4  of  the  act  of  March  3,  1863  (ibid.,  743),  one  lieutenant- 
colonel,  two  majors,  eight  captains,  and  eight  first  lieutenants  were  added;  the 
appointments  to  be  made  by  promotion  "as  far  as  the  present  Ordnance  Corps  will 
permit,  and  the  residue  to  be  appointed  by  transfer  from  other  regiments  and  corps 
of  the  Army;"  by  this  statute  examinations  were  required  in  all  grades  below  that 
of  field  officer  as  a  condition  precedent  to  promotion. 

By  section  21  of  the  act  of  July  28,  1866  (14  ibid.,  335),  the  peace  strength  of  the 
department  was  fixed  at  one  brigadier-general,  three  colonels,  four  lieutenant-colonels, 
ten  majors,  twenty  captains,  sixteen  first  lieutenants,  and  ten  second  lieutenants;  six- 
teen ordnance  storekeepers  were  also  added  to  the  establishment.  Section  6  of  the  act 
of  March  3,  1869  (15  ibid.,  318),  contained  the  requirement  that  there  should  be  no 
promotions  or  appointments  in  the  several  staff  corps  until  otherwise  directed  by 
law;  but  this  restriction  was  removed  as  to  the  Ordnance  Department  by  the  act  of 
June  23,  1874  (18  ibid.,  244),  which  reorganized  the  department  with  an  authorized 
strength  of  one  brigadier-general,  three  colonels,  four  lieutenant-colonels,  ten  majors, 
twenty  captains,  and  sixteen  first  lieutenants,  and  provided  that  all  vacancies  in  the 
grade  of  first  lieutenant  should  be  filled  by  transfer  from  the  line  of  the  Army,  sub- 
ject to  the  examination  therein  prescribed.  The  examination  for  promotion,  first 
required  by  the  act  of  March  3,  1863,  was  extended  in  its  scope  by  the  act  of  June 


MILITAEY    LAWS    OF   THE    UNITED   STATES.  459 

23,  1874,  so  as  to  require  that  "no  appointment  or  promotion  is  said  department 
shall  hereafter  be  made  until  the  officer  so  appointed  or  promoted  shall  have  passed 
a  satisfactory  examination  before  a  board  of  ordnance  officers  senior  to  himself. r' 
By  the  act  of  July  7,  1898  (30  Stat.  L.,  720),  the  composition  of  the  Ordnance  Depart- 
ment was  fixed  at  one  brigadier-general,  four  colonels,  five  lieutenant-colonels, 
twelve  majors,  twenty-four  captains,  and  twenty  first  lieutenants. 

By  section  23  of  the  act  of  February  2,  1901  (31  Stat.  L.,  754),  the  permanent 
strength  of  the  Ordnance  Department  was  fixed  at  one  chief  of  ordnance  with  the 
rank  of  brigadier-general,  four  colonels,  six  lieutenant-colonels,  twelve  majors,  twenty- 
four  captains,,  and  twenty-four  first  lieutenants,  together  with  the  enlisted  men, 
including  ordnance-sergeants,  already  authorized  by  law.  A  system  of  details  was 
also  provided  by  the  operation  of  which  the  permanent  commissioned  personnel  of 
the  Department  will  be  gradually  replaced,  as  vacancies  occur,  by  officers  detailed 
from  the  line  of  the  Army  for  duty  in  the  Ordnance  Department. 


CHAPTER  XXIV. 


THE  SIGNAL  CORPS. 


Par. 

1218,  1219.  Organization. 

1221-1223.  Appointments, 

details. 
1224.  Enlisted  men. 


promotions, 


Par. 

1225,  1226.  War  increase. 

1227-1230.  Duties. 

1231-1234.  Military  telegraph  lines. 


ORGANIZATION. 

composition.  ^g  The  Signal  Corps  shall  consist  of  one  Chief  Signal 
Officer  with  the  rank  of  brigadier-general,  one  colonel,  one 
lieutenant-colonel,  four  majors,  fourteen  captains,  fourteen 
first  lieutenants,2  eighty  first-class  sergeants,  one  hundred 

iFvb3i2'p*754. s'  and  twenty  sergeants,  one  hundred  and  fifty  corporals,  two 
hundred  and  fifty  first-class  privates,  one  hundred  and 
fifty  second-class  privates,  and  ten  cooks.3  Sec.  24,  act  of 
February  2,  1901  (31  Stat.  Z.,  764). 

1219.  The  President  is  authorized  to  continue  in  service 
during  the  present  emergency,  for  duty  in  the  Philippine 
Islands,  five  volunteer  signal  officers  with  the  rank  of  sec- 
ond lieutenant.  This  authority  shall  extend  only  for  the 
period  when  their  services  may  be  absolutely  necessary. 
Sec.  24,  act  of  February  0, 1901  (31  Stat.  />.,  764). 


Volunteer  Sig 
nal  Corps. 
Ibid. 


APPOINTMENTS,    PROMOTIONS,  DETAILS. 


Promotions. 


1220.  So  long  as  there  remain  any  officers  holding  per- 
manent appointments   in   the  Signal   Corps, 
including  those   appointed   to   original   vacancies  in  the 
Feb.  2,  i90i,  s.  grades  of  captain  and  first  lieutenant  as  provided  in  sec- 
tions sixteen,  seventeen,  twenty-one,  and  twenty-four  of 


'26,  V.  31,  p.  755. 


1  For  note  containing  the  statutory  history  of  the  Signal  Corps  see  end  of  chapter. 

2  Section  24  of  the  act  of  February  2, 1901  (31  Stat.  L.,  754,)  contains  a  proviso  to  the 
effect  that  "vacancies  created  or  caused  by  this  section  shall  be  filled  by  promotion 
of  officers  of  the  Signal  Corps  according  to  seniority,  as  now  provided  by  law.     Vacan- 
cies remaining  after  such  promotions  may  be  filled  by  appointment  of  persons  who 
have  served  in  the  Volunteer  Signal  Corps  since  April  twenty-first,  eighteen  hundred 
and  ninety-eight." 

3  The  pay  of  a  first-class  sergeant  of  the  Signal  Corps  was  fixed  at  that  of  a  hospital 
steward  by  section  8,  act  of  October  1,  1890  (26  Stat.  L.,  653).     The  pay  of  first- 
class  privates  was  made  the  same  as  that  of  privates  of  corresponding  grade  in  the 
engineer  battalion  by  section  3,  act  of  April  26,  1898  (30  Stat.  L.,  364). 

460 


MILITARY   LAWS    OF   THE    UNITED   STATES.  461 

this  act,  they  shall  be  promoted  according  to  seniority  in 
the  several  grades,  as  now  provided  by  law,  and  nothing 
herein  contained  shall  be  deemed  to  apply  to  vacancies 
which  can  be  filled  by  such  promotions  or  to  the  periods 
for  which  the  officers  so  promoted  shall  hold  their  appoint- 
ments. Sec.  26,  act  of  February  2, 1901  (31  Stat.  L.,  755}. 

1221.  All  appointments  and  promotions  in  the  Signal 
Corps  shall  be  made  after  examination  and  ap- 
proval  under  sections  twelve  hundred  and  six  and  twelve  J 
hundred  and  seven  of  the  Revised  Statutes,1  which  are  amended- 
hereby  amended  so  as  to  be  applicable  to  and  to  provide 

for  the  promotion  of  the  lieutenants  of  the  Signal  Corps 
in  the  same  manner  as  they  now  apply  to  the  Corps  of 
Engineers  and  the  Ordnance  Corps.2  Sec.  7,  act  of  Octo- 
ber 1,  1890  (26  Stat.  L.,653). 

1222.  When  any  vacancy,  except  that  of  the  chief  of  the    pl^'isoi  s 
department  or  corps,  shall  occur  which  can  not  be  filled  26)  v- 31>  P-  755> 
by  promotion  as  provided  in  this  section,  it  shall  be  filled 

by  detail  from  the  line  of  the  Army.  Sec.  26,  act  of  Feb- 
ruary 2,  1901  (31  Stat.  Z.,  755}. 

1223.  Such  details  shall  be  made  from  the  grade  in  which  ma<?eme '  h  °  w 
the  vacancies  exist,  under  such  system  of  examination  as    IUd- 

the  President  may  from  time  to  time  prescribe.     Ibid. 

ENLISTED   MEN. 

1224.  The  Signal  Corps  shall  consist  of    *    *    *    eighty  8t^Ji| s  *  e  d 
first-class  sergeants,3  one  hundred  and  twenty  sergeants,  24Fvb312>  19^ s- 
one  hundred  and  fifty  corporals,  two  hundred  and  fifty 
first-class   privates,   one   hundred  and   fifty  second-class 
privates,  and  ten  cooks.     Sec.  &£,  act  °f  February  2, 1901 

(31  Stat.  Z.,  754). 

WAR   INCREASE. 

1225.  So  much  of   section  ten  of   the  act  of  Congress 
approved   April    twenty-second,    eighteen    hundred  and 
ninety-eight,  as  provides  that  the  staff  of  a  general  com- 
manding  an  army  corps  shall  consist  of  certain  officers,  30>  p- 75- 
with   the   rank   of    lieutenant-colonel,    shall    be   held  to 

1  This  clause  regulates  the  promotion,  after  examination,  of  officers  holding  perma- 
nent appointments  in  the  Signal  Corps. 

2  The  clause  relating  to  the  transfer  of  officers  of  the  line  to  the  Signal  Corps  was 
repealed  by  the  act  of  February  2,  1901.     Appointments  to  original  vacancies  created 
or  caused  by  that  enactment  are  governed  by  the  requirements  of  section  24.     See, 
in  this  connection,  section  24,  act  of  February  2,  1901,  and  note  to  paragraph  1218, 
ante. 

3By  section  8  of  the  act  of  October  1,  1890  (26  Stat.  L.,  653),  first-class  sergeants  of 
the  Signal  Corps  were  given  the  pay  of  hospital  stewards. 


462  MILITARY    LAWS    OF    THE    UNITED    STATES. 

include  among  such  officers  a  chief  signal  officer.  Sec.  10, 
act  of  April  22,  1898  (30  Stat.  L.,  361);  Joint  Resolution 
No.  53,  July  8,  1898  (ibid.,  752). 

Apli8Sdi898e":  1226.  In  time  of  war  there  shall  be  added  to  the  Signal 
Corps  of  the  Army  ten  corporals  and  one  hundred  first- 
class  privates,  who  shall  have  the  pay  and  allowances  of 
engineer  troops  of  the  same  grade.  Sec.  3,  act  of  April 
26,  1898  (30  Stat.  L.,  364). 


Par. 


DUTIES. 


Par. 


1227.  Chief  Signal  Officer. 

1228.  The  same;  regulations. 


1229.  Accountability  for  property. 

1230.  Appropriations. 


office?!  dsut!ensal  1227«  The  Chief  Signal  Officer  shall  have  cnarge,  under 
1890%  ^6^653'  ^e  direction  of  the  Secretary  of  War,  of  all  military  signal 
duties,  and  of  books,  papers,  and  devices  connected  there- 
with, including  telegraph  and  telephone  apparatus  and  the 
necessary  meteorological  instruments  for  use  on  target 
ranges,  and  other  military  uses;  the  construction,  repair, 
and  operation  of  military  telegraph  lines,  and  the  duty  of 
collecting  and  transmitting  information  for  the  Army  by 
telegraph  or  otherwise,  and  all  other  duties  usually  per- 
taining to  military  signaling;  and  the  operations  of  said 
corps  shall  be  confined  to  strictly  military  matters.1  Sec. 
2,  act  of  October  1,  1890  (26  Stat.  Z.,  653). 

^Regulations ^to     1228.  The  Chief  Signal  Officer,  subject  to  the  approval  of 

chief  signal  offi- the  Secretary  of  War,  is  hereby  authorized  and  directed  to 

o'ct.  12, 1888,  v.  draw  up  and  enforce  in  his  Bureau  a  system  of  rules  and 

regulations  for  the  government  of  the  Signal  Bureau,  and 

of  all  persons  in  said  Bureau,  and  for  the  safe-keeping  and 

preservation  of  all  Signal  Service  property  of  every  kind, 

and  to  direct  and  prescribe  the  kind,  number,  and  form  of 

all  returns  and  reports,  and  to  enforce  compliance  therewith. 

Act  of  October  12,  1888  (25  Stat.  L.,  552). 

Enlisted  men,      1229.  From  and  after  the  passage  of  this  act,  every  officer 

etc.,  to  make  re-  .      .  /E 

turns  of  prop-  oi  tne  oignal  Corps,  every  noncommissioned  omcer  or  pri- 
oc't.  12, 1888,  v.  vate  of  the  Signal  Corps,  and  all  other  officers,  agents,  or 

25,  p.  552. 

lrThe  act  of  October  1, 1890  (26  Stat.  L.,  653),  contained  the  requirement  that  "the 
civilian  duties  now  performed  by  the  Signal  Corps  of  the  Army  shall  hereafter  devolve 
upon  a  bureau  to  be  known  as  the  Weather  Bureau,  which,  on  and  after  July  first, 
eighteen  hundred  and  ninety-one,  shall  be  established  in  and  attached  to  the  Depart- 
ment of  Agriculture,  and  the  Signal  Corps  of  the  Army  shall  remain  a  part  of  the 
Military  Establishment  under  the  direction  of  the  Secretary  of  War,  and  all  estimates 
for  its  support  shall  be  included  with  other  estimates  for  the  support  of  the  Military 
Establishment."  Section  4  of  this  enactment,  which  authorized  the  detail  of  officers 
of  the  Signal  Corps  in  the  Weather  Bureau  of  the  Department  of  Agriculture,  was 
repealed  by  Joint  Resolution  No.  57,  of  July  8,  1898  (30  Stat.  L.,  752).  This  enact- 
ment finally  severed  the  statutory  connection  of  this  corps  with  the  Weather  Bureau. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  463 

persons  who  now  have  in  possession,  or  may  hereafter 
receive  or  may  be  intrusted  with  any  stores  or  supplies, 
shall,  quarterly  or  more  often,  if  so  directed,  and  in  such 
manner  and  on  such  forms  as  may  be  prescribed  by  the 
Chief  Signal  Officer,  make  true  and  correct  returns  to  the 
Chief  Signal  Officer  of  all  Signal  Service  property  and  all 
other  supplies  and  stores  of  every  kind  received  by  or 
intrusted  to  them  and  each  of  them,  or  which  may,  in  any 
manner,  come  into  their  and  each  of  their  possession  or 
charge.  Ibid. 

1230.  On  and  after  July  first,  eighteen  hundred  and  besi|^ioCOTps  to 
ninety-one,  the  appropriations  for  the  support  of  the  Sig-^.^ywith  the 
nal  Corps  of  the  Army  shall  be  made  with  those  of  other  18^%9^6°pct^; 
staff  corps  of  the  Army.     Sec.  9,  act  of  October  1, 1890  (26 

Stat.  L.,  653). 

MILITARY   TELEGRAPH   LINES. 

• 

1231.  The  Chief  Signal  Officer  shall  have  charge,  under 
the  direction  of  the  Secretary  of  War,  of     *     *     *     the 
construction,  repair,  and  operation  of  all  military  tele- v- 26>  p- 653- 
graph  lines.1     Section  2,  act  of  October  1,  1890  (26  Stat. 

Z.,  653). 

1232.  For    the    purpose    of    connecting  headquarters,  ii^e|ineAia&ah 
Department  of  Alaska,  at  Saint  Michael,  by  military  tele-  31Mpay2^' 1900>  v' 
graph  and  cable   lines   with   other  military   stations   in 

Alaska,  four  hundred  and  fifty  thousand  five  hundred  and 
fifty  dollars:  Provided,  That  commercial  business  may  be 
done  over  these  military  lines  under  such  conditions  as 
may  be  deemed,  by  the  Secretary  of  War,  equitable  and 
in  the  public  interests,  all  receipts  from  such  commercial 
business  shall  be  accounted  for  and  paid  into  the  Treasury 
of  the  United  States,  and  that  the  sum  hereby  appropri- 
ated shall  be  immediately  available:  Provided  further, 
That  no  telegraph  or  cable  lines  owned  or  operated  or 
controlled  by  persons  not  citizens  of  the  United  States,  or 
by  an}^  foreign  corporation  or  government,  shall  be  estab- 
lished in  or  permitted  to  enter  Alaska.  Act  of  May  26, 
1900(31  Stat.  Z.,  206), 

1233.  After  the  first  day  of  July,  eighteen  hundred  and    Receipts  to  be 
eighty-three,  all  moneys  received  for  the  transmission  of  £ryd  " 
private  dispatches  over  any  and  all  telegraph  lines  owned  22MPar6i6. 1883'  v' 

1  The  act  of  October  1,  1890  (26  Stat.  L.,  653,  par.  1227,  ante),  which  places  the  Chief 
Signal  Officer  in  charge  of  "the  construction,  repair,  and  operation  of  military  tele- 
graph lines,"  repealed  the  act  of  August  7,  1882  (22  Stat.  L.,  3i9),  which  vested  the 
supervision  of  the  construction  and  operation  of  military  telegraph  lines  in  depart- 
ment commanders. 


464  MILITARY    LAWS    OF   THE    UNITED    STATES. 

or  operated  by  the  United  States  shall  be  paid  into  the 

Treasury  of  the  United  States,  as  required  by  section 

thirty-six  hundred  and  seventeen  of  the  Revised  Statutes; 

and  all  acts  or  parts  of  acts  inconsistent  herewith  are 

hereby  repealed. l    Act  of  March  3, 1883  (22  Stat.  L. ,  61Q). 

grapJ?3nes,  Set      1234-  Any  person   or  persons   who  shall   willfully  or 

?n te ??e ^eifce  maliciously  injure  or  destroy  any  of  the  works  or  propery 

o!ifructTonke?cg';  or  material  of  any  telegraphic  line  constructed  and  owned, 

pejimey<23,  1874,  or  ^  process  of  construction,  by  the  United  States,  or 

v.  is,  p.  250.       ^at  may  i^  hereafter  constructed  and  owned  or  occupied 

and  controlled  by  the  United  States,  or  who  shall  willfully 

or  maliciously  interfere  in  any  way  with  the  working  or 

use  of  any  such  telegraphic  line,  or  who  shall  willfully  or 

maliciously  obstruct,  hinder,  or  delay  the  transmission  of 

any  communication  over  any  such  telegraphic  line,  shall 

be  deemed  guilty  of  a  misdemeanor,  and,  on  conviction 

thereof  in  any  district  court  of  the  United  States  having 

jurisdiction  of  the  same  shall  be  punished  by  a  fine  of  not 

less  than  one  hundred  nor  more  than  one  thousand  dollars, 

or  with  imprisonment  for  a  term  not  exceeding  three 

years,  or  with  both,  in  the  discretion  of  the  court.     Act 

of  June  23,  1874  (18  Stat.  Z.,  250). 

HISTORICAL  NOTE. — The  office  of  Signal  Officer  of  the  Army,  with  the  rank  of  major 
of  cavalry,  was  established  by  the  act  of  June  21,  1860  (12  Stat.  L.,  66).  By  section 
17  of  the  act  of  March  3,  1863  (ibid.,  753),  a  signal  corps  was  created  to  consist  of  a 
Chief  Signal  Officer  with  the  rank  of  colonel,  one  lieutenant-colonel,  two  majors  who 
were  to  be  inspectors,  and,  for  each  army  corps  or  military  department,  one  captain 
and  as  many  lieutenants,  not  exceeding  eight,  as  the  President  might  deem  necessary. 
The  officers  thus  provided  for  were  to  receive  the  mounted  pay  of  their  grades,  arid 
were  to  continue  in  service  during  the  pendency  of  the  existing  rebellion.  For  each 
officer  authorized  by  the  act  of  March  3,  1863,  one  sergeant  and  six  privates  were  to 
be  detailed  from  the  volunteer  armies,  who  were  to  receive  the  pay  and  allowances 
of  enlisted  men  of  engineers.  Eligibility  for  appointment  and  detail  were  to  be  deter- 
mined, in  part,  by  prior  faithful  service  in  the  acting  signal  corps,  and  were  condi- 
tioned ip.  all  cases,  upon  the  successful  passage  of  a  preliminary  examination. 

A  permanent  signal  corps  was  added  to  the  military  establishment  by  section  22  of 
the  act  of  July  28,  1866  (12  Stat.  L.,  335)  (which  was  embodied  in  the  Revised  Stat- 
utes as  sections  1165,  1166,  and  1167) .  It  was  to  consist  of  a  Chief  Signal  Officer,  with 
the  rank  of  colonel  of  cavalry,  and  of  six  officers  of  the  line,  detailed  for  signal  duty, 
and  one  hundred  enlisted  men,  detailed  from  the  battalion  of  engineers;  these 
details  were  to  be  conditioned  upon  the  successful  passage  of  a  preliminary  exam- 
ination, and  the  officers,  while  so  detailed,  were  to  receive  mounted  pay.  By  the 
act  of  March  3, 1871  (16  ibid.,  520),  certain  duties  in  connection  with  the  observation 
and  report  of  storms  were  assigned  to  the  department.  By  the  act  of  June  18,  1878 

1  The  act  of  March  3,  1875,  contained  a  provision  authorizing  the  Secretary  of  War 
1 '  to  pay  the  expenses  of  operating  and  keeping  in  repair  the  said  telegraph  lines  out 
of  any  money  received  for  dispatches  sent  over  said  lines;  any  balance  remaining 
after  the  payment  of  such  expenses  to  be  covered  into  the  Treasury  as  a  miscellaneous 
receipt;  the  money  received  in  any  one  fiscal  year  to  be  used  only  in  payment  for 
the  expenses  of  that  year.  And  a  full  report  of  the  receipts  and  expenditures  in 
connection  with  the  said  telegraph  lines  shall  be  made  quarterly  to  the  Secretary  of 
War,  through  the  Chief  Signal  Officer.  And  the  Chief  Signal  Officer  shall  have  the 
charge  and  control  of  said  lines  of  telegraph  in  the  construction,  repair,  and  operation 
of  the  same." 


MILITARY   LAWS    OF   THE   UNITED   STATES.  465 

(20  ibid.,  146),  the  number  of  enlisted  men,  hitherto  fixed  by  Executive  regulation, 
was  established  at  four  hundred  and  fifty,  and  by  the  act  of  June  20,  1878  (ibid.,  219), 
the  enlisted  force  of  the  department  was  fixed  at  one  hundred  and  fifty  sergeants,  thirty 
corporals,  and  two  hundred  and  seventy  privates,  who  were  to  receive  the  pay  and 
allowances  of  enlisted  men  of  corresponding  grades  in  the  battalion  of  engineers. 
By  this  enactment  extra-duty  pay  was  prohibited,  and  the  commissioned  force  of  the 
department  was  increased  by  the  annual  appointment  of  two  second  lieutenants,  who 
were  to  be  selected  from  the  grade  of  sergeant.  By  the  act  of  June  16, 1880  (21  ibid., 
267),  the  rank  of  brigadier-general  was  conferred  upon  the  Chief  Signal  Officer,  and 
the  number  of  privates  was  increased  to  three  hundred  and  twenty;  by  the  act  of 
August  4,  1886  (24  ibid.,  247),  the  number  of  second  lieutenants  was  limited  to  six- 
teen, the  school  of  instruction  at  Fort  Myer,  Va.,  was  abolished,  and  the  Secretary 
of  War  was  authorized  to  detail  five  commissioned  officers  of  the  Army  for  signal 
duty,  this  number  to  be  in  addition  to  the  second  lieutenants  already  authorized  by 
law;  this  requirement  was  repeated  in  the  acts  of  October  2,  1888  (26  ibid.,  537),  and 
March  2,  1889  (ibid.,  969),  by  which  enactments  the  number  of  second  lieutenants 
was  reduced  to  fourteen. 

By  the  act  of  October  1,  1890  (26  Stat.  L.,  653),  the  Weather  Service  was  trans- 
ferred to  the  Department  of  Agriculture  and  the  strength  of  the  Signal  Corps  was 
established  at  one  Chief  Signal  Officer  (brigadier-general),  one  major,  four  captains, 
and  four  first  lieutenants  mounted,  and  fifty  sergeants  who  were  to  have  the  pay 
and  allowances  of  hospital  stewards.  The  second  lieutenants  not  selected  for  appoint- 
ment as  first  lieutenants  were  to  be  transferred  to  the  line  of  the  Army.  By  the  act 
of  August  6,  1894,  the  department  was  reorganized,  the  reorganization  to  take  effect 
upon  the  occurrence  of  a  vacancy  in  the  office  of  Chief  Signal  Officer,  when  the  corps 
was  to  consist  of  one  colonel,  one  lieutenant-colonel,  one  major,  three  captains,  and 
three  first  lieutenants;  by  the  act  of  March  2,  1897  (29  ibid.,  611),  the  promotions 
provided  for  in  the  act  of  August  6,  1894,  were  authorized  to  be  made.  .  By  section  2 
of  the  act  of  May  18,  1898  (30  ibid..,  417),  and  joint  resolution  No.  53,  of  July  8,  1898 
(ibid.,  749),  a  volunteer  Signal  Corps  was  authorized,  to  consist  of  one  colonel,  one 
lieutenant-colonel,  one  major,  as  disbursing  officer,  and  such  other  officers  and  men 
as  might  be  required,  not  exceeding  one  lieutenant-colonel  for  each  army  corps,  and 
two  captains,  two  first  lieutenants,  five  first-class  sergeants,  ten  sergeants,  ten  cor- 
porals, and  thirty  first-class  privates  to  each  organized  division  of  troops,  a  certain 
proportion  of  whom  were  to  be  skilled  electricians  or  telegraph  operators. 

By  section  24  of  the  act  of  February  2,  1901  (31  Stat.  L.,  754),  the  permanent 
strength  of  the  Signal  Corps  was  fixed  at  one  Chief  Signal  Officer  with  the  rank  of 
brigadier-general,  one  colonel,  one  lieutenant-colonel,  four  majors,  fourteen  captains, 
fourteen  first  lieutenants,  eighty  first-class  sergeants,  one  hundred  and  twenty  ser- 
geants, one  hundred  and  fifty  corporals,  two  hundred  and  fifty  first-class  privates, 
one  hundred  and  fifty  second-class  privates,  and  ten  cooks;  and  a  system  of  details  was 
established  by  the  operation  of  which  the  permanent  commissioned  personnel  of 
the  department  will  be  gradually  replaced,  as  vacancies  occur,  by  officers  detailed 
from  the  line  of  the  Army  for  duty  in  the  Signal  Department. 

22924—08 30 


CHAPTER   XXV. 


THE  RECORD  AND  PENSION  OFFICE. 


Par. 

1235-1236.  Organization. 

1237.  Duties. 

1238.  Returns,  muster  rolls,  etc. 

1239.  The  same;  wars  of  the  Revolution 

and  1812. 

1240.  Clerks,  how  employed. 


27,  p.  27. 


Composition. 
Feb.  2,  1901,  s 
25,  v.  31,  p.  754. 


Par. 

1241-1253.  Removal  of  charge  of  deser- 
tion. 

1254-1256.  Remuster  of  officers  of  volun- 
teers. 

1257.  Certificates  of  service  United  States 
Military  Telegraph  Corps. 

1235.  The  division  organized  by  the  Secretary  of  War 
in  his  office  for  the  preservation  and  custody  of  the  rec- 
ords of  the  volunteer  armies  under  the  name  of  the  Record 
and  Pension  Division  is  hereby  established  as  now  organ- 
ized, and  shall  hereafter  be  known  as  the  Record  and  Pen- 
sion Office  of  the  War  Department.     Act  of  May  9,  1892 
(27  Stat.  L.,  27). 

1236.  The  officers  of  the  Record  and  Pension  Office  of 
the  War  Department  shall  be  a  chief  of  said  office  with 
the  rank  of  a  brigadier-general  and  an  assistant  chief  of 
said  office  with  the  rank  of  major:  Provided,  That  any 
person  appointed  to  be  Chief  of  the  Record  and  Pension 
Office  after  the  passage  of  this  act  shall  have  the  rank  of 
colonel.     Section  25, l  act  of  February  2, 1901,  (31  Stat.  L. , 
754). 

Maye9S;i892,  v.      1237-  The  Record  and  Pension  Office  of  the  War  Depart- 
27,  p.  27.  ment  shall,  under  the  Secretary  of  War,  have  charge  of 

the  military  and  hospital  records  of  the  volunteer  armies 
and  the  pension  and  other  business  of  the  War  Depart- 
ment connected  therewith;  and  all  laws  or  parts  of  laws 
inconsistent  with  the  terms  of  this  act  are  hereby  repealed. 
Act  of  May  9,  1892  (27  Stat.  L.,  27). 

mSmroiiasnodf  1238-  All  returns  and  muster  rolls  of  organizations  of 
volunteers.  ^^  ^e  Volunteer  Army  and  of  militia  organizations  while  in 
s.8,v.30,p.'362.  tke  service  Of  the  United  States  shall  be  rendered  to  the 


Section  8  of  the  act  of  March  2,  1899  (30  Stat.  L.,  979),  contained  the  same 
requirement.  By  the  act  of  March  3, 1899  (ibid.,  1007) ,  this  office  was  exempted  from 
the  operation  of  the  reduction  clauses  of  the  act  of  March  2,  1899. 

466 


MILITARY    LAWS    OF    THE    UNITED    STATES.  467 

Adjutant-General  of  the  Army,  and  upon  thedisbandment 
of  such  organizations  the  records  pertaining  to  them  shall 
be  transferred  to  and  filed  in  the  Record  and  Pension 
Office  of  the  War  Department.  And  regimental  and  all 
other  medical  officers  serving  .with  volunteer  troops 
in  the  field  or  elsewhere  shall  keep  a  daily  record  of  all 
soldiers  reported  sick,  or  wounded  as  shown  by  the  morn- 
ing calls  or  reports,  and  shall  deposit  such  reports  with 
other  reports  provided  for  in  this  section  with  the  Record 
and  Pension  Office,  as  provided  herein  for  other  reports, 
returns  and  muster  rolls.  Section  8,  act  of  April  22,  1898 
(30  Stat.  L.,  362). 

1239.  All  military  records,  such  as  muster  and  pay  rolls,  ti(4ar?army rec- 
orders, and  reports  relating  to  the  personnel  or  the  opera-  fe^redetfo  secre- 
tions of  the  armies  of  the  Revolutionary  war  and  of  the  ta^yugf  ^'1894 
war  of  eighteen  hundred  and  twelve,  now  in  any  of  the  v-28'p-403- 
Executive  Departments,  shall  be  transferred  to  the  Secre- 
tary of  War,  to  be  preserved,  indexed,  and  prepared  for 
publication.1     Act  of  August  18,  1894  (%$  Stat.  Z.,  403). 

1240.  All  the  employees  provided  for    *    *    *    theRec- 
ord  and  Pension  Office  of  the  War  Department  shall  be 
exclusively  engaged  on  the  work  of  this  office.2      Act  tf 
July  16,  1892  (27  Stat.  Z.,  92). 

REMOVAL   OF   THE    CHARGE    OF   DESERTION. 

1241.  The  charge  of  desertion  now  standing  on  the  rolls  d  °8hearrtfoJ  r°e! 
and  records  in  the  Record  and  Pension  Office  of  the  WwJJj^^JJgg 
Department  against  any  soldier  who  served  in  the  late  vo^t|er^ar  2 
war  in  the  volunteer  service  shall  be  removed  in  all  cases  188J'  V-QH$&>869- 

jMciy  y,  lotT^,  v. 

where  it  shall  be  made  to  appear  to  the  satisfaction  of  the  27- p- 27- 
Secretary  of  War,  from  such  rolls  and  records,  or  from 
other   satisfactory    testimony,    that   such   soldier   served 
faithfully  until  the  expiration  of  his  term  of  enlistment, 
or  until  the  first  day  of  May,  anno  Domini  eighteen  hun- 

1  The  act  of  July  27,  1892  (27  Stat.  L.,  275),  had  contained  the  requirement  that 
' '  the  military  records  of  the  American  Revolution  and  of  the  war  of  eighteen  hun- 
dred and  twelve,  now  preserved  in  the  Treasury  and  Interior  Departments,  be 
transferred  to  the  War  Department,  to  be  preserved  in  the  Record  and  Pension  Di- 
vision of  that  Department,  and  that  they  shall  be  properly  indexed  and  arranged  for 
use." 

The  acts  of  March  2,  1895  (28  Stat.  L.,  788),  and  May  28,  1896  (29  ibid.,  161), 
authorizing  the  Secretary  of  War,  upon  the  application  of  the  governor  of  a  State,  to 
furnish  to  such  governor  a  transcript  of  the  military  history  of  any  regiment  or  com- 
pany furnished  by  his  State,  under  such  regulations  as  might  be  prescribed  by  the 
Secretary  of  War,  the  expense  of  preparing  such  transcript  to  be  borne  by  the  State 
requesting  it. 

'Subsequent  acts  of  appropriation  since  that  of  July  16,  1892  (27  Stat.  L.,  92), 
have  contained  the  same  restriction. 


468  MILITARY    LAWS    OF    THE    UNITED    STATES. 

dred  and  sixty -five,  having  previously  served  six  months 
or  more,  and,  by  reason  of  absence  from  his  command  at 
the  time  the  same  was  mustered  out,  failed  to  be  mustered 
out  and  to  receive  an  honorable  discharge,  or  that  such 
soldier  absented  himself  from  his  command,  or  from  hos- 
pital while  suffering  from  wounds,  injuries,  or  disease 
received  or  contracted  in  the  line  of  duty  and  was  pre- 
vented from  completing  his  term  of  enlistment  by  reason 
of  such  wounds,  injuries,  or  disease.  Acts  of  March  2, 
1889  (25  Stat.  L.,  869);  May  9,  1892  (27  ibid.,  27). 
ior\PePmSvlL°ns  1842-  The  Secretary  of  War  is  hereby  authorized  to 
sec.  2,  ibid,  remove  the  charge  of  desertion  from  the  record  of  any 
regular  or  volunteer  soldier  in  the  late  war  upon  proper 
application  therefor,  and  satisfactory  proof  in  the  follow- 
ing cases: 

Return  to  duty  Yirst.  That  such  soldier,  after  such  charge  of  desertion 
was  made,  and  within  a  reasonable  time  thereafter,  volun- 
tarily returned  to  his  command  and  served  faithfully  to 
the  end  of  his  term  of  service,  or  until  discharged. 
wck^wounde1^  Second.  That  such  soldier  absented  himself  from  his 
command  or  from  hospital  while  suffering  from  wounds, 
injuries,  or  disease,  received  or  contracted  in  the  line  of 
duty,  and  upon  recovery  voluntarily  returned  to  his  com- 
mand and  served  faithfully  thereafter,  or  died  from  such 
wounds,  injuries,  or  disease  while  so  absent,  and  before 
the  date  of  muster  out  of  his  command  or  expiration  of 
his  term  of  service,  or  was  prevented  from  so  returning 
by  reason  of  such  wounds,  injuries,  or  diseases  before  such 
muster  out  or  expiration  of  service. 

Hmrgedbyorder     Third.  That  such  soldier  was  a  minor,  and  was  enlisted 
°fse°cUr2t'tbMi       without  the  consent  of  his  parent  or  guardian,  and  was 
26Mpars224 1891'  v<  released  or  discharged  from  such  service  by  the  order  or 
decree  of  any  State  or  United  States  court  on  habeas 
corpus  or  other  judicial   proceedings;   and    in  such  case 
such  soldier  shall  not  be  entitled  to  any  bounty  or  allow- 
ance or  pay  for  any  time  such  soldier  was  not  in  the  per- 
formance of  military  duty.     Sec.,  2,  ibid.     Act  of  March 
2,  1891  (26  Stat.  L.",  821^). 

charg?whe£resSif      1244>  ^he  charge  of  desertion  now  standing  on  the  rolls 

diMarree21isie9ds  an(*  records  in  the  office  of  the  Adjutant-General  of  the 

3'^Vi8?29'Y  Army  [or  the  Record  and  Pension  OflSce  of  the  War  De- 

27,  p.  27.  partment] 1  against  any  regular  or  volunteer  soldier  who 

served  in  the  late  war  of  the  rebellion  by  reason  of  his 

having  enlisted  in  any  regiment,  troop,  or  company,  or  in 

TAct  of  May  9,  1892  (27  Stat.  L.,  27). 


MILITARY    LAWS    OF    THE    UNITED    STATES.  469 

the  United  States  Navy  or  Marine  ( Wps.  without  having 
first  received  a  discharge  from  the  regiment,  troop,  or 
compan}T  in  which  he  had  previously  served  shall  be  re- 
moved in  all  cases  wherein  it  shall  be  made  to  appear  to 
the  satisfaction  of  the  Secretary  of  War,  from  such  rolls 
and  records,  or  from  other  satisfactory  testimony,  that 
such  reenlistment  was  not  made  for  the  purpose  of  secur- 
ing bounty  or  other  gratuity  that  he  would  not  have  been 
entitled  to  had  he  remained  under  his  original  term  of 
enlistment;  that  the  absence  from  the  service  did  not  Limitation, 
exceed  four  months,  and  that  such  soldier  served  faith- 
fully under  his  reenlistment.  Sec.  3,  acts  of  March  2,  1889 
(25  8tat,  L.,  869};  May  9.  1892,  (27  ibid,  '27). 

1245.  Whenever  it  shall  appear  from  the  official  records  Jffi?t?id?i* 
in  the  office  of  the  Adjutant-General,  United  States  Army  etgec  4  ^^ 
[or  the  Record  and  Pension  Office  of  the  War  Department  *], 

that  any  regular  or  volunteer  soldier  of  the  late  war  was 
formally  restored  to  duty  from  desertion  by  the  com- 
mander competent  to  order  his  trial  for  the  offense,  or, 
having  deserted  and  being  charged  with  desertion,  was,  on 
return  to  the  service,  suffered,  without  such  formal  restora- 
tion, to  resume  his  place  in  the  ranks  of  his  command, 
serving  faithfully  thereafter  until  the  expiration  of  his 
term,  such  soldier  shall  not  be  deemed  to  rest  under  any 
disability  because  of  such  desertion  in  the  prosecution  of 
any  claim  for  pension,  on  account  of  disease  contracted 
or  wounds  or  injuries  received  in  the  line  of  his  duty  as  a 
soldier.  Sec.  h  iMd. 

1246.  .When  the  charge  of  desertion  shall  be  removed  typay  and  boun' 
under  the  provisions  of  this  act  from  the  record  of  any    Sec-MMrf. 
soldier,  such  soldier,  or,  in  case  of  his  death,  the  heirs  or 

legal  representatives  of  such  soldier,  shall  receive  the  pay 
and  bounty  due  to  such  soldier.  Sec.  5,  ibid. 

1247.  This  act  shall  not  be  so  construed  as  to  give  to  any    Not  entitled  to 

i  .  .  i  •       i  Pfty<  etc->  while 

such  soldier,  or,  in  case  oi  his  death,  to  the  heirs  or  legal  absent   without 

'  &      leave. 

representatives  ot  any  such  soldier,  any  pay,  bounty,  or  iMd. 
allowance  for  any  time  during  which  such  soldier  was  ab- 
sent from  his  command  without  proper  authority,  nor  shall 
it  be  so  construed  as  to  give  any  pay,  bount}^  or  allow- 
ance to  any  soldier,  his  heirs  or  legal  representatives,  who 
served  in  the  Army  a  period  of  less  than  six  months.2 
Sec.  5,  il)t<J. 

'Act  of  May  9,  1892  (27  Stat.  L.,  27). 

2  The  persons  from  whose  military  record  there  may  be  a  removal  of  the  charge  of 


desertion,  under  the  act  of  March  2,  1889,  chapter  390,  are  those  against  whom  such 
a  charge  is  "now  standing."     Deserters,  therefore,  wh 


lose  cases  had,  at  the  date  of 


470  MILITARY    LAWS    OF   THE    UNITED   STATES. 


1248-  The  Secretary  of  War  is  hereby  authorized  and 
amend  the  military  record  of  any  soldier  who 
of  deser-  en}jste(j  for  ^he  war  with  Mexico,  upon  proper  applica- 
sec.  6,  ibid,      tion,  where  the  rolls  and  records  of  the  Adjutant-General's 
Office  show  the  charge  of  desertion  against  him,  when  such 
rolls  and  records  show  the  facts  set  out  in  the  following 
cases: 

^  Length  of  serv-  First.  That  said  soldier  served  faithfully  the  full  term  of 
his  enlistment,  or  having  served  faithfully  for  six  months 
or  more,  and  until  the  fourth  day  of  July  anno  Domini 
eighteen  hundred  and  forty-eight,  left  his  command  without 
having  received  a  discharge. 

Voluntary  re-     Second.  That  such  soldier,  after  said  charge  of  desertion 

was  entered  on  the  rolls,  voluntarily  returned  to  his  com- 

mand within  a  reasonable  time,  and  served  faithfully  until 

discharge.     Sec.  6,  ibid. 

casesexcepted.      1249.  The  provisions  of  this  act  shall  not  be  so  con- 

SGC  7  ibicl 

strued  as  to  relieve  any  soldier  from  the  charge  of  deser- 
tion who  left  his  command  from  disaffection  or  disloyalty 
to  the  Government,  or  to  evade  the  dangers  and  hardships 
of  the  service,  or  whilst  in  the  presence  of  the  enemy  (not 
being  sick  or  wounded),  or  while  in  arrest  or  under  charges 
for  breach  of  military  duty,  or  in  case  of  a  soldier  of  the 
Mexican  war  who  did  not  actually  reach  the  seat  of  war. 
8ec.  7,  ibid. 

the  act,  been  judicially  duly  disposed  of  —  by  trial,  conviction,  and  sentence  by 
court-martial  —  are  not  within  the  purview  of  the  statute.  Dig.  Opin.  J.  A.  G., 
par.  1103. 

Held,  that  a  soldier  had  '  '  served  faithfully  '  '  in  the  sense  of  section  1  of  the  last- 
named  act  when,  having  been  sentenced  to  reduction  and  confinement  on  -conviction 
of  desertion,  his  sentence  had  been  duly  executed,  and  he  had  thereupon  returned 
to  duty  and  served  for  a  considerable  further  period  in  a  status  of  honor.  Ibid., 
par.  1104. 

The  act  of  1  889  provides  that  the  charge  of  desertion  shall  be  removed  if  the  soldier 
has  "served  faithfully  until  *  *  *  May  1,  1865,  having  previously  served  six 
months  or  more"  *  *  Held,  that  the  six  months  of  service  need  not  have  been 
continuous,  provided  they  were  actually  served  before  May  1,  1865,  and  the  soldier 
was  in  service  at  that  date.  Ibid.,  par.  1105. 

Held,  that  a  soldier  was  not  within  the  description  of  the  third  division,  section  2, 
of  the  act  of  1889,  of  having  been  "  discharged"  from  service  by  a  court  of  "  compe- 
tent jurisdiction,"  who  had,  as  a  minor,  enlisted  without  consent,  been  discharged 
upon  habeas  corpus  by  a  State  court.  Ibid.,  par.  1107. 

A  pardon  does  not  operate  retroactively,  and  can  not  therefore  "  remove  a  charge" 
of  desertion.  It  does  not  wipe  out  the  fact  that  the  party  did  desert,  nor  can  it 
make  the  record  say  that  he  did  not  desert.  It  can  not  change  facts  of  history.  Ibid.  , 
par.  1117. 

The  restoration  of  a  deserter  to  duty  without  trial  under  par.  132,  A.  R.  [1895], 
does  not  operate  as  an  acquittal,  or  relieve  the  deserter  from  the  forfeitures  of  pay 
(including  retained  pay)  incurred  by  operation  of  law  under  paragraphs  1380  and 
1381,  A.  R.  1895.  Ibid.,  351,  par.  48. 


MILITARY   LAWS   OF   THE    UNITED   STATES.  471 


1250.  When  such  charge  of  desertion  is  removed  under 
the  provisions  of  this  act,  the  soldier  shall  be  restored 

a  status  of  honorable  service,  his  military  record  shall  be    sec.8,iwa. 

corrected  as  the  facts  may  require,  and  an  honorable  dis- 

charge shall  be  issued  in  those  cases  where  the  soldier  has 

received  none;  and  he  shall  be  restored  to  all  his  rights  as 

to  pension,  pay,  or  allowances  as  if  the  charge  of  desertion  cl|gjf  on«  etc-' 

had  never  been  made;  and  in  case  of  the  death  of  said  sol- 

dier,  his  widow  or  other  legal  heir  shall  be  entitled  to  the 

same  rights  as  in  case  of  other  deceased  honorably  dis- 

charged soldiers.     Sec.  8,  ibid. 

1251.  This  act  shall  not  be  construed  to  give  to  any  ab*e°n 
soldier,  or  his  legal  representatives  or  heir,  any  pay  or 
allowance  for  any  period  of  time  he  was  absent  without 
leave  and  not  in  the  performance'  of  military  duty.     Ibid. 

1252.  All  applications  for  relief  under  this  act  shall  be 

made  to  and  filed  with  the  Secretary  of  War  within  the  {;e;g9>from  July 

period  of  three  years  from  and  after  July  first,  eighteen  t-6ffcs>  9  and  10> 

hundred  and  eighty-nine,  and  all  applications  not  so  made 

and  filed  within  said  term  of  three  years  shall  be  forever 

barred,  and  shall  not  be  received  or  considered.1     Sec.  #, 

ibid. 

1253.  Section  nine  of  the  act  for  the  relief  of  certain  tnaw^Sa™ 
volunteer  and  regular  soldiers  of  the  late  war  and  the  war  <2&^\ii  1895)  v' 
with  Mexico,  approved  March  second,  eighteen  hundred 

and  eighty-nine,  is  hereby  so  amended  as  to  remove  the 
limitation  of  time  within  which  applications  for  relief  may 
be  received  and  acted  upon  under  the  provisions  of  said 
act.  Act  of  March  2,  1895  (28  Stat.  Z.,  814). 

REMUSTEK   OF   OFFICERS   OF   VOLUNTEERS. 

1254.  Any  person  who  was  duly  appointed  or  commis-  cajege  m  u  s  *  e  r 
sioned  to  be  an  officer  of  the  volunteer  service  during  the  29^593'  1897'  v' 
war  of  the  rebellion,  and  who  was  subject  to  the  muster- 

ing regulations  at  the  time  applied  to  members  of  the 
volunteer  service,  shall  be  held  and  considered  to  have 
been  mustered  into  the  service  of  the  United  States  in  the 
grade  named  in  his  appointment  or  commission  from  the 
date  from  which  he  was  to  take  rank  under  and  by  the 
terms  of  his  said  appointment  or  commission,  whether  the 

1  The  act  of  July  27,  1892  (27  Stat.  JL,  278),  extended  the  operation  of  this  section 
for  a  period  of  two  years  from  July  1,  1892.  By  the  act  of  March  2,  1895  (28  ibid., 
814),  the  limitation  of  time  was  indefinitely  extended. 


472  MILITARY    LAWS    OF    THE    UNITED    STATES. 

same  was  actually  received  by  him  or  not,  and  shall  be 
entitled  to  pay,  emoluments,  and  pension  as  if  actually 
mustered  at  that  date:  Provided,  That  at  the  date  from 
which  he  was  to  take  rank  by  the  terms  of  his  said  appoint- 
ment or  commission  there  was  a  vacancy  to  which  he  could 
be  so  appointed  or  commissioned,  and  his  command  bad 
either  been  recruited  to  the  minimum  number  required  by 
law  and  the  regulations  of  the  War  Department,  or  had 
been  assigned  to  duty  in  the  field,  and  that  he  was  actually 
performing  the  duties  of  the  grade  to t  which  he  was  so 
appointed  or  commissioned;  or  if  not  so  performing  such 
duties,  then  he  shall  be  held  and  considered  to  have  been 
mustered  into  service  and  to  be  entitled  to  the  benefits  of 
such  muster  from  such  time  after  the  date  of  rank  given 
in  his  commission  as  he  may  have  actually  entered  upon 
such  duties:  Provided  further,  That  any  person  held  a&  a, 
prisoner  of  war,  or  who  ma)^  have  been  absent  by  reason 
of  wounds,  or  in  hospital  by  reason  of  disability  received 
in  the  service  in  the  line  of  duty,  at  the  date  of  issue  of 
his  appointment  or  commission,  if  a  vacancy  existed  for 
him  in  the  grade  to  which  so  appointed  or  commissioned, 
shall  be  entitled  to  all  the  benefits  to  which  he  would  have 
been  entitled  under  this  act  if  he  had  been  actually  per- 
forming the  duties  of  the  grade  to  which  he  was  appointed 
or  commissioned  at  said  date:  Provided  further ,  That  this 
act  shall  be  construed  to  apply  only  in  those  cases  where 
the  commission  bears  date  prior  to  June  twentieth,  eighteen 
hundred  and  sixty-three,  or  after  that  date  when  the  com- 
mands of  the  persons  appointed  or  commissioned  were  not 
below  the  minimum  number  required  by  then  existing  laws 
and  regulations:  And  provided  further,  That  the  pay  and 
allowances  actually  received  for  the  period  covered  by  the 
recognition  extended  under  this  act  shall  be  deducted  from 
the  sums  otherwise  to  be  paid  thereunder.  Act  of  Feb- 
ruary &},  1897  (29  Stat.  Z.,  593}. 

1255.  The  heirs   or  legal  representatives  of  any  per- 
son whose  muster  into  service  shall  be  recognized  and 
established  under  the  terms  of  this  act  shall  be  entitled  to 
receive  the  arrears  of  pay  and  emoluments  due,  and  the 
pension,  if  any,  authorized  by  law,  for  the  grade  to  which 
recognition  shall  be  so  extended.     Sec.  2,  ibid. 

1256.  The  pay  and  allowances  of  any  rank  or  grade 
paid  to  and  received  by  any  military  or  naval  officer  in 
good  faith  for  services  actually  performed  by  such  officer 


MILITARY    LAWS    OF    THE    UNITED    STATES.  473 

• 

in  such  rank  or  grade  during  the  war  of  the  rebellion, 
other  than  as  directed  in  the  fourth  proviso  of  the  first 
section  of  this  act,  shall  not  be  charged  to  or  recovered 
back  from  such  officer  because  of  any  defect  in  the  title  of 
such  officer  to  the  office,  rank,  or  grade  in  which  such  serv- 
ices were  so  actually  performed.  Sec.  3,  ibid. 

CERTIFICATES    OF    SERVICE    IN  MILITARY  TELEGRAPH  CORPS. 


1257.  The  Secretary  of  War  is  hereby  authorized  and 
directed  to  prepare  a  roll  of  all  persons  who  served  not29'p<497- 
less  than  ninety  days  in  the  operation  of  military  tele- 
graph lines  during  the  late  civil  war,  and  to  issue  to  each, 
upon  application,  unless  it  appears  that  his  service  was  not 
creditably  performed,  or  to  the  representatives  of  those 
who  are  dead,  suitable  certificates  of  honorable  service  in 
the  military  telegraph  corps  of  the  Army  of  the  United 
States,  stating  the  service  rendered,  the  length  of  such 
service,  and  the  dates,  as  near  as  may  be,  between  which 
such  service  was  performed:  Provided,  That  this  law  shall  Restriction 
not  be  construed  to  entitle  the  persons  herein  mentioned 
to  any  pay,  pension,  bounty,  or  rights  not  herein  specific- 
ally provided  for.  Act  of  January  26,  1897  (29-  Stat  L., 
497). 


CHAPTER 


Par. 


CHAPLAINS. 


Par. 


1258, 1259.  Appointment. 

1260.  Qualifications,  age. 

1261.  The  same. 

1262.  Assignments. 


1263,1264.  Duties. 

1265.  Reports. 

1266.  Facilities  in  performance  of  duties. 


1258-  Tlie  President  is  authorized  to  appoint,  by  and 
12sec.ii2^',R?s.  W^h  the  advice  and  consent  of  the  Senate,  chaplains  in  the 
sec.  1122,  K.S.  Army,  at  the  rate  of  one  for  each  regiment  of  cavalry  and 
infantry  in  the  United  States  service,  and  twelve  for  the 
corps  of  artillery,  with  the  rank,  pay,  and  allowances  of 
captains  of  infantry.1     Sec.  12,  act  of  February  2,  1901  (31 
Stat.  Z.,  750}. 

1259.  The  office  of  post  chaplain  is  hereby  abolished, 
and  the  officers  holding  commissions  as  chaplains,  or  who 
may  hereafter  become  chaplains,  shall  he  assigned  to  regi- 
ments or  to  the  corps  of  artillery.      Sec.  1%,  act  of  Febru- 
ary 2,  1901  (31  Stat.  Z.,  750). 

1260.  No  person  shall  be  appointed  a  chaplain  in  the 
Regular  Army  who  shall  have  passed  the  age  of  forty 

Section  18  of  the  act  of  July  5,  1838  (5  Stat.  L.,  259),  conferred  authority  upon 
the  officers  composing  the  councils  of  administration,  at  certain  posts  to  be  desig- 
nated by  the  Secretary  of  War,  to  employ  from  time  to  time  such  person  as  they 
might  think  proper  to  officiate  as  chaplain.  The  person  so  selected  and  appointed 
was  also  to  perform  the  duties  of  schoolmaster  at  the  post  at  which  he  was  employed. 
The  chaplains  so  appointed  were  to  receive  as  compensation  a  sum  to  be  determined 
by  the  council  of  administration,  with  the  approval  of  the  Secretary  of  War,  but  such 
sum  was  not  to  exceed  forty  dollars  per  month  in  any  case;  each  chaplain  was 
allowed  four  rations  per  day,  with  fuel  and  quarters.  The  number  of  chaplain  posts, 
which  was  fixed  at  twenty  by  the  act  of  July  5,  1838,  was  increased  to  forty  by  sec- 
tion 3  of  the  act  of  March  3,  1849  (9  Stat.  L.,  351).  Section  7  of  the  act  of  July  28, 
1866  (14  Stat  L.,  333),  recognized  and  continued  in  service  the  existing  force  of  chap- 
lains; by  section  7  of  the  act  of  March  2,  1867  (14  Stat.  L.,  423),  chaplains  were 
placed  on  the  same  footing  in  respect  to  tenure  of  office,  retirement,  pensions,  and 
other  allowances  as  other  officers  of  the  Army. 

Under  the  authority  conferred  by  the  act  ot  April  22,  1898  (30  Stat.  L.,  363),  each 
regiment  of  volunteers  is  entitled  to  one  chaplain;  by  the  act  of  July  8,  1898  (Ibid., 
729),  it  was  provided  that  chaplains  in  the  volunteer  service  should  have  the 
pay  and  allowances  of  captains  mounted.  The  act  of  March  2,  1899  (30  Stat.  L., 
977) ,  makes  no  specific  provision  for  chaplains  for  the  force  of  volunteers  therein 
authorized. 

474 


MILITARY   LAWS    OF   THE   UNITED   STATES.  475 

years,  nor  until  he  shall  have  established  his  fitness  as 
required  by  existing  law.  Sec.  12,  act  of  Februai^y  8,  1901 
(31  Stat.  L.,  750). 

1261.  No  person  shall  be  appointed  as  regimental  or  post  ^Qualifications 
chaplain  until  he  shall  furnish  proof  that  he  is  a  regularly  g^^Vi^'p 
ordained  minister  of  some  religious  denomination,  in  good  59|ec  1123  K  g 
standing  at  the  time  of  his  appointment,  together  with  a 
recommendation  for  such  appointment  from  some  author- 

ized ecclesiastical  body,  or  from  not  less  than  five  accredited 
ministers  of  said  denomination. 

1262.  Chaplains  may  be  assigned  to  such  stations  as  the    j^fS™  901',  s. 
Secretary  of  War  shall  direct,  and  they  may  be  trans-  12>  v-  81>  p-  15°- 
f  erred,  as  chaplains,  from  one  branch  of  the  service  or 

from  one  regiment  to  another,  by  the  Secretary  of  War, 
without  further  commission.  When  serving  in  the  field, 
chaplains  shall  be  furnished  with  necessary  means  of 
transportation  by  the  Quartermaster's  Department.  Sec. 
12,  act  of  February  2,  1901  (31  Stat.  Z.,  750). 

1263.  All  regimental  chaplains  and  post  chaplains  shall,  g^^  as  cler" 
when  it  may  be  practicable,  hold  appropriate  religious  53ASP£  y.'isfS^! 
services,  for  the.  benefit  of  the  commands  to  which  the}'    sec.  1120,  B.S. 
may  be  assigned  to  duty,  at  least  once  on  each  Sunday, 

and  shall  perform  appropriate  religious  burial  services  at 
the  burial  of  officers  and  soldiers  who  may  die  in  such 
commands. 

1264.  The  duty  of  chaplains  of  regiments  of  colored  sch<5i4eachers.8 
troops  and  of  post  chaplains  shall  include  the  instruction  I6 

of  the  enlisted  men  in  the  common  English  branches  of 


education.  l  p      ',  B.S. 


re~ 


1265.  Post  and  regimental  chaplains  shall  make  monthly  Ports°nthly 
reports  to  the  Adjutant-General  of  the  Army,  th  rough  53AsP3(v.'i38^.'46; 
the  usual  military  channels,  of  the  moral  condition  MidjJ^jJif^0" 
general  history  of  the  regiments  or  posts  to  which  they    Sec-11^6'  K*s* 
may  be  attached. 

1266.  It  shall  be  the  duty  of  commanders  of  regiments,  p£j£mmceS  3 
hospitals,  and  posts  to  afford  to  chaplains,  assigned  to  thedu*iers-9  1864  c 
same  for  duty,  such  facilities  as  may  aid  them  in  the  per-  ^^J^  s 
formance  of  their  duties. 

HISTORICAL  NOTE.  —  The  office  of  chaplain  existed  in  the  Revolutionary  armies,  as 
is  indicated  by  the  requirement  of  section  1,  article  4,  of  the  Rules  and  Articles  of 
War  of  1776,  which  provides  a  penalty  for  the  nonperformance  of  the  duties  appro- 


1  For  statutory  provisions  respecting  post  schools,  see  the  article  relating  to  military 
posts  in  the  chapter  entitled  THE  PUBLIC  LANDS.  These  schools  are  administered  in 
accordance  with  paragraphs  321,  341,  350,  351,  355,  362,  1110,  1118,  1124,  1127,  1128, 
and  1137  of  the  Army  Regulations  of  1901.  For  the  duties  and  assignments  of  chap- 
lains, see  paragraphs  48-51,  Army  Regulations  of  1901. 


476  MILITARY    LAWS    OF    THE    UNITED   STATES. 

priate  to  the  office.  The  act  of  March  3,  1791  (1  SUit.  L.,  222),  authorized  the 
appointment  of  a  chaplain  in  case  the  President  might  "deem  such  appointment 
necessary  to  the  public  interest."  As  the  act  contemplated  a  brigade  organization, 
it  would  appear  that  the  office  thus  conditionally  created  was  that  of  a  brigade  rather 
than  a  regimental  chaplain.  The  inclusion  of  the  chaplain  in  the  "general  staff," 
in  section  7  of  the  act  of  March  5,  1792  (ibid.,  242),  and  March  3,  1795  (ibid.,  430), 
would  also  seem  to  indicate  the  correctness  of  this  view.  No  provision  was  made  for 
the  services  of  chaplains  in  the  enactments  respecting  the  militia — acts  of  May  2, 
1792  (ibid.,  264),  and  May  8,  1792  (ibid.,  267)— although  these  statutes  are  still  in 
force.  The  office  of  chaplain  was  discontinued  on  October  1,  1796,  in  conformity  to 
the  requirements  of  the  act  of  May  30,  1796  (ibid.,  483),  "to  ascertain  and  fix  the 
military  establishment  of  the  United  States."  The  acts  authorizing  the  creation  of 
a  provisional  army,  approved  May  28,  1798  (ibid.,  561),  made  no  provision  for  the 
services  or  compensation  of  chaplains,  but  this  omission  was  supplied  by  a  provision 
for-four  chaplains  in  the  act  of  July  16,  1798  (ibid.,  604),  who  were  to  be  attached 
to  the  general  staff,  and  were  to  receive  the  pay  and  allowances  of  majors.  No  pro- 
vision was  made  for  these  officers,  however,  in  the  act  of  March  3,  1799  (ibid.,  749). 
By  the  acts  of  February  2,  1800  (2  ibid.,  7),  and  May  14,  1800  (ibid.,  85),  the  oper- 
ation of  the  foregoing  enactments  was  suspended,  and  the  act  of  March  16,  1802 
(ibid.,  133),  contained  no  provision  for  chaplains,  or  for  the  procurement  of  religious 
services  at  military  posts. 

The  act  of  April  12  1808  (2  Stat.  L.  481,  section  7),  passed  in  contemplation  of  war 
with  England,  authorized  the  appointment  of  brigade  chaplains,  and  similar  provision 
was  made  in  section  24  of  the  act  of  February  6,  1812  (ibid.,  671) ,  which  conferred 
upon  these  officers  the  pay  and  allowances  of  majors  of  infantry,  and  this  last-named 
requirement  was  repeated  in  section  16  of  the  act  of  January  20, 1813  ( ibid. ,  791 ).  The 
acts  of  March  3, 1815  (3  Stat.  L.,  224);  April  24, 1816  (ibid.,  297);  April  14, 1818  (ibid., 
420) ;  April  20, 1818  (ibid.,  460) ;  March  2, 1821  (ibid.,  615) ,  to  reduce  and  fix  the  mili- 
tary peace  establishment,  made  no  provision  for  these  officers  which  then  ceased  to 
exist. 

The  office  of  post  chaplain  was  established  by  section  18  of  the  act  of  July  5,  1838 
(5  Stat.  L.,  259),  appointments  thereto  being  vested  in  the  councils  of  administration  of 
the  several  military  posts.  Chaplains  were  to  act  as  post  schoolmasters,  and  their 
compensation  was  to  be  fixed  by  the  post  councils,  with  the  approval  of  the  Secretary 
of  War,  but  was  in  no  case  to  exceed  forty  dollars  per  month,  with  four  rations  per 
day  and  an  established  allowance  of  fuel  and  quarters.  The  number  of  chaplain 
posts  was  fixed  at  twenty  by  the  act  of  July  7, 1838  (ibid.,  308),  which  were  to  be  des- 
ignated by  the  Secretary  of  War,  and  were  to  be  "confined  to  places  most  destitute 
of  instruction. ' '  By  section  3  of  the  act  of  March  2, 1849  ( 9  ibid. ,  357 ) ,  the  number  of 
chaplain  posts  was  increased  to  thirty,  and  by  section  2  of  the  act  of  February  21, 
1857  (11  ibid.,  163)',  the  monthly  pay  proper  of  chaplains  was  increased  to  a  sum  not 
exceeding  sixty  dollars,  subject  to  the  approval  of  the  post  council  of  administration. 

For  each  of  the  regiments  of  volunteers  authorized  to  be  rdsed  for  the  war  with 
Mexico  a  chaplain  was  authorized,  and  power  was  conferred  upon  the  President  to 
order  the  existing  post  chaplains  to  the  theater  of  active  operations,  and,  in  the  event 
of  their  refusal  to  obey  such  order,  their  offices  were  to  be  declared  vacant  by  the 
Adjutant-General  of  the  Army;  Section  7,  act  of  February  11,  1847  (9  Stat.  L.,  124). 
During  the  war  of  the  rebellion  a  chaplain  was  authorized  for  each  regiment  of  vol- 
unteers, who  was  to  have  the  pay  and  allowances  of  a  captain  of  cavalry;  section  9, 
act  of  July  22, 1861  (12  Stat.  L.,  270).  By  section  7  of  the  act  of  August  3, 1861  (ibid. , 
288),  none  but  ministers  of  some  Christian  denomination  were  to  be  eligible  for  appoint- 
ment. By  section  2  of  the  act  of  May  30, 1862  ( ibid. ,  404) ,  the  President  was  authorized 
to  appoint  a  chaplain  for  each  general  hospital ;  by  the  act  of  July  17, 1862  (ibid. ,  594 ) , 
their  pay  and  allowances  were  fixed  and  the  qualifications  for  the  office  were  estab- 
lished. Rank,  without  command,  was  conferred  by  the  act  of  April  9, 1862  ( 13  ibid. , 
46) ,  in  which  enactment  their  duties  were  still  further  defined.  By  section  31  of  the  act 
of  July  28, 1866  ( 14  ibid. ,  337) ,  the  existing  force  was  recognized  and  continued ,  and  one 
chaplain  was  authorized  for  each  regiment  of  colored  troops  established,  "whose  duty 
shall  include  the  instruction  of  the  enlisted  men  in  the  common  English  branches  of 
education;"  by  section  7  of  the  act  of  March  2,  1867  (ibid.,  423),  the  rank  of  captain 
of  infantry,  without  command,  was  conferred,  and  chaplains  were  placed  upon  the 
same  footing  in  respect  to  pay,  allowances,  and  emoluments  as  other  officers  of  the 
Army.  By  section  12  of  the  act  of  February  2,  1901  (31  ibid.,  750),  the  distinction 
between  post  and  regimental  chaplains  was  abolished  and  chaplains  were  thereafter 
required  to  be  assigned  to  regiments  of  the  line  or  to  stations  occupied  by  the  troops 
of  the  corps  of  artillery. 


CHAJPTER 


COMMISSIONED   OFFICERS. 


Par. 

1267-1270.  Appointments. 
1271,1272.  Promotions. 
1273.  Commissions. 

1274-1277.  Examinations  for  promotion-. 
1278-1282.  Examination  of  enlisted  men 
for  promotion. 

1283.  Assignments  to  regiments. 

1284.  Transfers. 

1285.  Details  to  the  staff. 


Par. 

1286, 1287.  Leaves  of  absence,  sick  leaves. 

1288-1296.  Details  to  colleges. 

1297-1305.  Retirement  of  officers. 

1306-1325.  Retiring  boards. 

1326, 1327.  Resignations. 

1328-1330.  Dismissal  of  officers. 

1331-1335.  Miscellaneous  provisions. 

1336-1338.  Travel  pay  on  discharge. 

1339-1341.  Deceased  officers. 


APPOINTMENTS. 


1267.  When  any  cadet  of  the  United  States  Military  Acad- 

has  gone  tnrough  all  its  classes  and  received  a  regu-  24Mpay5o.7'  1886>  v' 
lar  diploma  from  the  academic  staff,  he  may  be  promoted 
and  commissioned  as  a  second  lieutenant  in  any  arm  or 
corps  of  the  Army  in  which  there  may  be  a  vacancy  and 
the  duties  of  which  he  may  have  been  judged  competent 
to  perform.2  Act  of  May  17,  1886  (24  Stat.  L.  50). 

1  In  the  absence  of  statutory  restrictions,  the  power  of  the  President  to  make  appoint- 
ments or  promotions  in  the  line  or  staff  of  the  Army  is  plenary,  being  conferred  by 
Article  II,  section  11,  paragraph  2  of  the  Constitution  of  the  United  States.  Con- 
gress, however,  has  established  certain  uniform  rules  of  promotion,  and  in  several 
instances  has  prescribed  the  classes  from  which  selections  must  be  made  in  appoint- 
ing to  original  or  other  vacancies.  See,  for  examples  of  such  regulation,  section  3, 
act  of  June  18,  1878  (20  Stat.  L.,  145);  act  of  May  17,  1886  (24  ibid.,  50);  Oct.  1, 
1890  (26  ibid.,  562);  July  30,  1892  (27  ibid.,  336);  March  8,  1898  (30  ibid.,  261); 


of  general  officer  is  made  by  selection  from  the  Army." 

2  The  appointment  of  cadets  and  enlisted  men  to  the  grade  of  second  lieutenant  is 
regulated  by  the  acts  above  set  forth.  Section  3  of  the  act  of  June  18,  1878  (20  Stat. 
L.,  145) ,  contained  the  requirement  that  all  vacancies  occurring  in  the  grade  of  second 
lieutenant  should  be  filled  from  the  graduates  of  the  Military  Academy  so  long  as 
any  such  remained  in  the  service  unassigned,  and  that  vacancies  then  remaining 
should  be  filled  by  the  promotion  of  meritorious  noncommissioned  officers,  and  that 
any  vacancies  remaining  after  the  exhaustion  of  the  two  classes  above  named  might 
be  filled  by  the  appointment  of  persons  from  civil  life;  but  this  provision  was 
expressly  repealed  by  section  5  of  the  act  of  July  30,  1892  (27  ibid.,  336).  The 
policy  of  the  Executive  in  respect  to  appointments  to  the  grade  of  second  lieutenant 
in  the  line  of  the  Army  is  now  regulated  by  the  following  requirements  of  Army 
Regulations : 

Vacancies  in  the  grade  of  second  lieutenant  existing  on  the  1st  day  of  July  each 
year  are  filled  by  appointment,  in  order,  as  follows:  (1)  From  graduates  of  the  United 

477 


478  MILITARY    LAWS    OF    THE    UNITED    STATES. 


1268>  I*1  case  there  shall  not  at  the  time  be  a  vacancy 
in  such  arm  or  corps,  he  may,  at  the  discretion  of  the  Pres- 
ident, be  promoted  and  commissioned  in  it  as  an  addi- 
tional second  lieutenant  with  the  usual  pay  and  allowances 
of  a  second  lieutenant  until  a  vacancy  shall  happen.  Ibid. 
1269-  Tne  vacancies  in  the  grade  of  second  lieutenant 
3,  v^&fp.sse!'  s'  heretofore  filled  by  the  promotion  of  meritorious  non- 
commissioned officers  of  the  Army  under  the  provisions 
of  section  three  of  the  act  approved  June  eighteenth, 
eighteen  hundred  and  seventy-eight,  shall  be  filled  by  the 
appointment  of  competitors  favorably  recommended  under 
this  act  in  the  order  of  merit  established  by  the  final 
examinations  Section  3,  act  of  July  30,  1892  (27  Stat. 
Z.,  336). 

to  ^?^onSSnof     1270<  Hereafter  all  appointments  in  the  line  of  the  Army 
eeocte'i  1892  s  shall  be  b}r  commission  in  an  arm  of  the  service  and  not 
2,  /.  26,  i>.  662.     by  commission  in  any  particular  regiment.2     Sec.  #,  act 
of  October  1,  1890  (26  Stat.  Z.,  56$). 

States  Military  Academy;  (2)  from  enlisted  men  of  the  Army  found  duly  qualified; 
(3)  from  civil  life.  Par:  26,  A.  R.  1901. 

A  civilian  to  be  eligible  for  appointment  must  be  a  citizen  of  the  United  States, 
Unmarried,  between  21  and  27  years  of  age,  must  be  examined  and  approved  as  to 
habits,  moral  character,  mental  and  physical  ability,  education,  and  general  fitness 
for  the  service  by  a  board  convened  and  constituted  as  provided  in  paragraph  25  for 
the  final  competitive  examination  of  soldiers.  Par.  31  ,  ibid.  For  regulations  respect- 
ing the  examination  of  candidates  from  civil  life  for  appointment  to  the  grade  of  sec- 
ond lieutenant  in  the  line  of  the  Army  see  General  Orders  No.  35,  A.  G.  0.,  1898,  and 
G.  O.  156,  A.  G.  0.,  1899. 

^ee  footnote  (2)  to  section  1267. 

2  An  appointment  or  commission,  in  order  to  take  effect  at  all,  must  be  accepted  ; 
but,  when  accepted,  it  takes  effect  as  of  and  from  its  date,  i.  e.,  the  date  on  which  it 
is  completed  by  the  signature  of  the  appointing  power,  or  that  as  and  from  which  it 
purports  in  terms  to  be  operative.  Dig.  Opin.  J.  A.  G.,  149.  See  also  Marbury  v. 
Madison,  1  Cranch,  137;  U.  S.  v.  Bradley,  10  Pet.,  304;  U.  S.  v.  Le  Baron,  19  How.,  78; 
Montgomery  v.  U.  S.,  5  Ct.  Cls.,  97.  See  also  chapter  entitled  THE  EXECUTIVE. 

The  power  of  the  President  to  fill  a  vacancy  in  the  Army  during  a  recess  of  the 
Senate  may  be  exercised  by  a  letter  from  the  Secretary  of  War,  and  such  a  letter 
may  constitute  his  commission,  there  being  no  law  which  prescribes  the  form  of  a 
military  commission.  O'Shea  v.  U.  S.,  28  Ct.  Cls.,  392.  Where  the  President  is 
authorized  by  law  to  reinstate  a  discharged  Army  officer,  he  may  do  so  without  the 
advice  and  consent  of  the  Senate.  Collins  v.  U.  S.,  14  Ct.  Cls.,  22;  Dig.  Opin.  J.  A.  G., 
150.  An  officer  of  the  Army  or  Navy  of  the  United  States  does  not  hold  his  office  by 
contract,  but  at  the  will  of  the  sovereign  power.  Crenshaw  v.  U.  S.,  134  U.  S.,  98. 
For  statutory  provisions  respecting  appointments  to  the  lowest  grades  in  the  several 
Btaff  corps  see  the  chapters  so  entitled. 

So  much  of  section  1218,  Revised  Statutes,  as  amended  by  the  act  of  May  13,  1884 
(23  Stat.  L.,  21),  as  requires  that  "No  person  who  held  a  commission  in  the  Army  or 
Navy  of  the  United  States  at  the  beginning  of  the  late  rebellion,  and  afterwards  served 
in  any  capacity  in  the  military,  naval,  or  civil  service  of  the  so-called  Confederate 
States;  or  of  either  of  the  States  in  insurrection  during  the  late  rebellion,  shall  be 
appointed  to  any  position  in  the  Army  or  Navy  of  the  United  States,"  was  repealed 
by  the  act  of  March  31,  1896  (29  Stat.  L.,  235).  For  statutory  provisions  regulating 
the  appointment  of  officers  of  volunteers  to  the  Army  see  section  28  of  the  act  of  Feb- 
ruary 2,  1901  (31  Stat.  L.,  755),  and  the  act  of  March  2,  1901  (ibid.,  p.  900),  paragraph 
578  ante. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  479 


PROMOTIONS. 

1271.  Hereafter  promotions  to  every  grade  in  the  Army  senforitytion  by 
below   the    rank  of   brigadier-general,   throughout   each  26°^5^ 1890)  v- 
arm,  corps,  or  department  of  the  service,  shall,  subject  to 

the  examination  hereinafter  provided  for,  be  made  accord- 
ing to  seniority  in  the  next  lower  grade  of  that  arm, 
corps,  or  department.1  Sec.  2,  act  of  October  1,  1890  (26 
Stat.  L.,568). 

1272.  Hereafter  all  vacancies  occurring  in  the  cavalry,    JjJJ^Jf'igss  a 
artillery,  and  infantry  above  the  grade  of  second  lieuten-2-  v.  so,  p. 364. 
ant  shall,  subject  to  the  examination  now  required  by  law, 

be  filled  by  promotion  according  to  seniority  from  the 
next  lower  grade  in  each  arm.2  Sec.  2,  act  of  April  86, 
1898  (30  Stat.  Z.,  364). 

lrThe  act  of  October  1,*1890  (26  Stat.  L.,  562),  contained  the  requirement  that  all 
officers  above  the  grade  of  second  lieutenant  in  the  line  of  the  Army  should,  "  subject 
to  such  examination,  be  entitled  to  promotion  in  accordance  with  existing  laws  and 
regulations."  The  effect  of  this  provision  was  to  continue  the  operation  of  the  rule 
of  regimental  promotion  in  respect  to  all  officers  of  the  line  aN>ve  the  grade  of  second 
lieutenant.  The  rule  of  lineai  promotion  was  made  general  in  its  application  by  sec- 
tion 2  of  the  act  of  April  26,  1898  (30  Stat.  L.,  364) .  Seniority  of  rank  alone,  in  the 
military  service,  gives  no  right  to  promotion.  Physical,  mental,  and  moral  fitness 
are  required.  Steinmetz  v.  U.  S.,  33  Ct.  Cls.  R.,  404. 

2  APPOINTMENT    AND    PROMOTION    OF    COMMISSIONED    OFFICERS. 

Notices  of  appointments  and  promotions  are  issued  by  the  War  Department, 
through  the  Adjutant-General  of  the  Army.  Par.  20,  A.  R.,  1901. 

Appointment  to  the  grade  of  general  officer  is  made  by  selection  from  the  Army. 
Par.  21,  ibid. 

Promotions  in  established  staff  corps  and  departments  to  include  the  grade  of 
colonel  will  be  made  by  seniority,  subject  to  the  examinations  required  by  law.  Par. 
23,  ibid. 

HISTORICAL    NOTE. 

The  rule  of  promotion  in  the  line  of  the  Army,  as  stated  in  paragraph  22  of  the 
Regulations  of  1889,  required  that  "  promotions  to  the  rank  of  captain  will  be  made 
regimen  tally,  to  major,  lieutenant-colonel,  and  colonel,  according  to  arm  of  service." 
This  rule,  which  was  replaced  by  the  act  of  October  1,  1890  (paragraph  938,  supra), 
had  its  origin  in  an  order  of  the  Secretary  of  War,  dated  May  26, 1801,  which  declared 
that  "promotions  to  the  rank  of  captain' shall  be  made  regimentally,  and  to  the  rank 
of  major  and  lieutenant-colonel  in  the  lines  of  the  artillery  and  infantry,  respec- 
tively." This  order  was  supplemented  by  another,  issued  on  May  7,  1808,  making 
the  above  rule  for  promotion  in  the  infantry  and  artillery  applicable  to  the  cavalry 
and  riflemen. 

The  earliest  Congressional  action  on  the  subject  of  promotion  in  the  Army  is  con- 
tained in  the  fifth  section  of  the  act  of  June  26,  1812  (2  Stat.  L.,  764),  which  provided 
that  thereafter  "the  promotion  shall  be  made  through  the  lines  of  artillerists,  light 
artillery,  dragoons,  riflemen,  and  infantry,  respectively,  according  to  established 
rule."  "  The  rule  therein  referred  to  is  that  which  was  established  by  the  Executive 
order  as  above  stated,  and  the  effect  of  the  statute  was  to  give  the  order  a  legislative 
sanction.  Subsequently,  by  section  12  of  the  act  of  March  30,  1814  (3  Stat.  L.,  113), 
it  was  provided  "that  from  and  after  the  passage  of  this  act  promotions  maybe 
made  through  the  whole  Army  in  its  several  lines  of  light  artillery,  light  dragoons, 
artillery,  infantry,  and  riflemen,  respectively."  Since  the  enactment  of  this  last 
provision,  which  continued  in  force  down  to  the  revision  of  the  statutes,  promotions 
to  the  rank  of  captain  have  uniformly  been  made  regimentally,  so  that  the  construc- 
tion given  thereto,  in  practice,  has  been  that  it  made  no  change  or  modification  of 


480  MILITARY    LAWS    OF    THE    UNITED    STATES. 


COMMISSIONS. 

1273.  Hereafter  the  commissions  of   all  officers  under 
29,  p.  75.  the  direction  and  control  of  the  Secretary  of  the  Treas- 

ury, the  Secretary  of  War,  the  Secretary  of  the  Navy, 
and  the  Secretary  of  Agriculture  shall  be  made  out  and 
recorded  in  the  respective  Departments  under  which  they 
are  to  serve,  and  the  Department  seal  affixed  thereto,  any 
laws  to  the  contrary  notwithstanding:  Provided,  That  the 
said  seal  shall  not  be  affixed  to  any  such  commission  be- 
fore the  same  shall  have  been  signed  by  the  President  of 
the  United  States. l  Act  of  March  28, 1896  (29  Stat.  L.,75). 

EXAMINATION    OF    OFFICERS    FOR   PROMOTION. 

fo? p?SotSnnof      1274-  That  the  President  be,  and  he  is  hereby,  authorized 
maj?ar°ers  bel°w  ^°  prescribe  a  system  of  examination  of  all  officers  of  the 
1890%  *v&vlwi  Army  below  the  rank  of  major  to  determine  their  fitness 
for  promotion,  such  an  examination  to  be  conducted  at 
such  times  anterior  to  the  accruing  of  the  right  to  prorno- 
a^elrexaminar ^on  as  mav  ^e  ^es^  ^or  ^ne  interests  of  the  service:  Pro- 
in°gniawder  exist"  vided,  That  the  President  may  waiVe  the  examination  for 
promotion  to  any  grade  in  the  case  of  any  officer  who  in 
pursuance  of  existing  law  has  passed  a  satisfactory  exami- 
nation  for  such  grade  prior  to  the  passage  of  this  act:  And 
provided,  That  if  any  officer  fails  to  pass  a  satisfactory 
examination  and  is  reported  unfit  for  promotion,  the  officer 
next  below  him  in  rank,  having  passed  said  examination, 
hsicsat>£ sna^  receive  the  promotion :  And  provided,  That  should 
!ineCo?dufyed  in  ^e  °^CGY  ^l  i*1  n^s  physical  examination,  and  be  found 
incapacitated  for  service  by  reason  of  physical  disability 
contracted  in  line  of  duty  he  shall  be  retired  with  the  rank 

the  previously  existing  rules.  According  to  this  construction  (which  was  acted  upon 
for  about  sixty  years)  the  act  of  1814,  while  it  contemplated  that  promotions  should 
be  made  in  trie  several  lines  or  arms  through  the  whole  Army,  and  that  officers 
should  be  promoted  only  in  their  respective  lines  or  arms,  did  not  prescribe  how 
promotions  within  the  lines  or  arms  should  be  made,  whether  regimentally  or  line- 
ally. As  thus  understood — and  the  language  of  the  act  is  susceptible  of  that  inter- 
pretation— there  was  no  conflict  between  it  and  the  rule  adverted  to. 

Section  1204,  Revised  Statutes,  contains  substantially  a  reenactment  of  the  provi- 
sion above  quoted  from  the  act  of  1814.  When  embodying  that  provision  in  the 
Revised  Statutes,  it  is  reasonable  to  presume  that  Congress  was  familiar  with  the 
construction  which  had  been  placed  thereon,  and  so  long  acted  upon  by  the  execu- 
tive department,  and  that  if  it  had  been  the  intention  of  that  body  to  introduce  a 
different  rule  on  the  subject  of  promotion,  different  phraseology  would  have  been 
chosen  to  signify  such  design.  By  adopting  the  language  of  the  previous  statute  the 
fair  inference  is  that  its  construction  was  acquiesced  in,  and  that  no  change  in  the 
law  of  promotion  was  intended.  XVII  Opin.  Att.  Gen.,  65.  See,  also,  paragraph 
1318,  post,  and  note  1,  supra. 

1 A  commission,  whatever  its  form,  is  but  evidence  of  the  fact  that  the  President 
has  exercised  his  constitutional  power  of  appointment;  there  is  no  provision  of  law 
requiring  a  specified  form  of  commission  to  be  issued  to  officers  in  the  military  serv- 
ice. O'Shea  v.  U.  S.,  28  Ct.  Cls.,  392. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  481 

to  which  his  seniority  entitled  him  to  be  promoted;  but  if 
he  should  fail  for  any  other  reason  he  shall  be  suspended 
from  promotion  for  one  year,  when  he  shall  be  reexamined, 
and  in  case  of  failure  on  such  reexamination  he  shall  be 
honorably  discharged  with  one  year's  pay  from  the  Army.1 

1275.  The  examination  of  officers  appointed  in  the  Army  ^Examination 
from  civil  life,  or  of  officers  who  were  officers  of  volun- pointed  from 

civil  life  etc 

teers  only,  or  were  officers  of  the  militia  of  the  several 

States  called  into  the  service  of  the  United  States,  or  were 

enlisted  men  in  the  regular  or  volunteer  service,  either  in 

the  Army,  Navy,  or  Marine  Corps,  during  the  war  of  the 

rebellion,  shall  be  conducted  by  boards  composed  entirely  ^composition  of 

of  officers  who  were  appointed  from  civil  life  or  of  officers 

who  were  officers  of  volunteers  only  during  said  war,  and 

such  examination  shall  relate  to  fitness  for  practical  service    Practical  f  n- 

and  not  to  technical  and  scientific  knowledge;  and  in  case 

of  failure  of  any  such  officer  in  the  reexamination  herein-    Failure. 

before  provided  for,  he  shall  be  placed  upon  the  retired 

list  of  the  Armv;  and  no  act  now  in  force  shall  be  so  con-    NO  existing 

J  '  law  to  limit  re- 

strued  as  to  limit  or  restrict  the  retirement  of  officers  as  tirement. 
herein  provided  for. 2     Sec.  3,  act  of  October  1, 1890  (26  Stat. 
Z.,  562). 

1276.  Officers  entitled  by  this  section  to  examination  by  ci°.f  cjffse 
a  board  composed  entirely  of  officers  who  were  appointed  Sm 

from  civil  life,  or  who  were  officers  of  volunteers  only  dur-  tej*uly27  1392,  v. 
ing  the  war,  may,  by  written  waiver  filed  with  the  War 27>  P-  276- 
Department,    relinquish   such   right,  in    which   case   the 
examination  of  such  officers  shall  be  conducted  by  boards 
composed  as  shall  be  directed  by  the  Secretary  of  War. 
Sec.  1,  act  of  July  £7,  189%  (27  Stat.  Z.,  276). 

1  Joint  Resolution  No.  48,  of  June  14,  1898  (30  Stat.  L.,  747),  contains  the  require- 
ment "that  during  the  existing  war  the  President  may,  in  his  discretion,  waive  the 
one-year  suspension  from  promotion  and  forthwith  order  the  reexamination  provided 
in  certain  cases  by  the  third  proviso  of  section  three  of  the  act  approved  October 
first,  eighteen  hundred  and  ninety,  entitled  'An  act  to  provide  for  the  examination 
of  certain  officers  of  the  Army  and  to  regulate  promotions  therein.' " 

2  Under  the  act  of  Oct.  1,  1890,  the  finding  of  the  board  of  examination  that  the 
officer  is  incapacitated  for  duty  is  not  per  se  final,  but  must  be  reported  for  the  action 
of  the  Secretary  of  War  and  passed  upon  by  him.     Where  the  finding  and  report  of 
the  board  have  been  approved  but  not  yet  executed  by  actual  retirement,  there  may 
intervene  contingencies  which  would  supersede  such  proceeding,  as  the  trial  and  dis- 
missal of  the  officer  by  court-martial,  or  the  arising  of  new  causes  which  might  make 
proper  that  the  question  of  his  disability  be  inquired  into  by  a  retiring  board  con- 
vened under  Sec.  1246,  Revised  Statutes.     But  unless  some  such  new  occasion  and 
ground  of  disqualification  be  presented  the  action  of  the  Secretary  of  War  in  approv- 
ing the  report  remains  final  and  exhaustive,  and  the  officer  is  entitled  to  be  retired 
under  the  act  of  1890,  and  can  not  legally  be  ordered  before  such  retiring  board. 
Dig.  Opin.  J.  A.  G.,  par.  2207. 

The  privilege  of  retirement  which  an  officer  has  "with  the  rank  to  which  -his 
seniority  entitled  him  to  be  promoted,"  given  by  the  act  of  October  1,  1890  (26  Stat. 
L.,  562),  is  limited  to  cases  where  the  officer  failed  in  his  physical  examination  only. 
Steinmetz  v.  U.  S.,  33  (Jt.  Cls.,  404. 

22924—08 31 


482  MILITARY    LAWS    OF    THE    UNITED    STATES. 

Absence  of  of-     1277.  When  the  exigencies  of  the  service  of  any  officer 
Feb.  2,  1901,  s.  who  would  be  entitled  to  promotion  upon  examination 

32,  v.  31,  p.  756.  . 

require  him  to  remain  absent  from  any  place  where  an 
examining  board  could  be  convened,  the  President  is  hereby 
authorized  to  promote  such  officer,  subject  to  examination, 
and  the  examination  shall  take  place  as  soon  thereafter  as 
practicable.  If  upon  examination  the  officer  be  found  dis- 
qualified for  promotion,  he  shall,  upon  the  approval  of  the 
proceedings  by  the  Secretary  of  War,  be  treated  in  the 
same  manner  as  if  he  had  been  examined  prior  to  promo- 
tion. Sec.  32,  act  of  February  2,  1901  (31  Stat.  'L.,  756}. 

EXAMINATION   OF   ENLISTED   MEN    FOR   PROMOTION. 

Promotion  of     1278.  The  President  is  hereby  authorized  to  prescribe  a 

enlisted  men.  .  ** 

Sec.  1214, B.S.  system  of  examination  of  enlisted  men  of  the  Army,  by 

such  boards  as  may  be  established  by  him,  to  determine 

their  fitness  for  promotion  to  the  grade  of  second  lieutenant: 

Qualifications.  Provided,  That  all  unmarried  soldiers  under  thirty  years 

27,  p.  3361.  '  '  of  age,  who  are  citizens  of  the  United  States,  are  phys- 
ically sound,  who  have  served  honorably  not  less  than  two 
years  in  the  Army,  and  who  have  borne  a  good  moral 
character  before  and  after  enlistment,  may  compete  for 
promotion  under  any  system  authorized  by  this  act. 1  Act 
of  July  30,  1892  (27  Stat.  Z.,  336}. 

board*  minati°n  1279.  The  members  and  recorder  of  such  boards  as  may 
sec.  2,  ibid.  De  established  by  the  President,  under  the  provisions  of 
the  preceding  section,  shall  be  sworn  in  every  case  to  dis- 
charge their  duties  honestly  and  faithfully;  and  the  boards 
may  examine  witnesses  and  take  depositions,  for  which 
purposes  they  shall  have  such  powers  of  a  court  of  inquiry 
as  way  be  necessary.  Sec.  2,  ibid. 

*A  soldier  to  be  eligible  for  the  position  of  candidate  for  promotion  must  be  a  citi- 
zen of  the  United  States,  unmarried,  between  21  and  30  years  of  age  on  the  1st  of 
September  following  his  preliminary  examination,  and  of  good  moral  character  both 
before  and  after  enlistment.  An  applicant  will  not  be  ordered  for  the  preliminary 
examination  unless  it  is  apparent  that  on  the  1st  of  September  next  following  he  will 
have  served  honorably  not  less  than  two  years,  exclusive  of  technical  service  due  to 
furlough  or  other  absence  from  duty  in  his  own  interest;  (a)  nor  for  the  final  com- 
petitive examination  unless  he  shall  have  so  served.  Applications  will  be  made  to 
department  commanders  on  or  before  February  1  of  each  year,  and  company  com- 
manders in  forwarding  them  will  certify  all  furloughs  had  by  applicants,  stating 
under  what  authority  they  were  granted.  Par.  30,  Army  Regulations  of  1895. 

For  regulations  respecting  the  examination  of  enlisted  men  for  promotion,  prepared 
by  the  President  under  the  authority  conferred  by  this  section,  see  paragraphs  27-oL', 
Army  Regulations  of  1901,  as  modified  by  General  Orders,  No.  79,  A.  G.  O.,  of  1892, 
No.  32,  of  1899,  and  No.  148,  of  1899. 

a  Referring  to  paragraph  30,  Army  Regulations,  the  phrase  "  exclusive  of  technical  service  due  to 
furlough  or  other  absence  from  duty  in  his  own  interest "  will  not  aply  to  leave  of  absence  or  furlough 
granted  to  an  enlisted  man  during  the  first  two  years  of  enlistment  not  exceeding  fift  en  days  in  all, 
nor  to  such  longer  furlough  as  is  now  authorized  by  paragraph  107,  Army  Regulations,  in  a  case  which 
may  be  determined  by  competent  authority  to  be  extraordinary.  Decision  Assistant  Secretary  of  War, 
January  13, 1896.  Circular  No.  2,  A.  G.  O.,  18%. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  483 


1280.  The  vacancies  in  the  grade  of  second  lieutenant 
heretofore  filled  by  the  promotion  of  meritorious  noncom- 
missioned officers  of  the  Army,  under  the  provisions  of 
section  three  of  the  act  approved  June  eighteenth,  eighteen 
hundred  and  seventy-eight,  shall  be  filled-  by  the  appoint- 
ment of  competitors  favorably  recommended  under  this 
act,  in  the  order  of  merit  established  by  the  final  examina- 
tion.    Sec.  3,  ibid. 

1281.  Each  man  who  passes  the  final  examination  shall  eu^bufty.168 
receive  a  certificate  of  eligibility,  setting  forth  the  subjects 

in  which  he  is  proficient  and  the  especial  grounds  upon 
which  the  recommendation  is  based:  Provided,  That  not 
more  than  two  examinations  shall  be  -accorded  to  the  same 
competitor.  Ibid. 

1282.  All  rights  and  privileges  arising  from  a  certificate  mart?aitof  court" 
of  eligibility  may  be  vacated  by  sentence  of  a  court-  mar-     3ec>  4'ibld- 
tial,  but  no  soldier,  while  holding  the  privileges  of  a  certifi- 

cate, shall  be  brought  before  a  garrison  or  regimental  court- 
martial  or  summary  court.  Sec.  4,  ibid.;  act  of  June  18, 
1898  (30  Stat.  L.,  483). 

ASSIGNMENTS  TO   REGIMENTS,  TRANSFERS,    AND   DETAILS  TO   THE   STAFF. 

1283.  Officers  of  [all]  grades  in  each  arm  of  the  service  an1f  \rSnsfer  ^f 
shall  be  assigned  to  regiments,  and  transferred  from  one  oflo^rej  1890 
regiment  to  another,  as  the  interests  of  the  service  may  2'  v-  26'  P-  562- 
require,  by  orders  from  the  War  Department,  and  here- 

after all  appointments  in  the  line  of  the  Army  shall  be  by 
commission  in  an  arm  of  the  service,  and  not  by  commis- 
sion in  any  particular  regiment:1  Sec.  2,  act  of  October 
1,  1890  (£6  Stat.  Z.,  568.). 

1284.  Officers  may  be  transferred  from  the  line  to  theth^sfffers  to 
staff  of  the  Army  without  prejudice  to  their  rank  or  pro-  52SgaJ'v  ^p1  8i9: 
motion  in  the  line:  but  no  officer  shall  hold,  at  the  same  £?r-  Q24'  j81'6^- 

t>y,  s.  y,  v.  o,  p.  —  VTO; 

time,  an  appointment  in  the  line  and  an  appointment  in  J2%  nse7^  g846'^- 
the  staff  which  confer  equal  rank  in  the  Army.     When    sec.  1205,11.  s. 

1  Officers  transferred  from  one  arm  or  corps  to  another,  on  mutual  application,  will 
be  nominated  for  reappointment  with  rank  as  of  the  date  of  the  commission  of  the 
junior  officer  previous  to  the  transfer,  and  upon  confirmation  will  be  recommissioned 
accordingly.  An  officer  of  the  lowest  grade  in  any  arm  or  corps  who  may  be  trans- 
ferred, on  his  own  application,  to  a  vacancy  in  his  grade  in  any  other  arm  or  corps 
will  take  rank  next  after  the  junior  officer  of  the  arm  or  corps  to  which  he  is  trans- 
ferred, and  will  be  nominated  for  reappointment,  with  a  new  date  of  rank  if  neces- 
sary to  fix  his  proper  position,  and  upon  confirmation  will  be  recommissioned 
accordingly.  These  new  appointments  and  commissions  will  determine  the  rank  of 
transferred  officers  in  their  regiments  and  corps,  as  well  as  in  the  Army.  Par.  52, 
A.  R,,  1901. 

Officers  in  each  arm  of  the  service  will  be  transferred  from  one  regiment  to  another 
therein,  as  the  interests  of  the  service  require,  by  orders  from  the  War  Department, 
without  change  of  rank  or  commission.  The  transfer  or  exchange  of  company  officers 
of  a  regiment  will  be  made  by  the  Commanding  General  of  the  Army.  Par.  53,  ibid, 
See  also  paragraph  1272,  ante, 


484  MILITAEY    LAWS    OF    THE    UNITED    STATES. 

any  officer  so  transferred  has,  in  virtue  of  seniority,  ob- 
tained or  become  entitled  to  a  grade  of  his  regiment  equal 
to  the  grade  of  his  commission  in  the  staff,  he  shall  vacate 
either  his  commission  in  the  line  or  his  commission  in  the 
staff. 

stfffetails  to  the  1285-  Wnen  anJ  vacancy,  except  that  of  the  chief  of 
26fvb3i2'p.9?55 s'  t^ie  department,  shall  occur  (in  the  Adjutant-General's 
Department,  the  Inspector-General's  Department,  the 
Quartermaster's  Department,  the  Subsistence  Depart- 
ment, the  Pay  Department,  the  Ordnance  Department, 
and  the  Signal  Corps)  which  can  not  be  filled  by  promo- 
tion as  provided  in  this  section,  it  shall  be  filled  by  detail 
from  the  line  of  the"  Army,  and  no  more  permanent  ap- 
pointments shall  be  made  in  those  departments  or  corps 
after  the  original  vacancies  created  by  this  act  shall  have 
been  filled.  Such  details  shall  be  made  from  the  grade  in 
which  the  vacancies  exist,  under  such  system  of  examina- 
tion as  the  President  may,  from  time  to  time,  prescribe. 
All  officers  so  detailed  shall  serve  for  a  period  of  four 
years,  at  the  expiration  of  which  time  they  shall  return 
to  duty  with  the  line,  and  officers  below  the  rank  of  lieu- 
tenant-colonel shall  not  again  be  eligible  for  selection  in 
any  staff  department  until  they  shall  have  served  two 
years  with  the  line.1  Sec.  26,  act  of  February  2,  1901 
(31  Stat.  L.\  755). 

LEAVES   OF   ABSENCE — SICK   LEAVES. 

seS^duringab"      1286>  Officers  when  absent  on  account  of  sickness  or 
2oAvgil'  p8629o:  wounds,2  or  lawfully  absent  from  duty  and  waiting  orders, 
v*ai2 3pS  Ja3n'  snaU  receive  full  pay;  when  absent  with  leave,  for  other 
ii'  p87^'-  ^Juiy  causes?  Ml  Pay  during  such  absence  not  exceeding  in  the 
i6!  p832o-s'May  s'  aggr^gate  thirty  days  in  one  year,  and  half  pay  during 
18st'Ji265,PK.4s.'  suc^  a°sence  exceeding  thirty  days  in  one  year.     When 
absent  without  leave,  they  shall  forfeit  all  pay  during 
such  absence,  unless  the  absence  is  excused  as  unavoid- 
able.3 

1  For  statutory  regulations  respecting  details  to  the  staff  see  the  title  Details  to  the 
Staff,  in  the  chapter  entitled  THE  STAFF  DEPARTMENTS. 

2  For  requirements  of  regulations  respecting  sick  leaves  see  paragraphs  72-76,  A.  R. 
1901. 

3  An  officer  of  the  Army  who  is  ordered,  even  011  his  own  request,  to  proceed  to  a 
particular  place,  including  his  home,  and  "there  await  orders,"  reporting  thence  by 
letter  to  the  Adjutant-General  of  the  Army  and  to  the  headquarters  of  the  depart- 
ment to  which  he  then  belongs,  is  not  an  officer  "absent  from  duty  with  leave" 
within  the  act  of  March  3,  1863  (12  Stat.  L.,  736),  which  enacts  that  "any  officer 
absent  from  duty  with  leave,  except  from  sickness  or  wounds,  shall  during  his 
absence  receive  half  the  pay  and  allowances  prescribed  by  law  and  no  more."     Such 


MILITARY    LAWS    OF    THE    UNITED    STATES. 


485 


1287.  That  an  act  approved  Ma}T  eighth,  eighteen  hun-  pa] 
dred  and  seventy-four,  in  regard  to  leave  of  absence  of  19: 
Army  officers,  be,  and  the  same  is  hereby,  so  amended 
that  all  officers  on  duty  shall  be  allowed,  in  the  discretion 
of  the  Secretary  of  War,  sixty  days'  leave  of  absence 
without  deduction  of  pay  or  allowances:  Provided,  That 
the  same  be  taken  once  in  two  years :  And  provided  fur- 
thefi^  That  the  leave  of  absence  may  be  extended  to  three 
months,  if  taken  once  only  in  three  years,  or  four  months 
if  taken  once  only  in  four  years.1  Act  of  July  29,  1876 
(19  Stcit.  Z.,  108). 

DETAILS  TO   COLLEGES. 


eave  on  ful1 


Par. 

1288.  Details  from  the  active  list, 

1289.  The  same;  restriction. 


1876>  v' 


Par. 

1290-1295.  Details  from  the  retired  list. 

1296.  Issues  of  ordnance,  etc. 


.  to  co1' 

gi'  1888>  v- 
&ec.i225,R.s. 


Limit. 


DETAILS    FROM    THE   ACTIVE   LIST. 

1288.  The  President  may,  upon  the  application  of  any 
established  military  institute,  seminary  or  academy,  college 
or  university  within  the  United  States,  having  capacity  to 
educate  at  the  same  time  not  less  than  one  hundred  and 
fifty  male  students,  detail  an  officer  of  the  Army  or  Navy 
to  act  as  superintendent  or  professor  thereof;  but  the  num- 
ber of  officers  so  detailed  shall  not  exceed  [one  hundred] 2 
from  the  Army  and  ten  from  the  Navy,  being  a  maximum 
of  one  hundred  and  ten  at  any  time,  and  they  shall  be 
apportioned  throughout  the  United  States,  first,  to  those 
State  institutions  applying  for  such  detail  that  are  required 
to  provide  instruction  in  military  tactics  under  the  pro- 
visions of  the  act  of  Congress  of  July  second,  eighteen 
hundred  and  sixty-two,  donating  lands  for  the  establish- 
ment of  colleges  where  the  leading  object  shall  be  the 
practical  instruction  of  the  industrial  classes  in  agriculture 

an  officer  is  waiting  orders  in  pursuance  of  law,  but  is  not  absent  from  duty  on  leave. 
U.  S.  v.  Williamson,  23  Wall.,  411. 

This  statute  is  amendatory  of  the  act  of  May  8,  1874,  which  provided  "  that  all 
officers  on  duty  at  any  point  west  of  a  line  drawn  north  and  south  through  Omaha 
City,  and  north  of  a  line  drawn  east  and  west  upon  the  southern  boundary  of  Arizona, 
shall  be  allowed  sixty  days'  leave  of  absence  without  deduction  of  pay  or  allowances: 
Provided,  That  the  same  is  taken  but  once  in  two  years:  And  provided  further,  That 
the  leave  of  absence  may  be  extended  to  three  months,  if  taken  once  only  in  three 
years;  or  four  months  if  taken  once  only  in  four  years." 

1  For  regulations  respecting  leaves  of  absence  see  paragraphs  54-71,  A.  K.,  1901. 

2  The  number  of  officers  that  may  be  detailed  under  the  authority  conferred  by  sec. 
1225,  R.  S.,  was  increased  from  fifty  to  seventy-five  by  the  act  of  January  13,  1891 
(26  Stat,  L.,  716),  and  to  one  hundred  by  the  act  of  November  3,  1893  (28  ibid.,  7); 
see  paragraph  1289,  post.     For  orders  regulating  the  subject  of  details,  see  G.  0.,  No. 
70,  A.  G.  0.,  of  1897. 


480  MILITARY    LAWS    OF   THE   UNITED   STATES. 

and  the  mechanic  arts,  including  military  tactics;  and 
after  that,  said  details  to  be  distributed,  as  nearly  as  may 
be  practicable,  according  to  population.  Act  of  Septem- 
ber 26,  1888  (25  Stat.  Z.,  491). 

ce?sUiScreeafedffi"  1289>  Section  twelve  hundred  and  twenty-five  of  the 
8  NOV.  3, 1893,  v.  Revised  Statutes,  concerning  details  of  officers  of  the  Army 
and  Navy  to  educational  institutions,  is  hereby,  amended 
so  as  to  permit  the  President  to  detail  under  the  provisions 
of  said  act  not  to  exceed  one  hundred  officers  of  the  Army 
Duration.  of  the  United  States;  and  no  officer  shall  be  thus  detailed 
who  has  not  had  five  years'  service  in  the  Army,  and  no 
detail  to  such  duty  shall  extend  for  more  than  four  years, 
and  officers  on  the  retired  list  of  the  Army  may  upon  their 
own  application  be  detailed  to  such  duty  and  when  so 
detailed  shall  receive  the  full  pay  of  their  rank,1  and  the 
Limit  as  to  maximum  number  of  officers  of  the  Army  and  Navy  to  be 
detailed  at  any  one  time  under  the  provisions  of  the  act 
approved  January  thirteenth,  eighteen  hundred  and  ninety- 
one,  amending  section  twelve  hundred  and  twenty-five  of 
the  Revised  Statutes  as  amended  by  an  act  approved  Sep- 
tember twenty-sixth,  eighteen  hundred  and  eighty-eight, 
is  hereby  increased  to  one  hundred  and  ten.  Act  of  Novem- 
tier  3,  1893  (28  Stat.  Z.,  7). 

DETAILS   FROM   THE   RETIRED    LIST. 

reSrediist.from  129°-  Section  twelve  hundred  and  twenty-five  of  the 
3ifpb8io.' 1901>  v'  Revised  Statutes,  concerning  the  detail  of  officers  of  the 
Army  and  Navy  to  educational  institutions,  be,  and  the  same 
is  hereby,  amended  so  as  to  permit  the  President  to  detail 
under  the  provisions  of  that  act,  and  in  addition  to  the 
detail  of  the  officers  of  the  Army  and  Navy  now  author- 
ized to  be  detailed  under  the  existing  provisions  of  said 
act,  such  retired  officers  of  the  Army  and  Navy  of  the 
United  States  as  in  his  judgment  may  be  required  for  that 
purpose,  to  act  as  instructors  in  military  drill  and  tactics 
in  schools  in  the  United  States,  where  such  instruction 
shall  have  been  authorized  by  the  educational  authorities 
thereof,  and  where  the  services  of  such  instructors  shall 
have  been  applied  for  by  said  authorities.  Act  of  Febru- 
ary 26,  1901  (31  Stat  Z.,  810). 

de^nditi°ns  °f     1291'  ^°  detail  shall  be  made  under  this  act  to  any  school 

sec.  2,  iMd.      unless  it  shall  pay  the  cost  of  commutation  of  quarters  of 

the  retired  officers  detailed  thereto  and  the  extra-duty  pay 

1  Retired  officers,  detailed  to  educational  institutions  upon  their  own  application, 
are  now  entitled  to  receive  the  full  pay  of  their  rank.     VI  Compt.  Dec.,  120. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  487 

to  which  the  latter  may  be  entitled  by  law  to  receive  for 
the  performance  of  special  duty :  Provided,  That  no  detail 
shall  be  made  under  the  provisions  of  this  act  unless  the 
officers  to  be  detailed  are  willing  to  accept  such  position 
without  compensation  from  the  Government  other  than 
their  retired  pay.  Sec.  2,  ibid. 

1292.  The  Secretary  of  War  is  authorized  to  issue  at  his  JJSfete!  °rd" 
discretion,  and  under  proper  regulations  to  be  prescribed    |5CC' 3>  ***• 
by  him,  out  of  ordnance  and  ordnance  stores  belonging  to 

the  Government,  and  which  can  be  spared  for  that  pur- 
pose, upon  the  approval  of  the  governors  of  the  respective 
States,  such  number  of  the  same  as  may  be  required  for 
military  instruction  and  practice  by  such  school,  and  the 
Secretary  shall  require  a  bond  in  each  case,  for  double 
the  value  of  the  property,  for  the  care  and  safe  keeping 
thereof,  and  for  the  return  of  the  same  when  required.1 
Sec.  3,  ibid. 

1293.  Any  retired  officer  ma}7,  on  his  own  application,  be  f^^n  "  ^JJl 
detailed  to  serve  as  professor  in  any  college.     But  while  so  lej®-ly  16  1870  c 
serving,  such  officer  shall  be  allowed  no  additional  com-^J:  ^'27  ^s??' 

r»An<5fltirm  c.  69,  v.  19,  p!  242. ' 

Sec.l26d,R.S. 

1294.  Upon  the  application  of  any  college,  university,    Detail   of  re- 

,J  ,  J  !  tired  officers. 

or  institution  ot  learning  incorporated  under  the  laws  of  May  4,  isso,  v. 
any  State  within  the  United  States,  having  capacity  at  the 
same  time  to  educate  not  less  than  one  hundred  and  fifty 
male  students,  the  President  may  detail  an  officer  of  the 
Army  on  the  retired  list  to  act  as  president,  superintendent, 
or  professor  thereof;  and  such  officer  may  receive  from  the 
institution  to  which  he  may  be  detailed  the  difference  be- 
tween his  retired  and  full  pay,  and  shall  not  receive  any 
additional  pay  or  allowance  from  the  United  States.2 
of  May  4,  1880  (21  Stat.  L.,  113). 

1295.  Nothing  in  the  act  entitled  uAn  act  to  increase  the 

number  of  officers  of  the  Army  to  be  detailed  to  colleges,"  gJl?868  notlim' 
approved  November  third,  eighteen  hundred  and  ninety- 
three,  shall  be  so  construed  as  to  prevent,  limit,  or  restrict 
the  detail  of  retired  officers  of  the  Army  at  institutions  of 
learning  under  the  provisions  of  section  twelve  hundred 
and  sixty,  Revised  Statutes,  and  the  act  making  appropria- 

1  Section  4  of  the  above  enactment  contained  a  clause  giving  immediate  effect  to 
the  statute.    For  other  statutes  regulating  the  detail  of  retired  officers  at  colleges  see 
the  paragraphs  next  following. 

2  Officers  of  the  Army  on  the  retired  list  who,  upon  their  own  application,  are 
detailed  to  educational  institutions  in  accordance  with  the  provisions  of  the  act  of 
November  3,  1893  (28  Stat.  L.,  7),  are  entitled  to  the  full  pay  of  their  rank.     VI 
Compt.  Dec.,  120. 


488  MILITARY    LAWS    OF   THE    UNITED 

tions  for  the  support  of  the  Army,  and  so  forth,  approved 

May  fourth,  eighteen  hundred  and  eighty,  nor  to  forbid  the 

issues  of  ord-  issue  of  ordnance  and  ordnance  stores,  as  provided  in  the 

nance,  etc. 

act  approved  September  twenty-sixth,  eighteen  hundred 
and  eightj^-eight,  amending  section  twelve. hundred  and 
28Apg235 1894' v>  twenty -five,  Revised  Statutes,  to  the  institutions  at  which 
retired  officers  may  be  so  detailed;  and  said  act  of  Novem- 
ber third,  eighteen  hundred  and  ninety-three,  and  said  act  of 
May  fourth.,  eighteen  hundred  and  eighty,  shall  not  be  con- 
in~  strued  to  allow  the  full  pay  of  their  rank  to  retired  officers 
detailed  under  said  section  twelve  hundred  and  sixty,  Re- 
vised Statutes,  and  said  act  of  May  fourth,  eighteen  hun- 
dred and  eighty. 1  Act  of  August  6, 1894  (88  Stat.  L. ,  235). 

ISSUES   OF   ORDNANCE. 

1296<  The  Secretary  of  War  is  authorized  to  issue,  at 
25SpP49126'188'v>  his  discretion  and  under  proper  regulations  to  be  prescribed 
by  him,  out  of  ordnance  and  ordnance  stores  belonging  to 
the  Government,  and  which  can  be  spared  for  that  purpose, 
such  number  of  the  same  as  may  appear  to  be  required  for 
military  instruction  and  practice  by  the  students  of  any 
college  or  university  under  the  provisions  of  this  section, 
and  the  Secretary  shall  require  a  bond  in  each  case,  in 
double  the  value  of  the  property,  for  the  care  and  safe 
keeping  thereof,  and  for  the  return  of  the  same  when 
required:  Provided,  That  nothing  in  this  act  shall  be  so 
construed  as  to  prevent  the  detail  of  officers  of  the  Engi- 
neer Corps  of  the  Navy  as  professors  in  scientific  schools 
or  colleges  as  now  provided  by  act  of  Congress  approved 
February  twenty -sixth,  eighteen  hundred  and  seventy- 
nine,  entitled  "An  act  to  promote  a  knowledge  of  steam 
engineering  and  iron  shipbuilding  among  the  students  of 
scientific  schools  or  colleges  in  the  United  States;'1  and  the 
Secretary  of  War  is  hereby  authorized  to  issue  ordnance 
and  ordnance  stores  belonging  to  the  Government  on  the 
terms  and  conditions  hereinbefore  provided  to  any  college 
or  university  at  which  a  retired  officer  of  the  Army  may 
be  assigned  as  provided  by  section  twelve  hundred  and 
sixty  of  the  Revised  Statutes.2  Act  of  September  26, 1888 
(25  Stat.  L.,491). 

1  Officers  of  the  Army  on  the  retired  list  who,  upon  their  own  application,  are 
detailed  to  educational'  institutions  in  accordance  with  the  provisions  of  the  act  of 
November  3,  1893  (28  Stat,  L.,  7),  are  entitled  to  the  full  pay  of  their  rank.     VI 
Compt.  Dec.,  120. 

2  This  statute  replaces  section  1225,  Kevised  Statutes,  as  amended  by  the  act  of  July 
5,  1884,  "saving  always,  however,  all  acts  and  things  done  under  the  said  amended 
section  as  heretofore  existing." 


MILITARY    LAWS    OF    THE    UNITED    STATES.  489 


RETIREMENT  OF  OFFICERS.1 


Par.  I  Par. 


1297.  Forty  years'  service;  thirty  years' 


service. 


1298.  Forty-five  years'  service,  age  62. 

1299.  Retirement  at  64  years  of  age. 

1300.  The  same,   the  unlimited  retired 

list. 


1301.  The  same,  the  limited  retired  list. 

1302.  The  same,  transfers  to  unlimited 

list. 

1303.  Service  for  retirement. 

1304.  Heads  of  staff  departments. 

1305.  Retirement  for  disability. 


1297.  When  an  officer  has  served  forty  consecutive  years    Retirement 

•'  ^    .        upon      officer's 

as  a  commissioned  officer,  he  shall,  if  he  makes  application  own  application 

'  r  .  after    40    years' 

therefor  to  the  President,  be  retired  from  active  service  and  se™ce-3  l 
placed  upon  the  retired  list.     When  an  officer  has  been  ^.Sju5i'  '^  12> 'P' 
thirty  years  in  the  service,  he  may,  upon  his  own  applica- ^ 294,^88. 4*5,  v! 
tion,  in  the  discretion  of  the  President,  be  so  retired,  and   sec.i243,R.s. 
placed  on  the  retired  list. 

1298.  When  any  officer  has  served  forty-five  years  as  a  di^tirement  $ 
commissioned  officer,  or  is  sixty-two  years  old,  he  may 

retired  from  active  service  at  the  discretion  of  the  Presi- 

dent.  200,  s.  12,  v.  12,  p.  596.     Sec.  1244, 

1299.  On  and  after  the  passage  of  this  act  when '  an 

officer  has  served  forty  years  either  as  an  officer  or  soldier  ^rement  at  ase 
in  the  regular  or  volunteer  service,  or  both,  he  shall,  if  he  2/5*117 ' 1882> v> 
make  application  therefor  to  the  President,  be  retired  from 
active  service  and  placed  on  the  retired  list,  and,  when  an 
officer  is  sixty-four  years  of  age,  he  shall  be  retired  from 
active  service  and  placed  on  the  retired  list:  Provided, 
further,  That  the  General  of  the  Army,  when  retired,  shall 
be  retired  without  reduction  in  his  current  pay  and  allow- 
ances; and  no  act  now  in  force  shall  be  so  construed  as  to 
limit  or  restrict  the  retirement  of  officers  as  herein  pro- 
vided for.2  Act  of  June  30,  1882  (22  Stat.  L.,  117). 

1300.  Nothing  contained  in  the  act  making  appropria- 1.  unlimited  re- 
tions  for  the  support  of  the  Army  for  the  fiscal  year  ^Mar^.  1883« v- 
ending  June  thirtieth,  eighteen  hundred  and  eighty  three, 
approved  June  thirtieth,  eighteen  hundred  and  eighty-two, 

shall  be  so  construed  as  to  prevent,  limit,  or  restrict  retire- 
ments from  active  service  in  the  Arm3r,  as  authorized  by 
law  in  force  at  the  date  of  the  approval  of  said  act,  retire- 
ments under  the  provisions  of  said  act  of  June  thirtieth, 
eighteen  hundred  and  eighty-two,  being  in  addition  to 
those  theretofore  authorized  by  law.2  Act  of  March  3, 
1883(22  Stat.  Z.,  457). 

lFor  statutes  establishing  the  limited  retired  list  see  paragraph  1301,  post.     For 
statutes  creating  the  unlimited  retired  list  see  paragraphs  1299  and  1300,  post. 
2  These  statutes  created  the  unlimited  retired  list. 


490  MILITARY    LAWS    OF   THE   UNITED   STATES. 

Retired  list.         1301.  The  whole  number  of  officers  of  the  Army  on  the 
16,  vg'i2,  p.  289';  retired  list  shall  not  at  any  time  exceed  three  hundred  and 

July  15,  1870,  s.  5,  _  ..  J 

v.  16,  p.  317;  June  fifty,  and  any  less  number  to  be  allowed  thereon  may  be 
P.  150;'  Feb.  16,  fixed  by  the  President  in  his  discretion.  l  Act  of  February 
S^,  1891  (26  Stat.  Z.,  763). 


1302'  When  officers  who  have  been  placed  on  the  lim- 
l]\l  ^e(^  retired  list  as  established  by  section  seven,  chapter 
i89i,  v.  26,  p.  763.  ^wo  hundred  and  sixty  -three,  page  one  hundred  and  fifty, 
volume  twenty,  United  States  Statutes  at  Large,  shall 
have  attained  the  age  of  sixty-four  years  they  shall  be 
transferred  from  said  limited  retired  list  to  the  unlimited 
list  of  officers  retired  by  operation  of  law  because  of  hav- 
de  ^n^  ^teined  sa^  a£e  °^  sixty-four  years.  And  the  limited 
creased.  retired  list  shall  hereafter  consist  of  three  hundred  and 

Proviso.          fifty  instead  of  four  hundred,  as  now  fixed  by  law:  Pro- 
vided, That  officers  who  have  been  placed  on  the  retired 
list  by  special  authority  of  Congress  shall  not  form  part 
special  retire-  of  the  limited  retired  list  established  by  this  act.     Act  of 

ments.  ^  ** 

February  16,  1891  (26  Stat.  Z.,  763). 
service  count-     1303.  On  and  after  the  passage  of  this  act,  all  officers  of 

ed  in  retirement, 

etc.  the  Army  of  the  United  States  who  have  served  as  officers 

June  18,  1878,  s.  .  J  . 

7,  v.  20,  p.  150.  m  the  volunteer  forces  during  the  war  of  the  rebellion,  or 
as  enlisted  men  in  the  armies  of  the  United  States,  regu- 
lar or  volunteer,  shall  be,  and  are  hereby,  credited  with 
the  full  time  they  may  have  served  as  such  officers  and  as 
such  enlisted  men  in  computing  their  service  for  longevity 
pay  and  retirement.  Sec.  7,  -act  of  June  18,  1878  (20  Stat. 
Z.,  150). 

Head  of  a  staff     1304.  Any  officer  now  holding  office  in  any  corps  or  de- 

deFeb!™?°9bi,  s.  partment  who  shall  hereafter  serve  as  chief  of  a  staff  corps 

26,  v.  si,  p.  755'.    or  department  and  shall  subsequently  be  retired,  shall  be 

retired  with  the  rank,  pay,  and  allowances  authorized  by 

law  for  the  retirement  of  such  corps  or  department  chief. 

Sec.  26,  act  of  February  2,  1901  (31  Stat.  Z.,  755). 

Retirement  for     1305.  When  any  officer  has  become  incapable  of  per- 

diAugU3fi86i,  c.  forming  the  duties  of  his  office,  he  shall  be  either  retired 

m8'  16>v'  12>p>from  active  service,  or  wholly  retired  from  the  service, 

sec.  1245,  B.S.  ^y  ^he  President,  as  hereinafter  provided. 

1  The  limited  retired  list  was  established  by  section  16,  of  the  act  of  August  3, 
1861,  12  Stat.  L.,  289,  which  provided  that  the  number  of  officers  retired  in  accord- 
ance with  the  authority  conferred  by  the  act  should  not,  at  any  time,  exceed  7 
per  cent  of  the  whole  number  of  offices  of  the  Army  as  fixed  by  law.  By  section  5, 
of  the  act  of  July  15,  1870,  16  Stat.  L.,  317,  sec,  1258,  Rev.  Stat.,  the  number  of 
officers  to  be  borne  upon  the  retired  list  was  to  be  determined  by  the  President,  in 
his  discretion,  but  was  not  to  exceed  300.  By  section  7,  of  the  act  of  July 
17,  1878,  20  Stat.  L.,  150,  the  number  of  retired  officers  was  increased  to  400.  By 
the  act  of  February  16,  1891,  26  Stat.  L.,  763,  the  number  was  reduced  and  fixed 
at  350,  the  number  now  authorized  by  law.  For  statutes  in  relation  to  the  retire- 
ment of  officers  found  physically  disqualified  for  promotion  by  boards  of  examina- 
tion see  paragraphs  1274  and  1275,  ante. 


MILITARY    LAWS    OF   THE    UNITED    STATES. 


491 


RETIRING    BOARDS — RETIRED   OFFICERS. 


Par. 

1306.  Composition  of  board. 

1307.  Oath  of  members. 

1308.  Powers  and  duties. 

1309.  Findings. 

1310.  Revision  by  President. 

1311.  Disability  incident  to  service. 

1312.  Same  not  incident  to  service. 

1313.  Officer  entitled  to  hearing. 
1314, 1315.  Retirement  on  actual  rank. 
1316.  Pav  of  retired  officers. 


Par. 

1317.  Status  of  retired  officers. 

1318.  Vacancies  caused  by  retirement. 

1319.  Rights  and  liabilities. 

1320.  Assignment  to  Soldiers'  Home. 

1321.  Eligibility  to  office. 

1322.  'Duty  in  time  of  war. 

1323.  Adjutant-General  to  militia  of  Dis- 

trict of  Columbia. 

1324.  Holding  office,  restriction. 

1325.  Clerks  to  retired  officers  prohibited. 


1306.  The  Secretary  of  War,  under  the  direction  of 

President,  shall,  from  time  to  time,  assemble  an  Army  retir-  42Agui73v18i2'  p' 
ing  board,  consisting  of  not  more  than  nine  nor  less  than  28|ec  1246  K  s 
five  officers,  two-fifths  of  whom  shall  be  selected  from  the 
Medical  Corps.     The  board,  excepting  the  officer  selected 
from  the  Medical  Corps,  shall  be  composed,  as  far  as  may 
be,  of  seniors  in  rank  to  the  officer  whose  disability  is 
inquired  of. 

1307.  The  members  of  said  board  shall  be  sworn  in  every    oath  of  mem- 
case  to  discharge  their  duties  honestly  and  impartially.         Aug.  3,  isei,  c. 

1308.  A  retiring  board  may  inquire  into  and  determine  290. 

the  facts  touching  the  nature  and  occasion  of  the  disability  Powers'  and 
of  any  officer  who  appears  to  be  incapable  of  performing  Aug!  3,  isei,  c, 
the  duties  of  his  office,  and  shall  have  such  powers  of  a  296.  ' 

,.    ,  ...  Sec.  1248,B.S. 

court-martial  and  of  a  court  of  inquiry  as  may  be  neces- 
sary for  that  purpose.1 

1309.  When  the  board  finds  an  officer  incapacitated  for 
active  service,  it  shall  also  find  and  report  the  cause  which, 
in  its  judgment,  has  produced  his  incapacity,  and  whether 
such  cause  is  an  incident  of  service.2 

1310.  The  proceedings  and  decision  of  the  board  shall  be  the 
transmitted  to  the  Secretary  of  War,  and  shall  be  laid  by 


^idi3ngi86i  c 
^s.  17,  v.  12,  p. 

sec.i2*9,R.s. 


by 


1  This  provision  does  not  authorize  a  retiring  board  to  entertain  a  charge  of  a  mili- 
tary offense,  as  such,  or  to  try  an  officer.     Dig.  Opin.  J.  A.  G.,  par.  2192.     The  inves- 
tigation of  a  retiring  board  is  not  affected  by  any  limitation  as  to  time,  as  is  that  of 
a  court-martial.     Such  a  board  may  therefore  inquire  into  the  matter  of  a  disability, 
however  long  since  it  may  have  originated.     Ibid.,  par.  2193. 

2  Held  that  the  law  (sees.  1248  and  1249,  Rev.  Stats. )  contemplated  an  existing  and 
not  a  purely  prospective  and  contingent  incapacity;  and  that  an  inquiry  into  an 
officer's  general  efficiency  could  be  pertinent  only  in  so  far  as  it  could  be  regarded  as 
going  to  show  that  his  inefficiency,  if  found,  was  the  result  of  an  impairment  of 
health.     Ibid.,  par.  2204. 

Held  that  the  cause  of  incapacity  intended  in  this  section  was  a  physical  cause; 
that  moral  obliquity  was  not  had  in  view;  and  that  the  matter  of  the  financial  integ- 
rity of  the  officer  was  beyond  the  jurisdiction  or  the  board.  Ibid.,  par.  2203.  The 
incapacity  may  result  from  habitual  drunkenness.  Ibid.,  par.  2196. 


492  MILITARY    LAWS    OF    THE    UNITED    STATES. 

before  the  President  for  his  approval  or  disapproval 
r(lers  in  the  case.1 
1311-  When  a  retiring  board  finds  that  an  officer  is  inca- 


2*see.i25o,R.s.  and  °r(lers  in  the  case. 


42fsUT?f  v!8i2i  p.'  pacitated  for  active  service,  and  that  his  incapacity  is  the 

2^'ec.i26i,R.s.  resu^  °f   an  incident  of  service,   and    such   decision   is 

approved  by  the  President,  said  officer  shall  be  retired 

from  active  service  and  placed  on  the  list  of  retired  officers. 

inSSttoVr?-      1312>  When  the  board  finds  that  an  officer  is  incapacitated 

iCAug-  3,  i86i,  c.  f°r  actiye  service,  and  that  his  incapacity  is  not  the  result 

42^s.  17,  v.  12,  p.  Of  anv  incident  of  service,  and  its  decision  is  approved  by 

sec.  i252,R.s.  the  President,1  the  officer  shall  be  retired  from  active  serv- 

ice, or  wholly  retired  from  the  service,  as  the  President 

may  determine.    The  names  of  officers  wholly  retired  from 

the  service  shall  be  omitted  from  the  Army  Register.2 

tiSuo  Shearing"      1313.  Except  in  cases  where  an  officer  may  be  retired  by 

^Aug.^1861,  c.  the  President  upon  his  own  application,  or  by  reason  of 

^ec  1253  K  s  ^s  having  served  forty-five  years,  or  of  his  being  sixty- 

two  years   old,    no  officer  shall  be   retired  from    active 

service,  nor  shall  an  officer,  in  any  case,  be  wholly  retired 

from  the  service,  without  a  full  and  fair  hearing  before  an 

Army  retiring  board,  if,  upon  due  summons,  he  demands  it.3 

xThe  finding  of  a  retiring  board  under  sec.  1251  or  sec.  1252,  Rev.  Stats.,  is  in  the 
nature  of  a  recommendation,  and  till  it  is  "  approved  by  the  President"  no  retire- 
ment can  be  ordered  thereupon.  Ibid.,  par.  2194. 

The  finding  of  a  retiring  board,  approved  by  the  President,  is  conclusive  as  to  the 
facts.  The  board  finds  the  facts  and  the  President  approves  or  disapproves  the  find- 
ing, but  the  law  does  not  empower  him  to  modify  the  finding  or  to  substitute  a  dif- 
ferent one.  There  is  here  a  judicial  power  vested  in  the  two.  and  not  in  the  Presi- 
dent acting  singly,  and  when  the  power  has  once  been  fully  exercised  it  is  exhausted 
as  to  the  case.  Dig.  Opin.  J.  A.  G.,  par.  2206;  U.  S.  r.  Burchard,  125  U.  S.,  179; 
U.  S.  v.  Miller,  19  Ct.  Cls.,  338. 

When  the  President  has  once  acted  upon  the  findings  of  a  retiring  board  his  power 
over  the  case  is  exhausted  and  his  subsequent  orders  in  respect  to  such  officer  are 
void  for  want  of  authority.  XIX  Opin.  Att.  Gen.,  202. 

2  To  be  "  wholly  retired,"  in  accordance  with  the  terms  of  this  section,  is  to  be  put 
out  of  the  Army  and  out  of  office.     An  officer  wholly  retired  becomes  a  civilian,  and 
can  be  readmitted  to  the  service  only  by  a  new  appointment.     Dig.  Opin.  J.  A.  G., 
666,  par.  9;  Miller  v.  U.  S.,  19  Ct.  Cls.,  338. 

3  The  provision  of  this  section  that  an  officer  shall  not  be  "  wholly  retired  from  the 
service  without  a  full  and  fair  hearing  before  an  Army  retiring  board  if,  upon  due 
summons,  he  demands  it,"  may  be  said  to  entitle  him  to  appear  before  the  board 
(with  counsel,  if  desired),  and  to  introduce  testimony  of  his  own,  to  cross-examine 
the  witnesses  examined  by  the  board,  including  the  medical  members  of  the  board 
who  may  have  taken  part  in  the  medical  examination,  and  have  stated,  or  reported 
to  the  board,  the  result  of  the  same.     If  the  officer  does  not  elect  to  appear  before 
the  board  when  summoned,  he  waives  the  right  to  a  hearing,  and  can  not  properly 
take  exception  to  a  conclusion  arrived  at  in  his  absence.     Dig.  Opin.  J.  A.  G.,  par. 
2197.     When  the  President  approves  and  acts  upon  the  report  of  a  retiring  board  he 
thereby  determines  that  the  officer  has  had  a  full  and  fair  hearing.     Miller  v.  U.  S., 
19  Ct.  Cls.  338.     But  see  XVI  Att.  Gen.  Opin.,  20. 

An  officer,  on  being  wholly  retired,  becomes  a  civilian,  and  can  be  readmitted  to 
the  service  only  by  a  new  appointment.  But  he  can  not  be  appointed  at  once  to  the 
retired  list.  A  civilian  can  not  be  appointed  as  a  retired  officer.  He  must  first  be 
appointed  an  officer  on  the  active  list,  of  a  certain  rank.  None  but  a  commissioned 
officer  on  the  active  list  of  the  Army  can  be  placed  on  the  retired  list.  Dig.  Opin. 
J.  A.  Gen.,  666,  par.  11;  XIX  Opin.  Att.  Gen.,  506. 


MILITARY    LAWS    OF    THE-  UNITED    STATES.  493 

1314.  Officers  hereafter  retired  from  active  service  shall 

be  retired  upon  the  actual  rank  held  by  them  at  the  date  v  3™** 
of  retirement.  3>  1875'  v-  18'  p-  512-  '8ei- 

1315.  That  all  officers  of  the  Army  who  have  been  here- 
tofore  retired  by  reason  of  disability  arising  from  wounds 
received  in  action  shall  be  considered  as  retired  upon 
actual  rank  held  by  them,  whether  in  the  regular  or  volun- 
teer service,  at  the  time  when  such  wound  was  received, 
and  shall  be  borne  on  the  retired  list  and  receive  pay  here- 
after accordingly  ;  and  this  section  shall  be  taken  and  con- 
strued to  include  those  now  borne  on  the  retired  list  placed 
upon  it  on  account  of  wounds  received  in  action:  Provided, 
That  no  part  of  the  foregoing  act  shall  apply  to  those  offi- 
cers who  had  been  in  service   as  commissioned  officers 
twenty  -five  years  at  the  date  of  their  retirement;  nor  to 
those  retired  officers  who  had  lost  an  arm  or  leg,  or  has 
an  arm  or  leg  permanently  disabled  by  reason  of  resection, 
on  account  of  wounds,  or  both  eyes  by  reason  of  wounds 
received  in  battle;  and  every  such  officer  now  borne  on 
the  retired  list  shall  be  continued  thereon  notwithstanding 
the  provisions  of  section  two  chapter  thirty-eight  act  of 
March  thirty,  eighteen  hundred  and  sixty-eight;  and  be  it 
also  provided^  that  no  retired  officer  shall  be  affected  by 
this  act,  who  has  been  retired  or  may  hereafter  be  retired 
on  the  rank  held  by  him  at  the  time  of  his  retirement.1 
Sec.  2,  act  of  March  3,  1875  (18  Stat.  Z.,  512). 

PAY   OF   RETIRED   OFFICERS. 

1316.  Officers  retired  from  active  service  shall  receive  0^T^  retired 
seventy  -five  per  centum  of  the  pay  of  the  rank  upon  which    Sec-  1274,  R.S. 
they  were  retired.2 

MISCELLANEOUS   PROVISIONS. 

1317.  Officers  retired  from  active  service  shall  be  with- 


drawn  from  command  and  from  the  line  of  promotion.        42A?gii  SML'  p 

.  '  289;  July  17,  1862,  c.  200,  s.  12,  v.  12,  p.  596.    Seci  1255,  R.  S.' 

1318.  When  any  officer  in  the  line  of  promotion  is  retired  ca^|  a  gyc  *££ 


from  active  service,  the  next  officer  in  rank  shall  be  .^  c 

moted  to  his  place,  according  to  the  established  rules  of  ^s-16''v-12'  p 
the  service;  and  the  same  rule  of  promotion  shall  be  ap-    sec.i257,R.s. 
plied,  successively,  to  the  vacancies  consequent  upon  such 
retirement. 


1  The  act  of  March  3,  1875,  should  be  construed  to  have  a  prospective  effect  only. 
XIX  Opin.  Att.  Gen.,  610. 

2  The  pay  of  retired  officers  is  a  matter  within  the  control  of  Congress,  and  so  is 
their  rank.     Wood  v.  U.  S.,  15  Ct.  Cls.,  151,  and  107  U.  S.,  414.     Officers  retired 
from  active  service  are  retired  "  upon  the  actual  rank  held  by  them  at  the  date  of 
retirement."     Kemey  v.  U.  S.,  33  Ct.  Cls.,  218. 


494  MILITARY    LAWS    OF    THE    UNITED    STATES. 

bmtfe1?  and  lia"  1319-  Officers  retired  from  active  service  shall  be  entitled 
42AsU?83'v18i2'  p.'  to  wear  the  uniform  of  the  rank  on  which  they  may  be 
^ec.iase^.s.  1>etired.  They  shall  continue  to  be  borne  on  the  Army 

Register,  and  shall  be  subject  to  the  rules  and  articles  of 

war,  and  to  trial  by  general  court-martial  for  any  breach 

thereof.  l 

di^S&oSSej?  1320'  Retired  officers  of  the  Army  may  be  assigned  to 
Hjane>2i  1870  c  ^uty  a^  ^he  Soldiers'  Home,  upon  a  selection  by  the  com- 
A  Ve  Vi8\o  %S;  m*ss*oners  °^  ^hat  ms^itution,  approved  by  the  Secretary 
F2ebV'276'i87737c:  °^  War;  an(^  a  retired  officer  shall  not  be  assignable  to  any 
69sec  ^fij^.'s  other  duty:  Provided,  That  they  receive  from  the  Govern- 

ment only  the  pay  and  emoluments  allowed  by  law  to 

retired  officers.2 

civSeoScehia?y  1321i  ^°  Per8On  belonging  to  the  Army  or  Navy  shall 
TeMar°3y'i883  v  ^e  elected  to  or  hold  any  civil  office  or  appointment  in  any 
^sec  i6860  B  s  Territory,  except  officers  of  the  Army  on  the  retired  list.3 
1322>  In  time  of  war  retired  officers  of  the  Army  may, 


inMir?e90fisao'«  in  the  discretion  of  the  President,  be  employed  on  active 

Mar.  z,  loyy,  s.  A      »/ 

7,  v.  so,  p.  979.     duty,  other  than  in  the  command  of  troops,  and  when  so 

:A  retired  officer  is  subject  to  trial  by  court-martial,  and  a  court-martial  has  juris- 
diction of  offenses  committed  after  the  officer  was  retired.  Eunkle  v.  U.  S.,  19  Ct. 
Cls.,  396. 

An  officer  on  the  retired  list,  being  as  much  a  part  of  the  Army  as  any  officer  on 
the  active  list,  would  be  subject  to  trial  by  general  court-martial  independently  of 
the  provision,  specifically  so  subjecting  him,  of  section  1256,  Revised  Statutes.  Dig. 
Opin.  J.  A.  G.,  par.  2200. 

A  retired  officer,  upon  conviction,  may  be  sentenced  similarly  to  an  officer  on  the 
active  list,  except  that  the  punishments  of  suspension  and  loss  of  files  or  relative  rank 
are  not  appropriate  to  the  status  of  a  retired  officer.  Ibid.,  note  2. 

2  A  retired  Army  officer  is  not  prohibited  by  law  from  holding  office  in  an  Execu- 
tive Department,  nor  from  receiving  the  salary  thereof  in  addition  to  his  retired  pay. 
Collins  v,  U.  S.,  15  Ct.  Cls.  22;  Meigs  v.  U.  S.,  19  Ct.  Cls.,  497.     A  retired  officer  may 
be  employed  by  the  War  Department.     Yates  v.  U.  S.,  25  Ct.  Cls.,  296.    Retired  offi- 
cers, as  such,  do  not  hold  public  office.     They  are  in  fact  pensioners.     The  position 
and  pay  given  them  constitute  a  form  of  pension.     They  exercise  no  functions  and 
receive  no  emoluments  of  office,  but  are  pensioned  for  past  faithful  services  or  disa- 
bilities contracted  in  the  line  of  duty.     Their  condition  and  public  office  have  no 
characteristics  in  common.     Dig.  Opin.  J.  A.  G.,  par.  2209.     See  in  this  connection 
the  act  of  July  31,  1894  (28  Stat.  L.,  205),  which  permits  retired  officers  to  hold  office 
to  which  they  have  been  elected  by  the  people  or  appointed  by  the  President  with  the 
advice  and  consent  of  the  Senate.     See  also  section  7  of  the  act  of  June  3,  1896  (29 
Stat.  L.,  235),  which  contains  the  requirement  "  that  section  2  of  the  act  of  July  31, 
1894  (28  Stat.  L.,  205),  shall  not  be  so  construed  as  to  prevent  the  employment  of  any 
retired  officer  of  the  Army  or  Navy  to  do  work  under  the  direction  of  the  Chief  of 
Engineers  of  the  United  States  Army  in  connection  with  the  improvement  of  rivers 
and  harbors  of  the  United  States,  or  the  payment  by  the  proper  officer  of  the  Treas- 
ury of  any  amounts  agreed  upon  as  compensation  for  such  employment."     This  pro- 
vision operates  to  exempt  from  the  terms  of  the  act  of  July  31,  1894  (sec.  1763,  R.  S.  ), 
all  retired  officers  of  the  Army  or  Navy  who  may  be  employed  by  the  Engineer 
Department  upon  works  of  river  and  harbor  improvement. 

A  retired  officer  of  the  Army  "  holds  a  lucrative  office,"  and  so  is  ineligible,  under 
the  constitution  of  Texas,  to  hold  civil  office  in  that  State.  State  v.  DeGress,  53 
Texas,  387.  See,  also,  Hill  v.  Territory,  2  Wash.,  147. 

3  A  retired  officer  of  the  Army  is  not  ineligible  to  hold  an  appointment  to  a  civil 
office.     XIX  Opin.  Att.  Gen.,  283;  XV  ibid.,  306;  Meigs  v.  U.  S.,  19  Ct,  Cls.  497; 
Converses.  U.  S.,  21  How.,  464;  U.  S.  v.  Brindle,  110  U.  S.,  688;  U.  S.  v.  Saunders, 
120  U.  S.,  126. 


MILITARY    LAWS    OF   THE    UNITED    STATES.  495 

employed  they  shall  receive  the  full  pay  and  allowances  of 
their  grades.  Sec.  7,  act  of  March  2,  1899  (30  Stat.  L., 
979). 

1323.  The  President  of  the  United  States  may  detail  as  er£d  S^SiSSt 
Adjutant-General  of  the  District  of  Columbia  Militia  any  m££j'6,  1900,  v. 
retired  officer  of  the  Army  who  may  be  nominated  to  the31>p> 
President  by  the  Brigadier-General  commanding  the  Dis- 

trict of  Columbia  Militia,  said  retired  officer  while  so 
detailed  to  have  the  active  service  pay  and  allowances  of 
his  rank  in  the  Regular  Army.  Act  of  June  6,  1900  (31 
Stat.  L.,671). 

1324.  No  person  who  holds  an  office  the  salary  or  annual 
compensation  attached  to  which  amounts  to  the  sum  of  two  SrtiSSL  *2>50° 
thousand  five  hundred  dollars  shall  be  appointed  to  or  hold 

any  other  office  to  which  compensation  is  attached  unless 
specially  heretofore  or  hereafter  specially  authorized 
thereto  by  law;  but  this  shall  not  apply  to  retired  officers 
of  the  Army  or  Navy  whenever  they  may  be  elected  to 
public  office  or  whenever  the  President  shall  appoint  them 
to  office,  by  and  with  the  advice  and  consent  of  the  Senate. 
Sec.  2,  act  of  July  31,  1894  (®$  Stat.  Z.,  $08). 

1325.  Hereafter  no  allowance  or  compensation  for  clerks 

or  secretaries  of  officials  of  the  United  States  retired  from  1898  v 

active  service  shall  be  authorized.     Act  of  July  1,  1898  m  •p-644.. 
(30  Stat.  Z.,  6U)- 

RESIGNATIONS. 


1326.  Any  officer  who,  having  tendered  his  resignation, 
quits  his  post  or  proper  duties,  without  leave,  and  with  War. 

intent  to  remain  permanently  absent  therefrom,  prior  to 
due  notice  of  the  acceptance  of  the  same,  shall  be  deemed 
and  punished  as  a  deserter.1  Forty  -ninth  Article  of  War. 

JA  valid  resignation  and  an  unconditional  acceptance  of  it,  accompanied  by  proper 
notification  of  it,  operate  to  remove  an  officer  from  the  military  service.  Bennett  v. 
U.  S.,  19  Ct.  Cls.  379.  And  a  new  appointment  is  required  to  restore  him  to  the 
office.  XII  Opin.  Att.  Gen.  ,  555.  An  immediate  and  unconditional  resignation  severs, 
absolutely,  an  officer's  connection  with  the  Army.  Turnley  v.  U.  S.,  24  Ct.  Cls.,  317. 
It  has  been  held  by  a  United  States  court  that  "a  civil  officer  has  a  right  to  resign 
his  office  at  pleasure,  and  it  is  not  in  the  power  of  the  Executive  to  compel  him  to 
remain  in  office.  "  In  a  case  of  a  military  officer,  however,  this  right  is  subject  to  cer- 
tain restrictions  growing  out  of  the  military  status.  Thus,  while  in  time  of  peace,  an 
officer  of  the  Army,  in  good  standing,  is  in  general  entitled  to  tender  and  have  accepted 
his  resignation,  yet  in  time  of  war,  or  when  grave  embarrassment  to  the  service  or 
prejudice  to  discipline  may  result  from  his  leaving  his  duty,  the  acceptance  of  his  resig- 
nation may  properly  be  refused.  And  so,  where  he  has  tendered  his  resignation  while 
under  charges,  and  a  failure  of  justice  might  result  from  allowing  him  to  evade  trial. 
Dig.  Opin.  J.  A.  G.,  662. 

A  military  officer  who  has  tendered  his  resignation,  but  who  continues  in  service, 
doing  actual  duty,  is  entitled  to  pay  up  to  the  time  he  is  notified  of  the  acceptance  of 
his  resignation.  Barger  v.  U.  S.,  6  Ct.  Cls.,  35;  Dig.  Opin.  J.  A.  Gen.,  662,  663. 

A  mere  offer  to  resign  or  tender  of  resignation  is  revocable  at  any  time  before  accept- 


496  MILITARY    LAWS    OF    THE    UNITED    STATES. 


1327-  AnJ  officer  of  the  ArmJ  wh«  accepts  or  holds  any 
laMar!  so,  1868  c.  appointment  in  the  diplomatic  or  consular  service  of  the 
^Se^i2'28;&.fe^overnment  shall  ^e  considered  as  having  resigned  his 
place  in  the  Army,  and  it  shall  be  filled  as  a  vacancy.1 

DISMISSAL. 

disRrSsStIonoffi-      1328-  No  officer  of  the  Army  who  has  been  or  may  be 

cejuiy  20,  1868,  c.  dismissed  from  the  service  by  the  sentence  of  a  general 

18|iJ.'i1|al>,'B?l.  court-martial,  formally  approved  by  the  proper  reviewing 

authority,  shall  ever  be  restored  to  the  military  service, 

except  by  a  reappointment  confirmed  by  the  Senate.2 

ance.  But  after  an  acceptance,  and  before  effect  has  been  given  to  the  same  by  notice, 
the  offer  can  not  be  withdrawn,  or  materially  modified  by  the  act  of  the  officer  alone, 
but  the  consent  of  the  appointing  power  is  also  necessary.  Dig.  Opin.  J.  A.  G.,  663. 

A  resignation  to  take  effect  at  a  future  date  may,  with  the  consent  of  the  appoint- 
ing power,  provided  no  new  rights  have  intervened,  be  withdrawn  before  the  time 
when  the  resignation  was  to  take  effect,  and  the  officer  will  continue  to  be  an  officer 
de  jure  thereafter.  1  Compt.  Dec.,  8;  Bunting  v.  Willis,  27  Gratt.,  144;  Biddle  v.  Wil- 
lard,  10  Ind.,  62;  State  v.  Van  Buskirk,  56  Mo.,  17;  People  v.  Porter,  6  CaL,  26.  See, 
also,  Badgers  U.  S.,  93  U.  S.,  599;  U.  S.  v.  Wright,  1  McLean,  509. 

The  acceptance  of  an  officer's  resignation  becomes  operative  and  severs  him  from 
the  military  service  upon  his  receiving  either  actual  or  constructive  notice  of  such 
acceptance.  Dig.  Opin.  J.  A.  G.,  663. 

While  a  tender  of  his  resignation  by  an  insane  officer  is,  in  general,  without  legal 
effect,  and  incapable  of  being  legally  accepted,  yet  where  a  resignation  so  tendered 
was,  in  the  absence,  at  the  War  Department,  of  any  knowledge  of  his  insanity,  form- 
ally accepted,  held  that  the  acceptance  could  not  be  legally  revoked,  and  that  the 
appointment  to  the  vacancy  was  valid  and  operative.  Dig.  Opin.  J.  A.  G.,  663. 
When  an  officer  tenders  his  resignation,  and  the  question  of  his  sanity  is  passed  upon 
by  his  commanding  officer,  and  it  is  by  him  determined  that  he  is  of  sane  mind,  a 
court  can  not  reexamine  the  question.  Blake  v.  U.  S.,  13  Ct.  Cls.  402. 

Where  an  officer  appointed  during  a  recess  of  the  Senate,  after  taking  the  oath  of 
office,  and  notifying  the  Department  of  his  acceptance,  is  ordered  to  return  the  appoint- 
ment, his  obeying  the  order  is  not  a  resignation.  O'Shea  v.  U.  S.,  28  Ct.  Cls.,  392. 

An  officer  who  places  his  conditional  resignation  in  the  hands  of  his  commanding 
officer,  to  be  forwarded  by  that  officer  upon  a  breach  of  the  said  condition,  of  which 
breach  such  commanding  officer  is  to  be  the  judge,  and  authorizes  him  to  insert  a  date 
in  such  resignation  and  to  forward  it  for  acceptance,  is  held  to  have  made  a  valid 
tender  of  his  resignation,  and,  upon  its  acceptance  by  the  President,  such  officer  ceases 
to  be  an  officer  of  the  Army.  Mimmack  v.  U.  S.,  97  U.  S.,  426,  436;  XII  Opin.  Att. 
Gen.,  555. 

If  an  officer's  connection  with  the  service  has  been  legally  severed  by  resignation, 
dismissal,  or  otherwise,  he  can  again  enter  only  by  the  appointment  of  the  President, 
with  the  consent  of  the  Senate.  Montgomery  v.  U.  S.,  19  Ct.  Cls.,  338;  Miller  v. 
U.  S.,  ibid.,  338;  Mimmack  v.  U.  S.,  97  U.  S.,  426;  McElrath  v.  U.  S.,  102  U.  S.,  426; 
Blake  v.  U.  S.,  103  U.  S.,  227;  Keyes  v.  U.  S.,  109  U.  S.,  336,  339. 

JThe  act  of  March  30,  1868,  15  Stat.  L.,  58,  which  is  embodied  in  section  1223  of 
the  Kevised  Statutes,  applied  to  officers  on  the  retired  as  well  as  on  the  active  list, 
and  it  made  the  acceptance  of  the  diplomatic  vacate  the  military  office  eo  instanti; 
the  vacancy  thus  created  necessarily  continuing  until  filled  in  the  usual  way.  XIX 
Opin.  Att.  Gen.,  610. 

2  Dismissal  by  Executive  order  is  quite  distinct  from  dismissal  by  sentence.  The 
latter  is  a  punishment;  the  former  is  removal  from  office.  The  power  to  dismiss,  which, 
as  being  an  incident  to  the  power  to  appoint  public  officers,  had  been  regarded  since 
1789  as  vested  in  the  President  by  the  Constitution,  was  for  the  first  time,  by  section 
5  of  the  act  of  July  13,  1886  (reenacted  in  the  second  clause  of  the  present  ninety- 
ninth  article  of  war  and  in  section  1229,  Revised  Statutes),  expressly  divested  by 
Congress,  in  so  far  as  respects  its  exercise  in  time  of  peace.  By  the  statute  it  is  now 
authorized  only  in  time  of  war.  Dig.  Opin.  J.  A.  G.,  par.  1203. 

The  practical  results  of  this  statute,  in  connection  with  other  provisions  of  law 
bearing  upon  the  subject,  are  these:  That  in  time  of  war  the  President  may  dismiss 


MILITARY    LAWS    OF    THE    UNITED    STATES.  497 


1329.  The  President  is  authorized  to  drop  from  the  rolls 
of  the  Army  for  desertion  any  officer  who  is  absent  from 
duty  three  months  without  leave;  and  no  officer  so  dropped 

shall  be  eligible  for  reappointment.     And  no  officer  in  the  ^J^y  13,  isee, 
military  or  naval  service  shall  in  time  of  peace  be  dis-  ^^  12^  B  s 
missed  from  service  except  upon  and  in  pursuance  of  the 
sentence  of  a  court-martial  to  that  effect,  or  in  commuta- 
tion thereof.1 

1330.  When  any  officer,  dismissed  by  order  of  the  Presi-  m2Sf£y  £^1 
dent,2  makes,  in  writing,  an  application  for  trial,  setting  J2jd  tjfaa,y  de~ 

an  officer  from  service  at  any  moment  and  for  any  cause;  that  in  time  of  peace  he 
may  dismiss  him  for  cause,  with  the  cooperation  of  a  court-martial;  or  remove  him 
without  cause  with  the  consent  of  the  Senate.  Street  r.  U.  S.,  24  Ct.  Cls.,  248; 
Blake  v.  U.  S.,  103  U.  S..  227;  McElrath  r.  U.  S.,  102  U.  S.,  426;  Fletcher  v.  U.  S., 
26  Ct.  Cls.,  541. 

The  President  has  the  power  to  remove  an  officer  of  the  Army  by  the  appointment 
of  another  in  his  place,  by  and  with  the  advice  and  consent  of  the  Senate,  and  such 
power  is  not  withdrawn  by  the  provisions  of  section  5  of  the  act  of  July  13,  1866 
(section  1229,  Revised  Statutes)  ,  and  this  provision  does  not  restrict  the  power 
of  the  President,  by  and  with  the  advice  and  consent  of  the  Senate,  to  displace  offi- 
cers of  the  Army  and  Naw  by  the  appointment  of  others  in  their  places.  Keyes  r. 
U.  S.,  109  U.  S.,  336,  339;  'Blake  r.  U.  S.,  103  U.  S.,  227;  McElrath  r.  U.  S.,  103  U.  S. 
426;  Mimmack  r.  U.  S.,  97  U.  S.,  426;  U.  S.  r.  Corson,  114  U.S.,  619;  Montgomery 
v.  U.  S.,  19  Ct,  Cls.,  370;  Bonnett  v.  U.  S.,  ibid.,  379;  Palen  v.  U.  S.,  ibid.,  389; 
McBlairr.  U.  S.,  ibid.,  528;  Vanderslice  r.  LT.  S.,  ibid.,  480;  XV  Opin.  Alt.  Gen.,  407. 

lThe  jurisdiction  to  find  and  determine  the  fact  of  desertion,  under  this  section,  is 
vested  in  the  President  alone,  and  his  decision  thereon  can  not  be  reviewed  by  the 
courts.  Newton  r.  U.  S.,  18  Ct.  Cls.,  435.  The  discharge  of  an  officer  does  not 
relieve  the  Government  from  its  obligations  until  he  is  notified  of  the  fact  and  actu- 
ally discharged  from  service.  Gould  r.  U.  S.,  19  Ct.  Cls.,  593.  A  summary  dis- 
missal of  an  officer  does  not  properly  take  effect  until  the  order  of  dismissal  or  an 
official  copy  of  the  same  is  delivered  to  him,  or  he  is  otherwise  officially  notified  of 
the  fact  of  'his  dismissal.  Dig.  Opin.  J.  A.  G.,  par.  1204.  A  dismissal  of  an  officer 
by  Executive  order  does  not  operate  to  disqualify  him  for  reappointment  to  military 
office,  or  for  appointment  to  civil  office  under  the  United  States.  Ibid,  370,  par.  7. 

2  Dismissal  by  Executive  order  is  quite  distinct  from  dismissal  by  sentence.  The 
latter  is  a  piutith  me  ni:  the  former  is  removal  from  office.  The  power  to  dismiss,  which, 
as  being  an  incident  to  the  power  to  appoint  public  officers,  had  been  regarded  since 
1789  as  vested  in  the  President  by  the  Constitution,  was,  for  the  first  time  in  1866 
(  by  the  act  of  July  13th  of  that  year,  re-enacted  in  the  second  clause  of  the  present 
b9th  Article  of  War  and  in  sec.  1229,  Revised  Statutes),  expressly  divested  by  Con- 
gress iti  so  i'ar  as  respects  its  exercise  in  time  of  peace.  By  the  statute  law  it  is  now 
authorized  only  in  time  of  war.  During  the  late  war  it  was  exercised  in  a  great  num- 
ber of  cases,  sometimes  for  the  purpose  of  summarily  ridding  the  service  of  unworthy 
officers,  sometimes  in  the  form  of  a  discharge  or  muster  out  of  officers  whose  services 
were  simply  no  longer  required.  The  distinction  between  this  species  of  dismissal 
and  dismissal  by  sentence  is  illustrated  by  the  fact  that  the  former  has,  with  the  sanc- 
tion of  legal  authority,  been  repeatedly  ordered  in  cases  where  a  court-martial  has 
previously  acquitted  the  officer  of  the  very  offenses  on  account  of  which  the  summary 
action  has  been  resorted  to.  Dig.  Opin.  J*.  A.  Gen.,  par.  1203.  See  also  VII  Opin.  Att. 
Gen.,  251;  Commonwealth  r.  Bussier,  5  Sergt.  &  Rawle,  461;  Exparte  Hennen,  13 
Peters,  258,  259;  United  States  r.  Guthrie,  17  Howard,  307;  IVOpins.  of  Attys.Gen., 
1,609-613;  VI  Id.,  5-6;  VII  Id.,  251;  VIII  Id.,  230-232;  XII  Id.,  424-426;  Sergeant's 
Const.  Law,  373;  2  Story's  Cons.,  §  1537,  note;  1  Kent's  Corns.,  310;  2  Marshall's 
Washington,  162. 

The  Executive,  in  summarily  dismissing  an  officer,  can  not  at  the  same  time 
deprive  him  of  pay  due.  Nor  can  the  right  of  an  officer  to  his  pay  for  any  period 
prior  to  a  summary  dismissal  ordered  in  his  case  be  divested  by  a  dating  back  of  the 
order  of  ait-missal.*  Such  an  order  can  not  be  made  to  relate  back  so  as  to  uftVc-t  the 
status  or  rights  of  the  officer  as  they  existed  before  the  date  of  the  taking  effect  of 
the  dismissal.  Dig.  Opin.  J.  A.  G.,  par.  1213. 

22924—08  -  32 


498 


MILITARY    LAWS    OF    THE    UNITED    STATES. 


under  oath,  that  he  has  been  wrongfully  dismissed, 
President  shall,  as  soon  as  the  necessities  of  the  service 
PSec!'i28o,K.s.  may  Permrt,  convene  a  court-martial,  to  try  such  officer  on 
the  charges  on  which  he  shall  have  been  dismissed.  And 
if  a  court-martial  is  not  so  convened  within  six  months 
from  the  presentation  of  such  application  for  trial,  or  if 
such  court,  being  convened,  does  not  award  dismissal  or 
death  as  the  punishment  of  such  officer,  the  order  of  dis- 
missal by  the  President  shall  be  void.1 


MISCELLANEOUS   PROVISIONS   RESPECTING    COMMISSIONED   OFFICERS. 


Par. 


1331.  Officers  not  to  be  employed  on  civil 

works,  etc. 

1332.  Accepting  civil  office. 

1333.  Details  as  Indian  agents. 


Par. 

1334.  Discharge   of  supernumerary  offi- 

cers. 

1335.  Enlisted  men  not  to  be  used  as  serv- 

ants. 


133L  No  officer  of  the  ArmJ  sha11  be  employed  on  civil 
s  or  internal  improvements,  or  be  allowed  to  engage 
i9Fpb243.1877' v'  in  ^ne  service  of  any  incorporated  company,  or  be  employed 
sec.  1224,  K.  s.  as  acting  paymaster  or   disbursing  agent  of  the  Indian 
Department,  if  such  extra  employment  requires  that  he 
shall  be  separated  from  his  company,  regiment,  or  corps, 
or  if  it  shall  otherwise  interfere  with  the  performance  of 
the  military  duties  proper.     Act  of  February  27,  1877  (19 
Stat.  L.,  243). 

^This  statute  was  held  by  the  Attorney-General  (XII  Opins.,  4)  not  to  be  unconsti- 
tutional, in  that  it  was  not  "  obnoxious  to  the  objection  that  it  invades  or  frustrates 
the  power  of  the  President  to  dismiss  an  officer."  More  serious  objections  to  its 
constitutionality  are  believed  to  be:  1,  that  it  authorizes  the  subjecting  to  military 
trial  of  a  civilian;  2,  that  in  restoring  an  officer  to  the  Army  it  substitutes  the  action 
of  a  court-martial  for  the  appointing  power  of  the  President, 

The  statute  does  not  indicate  within  what  period  after  the  dismissal  the  application 
for  a  trial  should  be  made.  It  can  only  be  said  that,  in  preferring  it,  due  diligence 
should  be  exercised— that  it  should  be  presented  within  a  reasonable  time.  Held, 
That  a  party  who  (without  any  sufficient  excuse)  delayed  for  nine  years  to  apply 
for  a  trial  under  the  statute  might  well  be  regarded  as  having  waived  his  right 
thereto.  [IV  Opin.  Att.  Gen.,  170;  V  Ibid.,  384.]  It  could  scarcely  have  been  con- 
templated by  Congress  that  a  dismissed  officer  should  be  at  liberty  to  defer  his 
application  for  a  trial  till  the  evidence  on  which  he  was  dismissed  or  a  material  part 
of  the  same  had  ceased  to  exist,  and  his  restoration  would  thus  be  made  certain. 
Dig.  Opin.  J.  A.  G.,  par.  1219. 

Though  it  may  be  sufficient  that  the  application  made  under  the  statute  should 
state  simply  that  the  applicant  has  been  "wrongfully"  dismissed,  the  preferable 
form  would  be  for  the  applicant  to  set  forth  in  what  the  alleged  wrong  consisted. 
Ibid.,  par.  1220. 

To  take  advantage  of  the  benefit  conferred  by  this  section  the  officer  must  apply 
for  trial  within  a  reasonable  time  after  dismissal,  or  acquiescence  will  be  presumed. 
A  delay  of  nine  years  in  a  particular  case  held  to  create  such  presumption  of  acquies- 
cence. Newton  r.  U.  S.,  18  Ct.  Cls.,  435;  Germaine  v.  U.  S.,  26  ibid.,  383. 

Where  the  President  is  authorized  by  law  to  reinstate  a  discharged  army  officer, 
he  may  do  so  without  the  advice  and  consent  of  the  Senate.  Collins  v.  U.  S.,  15 
Ct,  Cls.,  22.  For  a  list  of  officers  so  reinstated  see  Collins  Case,  14  Ct.  Cls.,  568,  571. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  499 

1332.  No  officer  of  the  Army  on  the  active  list  shall  hold  hof|f*f ^  ££ 
any  civil  office,  whether  by  election  or  appointment,  and  ficj^ly  15  Ig70  c 
every  such  officer  who  accepts  or  exercises  the  functions  f^ s- 18>  v- 16> p- 
of  a  civil  office  shall  thereby  cease  to  be  an  officer  of  the  Sec- 1222' B- s- 
Army,  and  his  commission  shall  be  thereby  vacated.1 

1333.  That  from  and  after  the  passage  of  this  act  the    Army  officers 

r  to  be  detailed  as 

President  shall  detail  officers  of  the  United  States  Army  indian^agen^s.^ 
to  act  as   Indian  agents  at  all  agencies  where  vacancies  '&,  p.  120! 
from  any  cause  may  hereafter  occur,  who,  while  acting  as 
such  agents,  shall  be  under  the  orders  and  direction  of 
the  Secretary  of  the  Interior,  except  at  agencies  where, 
in  the  opinion  of  the  President,  the  public  service  would 
be  better  promoted  by  the  appointment  of  a  civilian.2    Act 
of  July  IS,  1892  (27  Stat,  Z..  120). 

1334.  That  any  officer  who  is  supernumerary  to  the  per-    suj>ernumer- 
manent  organization  of  the  Army  as  provided  by  law  may,  on  their  own  re- 

*  ~  '  quest,   be   dis- 

at  his    own   request,   be  honorably  discharged  from  the  charged  with 

J  fe  certain  pay. 

Army,  and  shall  thereupon  receive  one  year's  pay  for  each22June3o,i882,v. 
five  years  of  his  service,  but  no  officer  shall  receive  more 
than  three  years'  pay  in  all.    Act  of  June  30, 1882  (22  Stat. 
Z.,  118). 

1335.  No  officer  shall  use  an  enlisted  man  as  a  servant no^beusedas 
in  any  case  whatever.  Juiy  15,  i8?o,  c.  294,  s.  14,  v.  ie,  p.  319.  8e|™.nil32,  R.S. 

TRAVEL    PAY    ON    DISCHARGE. 

1336.  Hereafter  when  an  officer  shall  be  discharged  from  0^erflon&yAil 
the  service,  except  by  way  of  punishment  for  an  offense,  ch^Te'2  1901  \ 
he  shall  receive  for  travel  allowances  from  the  place  of  ^'P-902- 

his  discharge  to  the  place  of  his  residence  at  the  time  of 
his  appointment  or  to  the  place  of  his  original  muster  into 
the  service  four  cents  per  mile  from  the  place  of  his  dis- 
charge to  the  place  of  his  enlistment,  enrollment,  or  orig- 
inal muster  into  the  service.3  Act  of  March  2,  1901  (31 
Stat.  Z.,  902). 


1  Where  an  officer  of  the  Army  was  tendered  a  place  on  a  "board  of  experts" 
created  by  a  city  ordinance  to  determine  the  most  durable  and  best  pavement  for  the 
streets  of  a  city,  advised  that,  in  view  of  the  provisions  of  section  1222  of  the  Eevised 
Statutes,  the  place  be  not  accepted  by  the  officer.     XVIII  Opin.  Att.  Gen.,  11. 

2  See,  for  other  provisions  of  law  respecting  the  detail  of  officers  as  Indian  agents, 
the  chapters  entitled  THE  INDIANS;  INDIAN  AGENTS;   THE  INDIAN  COUNTRY.     For 
other  enactments  authorizing  the  employment  of  officers  on  the  active  list  on  civil 
or  nonmilitary  duty,  see  sections  4653,  4664,  and  4671,  Revised  Statutes,  authorizing 
the  detail  of  officers  on  light-house  duty;  the  act  of  July  31,  1882,  22  Stat.  L.,  181, 
authorizing  the   detail  of  an  officer  for  duty  in  connection  with  Indian  education; 
section  5  of  the  act  of  August  1,  1890,   26  ibid.,  337,  authorizing  the  detail  of  an 
officer  as  a  member  of  the  Chickarnauga  Park  Commission;  and  the  several  statutes 
authorizing  college  details,  see  paragraphs  1288  to  1295,  ante. 

3 For  statutes  and  regulations  regulating  the  payment  of  travel  allowances  on  dis- 
charge to  officers  and  enlisted  men  see  the  chapter  entitled  THE  PAY  DEPARTMENT. 


500  MILITARY    LAWS    OF    THE    UNITED    STATES. 


1337.  Any  officer  or  enlisted  man  in  the  service  of  the 
United  States  who  was  discharged  in  the  Philippine  Islands 
and  there  reentered  the  service  through  commission  or 
enlistment  shall,  when  discharged,  except  by  way  of  pun- 
ishment for  an  offense,  receive  for  travel  allowances  from 
the  place  of  his  discharge  to  the  place  in  the  United  States 
of  his  last  preceding  appointment  or  enlistment,  or  to  his 
home  if  he  was  appointed  or  enlisted  at  a  place  other  than 
his  home,  four  cents  per  mile.  1  Ibid. 

/I?dtrave1'  1338.  For  sea  travel  on  discharge  actual  expenses  only 

shall  be  paid  to  officers  and  transportation  and  subsistence 
only  shall  be  furnished  to  enlisted  men.1     fbid. 

DECEASED    OFFICERS. 

Effects  of  de-      1339.  In  case  of  the  death  of  any  officer,  the  maior  of 

ceased  officers.         .  J  J 

125  Art.  war.  his  regiment,  or  the  officer  doing  the  major's  duty,  or  the 
second  officer  in  command  at  any  post  or  garrison,  as  the 
case  may  be,  shall  immediately  secure  all  his  effects  then  in 
camp  or  quarters,  and  shall  make,  and  transmit  to  the  office 
of  the  Department  of  War,  an  inventory  thereof.2  One 
hundred  and  twenty-fifth  Article  of  War. 

1For  statutes  and  regulations  regulating  the  payment  of  travel  allowances  on  dis- 
charge to  officers  and  enlisted  men  see  the  chapter  entitled  THE  PAY  DEPARTMEN  r. 

2  The  death  of  an  officer,  with  place,  cause,  day,  and  hour,  will  be  reported  with- 
out delay  by  his  immediate  commander  direct  to  the  Adjutant-General  of  the  Army. 
A  duplicate  of  this  report  will  be  forwarded  to  department  headquarters.  When  the 
death  occurs  away  from  the  officer's  station,  in  hospital  or  on  leave,  the  medical 
officer,  if  one  be  present,  or  any  officer  having  cognizance  of  the  fact,  will  make  the 
report.  Par.  93,  A.  R.,  1901. 

Inventories  of  the  effects  of  deceased  officers,  as  required  by  the  One  hundred  and 
twenty-fifth  Article  of  War,  will  be  transmitted  to  the  Adjutant-General  of  the 
Army.  If  legal  representatives  take  possession  of  the  effects,  the  fact  will  be  stated 
in  the  inventory.  Par.  94,  ibid. 

If  there  be  no  legal  representatives  present  to  receive  the  effects,  a  list  of  them 
will  be  sent  to  £he  nearest  relative  of  the  deceased.  At  the  end  of  two  months,  if 
not  called  for,  they  will  be  sold  at  auction  and  accounted  for  as  in  the  case  of  deceased 
soldiers,  except  that  swords,  watches,  trinkets,  and  similar  articles  will  be  labeled 
with  the  name,  rank,  regiment,  and  date  of  death  of  the  owner,  and  sent  through  the 
Adjutant-General  to  the  Auditor  for  the  War  Department  for  the  benefit  of  the  heirs. 
Par.  96,  ibid. 

Where  an  officer  dies  who  is  responsible  for  public  property  or  funds,  their  dispo- 
tion  is  provided  for  by  the  following  provisions  of  Army  Regulations:  "On  the 
death  of  an  officer  in  charge  of  public  property  or  funds,  his  commanding  officer 
will  appoint  a  board  of  survey,  which  will  inventory  the  same,  and  make  the  cus- 
tomary returns  therefor,  stating  accurately  amounts  and  condition.  These  the  com- 
manding officer  will  forwrard  to  the  chiefs  ot  the  bureaus  to  which  the  property  or 
funds  pertain,  and  he  will  designate  an  officer  to  take  charge  of  such  property  or 
funds  until  orders  in  the  case  are  received  from  the  proper  authority."  Par.  97,  ibid. 

FTXKRAL    EXPENSES. 

The  annual  acts  of  appropriation  since  that  of  June  12,  1858  (11  Stat.  L.,  333),  have 
contained  a  provision  for  the  expenses  of  interment  "of  officers  killed  in  action  or 
who  die  when  on  duty  in  the  field  or  at  military  posts,  or  when  on  the  frontiers,  or 
when  traveling  under  orders."  Act  of  February  12,  1895,  128  Stat.  L.,  659.  For 


MILITARY    LAWS    OF    THE    UNITED    STATES.  501 


1340.  Officers  charged  with  the  care  of  the  effects  of 
deceased  officers  or  soldiers  shall  account  for  and  deliver00™^  same. 
the  same,  or  the  proceeds  thereof,  to  the  legal  represent- 


the  act  of  March  3,  1899  (30  Stat.  L.,  1225),  authorizing  certain  expenditures  in  con- 
nection with  the  transportation  and  burial  of  the  remains  of  officers  who  die  in  the 
field  or  at  military  camps,  or  who  are  killed  in  action,  or  who  die  in  the  field  at 
places  outside  the  limits  of  the  United  States,  see  paragraph  1417  post.  See,  also,  the 
acts  of  May  26,  1900  (31  Stat.  L.,  212),  and  March  3,  1901  (ibid.,  1172). 

The  disposition  of  the  remains  of  deceased  officers  and  the  payment  of  funeral 
expenses  are  provided  for  in  the  following  regulation:  "The  remains  of  officers  killed 
in  action,  or  who  die  when  on  duty  in  the  field  or  at  military  posts,  or  when  travel- 
ing under  orders,  will  be  decently  inclosed  in  coffins,  and  unless  claimed  by  relatives 
or  friends,  will  be  transported  by  the  Quartermaster's  Department  to  the  nearest 
military  post  or  national  cemetery  for  burial.  The  expense  of  transporting  the  remains 
is  payable  from  the  appropriation  for  Army  transportation;  other  expenses  of 
burial  are  limited  to  $75.  If  buried  at  the  place  of  death,  the  fact  will  be  reported  to 
the  Adjutant-General  of  the  Army."  Par.  85.,  A.  R.,  1895.  (Par.  99,  A.  R,  1901.) 

The  expenses  of  burial  of  deceased  officers  other  than  transportation  of  the 
remains,  which  under  the  law  is  payable  from  the  appropriation  for  "Army  trans- 
portation," limited  to  $75  by  paragraph  85  of  the  Regulations,  and  of  enlisted  men, 
limited  to  $35  by  paragraph"  162  of  the  Regulations,  as  amended  by  General  Orders, 
No.  141,  September  12,  1898,  from  this  office,  will  be  limited  to  the  cost  of  the  coffin 
and  the  reasonable  and  necessary  expense  of  preparation  of  the  remains  for  burial, 
and  will  not  include  such  items  as:  For  guarding  remains,  expense  of  services  of 
clergyman  or  minister,  music  by  band  or  choir,  flowers,  cost  or  hire  of  pall  to  be  used 
with  horse,  tombstone,  crape  or  gloves  for  pallbearers,  and  expense  of  grave  site 
where  the  remains  are  sent  home  at  the  request  of  relatives.  Decision  Sec.  War, 
Aprils,  1900,  Circular  No.  9,  A.  G.  0.,  1900. 

There  is  no  authority  of  law  for  the  payment  of  mileage  on  account  of  the  trans- 
portation of  the  remains  of  a  deceased  officer  of  the  Army.  Such  payment  would  be 
illegal  and  could  not  properly  be  allowed  by  the  accounting  officers.  Under  section 
2,  act  of  July  21,  1894  (19  Stat.  L.,  100),  mileage  ceased  to  accrue  at  the  point  where, 
and  the  time  when,  by  reason  of  death,  an  officer  ceases  to  be  an  officer  of  the  Army. 
There  is  nothing  in  section  1  of  the  act  of  September  19,  1890  (26  Stat.  L.,  456)  ,  which 
is  in  conflict  with  this  view.  3  Compt.  Dec.,  209. 

Held,  that  the  regulation  allowance  for  the  expenses  of  the  interment  of  an  officer, 
as  fixed  by  paragraph  99,  Army  Regulations,  1901,  was  not  payable  in  the  case  of  an 
officer  who,  at  the  time  of  his  death,  was  on  sick  leave,  this  being  not  one  of  the 
cases  specified  in  the  Army  appropriation  acts  in  which  such  allowance  is  authorized 
to  be  paid.  Dig.  Opin.  J.  A.  G.,  par.  1954.  Similarly  held  in  the  case  of  an  officer 
who  died  at  the  Hot  Springs,  Ark.,  when  not  on  duty  but  on  leave  of  absence.  Ibid. 
Held,  further,  that,  under  the  provisions  on  the  subject  of  the  Army  appropriation 
act  of  February  27,  1893,  such  expenses  could  not  be  allowed  for  the  interment  of  an 
officer  dying  at  a  military  post  unless  he  was  on  duty  there  at  the  time  of  his  death, 
and  therefore  could  not"  be  legally  allowed  in  the  case  of  an  officer  who  deceased 
at  a  post  where  he  was  staying  while  on  sick  leave  of  absence  from  his  station  in 
another  military  department.  Ibid.,  par.  1955. 

So  held,  under  the  act  of  March  3,  1899  (30  Stat.  L.,  1225),  as  to  an  officer  who  died 
on  furlough.  VI,  Compt.  Dec.,  444. 

Held,  that  the  fact  that  an  officer  had  been  interred  at  the  post  where  he  died  did 
not  preclude  the  Secretary  of  War  from  having  authorized  his  permanent  interment 
elsewhere,  provided  the  entire  expenses  of  burial  did  not  exceed  the  maximum 
amount  of  $75  allowed  for  such  purposes  by  paragraph  99,  Army  Regulations  of  1901. 
Dig.  Opin.  J.  A.  G.,  par.  1955. 

Paymasters,  in  making  prepayments  of  salary  to  officers  of  the  Army,  are  liable  for 
any  portion  unearned  by  the  officer  on  account  of  death,  or  otherwise;  also  for  any 
final  indebtedness  of  said  officer  to  the  Government,  to  the  extent  of  said  prepay- 
ment. 3  Compt.  Dec.,  10. 

Balances  due  from  the  United  States  to  deceased  persons  are  payable  at  the  Treas- 
ury, and  not  by  disbursing  officers.  Second  Compt.,  sec.  676;  Scott  Dig.,  260. 

A  balance  due  to  a  deceased  military  officer  upon  his  pay  account  becomes  on  his 
death  part  of  his  personal  estate,  and  may  be  set  off  by  the  accounting  officers  upon 
an  indebtedness  due  from  him  to  the  Government.  Mumford  v.  U.  S.,  31  Ct.  Cls., 
210.  Money  granted  to  a  widow  by  statute  cannot  be  set  off  against  an  indebtedness 
due  from  her  husband  to  the  Government.  Ibid. 


502  MILITARY    LAWS    OF    THE    UNITED    STATES. 

atives  of  such  deceased  officers  or  soldiers.  And  no  officer 
so  charged  shall  be  permitted  to  quit  the  regiment  or  post 
until  he  has  deposited  in  the  hands  of  the  commanding 
officer  all  the  effects  of  such  deceased  officers  or  soldiers 
not  so  accounted  for  and  delivered.  On<  hundred  and 
twenty-seventh  Article  of  War. 
Reimbursement  1341.  In  all  cases  where  they  would  have  been  lawful 

of  expense  of  bur-  J 

ialMa  26  1900  v  c^mfl  against  the  Government  reimbursement  may  be 
si,  P.  212.  '  made  of  expenses  heretofore  or  hereafter  incurred  by 
individuals  of  burial  and  transportation  of  remains  of 
officers,  including  acting  assistant  surgeons,  not  to  exceed 
what  is  now  allowed  in  the  cases  of  officers.1  Act  of  May 
26,  1900  (31  Stat.  L., 


act  of  March  2,  1901  (31  Stat.  L.,905),  contains  a  provision  authorizing 
expenses  of  interment  of  "  officers  killed  in  action  or  who  die  when  on  duty  in  the 
field,  or  at  military  posts  or  on  the  frontiers,  or  when  traveling  under  orders,  and  of 
noncommissioned  officers  and  soldiers." 


CHAJPTER 


BREVETS— MEDALS  OF  HONOR— CERTIFICATES  OF 
MERIT— FOREIGN  DECORATIONS. 


Par. 

1342.  Brevet  rank. 

1343.  The  same,  when  authorized. 
1344, 1345.  The  same,  date. 

1346.  Brevet  rank,  honorary. 

1347.  Assignment  to  duty. 

1348.  The  same,  when  made. 

1349.  Uniform. 

1350.  To  be  addressed  by  actual  rank. 

1351.  Uniform  of  highest  volunteer  rank. 


Par. 

1352, 1353.  The  same,  regular  rank. 

1354.  Foreign  decorations. 

1355.  The  same,  restriction  as  to  use. 
1356, 1357.  Medals  of  honor. 

1358.  Certificates  of  merit. 

1359.  The  same,  pay. 

1360-1363.  Corps  badges,  insignia  of  so- 
cieties. 


Brevets  author- 
ized  for  gal- 


BEEVETS. 

1342.  The  President,  by  and  with  the  advice  and  consent  J*ssrionSet  com' 
of  the  Senate,  may  in  time  of  war  confer  commissions  by 

brevet  upon  commissioned  officers  of  the  Army  for  distin-  fyfc^f?* 
guished  conduct  and  public  service  in  presence  of  thejjj^jk. 
enemy.1 

1343.  The  President  of  the  United  States     *     *     *     is 
hereby  authorized  and  empowered,  at  his  discretion,  tocampaigns 
nominate  and,  by  and  with  the  advice  and  consent  of  the  26Fpbi37' 1890>v' 
Senate,  to  appoint  to  brevet  rank  all  officers  of  the  United 

States  Army  now  on  the  active  or  retired  list  who  by 
their  department  commander,  and  with  the  concurrence  of 
the  Commanding  General  of  the  Army,  have  been  or  may 
be  recommended  for  gallant  service  in  action  against  hos- 
tile Indians  since  January  first,  eighteen  hundred  and 
sixty-seven.  Sec.  1,  act  of  February  £7, 1890  (26  Stat.  L. , 
p.  13). 

1344.  Brevet  commissions  shall  bear  date  from  the  par-    Date  of  brevet 

...  .  .  ,  .    .       .  commission. 

ticular  action  or  service  for  which  the  officers  were  bre-    Mar.  i,  ISGQ,  c. 

52,  s.  2,v.  15,p.281. 
Vetted.  Sec.  1210,R.S. 

1345.  Such  brevet  commissions  as  may  be  issued  under 

the  provisions  of  this  act  shall  bear  date  only  from  the  *°£ate  o£  heroic 
passage  of  this  act:  Provided,  however.  That  the  date  of  seUcce2-  ibid 

1  Brevet  rank  can  properly  neither  be  conferred  nor  take  effect  except  as  an  inci- 
dent to  full  rank  of  a  lower  grade.     Dig.  Opin.  J.  A.  G.,  par.  608. 

503 


504  MILITARY    LAWS    OF    THE    UNITED    STATES. 

the  particular  heroic  act  for  which  the  officer  is  promoted 
shall  appear  in  his  commission.     Sec.  2,  ibid. 

beBsScetiyrhSno?     1346'  Brevet  rank  sha11  *Q  considered  strictly  honorary, 

ailec  3  ibtd      an(*  S^a^  C0n^er  no  privilege  of  precedence  or  command 

not  already  provided  for  in  the  statutes  which  embody  the 

rules   and  articles  governing  the  Army  of   the   United 

States.     Sec.  3,  ibid. 

sig^ment°f  **'  1347>  Officers  maY  be  assigned  to  duty  or  command 
64AsPi'v631p1427:  according  to  their  brevet  rank  by  special  assignment  of  the 
^'iTpiis24'  President  5  and  brevet  rank  shall  not  entitle  an  officer  to 

sec.i2ii,B.s.  precedence  or  command  except  when  so  assigned.1 
dul^Ifc^when     13*8.  Officers  of  the  Army  shall  only  be  assigned  to  duty 
mMar.  3,  1883,  v.  or  command  according  to  their  brevet  rank  when  actually 
22,  p.  457.         'engaged  in  hostilities.2     Act  of  March  3,  1883  (22  Stat. 

Z.,  457). 

tuafrank1?^^      1349'  No  officer  shall  be  entitled,  on  account  of  having 
juiy  is,  1870,  c.  keen  brevetted,  to  wear,  while  on  duty,  any  uniform  other 
' 


, 
294,  8.16,  .  i6,'P  tnan  that  of  his  actual  rank. 

Sec.  1212,  B.S. 

dreidbinordedrs  135°-  No  officer  sha11  be  addressed  in  orders  or  official 
bytitie  of  actual  communications  by  any  title  other  than  that  of  his  actual 
rank. 

UNIFORM   OF   HIGHEST   VOLUNTEER   RANK. 

135L  A11  officers  who  have  served  during  the  rebellion  as 
teerh^k.olun"  volunteers  in  the  Army  of  the  United  States,  and  have  been 
299Usy348V18M'p'  honorably  mustered  out  of  the  volunteer  service,  shall  be 
^sec.  1226,  B.S.  entitled  to  bear  the  official  title,  and,  upon  occasions  of 
ceremony,  to  wear  the  uniform  of  the  highest  grade  they 
have  held,  by  brevet  or  other  commissions,  in  the  volunteer 

1  In  view  of  the  repeal  by  the  act  of  March  1,  1869  (15  Stat.  L.,  318),  of  the  old 
sixty-first  article  of  war  (which  did  away  also  with  the  portion  of  paragraph  10  of 
the  Army  Regulations  of  1863  which  was  derived  therefrom),  an  officer,  except 
where  specially  assigned  to  duty  according  to  his  brevet  rank  by  the  President,  is 
no  longer  entitled  to  precedence  on  courts-martial  or  otherwise  by  reason  of  his  brevet 
rank.     Dig.  Opin.  J.  A.  G.,  par.  609.     See  also  XVII,  Opin.  Att.  Gen.,  39. 

Under  section  1211,  Revised  Statutes,  an  officer  may  legally  be  assigned  to  duty 
according  to  his  brevet  rank  for  a  special  command  or  duty,  and  in  such  case  the 
assignment  will  not  be  effective  generally,  but  only  for  the  purposes  of  such  command 
or  duty  and  during  its  continuance.  Thus  held,  that  an  officer  assigned  to  duty 
according  to  his  brevet  rank  "while  in  command  of"  a  certain  department,  could 
legally  exercise  the  authority  and  privileges  of  such  rank  only  when  holding  such 
command,  and  for  the  purposes  of  the  same.  Ibid.,  par.  611. 

2  When  an  officer  has  been  duly  assigned  to  duty  or  command  according  to  a  cer- 
tain brevet  rank,  that  rank  becomes  his  actual  military  rank  for  the  period  of  the 
assignment.     He  is  empowered  to  exercise  the  authority  which  belongs  to  such  rank 
under  the  circumstances,  to  wear  the  uniform,  and  to  be  addressed  by  the  title  of 
such  rank,  etc.     Held,  however,  that  a  colonel,  assigned  to  command  according  to  a 
brevet  rank  of  general,  was  not  entitled  to  the  aids-de-camp  of  a  general  (major  or 
brigadier),  but,  as  indicated  in   paragraph  40,  Army  Regulations,  1901,  could  be 
"allowed"  the  same  only  "with  the  special  sanction  of  the  War  Department"  —  in 
other  words,  by  the  authority  of  the  Secretary  of  War.     Ibid.,  par.  612. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  505 

service.  The  highest  volunteer  rank  which  has  been  held 
by  officers  of  the  Regular  Army  shall  be  entered,  with  their 
names,  respectively,  upon  the  Army  Register.  But  these 
privileges  shall  not  entitle  any  officer  to  command,  pay,  or 
emoluments. 

1352.  All  officers  who  have  served  during  the  rebellion  as 
officers  of  the  Regular  Army  of  the  United  States,  and  have  £jf£est 
been  honorably  discharged  or  resigned  from  the  service,  ^p^n  1897'  v' 
shall  be  entitled  to  wear  the  official  title,  and,  upon  occa- 
sions of  ceremony,  to  wear  the  uniform  of  the  highest 

grade  they  have  held,  by  brevet  or  other  commission,  as 
is  now  authorized  for  officers  of  volunteers  by  ^section 
twelve  hundred  and  twenty-six,  Revised  Statutes.  Act  of 
February  h  1897  (29  StaL  L.,  511}. 

1353.  All  officers  who  have  served  during  the  war  with    Thesame.  war 

with  Spain. 

Spain,  or  since,  as  officers  of  the  Regular  or  Volunteer  g/^2'  ^  s- 
Army  of  the  United  States,  and  have  been  honorably  dis- 
charged from  the  service,  by  resignation  or  otherwise,  shall 
be  entitled  to  bear  the  official  title,  and,  upon  occasions  of 
ceremony,  to  wear  the  uniform  of  the  highest  grade  they 
have  held  by  brevet  or  other  commission  in  the  regular  or 
volunteer  service.  Sec.  34,  act  of  February  #,  1901  (31 
Stat.  L.,p.  757.) 

FOREIGN   DECORATIONS. 

1354.  That  no  decoration,  or  other  thing  the  acceptance    Foreign  deco- 

rations not  to  be 
of  which  is  authorized  by  this  act,  and  no  decoration  here-  worn. 

.  .  J,  Jan.  31,1881,s. 

totore  accepted,  or  which  may  hereafter  be  accepted,  by  2,  v.  21, p.  so. 
consent  of  Congress,  by  any  officer  of  the  United  States, 
from  any  foreign  government,  shall  be  publicly  shown  or 
exposed  upon  the  person  of  the  officer  so  receiving  the 
same.     Sec.  2,  act  of  January  31,  1881  (21  Stat.  L.,  80). 

1355.  That  hereafter  any  present,  decoration,  or  other    Decorations, 
thing  which  shall  be  conferred  or  presented  by  any  foreign  dered. 
government  to  any  officer  of  the  United  States,  civil,  naval, 

or  military,  shall  be  tendered  through  the  Department  of 
State,  and  not  to  the  individual  in  person,  but  such  present, 
decoration,  or  other  thing  shall  not  be  delivered  by  the 
Department  of  State  unless  so  authorized  by  act  of  Con- 
gress. Sec.  3,  ibid. 

MEDALS   OF   HONOR. 

1356.  That  the  President  cause  to  be  struck,  f rom  the    Me d a 1 s  of 
dies  recently  prepared  at  the  United  States  Mint  for  that    Mar!  3,  ises,  s. 
purpose,  "medals  of  honor"  additional  to  those  authorized      ' 

by  the  act  (resolution)  of  July  12, 1862,  and  present  the  same 


506 


MILITARY    LAWS    OF    THE    UNITED    STATES. 


bon- 


to  such  officers,  noncommissioned  officers,  and  privates  as 
have  most  distinguished,  or  may  hereafter  most  distin- 
guish themselves  in  action.1  Sec.  6,  act  of  March  3,  1863. 
1357.  The  Secretary  of  War  •  '  *  *  is  hereby  authorized 
to  issue  to  any  person  to  whom  a  medal  of  honor  has  been 
awarded,  or  may  hereafter  be  awarded,  under  the  provi- 
sions of  the  joint  resolution  approved  July  twelfth,  eighteen 
hundred  and  sixty  -two,  and  the  act  approved  March  third, 
b-e^^een  hundred  and  sixty-three,  a  rosette  or  knot  to  be 
worn  in  lieu  of  the  medal,  and  a  ribbon  to  be  worn  with 
the  medal;  said  rosette,  or  knot,  and  ribbon  to  be  each  of 
a  pattern  to  be  prescribed  and  established  by  the  President 
of  the  United  States;  and  any  appropriation  that  may  here- 
after be  available  for  the  contingent  expenses  of  the  War 
Department  is  hereby  made  available  for  the  purposes  of 
New  ribbon,  this  act  :  Provided,  That  whenever  a  ribbon  issued  under 
the  provisions  of  this  act  shall  have  been  lost,  destroyed, 
or  rendered  unfit  for  use,  without  fault  or  neglect  on  the 
part  of  the  person  to  whom  it  is  issued,  the  Secretary  of 
War  shall  cause  a  new  ribbon  to  be  issued  to  such  person 
without  charge  therefor.  Joint  Resolution  No.  51,  May 
2,  1896(29  Stat.  L.,  473). 


CERTIFICATES   OF   MERIT. 


Certificate 


of 


1353.  When  any  enlisted  man  of  the  Army  shall  have 
distinguished  himself  in  the  service  the  President  may,  at 
the  recommendation  of  the  commanding  officer  of  the 


1This  provision  was  not  embraced  in  the  Revised  Statutes.  Medals  of  honor  will 
be  awarded  by  the  President  to  officers  and  men  who  most  distinguish  themselves 
in  action.  (Par.  177,  A.  R.,  1895;  see  also  G.  0.  42,  A.  G.  0.,  1897,  and  G.  0.  135, 
A.  G.  O.,  1899.) 

The  original  enactments  of  1862  and  1863,  providing  for  the  award  of  medals  of 
honor,  and  appropriating  moneys  for  the  expenses  of  the  same,  evidently  contem- 
plated a  personal  presentation  to  the  selected  recipient.  Such  is  also  inferably  the 
design  of  the  present  Army  Regulations,  wherein  (Art.  XXV)  the  medal  of  honor 
is  assimilated  to  the  certificate  of  merit,  each  being  manifestly  intended  to  honor 
and  distinguish  the  recipient  in  person.  Held  therefore  that  (except  by  special 
authority  of  Congress)  a  medal  of  honor  could  not  legally  be  awarded  to  the  widow, 
or  a  member  of  the  family,  of  a  deceased  officer,  on  account  of  -distinguished  serv- 
ice in  action  performed  by  the  latter  during  his  lifetime.  (Dig.  Opin.  J.  A.  G., 
par.  1655.) 

Par.  175,  A.  R.,  1901,  like  the  provision  upon  which  it  is  based,  of  the  act  of  March 
3,  1863,  is  deemed  to  contemplate,  in  a  case  of  an  award  to  an  officer,  that  the  person 
shall  be  a  commissioned  officer  of  the  Army  at  the  time  of  the  award.  A  contract  or 
acting  assistant  surgeon  is  not,  and  was  not  at  any  time,  such  a  commissioned  officer. 
Held  therefore  that  a  medal  of  honor  could  not  legally  be  awarded  to  a  person  for 
alleged  distinguished  service  rendered  while  serving  in  'the  field  as  an  acting  assist- 
ant surgeon  in  1864,  who  moreover  had  had  no  connection  with  the  Army  since 
1865.  (Ibid.,  par.  1656;  see  also  XX  Opin.  Att.  Gen.,  421.) 


MILITARY    LAWS    OF    THE    UNITED    STATES.  507 

regiment  or  the  chief  of  the  corps  to  which  such  enlisted  61Mgari73'v1849^'p. 
man  belongs,  grant  him  a  certificate  of  merit.  l     Act  of  Jffif  ^  *•  $£ 
March  29,  1892  (27  Stat.  L.,  12}.    v  ^  p  737;  Mar  ^  1892>  v  27>  p>  ^^SSiei  !& 
1359.  A  certificate  of  merit  granted  to  an  enlisted  man    |Sf2§6f  B.S. 
for  distinguished  service  shall  entitle  him,  from  the  date 
of  such  service,  to  additional  pay  at  the  rate  of  two  dol- 
lars per  month  while  he  is  in  the  military  service,  although 
such  service  may  not  be  continuous.1     Sec.  2,  act  of  Feb-  Vf!bp973791'8'2> 
ruaiy  9,  1891  (26  Stat.  Z.,  737). 

CORPS   BADGES   AND   INSIGNIA    OF   SOCIETIES. 


1360.  All  persons  who  have  served  as  officers, 
missioned  officers,  privates,  or  other  enlisted  men  in  the  p^bic  R5e's  INO 
Regular  Army,  volunteer  or  militia  forces  of  the  United  73^evc-  ^  P?-  2^ 
States,  during  the  war  of  the  rebellion,  and  have  been  hon- 
orably discharged  from  the  service  or  still  remain  in  the 
same,  shall  be  entitled  to  wear,  on  occasions  of  ceremony, 
the  distinctive  Army  badge  ordered  for  or  adopted  by  the 
Army  corps   and   division,   respectively,   in  which   they 
served. 


1361.  That  the  distinctive  badges  adopted  by  military    Mimwy  soci- 

.      .  ,    .  .  •  <•  ety  kadg68  may 

societies  01  men  who  served  in  tne  armies  and  navies  oi*>e  worn  by  Army 

and  Navy. 

the  United  States  in  the  war  of  the  Revolution,  the  war    J.  R.  NO.  50, 

SGD!   25    1890    v 

of  eighteen  hundred  and  twelve,  the  Mexican  war,  and  26,  p.  68i. 
the  war  of  the  rebellion,  respectively,  may  be  worn  upon 

1  Held,  under  section  1216,  Revised  Statutes,  as  amended  by  the  act  o*  February  9, 
1891,  as  follows:  1.  A  certificate  of  merit  may  now  be  granted  to  "any  enlisted  man 
of  the  Army,"  noncommissioned  officer  as  well  as  private,  (a)  2.  It  may  be  granted 
for  distinguished  conduct  prior  to  the  date  of  the  act  of  February  9,  1891,  as  well  as 
since.  (6)  3.  The  grantee  must  belong  to  a  regiment.  4.  While  the  recommendation 
of  the  regimental  commander  is  necessary,  this  recommendation  may  be  based  upon 
any  fact  or  facts  deemed  by  him  to  justify  it,  such  as  the  recommendation  of  the 
company  commander  or  any  other  officer  (whether  of  the  regiment  or  not)  cog- 
nizant of  the  circumstances  of  the  case,  or  upon  any  other  authentic  information 
brought  to  his  (the  regimental  commander's)  knowledge.  5.  That  the  declaration 
of  paragraph  197,  Army  Regulations,  1901,  that  the  recommendation  "must  originate 
with  an  eye  witness,"  is  an  interpolation  not  autnorized  nor  called  for  by  the  original 
N 


Statutes,  that  the  President  was  authorized  to  grant  a  certificate  of  merit  only  to  a 
soldier  belonging  at  the  time  of  the  grant  to  a  regiment  of  the  Army;  that  he  was 
not  empowered  to  grant  such  a  certificate  to  a  discharged  soldier  and  civilian  on 
account  of  services  rendered  while  he  was  a  soldier.  (c)  Ibid.,  par.  667. 

a  In-  Bell  v.  U.  S.,  28  Ct.  Cls.,  462,  it  was  held  that  a  soldier  to  whom,  when  a  member  of  an  infantry 
regiment,  had  been  granted  a  certificate  of  merit,  was  entitled  to  continue  to  receive  the  additional 
pay  after  reenlisting  in  the  "general  messenger  service." 

6  See  McNamara  v.  U.  S.,  28  Ct.  Cls.,  416,  where  it  is  held  that  the  act  of  February  9,  1891,  is  retro- 
active, and  entitles  the  beneficiary  to  the  additional  pay  from  the  date  of  the  service  for  which  the 
certificate  was  awarded. 

cSee,  to  a  similar  effect,  the  opinion  of  the  Attorney-General  in  XVI  Opins.,  9;  also  the  subsequent 
G.  0.  28,  Hdqrs.  of  Army,  1878. 


508  MILITARY    LAWS    OF    THE    UNITED    STATES. 

all  occasions  of  ceremony  by  officers  and  enlisted  men  of 
the  Army  and  Navy  of  the  United  States  who  are  mem- 
bers of  said  organizations  in  their  own  right.     Joint  reso- 
lution No.  50,  of  September  25,  1890  (26  Stat.  L.,  681). 
^Badge^of  Reg      1362.  That  the  distinctive  badge  adopted  by  the  Regular 
Navy  union  Army  and  Navy  Union  of  the  United  States  may  be  worn. 

may  be  worn.       . 

j.  R.  NO.  26,  m  their  own  right,  upon  all  public  occasions  ot  ceremony 

28,  p.  583.  by  officers  and  enlisted  men  in  the  Army  and  Navy  of  the 

United   States  who   are   members  of   said  organization. 

Joint  resolution  No.  26,  of  May  11, 1894  (®$  Stat.  L.,  583). 

The  same.  1363.  The  distinctive  badges  adopted  by  military  socie- 

spain.r          h  ties  of  men  who  served  in  the  armies  and  navies  of  the 

4iFvb3i2;  p19758.s'  United  States  during  the  Spanish- American  war  and  the 

incident  insurrection   in   the  Philippines   may   be  worn, 

upon  all  occasions  of  ceremony,  by  officers  and  men  of  the 

Army  and  Navy  of  the  United  States  who  are  members 

of  said  organizations  in  their  own  right.     Sec.  41,  act  of 

February  2,  1901  (31  Stat.  L.,  758). 


CHAPTER    XXIX. 


ENLISTED  MEN. 


Par. 

1364-1375.  Enlistment,  reenlistmerit. 
1376,1377.  Transfers. 
1378.  Furloughs. 
1379-1382.  Retirement. 
1383-1390.  Discharge. 
1391, 1392.  Travel  pay  on  discharge. 
1393.  Absence  without  leave. 
1394, 1395.  Desertion. 
1396-1404.  Statutory  consequences  of  de- 
sertion. 


Par. 

1405, 1406.  Aiding,  enticing,  persuading 
to  desert. 

1407-1410.  Apprehension  of  deserters,  re- 
wards. 

1411.  Statute  of  limitation  in  desertion. 

1412, 1413.  Miscellaneous  provisions. 

1414, 1415.  Deceased  enlisted  men. 

1416-1418.  Expenses  of  burial. 


ENLISTMENT    AND    REENLISTMENT. 


Par .  i     Par. 

136  i,  1365.  General  qualifications,  age.  1371. 

1366.  The  same,  citizenship.  1372. 

1367.  Enlistment  of  minors.  1373. 
1368,1369.  Prohibited  enlistments.  1374. 
1370.  Term  of  enlistment.  1375. 


Premium  for  recruits. 

Fraudulent  enlistment. 

Reenlistment. 

The  same,  pay. 

Period  for  reenlistment  extended. 


1364.  Recruits  enlisting  in  the  Army  must  be  effective    General  quaii- 
and  able-bodied  men,  and  between  the  ages  of  eighteen  and    Mar.  ie,  1802,  c. 

9  s  11  v  2  t>  134' 

thirty-five  years,  at  the  time  of  their  enlistment.1     This  Mar.  3',  isi'5,  c.  79,' 
limitation  as  to  age  shall  not  apply  to  soldiers  reenlisting.  July  5,  isss,  c. 

r  J  5    162,  s.  30,  v.  5,  p. 

260;  Feb.  13,  1862,  c.  25,  s.  2,  v.  12,  p.  339;  June  21, 1862,  Res.  37, 
v.12,  p.  620;  July  17, 1862,  c.  200,  s.  21,  v.  12,  p.  597;  Feb.  27,  1893, 
v.  27,  p.  486;  Mar.  2,  1899,  s.  4,  v.  30,  p.  978.  Sec.  1116,  B.  S. 

1365.  The  limits  of  age  for  original  enlistments  in  the 
Army  shall  be  eighteen  and  thirty-five  years.     Sec.  h 

of  March  #,  1899  (30  Stat.  Z.,  978). 


xThe  requirements  of  section  1116,  Revised  Statutes,  in  respect  to  the  limits  of  age 
for  recruits  upon  their  original  enlistment  into  the  military  service  have  been  modified 
by  the  act  of  February  27,  1893  (27  Stat.  L.,  486),  which  established  the  superior 
limit  at  thirty  years  in  time  of  peace,  and  by  section  4  of  the  act  of  March  2,  18W 
(30  Stat.  L.,  978),  which  fixes  the  limits  of  age  for  original  enlistments  at  from  eighteen 
to  thirty-five  years. 

Enlistment  is  a  contract,  but  it  is  one  of  those  contracts  which  changes  the  status, 
and  where  that  is  changed  no  breach  of  contract  destroys  the  new  status  or  relieves 
from  the  obligations  which  its  existence  imposes.  *  *  *  By  enlistment  the  citizen 
becomes  a  soldier.  His  relations  to  the  State  and  the  public  are  changed.  He 
acquires  a  new  status,  with  correlative  rights  and  duties,  and  although  he  may  violate 
his  contract  obligations,  his  status  as  a  soldier  is  unchanged,  He  can  not  of  hia  own 

509 


510  MILITARY   LAWS    OF   THE    UNITED    8TATE8. 

shipge>     (>itizen"     1366.  In  time  of  peace  no  person  (except  an  Indian)  who 

2  ^"^'p89^!8  n°t  a  citizen  of  the  United  States,  or  who  has  not  made 

vl&36 VOTS' s' 4'  le£al  declaration  of  his  intention  to  become  a  citizen  of  the 

United  States,  or  who  can  not  speak,  read,  and  write  the 

English  language,  or  who  is  over  thirty-five  }Tears  of  age, 

shall  be  enlisted  for  the  first  enlistment  in  the  Army.1 

Sec.  4,  act  of  March  8,  1899  (30  Stat.  Z.,  978}. 

mSoSX*"1  1367.  No  person  under  the  age  of  twenty -one  years  shall 

162? sri,5v!8i772,'p!  be  enlisted  or  mustered  into  the  military  .service  of  the 

Us'ec.  1 1 1 7. H.S.  United  States  without  the  written  consent  of  his  parents 

or  guardians:  Provided,  That  such  minor  has  such  parents 

or  guardians  entitled  to  his  custody  and  control. 

bePeen?fstednot  1368.  No  minor  under  the  age  of  sixteen  years,  no  insane 
Gs^G.'v^^k?;  or  intoxicated  person,  no  deserter  from  the  military  service 
237%.  45,  v8i3,  p.' of  the  United  States,  and  no  person  who  has  been  con- 
c8™ ? is  v  if6?'  victed  of  a  felony  shall  be  enlisted  or  mustered  into  the 
oKfpS:  military  service.2 

Sec.lll8,R.S. 


volition  throw  off  the  garments  he  has  once  put  on,  nor  can  he,  the  State  not  objecting, 
renounce  his  relations  and  destroy  his  status  on  the  plea  that,  if  he  had  disclosed 
truthfully  the  facts,  the  other  party,  the  State,  would  not  have  entered  into  the  new 
relations  with  him  or  permitted  him  to  change  his  status.  U.  S.  r.  Grimley,  137 
U.  S.,  147. 

Our  law  not  defining  enlistment,  nor  designating  what  proceeding  or  proceedings 
shall  or  may  constitute  an  enlistment,  it  may  be  said,  in  general,  that  any  act  or  acts 
which  indicate  an  undertaking,  on  the  part  of  a  person  legally  competent  to  do  so,  to 
render  military  service  to  the  United  States  for  the  term  required  by  existing  law, 
and  an  acceptance  of  such  service  on  the  part  of  the  Government,  may  ordinarily  be 
regarded  as  legal  evidence  of  a  contract  of  enlistment  between  the  parties  and  as 
equivalent  to  a  formal  agreement  where  no  such  agreement  has  been  had.  The  forty- 
seventh  article  of  war  practically  makes  the  receipt  of  pay  by  a  party  as  a  soldier 
evidence  of  an  enlistment  on  his  part,  estopping  him  from  denying  his  military 
capacity  when  sought  to  be  made  amenable  as  a  deserter.  The  continued  rendering 
of  service  which  is  accepted  may  constitute  an  enlistment.  But  enlistments  in  our 
Army  are  now  almost  invariably  evidenced  by  a  formal  writing  and  engagement 
under  oath.  Dig.  Opin.  J.  A.  G.,  384,  par.  1.  See  also  In  re  McDonald,  1  Lowell,  100. 

An  enlistment  is  the  act  of  making  a  contract  to  serve  the  Government  in  a  subor- 
dinate capacity  either  in  the  Army  or  the  Navy.  Erichson  v.  Beach,  40  Conn.,  ?83. 
An  enlistment  is  not  a  contract  only,  but  effects  a  change  of  status.  In  re  Grimley, 
137  U.  S.,  151.  The  statutes  employ  tKe  term  "enlist''  only  with  reference  to  con- 
tracts with  persons  who  enter  the  Army  as  privates,  and  to  certain  other  classes  of 
men,  like  Indian  scouts  and  hospital  stewards,  who  rank  like  soldiers,  and  voluntarily 
put  themselves  under  military  law.  Babbitt  v.  U.  S.,  16  Ct.  Cls.,  214. 

1  Any  male  citizen  of  the  United  States,  or  person  who  has  legally  declared  his 
intention  to  become  acitizen,  if  above  theage  of  twenty-one  and  under  the  age  of  thirty- 
five  years,  able-bodied,  free  from  disease,  of  good  character  and  temperate  habits, 
may  be  enlisted  under  the  restrictions  contained  in  this  article.     In  regard  to  age  or 
citizenship  this  regulation  shall  not  apply  to  soldiers  who  have  served  honestly  and 
faithfully  a  previous  enlistment  in  the  Army.     Par.  921,  A.  R.,  1901.     See  also 
circular  of  June  3,  1898,  from  the  Adjutant-General's  Office  for  qualifications  for 
volunteer  recruits. 

2  Sections  1116,  1117,  and  1118,  Revised  Statutes,  providing  that  deserters,  convicted 
felons,  insane  or  intoxicated  persons,  and  certain  minors  shall  not  be  enlisted  are 
regarded  as  directory  only,  and  not  as  making  necessarily  void  such  enlistments,  but 
as  rendering  them  voidable  merely,  at  the  option  of  the  Government.     In  cases  of 
such  enlistments,  except  of  course  where  the  party,  by  reason  of  mental  derangement 
or  drunkenness  was  without  the  legal  capacity  to  contract,  the  Government  may  elect 
to  hold  the  soldier  to  service,  subject  to  any  application  for  discharge  which  may  be 
addressed  by  himself  or  his  parent,  etc.,  either  to  the  Secretary  of  War  or  to  a  United 


MILITARY    LAWS    OF    THE  *  UNITED   STATES.  511 


1369.  Every  officer  who  knowingly  enlists  or  musters 

into  the  military  service  any  minor  over  the  age  of  sixteen  edg  Art  War 
[eighteen]  years  without  the  written  consent  of  his  parents 
or  guardians,  or  any  minor  under  the  age  of  sixteen  years, 
or  any  insane  or  intoxicated  persons,  or  any  deserter  from 
the  military  or  naval  service  of  the  United  States,  or  any 
person  who  has  been  convicted  of  an}T  infamous  criminal 
offense  shall,  upon  conviction,  be  dismissed  from  the  serv- 
ice, or  suffer  such  other  punishment  as  a  court-martial  may 
direct.  Third  Article  of  War.  Sec.  4,  act  of  March  8, 
1899  (30  Stat.  Z.,  978). 

1370.  That  hereafter  all  enlistments  in  the  Army  shall  m*$**  c 

be  for  the  term  of  three  years,  and  no  soldier  shall  be  fo?urae  enan°snt- 
again  enlisted  in  the  Army  whose  service  during  his  last  m|ec!  2,  Aug.  i, 
preceding  term  of  enlistment  has  not  been  honest  and  1894>  v-  28)  PI  216* 
faithful.1 

1371.  A  premium  of  two  dollars  shall  be  paid  to  any  cit-  reSium    for 
izen,  noncommissioned  officer,  or  soldier  for  each  accepted  R^gun3e7  ^'i^p' 
recruit  he  may  bring  to  a  recruiting  rendezvous.2  62s'ec.  ii2o,R.s. 

1372.  Fraudulent  enlistment,  and  the  receipt  of  any  pay 
or  allowance  thereunder,  is  hereby  declared  a  military 
offense  and  made  punishable  by  court-martial,  under  the 
sixty-second  article  of  war.     Sec.  3,  act  of  July  27,  1892 
(27  Stat.  L.,278}. 

REENLISTMENT. 

1373.  All  enlisted  men  mentioned  in  section  twelve  hun- 
dred  and  eighty  who,  having  been  honorably  discharged, 
have    reenlisted    or    shall  reenlist  within  three    months 

States  court.  Dig.  Opin.  J.  A.  G.,  385,  par.  3.  See,  also,  U.  S.  r.  Grimley,  137  U.  S., 
147,  cited  in  note  to  paragraph  1364,  ante. 

The  enlistment  contract  of  a  minor  is  void  when  the  recruit  is  under  16,  with  or 
without  the  consent  of  the  parent.  In  re  Lawler,  40  F.  R.,  233.  It  is  not  void,  but 
voidable  only,  as  to  minors  between  16  and  21.  U.  S.  v.  Morrissey,  137  U.  S.,  157. 
It  is  not  voidable  at  the  instance  of  the  minor.  Ibid.  It  is  voidable  at  the  instance 
of  the  parent  or  guardian.  Com.  v.  Blake,  8  Phil.,  523;  Turners.  Wright,  5  ibid., 
296;  Menges  v.  Camac.,  1  Serg.  and  R.,  87;  Henderson  r.  Wright,  ibid.,  299;  Seavey 
v.  Seymour,  3  Cliff.,  439;  In  re  Cosenow,  37  F.  R.,  668;  In  re  Hearn,  32  ibid.,  141; 
In  re  Davison,  21  ibid.,  618;  U.  S.  v.  Wagner,  24  ibid.,  135;  In  re  Dohrendprf,  40 
F.  R.,  148;  In  re  Spencer,  ibid.,  149;  In  re  Lawler,  ibid.,  233;  In  re  Wall,  8  ibid.,  85. 

A  minor's  contract  of  enlistment  is  voidable,  not  void,  and  is  not  so  voidable  at  the 
instance  of  the  minor.  If,  after  enlistment,  he  commits  an  offense,  is  actually  arrested, 
and  in  course  of  trial  before  the  contract  is  duly  avoided,  he  may  be  tried  and  punished. 
In  re  Wall.,  8  Fed.  Rep.,  85;  see  also  Barrett  v.  Hopkins,  7  ibid.,  312. 

1  The  contract  of  enlistment  is  an  entirety.     If  service  for  any  portion  of  the  time 
is  criminally  omitted  the  pay  and  allowances  for  faithful  services  are  not  earned. 
Lander  v.  U.  S.,  92  U.  S.,  77. 

As  to  what  constitutes  faithful  service  within  the  meaning  of  this  statute,  see  note 
to  paragraph  1373,  post.  This  section  operates  to  repeal  section  1119,  Revised  Statutes, 
and  section  2  of  the  act  of  June  16,  1890  (26  Stat.  L.,  187)  ,  which  fixed  the  term  of 
enlistment  in  the  Army  at  five  years. 

2  This  statute  is  practically  obsolete.     It  was  last  applied  during  the  rebellion  of 
J  861-1  865  against  the  United  States. 


Additional 


512  MILITARY    LAWS  "OF    THE    UNITED    STATES. 

thereafter,  shall  after  five  years'  service,  including  their 
firs't  enlistment,  be  paid  at  the  rate  allowed  in  said  section 
to  those  serving  in  the  fifth  year  of  their  first  enlistment.1 
1374  Every  soldier  who?  having  been  honorably  dis- 
i894,°v  328Ap?2i6:  charged,  reenlists  within  three  months  thereafter,  shall 
sec.  I-.'SI.K.S.  ^  f  urther  entitled  after  five  }^ears  service,  including  his 
first  enlistment,  to  receive  for  the  period  of  five  years 
next  thereafter  two  dollars  per  month  in  addition  to  the 
ordinary  pay  of  his  grade;  and  for  each  successive  period 
of  five  years  of  service  so  long  as  he  shall  remain  continu- 
ously in  the  Army  a  further  sum  of  one  dollar  per  month. 
The  past  continuous  service  of  soldiers  now  in  the  Army 
shall  be  taken  into  account  and  shall  entitle  such  soldier 
to  additional  pay  according  to  this  rule;  but  services  ren- 
dered prior  to  August  fourth,  eighteen  hundred  and  fifty- 
four,  shall  in  no  case  be  accounted  as  more  than  one 
enlistment.  l 

tended1  SAifree  1375.  That  the  period  within  which  soldiers  may  reenlist 
msech3,  Aug.  i,  with  the  benefits  conferred  by  sections  twelve  hundred  and 
1894,  v.  28,  p.  216.  eighty-two  and  twelve  hundred  and  eighty-four  of  the 
Revised  Statutes,  be,  and  the  same  is  hereby,  extended  to 
three  months;  and  hereafter  every  enlisted  man  in  the 
Army,  *  *  *  shall  be  entitled  to  all  the  benefits  con- 
ferred by  sections  twelve  hundred  and  eighty-one  and 
twelve  hundred  and  eighty-two  of  the  Revised  Statutes. 
Provided,  That  to  entitle  them  to  the  additional  pay 
authorized  by  section  twelve  hundred  and  eighty-one,  for 
men  serving  in  the  third,  fourth,  and  fifth  years,  the  serv- 

lThe  additional  pay  given  to  soldiers  by  this  section  does  not  depend  upon  mere 
length  of  service,  but  upon  two  other  conditions  —  an  honorable  discharge  and  a  vol- 
untary reenlistment.  Webb  r.  U.  S.,  23  Ct.  Cls.,  58.  It  is  intended,  primarily,  to  be 
an  inducement  to  the  prompt  reenlistment  of  an  honorably  discharged  soldier,  and 
it  can  be  earned  in  no  other  way.  Ibid. 

The  act  of  June  16,  1890  (26  Stat.  L.,  157),  contained  the  provision  "that  the  Sec- 
retary of  War  shall  determine  what  misconduct  shall  constitute  a  failure  to  render 
honest  and  faithful  service  within  the  meaning  of  this  act.  But  no  soldier  who  has 
deserted  at  anytime  during  the  term  of  an  enlistment  shall  be  deemed  to  have  served 
such  term  honestly  and  faithfully."  Under  the  authority  conferred  by  this  statute 
the  Secretary  of  War  has  decided  that  in  the  following  cases  there  has  been  a  failure 
to  render  honest  and  faithful  service: 

(1)  Desertion. 

(2)  When  the  soldier  is  in  confinement  under  a  general  court-martial  sentence 
expressly  imposing  imprisonment  until  or  beyond  the  expiration  of  his  term;  when 
discharged  under  sentence  of  general  court-martial;  when  discharged  by  order  from 
the  War  Department  specifying  forfeiture,  or  because  of  imprisonment  by  the  civil 
authority. 

(3)  When  the  soldier  is  discharged  for  minority  concealed  at  enlistment,  or  for  other 
cause  involving  fraud  in  enlistment,  or  for  disability  caused  by  his  misconduct. 

(4)  Upon  the  approved  finding  of  a  board  of  officers,  called  under  paragraph  148, 
that  the  soldier  has  not  served  honestly  and  faithfully  to  the  date  of  discharge. 

The  cause  of  forfeiture  will  be  stated  on  the  muster  and  pay  rolls  and  on  the  final 
statements  of  the  soldier. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  513 

ice  must  have  been  continuous  within  the  meaning  of  this 
section.1  Sec.  3,  act  of  August  1,  1894  (28  Stat.  Z.,  216) 

TRANSFER    OF    ENLISTED   MEN.2 

1376.  Any  person  enlisted  in  the  military  service  of  the 
United  States  may,  on  application  to  the  Navy  Depart- 
ment, approved  by  the  President,  be  transferred  to  the  ™fc s-"  1>'v- 13-  P- 
Navy  or  Marine  Corps,  to  serve  therein  the  residue  of  his    See.U2i,B.s. 
term  of  enlistment,  subject  to  the  laws  and  regulations  for 

the  government  of  the  Navy.  But  such  transfer  shall  not 
release  him  from  any  indebtedness  to  the  Government, 
nor,  without  the  consent  of  the  President,  from  any  pen- 
alty incurred  for  a  breach  of  military  law. 

1377.  Any  enlisted  man  in  the  Army  shall  be  eligible  g^nsfera^to 
for  transfer  to  the  Hospital  Corps  as  a  private.     Sec.  5, 

Act  of  March  1,  1887  (24  Stat.  Z.,  435). 

FURLOUGHS    TO    ENLISTED   MEN. 

1378.  Every  officer  commanding  a  regiment  or  an  inde- 
pendent troop,  battery,  or  company,  not  in  the  field,  may, 
when  actually  quartered  with  such  command,  grant  fur- 
loughs to  the  enlisted  men,  in  such  numbers  and  for  such 
time  as  he  shall  deem  consistent  with  the  good  of  the 
service.     Every  officer   commanding   a   regiment,  or  an 
independent  troop,  battery,  or  company,  in  the  field,  may 

1  This  section  repeals  and  replaces  the  requirement  of  the  act  of  February  27,  1893 
(27  Stat.  L.,  486),  "that  hereafter,  in  time  of  peace  no  recruit  shall  be  enlisted  in 
the  Army  for  the  first  time  who  is  over  30  years  of  age,  and  no  private  shall  be  reen- 
listed  who  has  served  ten  years  or  more,  or  who  is  over  35  years  of  age,  except  such 
as  have  already  served  as  enlisted  men  for  twenty  years  or  upward." 

2  TRANSFER   OF    ENLISTED    MEN. 

Transfers  of  enlisted  men  will  be  made  for  cogent  reasons  only.  They  will  be 
effected  as  follows: 

(1)  From  one  company  to  another  of  the  same  regiment,  not  involving  change  of 
station,  by  the  colonel.     In  cases  involving  change,  then  by  the  colonel  with  the 
consent  of  the  department  commander  if  change  of  station  is  within  department 
limits. 

(2)  From  one  regiment  to  another,  and  between  companies  of  the  same  regiment 
serving  in  different  military  departments,  by  the  Commanding  General  of  the  Army. 

(3)  In  all  other  cases,  by  the  Secretary  of  War.     Par.  125,  A.  K.,  1901. 

DETACHED    SOLDIERS. 

Enlisted  men  detached  from  their  companies  will  be  provided  with  descriptive  lists 
showing  the  pay  due  them,  the  condition  of  their  clothing  allowance,  and  all  infor- 
mation necessary  +o  the  settlement  of  their  accounts  with  the  Government  should 
they  be  discharged.  When  it  can  be  avoided,  the  descriptive  list  will  not  be  intrusted 
to  the  soldier,  but  to  an  officer  or  noncommissioned  officer,  under  whose  charge  he 
may  be  serving,  or  it  may  be  forwarded  by  mail.  The  immediate  commanding  officer 
will  note  upon  the  descriptive  lists  the  date  and  result  of  the  last  vaccination  of  each 
soldier.  Par.  115,  ibid. 

22924—08 33 


514  MILITARY    LAWS    OF    THE    UNITED    STATES. 

grant  furloughs,  not  exceeding  thirty  days  at  one  time,  to 
five  per  centum  of  the  enlisted  men,  for  good  conduct  in 
the  line  of  duty,  but  subject  to  the  approval  of  the  com- 
mander of  the  forces  of  which  said  enlisted  men  form  a 
part.  Every  company  officer  of  a  regiment,  commanding 
any  troop,  battery,  or  company  not  in  the  field,  or  com- 
manding in  any  garrison,  fort,  post,  or  barrack,  may,  in 
the  absence  of  his  field  officer,  grant  furloughs  to  the 
enlisted  men,  for  a  time  not  exceeding  twenty  days  in  six 
months,  and  not  to  more  than  two  persons  to  be  absent  at 
the  same  time.1  Eleventh  Article  of  War. 

1  Furloughs  in  the  prescribed  form  for  periods  of  twenty  days  may  be  granted  to 
enlisted  men  by  commanding  officers  of  posts,  or  by  regimental  commanders  if  the 
companies  to  which  they  belong  are  under  their  control.  A  furlough  will  not  be 
granted  to  a  soldier  about  to  be  discharged.  Par.  116,  A.  R,  1901 

Corps  or  department  commanders  may  grant  furloughs  to  enlisted  men,  sergeants 
of  the  post  noncommissioned  staff  excepted,  for  two  months,  and  the  Commanding 
General  of  the  Army  for  four  months,  or  they  may  extend  to  such  periods  furloughs 
already  granted.  For  a  longer  period  than  four  months  the  authority  of  the  Secre- 
tary of  War  is  necessary.  Permission  to  delay  may  be  granted  to  enlisted  men  trav- 
elingunder  orders  as  authorized  for  furloughs.  The  conditions  under  which  furloughs 
to  soldiers  on  reenlistment  are  authorized  will  be  announced  from  time  to  time  in 
orders.  Par.  117,  ibid;  G.  O.,  23,  A.  G.  O.,  18U9. 

Furloughs  to  sergeants  of  the  post  noncommissioned  staff  or  to  enlisted  men  act- 
ing aseuch  may  be  granted  as  follows:  By  a  po,;t  commander  for  seven  days,  in  case 
of  emergency  only;  by  a  department  commander  for  one  month.  Application  for 
furlough  for  a  longer  period  will  be  forwarded  to  the  Adjutant-General  of  the  Army 
for  the  decision  of  the  Secretary  of  War.  Par.  ]  19,  ibid. 

Furloughs  will  not  be  granted  by  commanding  officers  permitting  soldiers  to  go 
beyond  the  limits  of  the  next  higher  command.  To  enable  them  to  pass  such  limits 
the  sanction  of  higher  authority  must  be  obtained  and  indorsed  on  the  furloughs. 
The  approval  of  the  Secretary  of  War  must  be  obtained  to  allow  an  enlisted  man  on 
furlough  to  leave  the  United  States.  The  limits  prescribed  will  be  stated  in  the  fur- 
lough, and  if  exceeded  it  may  be  revoked  and  the  soldier  arrested.  A  company 
commander  in  forwarding  an  application  for  furlough  will  state  previous  absences  on 
furlough  and  the  authority  therefor.  Par.  120,  ibid. 

On  the  application  of  a  soldier  on  furlough,  made  at  the  nearest  military  station 
and  showing  clearly  the  urgency  of  his  case,  a  department  commander  may  order 
transportation  and  subsistence  to  be  furnished  to  enable  him  to  rejoin  his  proper  sta- 
tion, and  the  company  commander  will  charge  the  cost  thereof  against  the  soldier's 
pay  on  the  next  muster  and  pay  roll,  in  accordance  with  paragraphs  1203  and  1422. 
The  date  of  the  application  will  be  entered  on  the  furlough.  Par.  121,  ibid. 

A  soldier  who  has  returned  from  furlough  to  the  station  from  which  furloughed, 
his  company  having  in  his  -absence  changed  station,  is  entitled  to  transportation  at 
the  expense  of  the  Government  to  the  new  station  of  his  company.  Par.  Ill,  ibid., 
1895. 

Soldiers  on  furlough  will  not  take  with  them  their  arms  or  accouterments,  and  no 
payments  will  be  made  to  them  without  authority  from  the  Secretary  of  War.  Par. 
124,  ibid.  For  orders  in  respect  to  sick  furloughs  to  enlisted  men  of  the  volunteer 
forces  see  G.  O.,  114,  121,  130,  134,  139,  148,  168,  170,  173,  and  175,  A.  G.  O.,  1898; 
Circulars  34,  39,  41,  and  48,  A.  G.  O.,  1898. 

Section  2  of  the  act  of  June  16,  1890  (26  Stat.  L.,  157),  contained  the  requirement 
that  ' '  at  the  end  of  three  years  from  the  date  of  his  enlistment  every  soldier  whose 
antecedent  service  has  been  faithful  shall  be  entitled  to  receive  a  furlough  for  three 
months,  and  that  in  time  of  peace  he  shall  at  the  end  of  such  furlough  be  entitled  to 
receive  his  discharge  upon  his  own  application:  Provided  further,  That  soldiers  dis- 
charged under  the  provisions  of  this  section  shall  not  be  entitled  to  the  allowances 
provided  in  section  twelve  hundred  and  ninety  of  the  Revised  Statutes."  See,  how- 
ever, in  this  connection  section  2  of  the  act  of  August  1,  1894  (paragraph  1370,  ante], 
which  reduced  the  length  of  the  term  of  enlistment  in  time  of  peace  to  three  years. 
Section  2  of  the  act  of  June  16,  1890,  ceased  to  be  operative  as  to  furloughs  on  August 
1,  1897,  and  as  to  discharges  at  expiration  of  furlough  on  November  1,  1897. 


MILITARY    LAWS    OF    THE    UNITED    STATES. 


515 


THE   RETIREMENT   OF   ENLISTED   MEN. 


Par. 

1381.  Foreign  service. 

1382.  Allowance  for  subsistence,  etc. 


Par. 

1379.  Retirement  after  thirty  years'  serv- 

ice. 

1380.  War  service. 

1379.  When  an  enlisted  man  has  served  as  such  thirty 
years  in  the  United  States  Army  or  Marine  Corps,  either 
as  private  or  noncommissioned  officer,  or  both,  he  shall 
by  application  to  the  President  be  placed  on  the  retired 
list  hereby  created,  with  the  rank  held  by  him  at  the  date 
of  retirement,  and  he  shall  receive  thereafter  seventy-five 
per  centum  of  the  pay  and  allowances  of  the  rank  upon 
which  he  was  retired.     Act  of  February  U,  1885  (23  Stat. 
L.,  305}. 

1380.  If   said  enlisted  man  had  war   service  with   the 
Army  in  the  field,  or  in  the  Navy  or  Marine  Corps  in 
active  service,  either  as  volunteer  or  regular,  during  the  26^564?' 
war  of  the  rebellion,  such  war  service  shall  be  computed 

as  double  time  in  computing  the  thirty  years  necessary 
to  entitle  him  to  be  retired.1  Act  of  September  30  ,  1890 
(26  Stat.  L.,  504). 


a°f! 


beer<5m- 
as  double 


of  February  14,  1885  (23  Stat.  L.,  305),  which  created  the  retired  list  for 
enlisted  men,  was  amended  by  the  act  of  September  30,  1890  (26  Stat.  L.,  504),  by 
the  addition  of  the  proviso  permitting  war  service  during  the  war  of  the  rebellion  to 
be  computed  as  double  time  in  computing  the  thirty  years'  service  necessary  to  entitle 
him  to  be  retired. 

An  enlisted  man  on  the  retired  list  is  subject  to  trial  by  court-martial,  and  to  dis- 
honorable discharge  by  sentence,  if  such  be  adjudged.  But  the  existing  law,  in 
entitling  him  to  be  retired  if  he  complies  with  its  conditions,  evidently  contemplates 
that  he  shall  remain  a  pensioner  on  the  bounty  of  the  Government  during  the  remain- 
der of  his  life,  if  not  forfeiting  his  claim  by  serious  misconduct.  So,  held  that  retired 
enlisted  men  could  not  legally  be  discharged  by  Executive  order  under  the  Fourth 
Article  of  War,  which  contemplates  soldiers  on  the  active  list  only.  Dig.  Opin.  J. 
A.  G.,  par.  2218. 

Held,  in  the  absence  of  any  legislation  to  the  contrary,  that  retired  enlisted  men, 
like  retired  officers,  might  legally  be  employed  in  any  Department  of  the  Govern- 
ment as  clerks,  messengers,  watchmen,  etc.,  and  receive  pay  for  such  employment, 
while  at  the  same  time  retaining  their  positions  on  the  retired  list  and  receiving 
retired  pay.  Dig.  Opin.  J.  A.  G.,  par.  2219. 

The  act  of  February  14,  1885  (23  Stat.  L.,  305),  entitles  a  retired  enlisted  man  to 
three-fourths  of  his  service  ration.  He  is  not  entitled  to  commutation  for  things 
which,  in  active  service,  he  enjoys  only  in  common  with  others,  such  as  medicine, 
medical  services,  fuel,  and  quarters.  McKenna  v.  U.  S.,  23  Ct.  Cls,  308. 

The  authorized  pay  and  allowances  of  retired  enlisted  men  will  be  paid  them 
monthly  by  the  Pay  Department.  Their  pay  will  be  three-fourths  of  the  monthly 
pay  allowed  them  by  law  in  the  grade  held  when  retired,  including  reenlisted  and 
continuous-service  pay  then  received.  No  deduction  will  be  made  except  the  monthly 
tax  of  12  J  cents  for  the  support  of  the  Soldiers'  Home.  They  are  not  entitled  to  com- 
mutation for  fuel  or  quarters,  but  will  receive  ,  commutation  for  subsistence  and 
clothing  as  follows: 

For  subsistence.  —  At  the  rate  of  22£  cents  per  day. 

For  clothing.  —  Three-fourths  of  the  average  annual  allowance  prescribed  in  orders 
for  an  entire  enlistment  in  the  grade  from  which  retired,  one-  twelfth  of  such  amount 
to  be  paid  monthly.  The  allowance  of  clothing  to  chief  musicians  is  the  same  as 
that  to  quartermaster-sergeants.  Par.  149,  A.  R.,  1901. 

It  has  been  held  by  the  Secretary  of  War  that  the  term  "war  service,"  as  used  in 
the  act  of  September  30,  1890,  shall  include  service  rendered  as  a  commissioned  offi- 


516  MILITARY    LAWS    OF    THE    UNITED    STATES. 

ic£°relgn  serv~      1381<  Hereafter,  in   computing  length   of   service  for 

3i^a2ii6'1890'v'  retirement,  credit  shall  be  given  the  soldier  for  double 

the  time  of  his  actual  service  in  Porto  Rico,  Cuba,  or  in 

the  Philippine  Islands.     Act  of  May  26,  1900  (31  Stat.  L., 


d      1382.  Hereafter  a  monthly  allowance  of  nine  dollars  and 
e,  18%, v.  fifty  cents  shall  be  granted  in  lieu  of  the  allowance  for 
29>  p>  62'  subsistence  and  clothing.     Act  of  March  16, 1896  (29  Stat. 

Z.,  62). 


DISCHARGE    OF  ENLISTED   MEN. 


Par. 


1383.  Discharges,  by  whom  given. 

1384.  Jurisdiction  after  dishonorable  dis- 

charge. 

1385.  Discharge  for  disability. 


Par. 


1387.  Discharge  for  dependency  of  parent. 
1388,1389.  Duplicate   certificate   of   dis- 
charge. 
1390.  The  same,  return  of  certificate. 


1386.  Discharge  by  purchase. 

en^stCedam?S.  °f  1383.  No  enlisted  man,  duly  sworn,  shall  be  discharged 
*  Art.  war.  f  rOm  the  service  without  a  discharge  in  writing,  signed  by 
a  field  officer  of  the  regiment  to  which  he  belongs,  or  by 
the  commanding  officer,  when  no  field  officer  is  present; 
and  no  discharge  shall  be  given  to  any  enlisted  man  before 
his  term  of  service  has  expired,  except  by  order  of  the 
President,  the  Secretary  of  War,  the  commanding  officer 
of  a  department,  or  by  sentence  of  a  general  court-martial.1 
Fourth  Article  of  War. 

cer,  and  that,  for  the  purposes  of  this  statute,  the  war  began  on  April  15,  1861,  and 
ended  on  April  2, 1866,  as  respects  all  theaters  of  operation,  except  the  State  of  Texas, 
and  as  to  that  State  that  the  war  ended  on  April  20,  1866.  Circular  No.  2,  11  H.  Q. 
A.,  March  10,  1891. 

Upon  the  retirement  of  an  enlisted  man  from  active  service  he  is  entitled  to  trans- 
portation in  kind  to  the  place  of  his  enlistment  or  to  his  home.  Section  1290,  Revised 
Statutes,  does  not  apply  to  enlisted  men  transferred  to  the  retired  list,  in  that  they 
are  not  discharged.  3  Dig.  2nd  Compt.  Dec.,  par.  874;  U.  S.  v.  Tyler,  105  U.  S.,  244. 

1  An  enlisted  man  will  not  be  discharged  before  the  expiration  of  his  term  except: 

1.  By  order  of  the  President  or  Secretary  of  War. 

2.  By  sentence  of  a  general  court-martial. 

3.  On  certificate  of  disability,  by  direction  of  the  commander  of  a  territorial  depart- 
ment or  army  in  the  field;  but  when  the  disability  of  a  soldier  is  caused  by  disease 
contracted  before  enlistment,  or  by  his  own  misconduct  or  bad  habits,  discharge 
will  be  ordered  only  by  the  Secretary  of  War. 

4.  In  compliance  with  an  order  of  one  of  the  United  States  courts,  or  a  justice  or 
a  judge  thereof,  on  a  writ  of  habeas  corpus.     Par.  151,  A.  R.,  1901. 

The  act  of  March  16,  1896  (29  Stat.  L.,  63),  contains  the  requirement  "that  no 
enlisted  man  discharged  by  order  of  the  Secretary  of  War  for  disability  caused  by 
his  own  misconduct  shall  be  entitled  to  the  travel  allowances  provided  for  in  section 
1290  of  the  Revised  Statutes." 

When  an  enlisted  man  is  discharged,  his  company  commander  will  furnish  him 
with  final  statements  in  duplicate  or  a  full  statement  in  writing  of  the  reasons  why 
such  final  statements  are  not  furnished.  Final  statements  will  not  be  furnished  a 
soldier  who  has  forfeited  all  pay  and  allowances  and  has  no  deposits  due  him.  When 
the  discharge  is  made  on  certificate  of  disability,  the  ascertained  disability  as  recited 
in  the  certificate  must  be  given  in  the  final  statements  as  the  reason  or  cause  for 
discharge.  Par.  152,  A.  R,  1901. 

When  an  enlisted  man  is  discharged  by  expiration  of  service,  his  discharge  will 
take  effect  on  the  last  day  thereof;  i.  e.,  if  enlisted  on  the  second  day  of  the  month 


MILITARY    LAWS    OF    THE    UNITED    STATES.  517 


1384.  Soldiers  sentenced  by  court-martial  to  dishonora- 
ble discharge  and  confinement 1  shall ,  until  discharged  from    j  UUB  xo  ioyo 
such  confinement,  remain  subject  to  the  Articles  of  War  5>  v-  *°,  p.  484  s. 
and  other  laws  relating  to  the  administration  of  military 

justice.     Sec  5,  act  of  June  18,  1898  (30  Stat.  Z.,  484). 

1385.  No  enlisted  man  discharged  by  order  of  the  Sec- 
retary of  War  for  disability  caused  by  his  own  misconduct 

hall  be  entitled  to  the  travel  allowances  provided  for  in  ™>  P-  63- 
section  1290  of  the  Revised  Statutes.     Act  of  March  16, 
1896(29  Stat.  Z.,  63). 

his  term  will  expire  on  the  first  day  of  the  same  month  in  the  last  year  of  his  term 
of  enlistment.     Par.  154,  ibid. 

For  provisions  of  regulations  respecting  the  discharge  of  enlisted  men  see  para- 
graphs 151-170,  Regulations  of  1901. 


DISHONORABLE    DISCHARGE. 


A  dishonorable  discharge  from  the  service  is  a  complete  expulsion  from  the  Army 
and  covers  all  unexpired  enlistments.  Par.  168,  A.  R.,  1901. 

A  dishonorable  discharge  is  a  discharge  expressly  imposed  as  a  punishment  by 
sentence.  Such  a  discharge  is  held  also  to  be  involved  in  a  sentence  "  to  be  drummed 
out  of  the  service."  It  is" only  by  a  sentence  that  a  dishonorable  discharge  can  be 
authorized.  Being  a  punishment,  it  cannot  be  prescribed  by  an  Order.  In  a  case  of 
this  discharge,  the  word  ''dishonorably"  is  inserted  before  the  word  "discharged" 
in  the  certificate,  and  it  is  added  that  the  discharge  is  given  pursuant  to  the  sentence 
of  a  certain  general  court-martial,  specifying  it  by  reference  to  the  order  by  which 
it  was  constituted.  Dig.  Opin.  J.  A.  G.,  361,  par.  25. 

Held  that  an  executed  dishonorable  discharge  was  an  absolute  expulsion  from  the 
Army,  and  as  such  did  not  merely  terminate  the  particular  enlistment,  but  covered 
all  previous  unexecuted  enlistments  of  the  soldier,  if  any.  A  soldier  sentenced  to  a 
dishonorable  discharge,  duly  approved  and  executed,  can  not  be  made  amenable  for 
a  desertion  committed  under  a  prior  enlistment.  Ibid.,  par.  26. 

The  discharge  of  a  soldier,  discharged  not  by  reason  of  the  expiration  of  his  term 
of  enlistment,  but  under  a  sentence  of  court-martial,  should  be  dated  as  of  the  day 
on  which  the  approval  of  the  sentence  is  officially  published,  or  the  order  promul- 
gating such  approval  is  received,  at  the  post  where  the  soldier  is  held.  It  is  to  that 
date  that  he  is  to  be  paid,  if  pay  is  due  him.  Ibid.,  359,  par.  16. 

The  formal  certificate  of  discharge,  furnished  in  blank  by  the  Adjutant-General  (see 
par.  151,  A.  R. ),  is,  when  duly  made  out  and  signed,  legal  evidence  of  the  fact  of 
discharge,  and  of  the  circumstances  therein  stated,  under  which  it  was  given.  The 
certificate  is  not  a  record,  and  its  statements  are  not  conclusive  upon  the  Government 
when  contradicted  by  record  or  other  better  evidence.  Dig.  Opin.  J.  A.  G.,  358, 
par.  13. 

The  discharge  furnished  to  the  soldier,  or  for  him,  takes  effect,  like  a  deed,  upon 
delivery.  The  delivery  should  be  personal,  unless,  at  its  date,  the  soldier  is  in  con- 
finement awaiting  trial  or  under  sentence;  in  such  case  the  delivery  may  be  con- 
structive, the  certificate  being  committed  to  the  commander  of  the  company,  post, 
etc.,  to  be  retained  by  him  for  the  soldier  until  released  from  arrest  or  imprisonment, 
and  then  rendered  to  him  personally.  This  is  the  recognized  practice;  the  delivery 
to  the  commander  being  deemed  tantamount  to  actual  delivery.  Ibid.,  par.  14. 

A  soldier  should  not  be  furnished  with  his  formal  discharge  on  the  day  of  the 
expiration  of  his  term  if  he  is  then  awaiting  sentence  of  court-martial.  No  soldier  in 
such  a  status  can  be  entitled  to  his  discharge  till  the  result  of  his  trial  be  published. 
Ibid.,  359,  par.  15. 

Any  form  of  discharge  other  than  such  as  is  prescribed  in  the  fourth  Article  of 
War  is  irregular  and  inoperative  (unless  indeed  otherwise  authorized  by  subsequent 
statute).  Mere  desertion  does  not  operate  as  a  discharge  of  a  soldier;  he  may  then 
be  dropped  from  the  rolls  of  his  command,  but  he  is  in  no  sense  discharged  from  the 
Army.  Nor  can  an  official  publication,  in  orders,  of  a  sentence  of  dishonorable  dis- 
charge have  the  effect  of  discharging  a  soldier;  there  must  still  be  a  notice,  actual,  as 
by  the  delivery  of  the  formal  discharge  certificate,  or  constructive,  of  the  formal  dis- 
charge. A  soldier  can  not  discharge  himself  by  simply  leaving  the  service  at  the 


518  MILITARY    LAWS    OF   THE    UNITED    STATES. 

DISCHARGE   BY   PURCHASE. 

Pu??haserge  by  1386>  That  in  time  of  peace  the  President  may,  in  his 
i890°v426Up ei57(  discretion  and  under  such  rules  and  upon  such  conditions 
as  he  shall  prescribe,  permit  any  enlisted  man  to  purchase 
his  discharge  from  the  Army.  The  purchase  money  to 
be  paid  under  this  section  shall  be  paid  to  a  paymaster  of 
the  Army  and  be  deposited  to  the  credit  of  one  or  more  of 
the  current  appropriations  for  the  support  of  the  Army, 
to  be  indicated  by  the  Secretary  of  War,  and  be  available 
for  the  payment  of  expenses  incurred  during  the  fiscal 
year  in  which  the  discharge  is  made.1  Sec.  h  act  of  June 
16,  1890(26  Stat.  Z.,  157}. 

expiration  of  his  term.  The  final  statements  required  by  paragraph  141,  A.  K.,  to 
be  furnished  with  the  discharge,  constitute  no  part  of  the  discharge;  the  discharge 
is  complete  without  them.  Ibid.,  par.  17. 

Discharge  certificates  will  not  be  made  in  duplicate.  Upon  satisfactory  proof  of 
the  loss  of  a  discharge  or  of  its  destruction  without  the  fault  of  the  party  entitled  to  it, 
the  War  Department  may  issue  to  such  party  a  certificate  of  service,  showing  date  of 
enlistment  in  and  discharge  from  the  Army  and  character  given  on  discharge  certifi- 
cate. Discharge  certificates  must  not  be  forwarded  to  the  War  Department  in  cor- 
respondence unless  called  for.  Par.  155,  A.  R.,  1901. 

Blank  forms  for  discharge  and  final  statements  will  be  furnished  by  the  Adjutant- 
General  of  the  Army,  and  will  be  retained  in  the  personal  custody  of  company  com- 
manders; those  for  discharge  will  be  of  three  classes:  For  honorable  and  for  dishon- 
orable discharge  and  for  discharge  without  honor.  They  will  be  used  as  follows: 

(1)  The  parchment  discharge  blank,  for  honorable  discharge  only,  and  the  word 
"honorably"  will  be  interlined  in  the  old  blanks  when  used. 

(2)  The  blank  for  dishonorable  discharge,  for  such  discharge  alone. 

(3}  The  blank  for  discharge  without  honor  when  a  soldier  is  discharged: 
la)  Without  trial,  on  account  of  fraudulent  enlistment. 

(6)  Without  trial,  on  account  of  having  become  disqualified  for  service,  physically 
or  in  character,  through  his  own  fault. 

( c)  On  account  of  imprisonment  under  sentence  of  a  civil  court. 

(d)  On  account  of  being  at  the  expiration  of  his  term  of  enlistment  in  confinement 
under  the  sentence  of  a  general  court-martial  which  does  not  provide  for  dishonor- 
able discharge. 

(e)  When  discharge  without  honor  is  specially  ordered  by  the  Secretary  of  War 
for  any  other  reason.     Par.  167,  ibid. 

An  enlisted  man  remains  in  service  until  receipt  of  his  discharge,  or  until  such 
action  is  taken  as  will  render  him  legally  chargeable  with  notice  thereof,  notwith- 
standing the  expiration  of  his  term  of  enlistment  during  his  absence  on  a  furlough 
granted  at  his  own  request.  2  Compt.  Dec. ,  94. 

1  Under  section  4  of  the  act  of  June  16,  1890,  the  President  may,  in  his  discretion, 
permit  a  soldier  to  purchase  his  discharge,  even  if  his  service  has  not  been  faithful. 
This  section  does  not,  as  do  section  1  (relating  to  pay)  and  section  2  (relating  to  dis- 
charge and  furlough),  prescribe  as  a  condition  to  receive  its  benefits  that  the  ante- 
cedent service  shall  have  been  "faithful."  Dig.  Opin.  J.  A.  G.,  p.  362,  par.  32. 

The  act  of  June  16,  1890,  section  4,  leaves  it  to  the  President,  "  in  his  discretion," 
to  determine  the  amount  to  be  paid  for  the  discharge,  the  time  of  payment,  etc.,  and, 
indeed,  whether  the  purchase  shall  be  permitted  at  all.  But  it  specifically  declares 
that  the  money  when  paid  "shall  be  paid  to  a  paymaster  of  the  Army;"  and,  in 
view  of  this  express  provision,  held  that  payments  could  not  legally  be  made  to  post, 
regimental,  company,  or  other  commanders.  The  paymaster,  a  bonded  official,  is 
appointed  to  receive  payment  in  the  first  instance  and  thereupon  make  the  deposit 
directed  in  the  act.  Ibid. ,  par.  33. 

Held  that  there  was  no  legal  authority  for  the  refunding,  by  the  military  authori- 
ties, of  money  paid  to  purchase  a  discharge  under  the  act  of  June  16,  1890.  This 
clearly  appears  from  the  terms  of  the  act,  which  provides  that  the  money,  when 


MILITARY    LAWS    OF   THE    UNITED    STATES.  519 


DISCHARGE    FOR    DEPENDENCY    OF   PARENT. 

1387.  In  the  event  of  the  enlistment  of  a  soldier  in  the    *!?P?ndency  o£ 

parcni. 

Army  for  the  period  required  by  law,  and  after  the  ex- ^?sit'mlt  8' 

piration  of  one  year  of  service  should  either  of  his  parents 

die,  leaving  the  other  solely  dependent  upon  the  soldier 

for  support,  such  sol  Her  may,  upon  his  own  application, 

be  honorably  discharged  from  the  service  of  the  United 

States  upon  due  proof  being  made  of  such  condition  to 

the  Secretary  of  War.     Sec.  30,  act  of  February  <2,  1901 

(31  Stat.  L.~756).  . 

paid,  "  shall  be  deposited  in  the  Treasury"  to  the  credit  of  some  current  appropria- 
tion, to  be  designated  by  the  Secretary  of  War,  to  be  "  available  for  the  payment  of 
expenses  incurred  during  the  fiscal  year  in  which  the  discharge  is  made."  The  act 
moreover  authorizes  the  President  to  permit  such  purchases  "under  such  rules  and 
upon  such  conditions  as  he  shall  prescribe, ' '  and  nothing  is  found  in  the  rules  actu- 
ally proscribed  (in  General  Orders  81,  108  of  1890,  48  of  1891,  32  of  1892,  or  17  of 
1893)  which  contemplates  or  refers  to  the  refunding  of  such  purchase  money.  Ibid., 
par.  1174. 

In  time  of  peace  a  soldier  serving  in  the  second  year  or  first  six  months  of  the 
third  year  of  his  first  enlistment  may  apply  to  the  Adjutant-General  of  the  Army 
through  military  Channels  for  the  privilege  of  purchasing  his  discharge,  but  such 
application  will  not  be  entertained  unless  based  on  satisfactory  reasons  fully  set 
forth  by  uho  applicant  and  verified  by  the  officer  forwarding  the  application,  nor 
unless  accompanied  by  a  statement  of  the  soldier's  immediate  commanding  officer 
showing  the  condition  of  his  accounts.  If  such  application  be  granted  the  purchase 
price  will  be  entered  on  the  iinal  statements  as  an  item  due  the  United  States.  A 
soldier  once  discharged  by  purchase  will  not  be  granted  that  favor  a  second  time. 
A  soldier  serving  in  the  second  or  any  enlistment,  but  not  receiving  continuous  serv- 
ice or  rcenlisted  pay,  is  not  debarred  from  discharge  by  purchase.  The  price  of 
purchase  in  the  first  month  of  the  second  year  will  be  f  120,  and  will  be  $5  less  in 
each  succeeding  month  of  the  period  during  which  purchase  may  be  authorized. 
Par.  156,  A.  K.,  1001. 

Enlisted  men  who  have  served  meritoriously  twelve  years  or  more,  continuously  or 
otherwise,  will  be  classified  as  veteran  soldiers.  If  it  be  for  their  material  benefit, 
discharge  may  be  granted  them  by  the  Secretary  of  War  by  way  of  favor  as  veterans. 
A  soldier  once  discharged  as  a  veteran  will  not  be  discharged  again  bv  wav  of  favor. 
Par.  157,  ibid. 

Soldiers  discharged  as  provided  in  paragraph  156  will  not  receive  travel  allow, 
ances.  Par.  158,  ibid. 

A  soldier  who  has  obtained  his  discharge  by  purchase  under  the  provisions  of 
section  4,  act  of  Juno  ]  •>,  1890,  is  not  entitled  to  recover  the  money  paid  for  said  dis- 
charge in  pursuance  of  law.  2  Compt.  Dec.,  546.  The  accounting  officers  have  no 
authority  to  review  the  action  of  the  War  Department  refusing  to  discharge,  the 
soldier  for  disability  and  requiring  him  to  purchase  his  discharge  as  a  condition 
precedent  to  his  release  from  service.  2  Compt.  Dec. ,  546.  See  also  pars.  936  and 
1547,  A.  R,  1901;  circ.  13,  A.  G.  O.,  1895;  circ.  7,  A.  G.  0.,  1896,  and  circs.  38  and  40. 
A.  G.  O.,  1898. 

DISCHARGE   FOR   DISABILITY. 

When  an  enlisted  man  is  permanently  unfitted  for  military  service  because  of 
wounds  or  disease,  he  should,  if  practicable,  be  discharged  on  certificate  of  disability 
before  the  expiration  of  the  term  of  service  in  which  the  disability  was  incurred. 
Blank  forms  will  be  furnished  by  the  Adjutant-General  of  the  Army,  and  the  direc- 
tions thereon  will  be  strictly  complied  with.  Par.  171,  A.  R,  1901. 

When  physical  disability  does  not  appear  to  be  permanent,  was  incurred  in  line 
of  duty,  and  benefit  may  be  expected  from  a  change  of  climate,  a  report  of  the  case 
will  be  forwarded  for  the  action  of  the  Commanding  General  of  the  Army.  The 
soldier  will  not  be  transferred  to  another  company.  In  cases  likely  to  be  benefited 
by  treatment  in  the  Army  and  Navy  General  Hospital  at  Hot  Springs,  Ark.,  the 
application  required  by  the  regulations  for  admission  thereto  will  be  made.  A 


520  MILITARY    LAWS    OF    THE    UNITED    STATES. 

DUPLICATE    CERTIFICATES    OF    DISCHARGE. 

cateSdiscSuSe"  1388f  Whenever  satisfactory  proof  is  furnished  to  the 
248IT'i3V18i7>  p'  War  Department  that  any  noncommissioned  officer  or  pri- 
"See.  224,  B.  s.  vate  sol^61*  wno  served  in  the  Army  of  the  United  States 
in  the  late  war  against  the  rebellion  has  lost  his  certificate 
of  discharge,  or  the  same  has  been  destroyed  without  his 
privity  or  procurement,  the  Secretary  of  War  shall  be 
authorized  to  furnish,  on  request,  to  such  noncommis- 
sioned officer  or  private  a  duplicate  of  such  certificate  of 
discharge,  to  be  indelibly  marked,  so  that  it  may  be  known 
as  a  duplicate;  but  such  certificate  shall  not  be  accepted 
as  a  voucher  for  the  payment  of  any  claim  against  the 
United  States  for  pay,  bounty,  or  other  allowance,  or  as 
evidence  in  any  other  case.1 

tiSSfS^fte  Tn  1389-  That  the  Secretary  of  War  and  the  Secretary  of 
trAprai4ei89o  v  ^e  ^avv  ^e>  an(^  they  are  hereby,  authorized  and  required 
26,  p.  55.  to-  issue  certificates  of  discharge  or  orders  of  acceptance  of 

resignation,  upon  application  and  proof  of  .identity,  in  the 
true  name  of  such  persons  as  enlisted  or  served  under 
assumed  names,  while  minors  or  otherwise,  in  the  Army 
and  Navy  during  the  war  of  the  rebellion  and  were  hon- 
orably discharged  therefrom .  Applications  for  said  certifi- 
cates of  discharge  or  amended  orders  of  resignation  may 
be  made  by  or  on  behalf  of  persons  entitled  to  them;  but 
no  such  certificate  or  order  shall  be  issued  where  a  name 
was  assumed  to  cover  a  crime  or  to  avoid  its  consequence.1 
Act  of  April  14,  1890  (26  Stat.  L.,  55). 

record  of  cases  transferred  under  the  foregoing  provisions,  with  a  report  of  results, 
will  be  forwarded  to  the  Surgeon-General  at  the  end  of  each  calendar  year.  Par. 

172,  ibid. 

When  an  application  for  discharge  is  approved,  the  post  or  regimental  commander 
will  furnish  to  the  surgeon  by  whom  the  certificate  was  given,  or  to  the  senior  sur- 
geon of  the  command  to  which  the  soldier  was  attached  at  the  time  of  his  discharge,  a 
letter  setting  forth  the  full  name  and  rank  ot  the  soldier,  the  company  and  regiment 
to  which  he  belonged,  the  date  of  discharge,  and  the  cause  thereof  as  stated  in  the 
certificate.  The  surgeon,  having  made  a  true  copy  of  the  letter  for  the  completion 
of  his  own  records,  will  forward  the  original  to  the  Surgeon-General  direct.  Par. 

173,  ibid. 

When  there  is  a  probable  case  for  pension,  special  care  will  be  taken  to  state  in 
the  certificate  the  degree  of  disability,  to  describe  particularly  the  disability,  wound, 
or  disease,  the  extent  to  which  it  deprives  the  soldier  of  the  use  of  any  limb  or 
faculty,  or  affects  his  health,  strength,  activity,  constitution,  or  capacity  to  labor. 
Par.  174,  ibid. 

1  Discharge  certificates  will  not  be  made  in  duplicate.  Upon  satisfactory  proof  of 
the  loss  of  a  discharge,  or  of  its  destruction  without  the  fault  of  the  party  entitled  to 
it,  the  War  Department  may  issue  to  such  party  a  certificate  of  service,  showing 
date  of  enlistment  in  and  discharge  from  the  Army  and  character  given  on  discharge 
certificate.  Discharge  certificates  must  not  be  forwarded  to  the  War  Department 
in  correspondence  unless  called  for.  Par.  155,  A.  R.,  1901. 

The  dicharge  certificates  authorized  to  be  issued  under  the  provisions  of  these 
statutes  is  not  to  be  confounded  with  the  certificate  denominated  a  "deserter's 
release,"  the  issue  of  which  is  authorized  in  certain  cases  by  G.  O.  55,  A.  G.  O.,  1890 
(26  Stat.  L.,  54).  See  note  to  paragraph  1411,  post. 


MILITARY    LAWS    OF    THE    UNITED    STATES. 


521 


1390.  In  all  cases  where  it  has  become  necessary  for 
officer  or  enlisted  man  of  the  Army  to  file  his  evidence 
honorable    discharge  from  the   military   service   of  the^ 
United  States  to  secure  the  settlement  of  his  accounts,  theP-|J;f 

XT 

accounting  officer  with  whom  it  has  been  filed  shall,  upon 
application  by  said  officer  or  enlisted  man,  deliver  to  him 
such  evidence  of  honorable  discharge;  but  his  accounts 
shall  first  be  duly  settled,  and  the  fact,  date,  and  amount 
of  such  settlement  shall  be  clearly  written  across  the  face 
of  such  evidence  of  honorable  discharge,  and  attested  by 
the  signature  of  the  accounting  officer  before  it  is  delivered. 


n 

it. 


TRAVEL    PAY    ON    DISCHARGE. 


1391.  Hereafter  an  enlisted  man  when  dis-  diS?gepay  on 
charged  from  the  service,  except  by  way  of  punishment  31Mpar^  1901>  v' 
for  an  offense,  shall  receive  four  cents  per  mile  from  the 

place  of  his  discharge  to  the  place  of  his  enlistment,  enroll- 
ment, or  original  muster  into  the  service. l  Act  of  March 
£,  1901  (31  Stat.  Z.,  908). 

1392.  For  sea  travel  on  discharge     *     *     *     transpor- 
tation and  subsistence  only  shall  be  furnished  to  enlisted 
men.1     Act  of  March  2,  1901  (31  Stat.  Z., 


ABSENCE    WITHOUT    LEAVE. 


1393.  Any  soldier  who  absents  himself  from  his  troop, 
battery,  company,  or  detachment  without  leave  from  his 
commanding  officer  shall  be  punished  as  a  court-martial 
may  direct.  Thirty-second  Article  of  War. 


32Art-War. 


DESERTION. 


Par. 

1394.  Offense;  penalty. 

1395.  Enlistment  without  discharge. 

1396.  Statutory    penalties,  making  good 

time  lost. 

1397.  The  same,  forfeiture  of  citizenship. 

1398.  The  same  restriction. 


Par. 

1399.  Evasion  of  draft. 

1400.  Forfeiture  of  bounty  land. 
1401, 1402.  Enlistment  of  deserter. 

1403.  Forfeiture  of  deposits. 

1404.  Forfeiture  of  pension. 


1394.  Any  officer  or  soldier  who,  having  received  pay,  or  ^Desertion; pen- 
having  been  duly  enlisted  in  the  service  of  the  United    47  Art-  War- 
States,  deserts  the  same,  shall,  in  time  of  war,  suffer  death, 
or  such  other  punishment  as  a  court-martial  may  direct; 

1  For  statutes  and  regulations  governing  the  payment  of  travel  allowances  to  officers 
and  enlisted  men,  see  the  chapter  entitled  THE  PAY  DEPARTMENT. 


522  MILITARY    LAWS    OF    THE    UNITED    STATES. 

and  in  time  of  peace,  any  punishment,  excepting-  death, 
which  a  court-martial  may  direct.1  Forty-seventh  Article 
of  War. 

a^otherinreg£  1395.  No  noncommissioned  officer  or  soldier  shall  enlist 
m!otirt!eW»r.  himself  in  any  other  regiment,  troop,  or  company  without 
a  regular  discharge  from  the  regiment,  troop,  or  company 
in  which  he  last  served,  on  a  penalty  of  being  reputed  a 
deserter,  and  suffering  accordingly.  Arid  in  case  any 
officer  shall  knowingly  receive  and  entertain  such  noncom- 
missioned officer  or  soldier,  or  shall  not,  after  his  being 
discovered  to  be  a  deserter,  immediately  confine  him  and 
give  notice  thereof  to  the  corps  in  which  he  last  served, 
the  said  officer  shall,  by  a  court-martial,  be  cashiered. 
Fiftieth  Article  of  War. 

1  See  the  Forty-seventh  Article  of  War. 

Desertion  is  an  unauthorized  absenting  of  himself  from  the  military  service  by  an 
officer  or  soldier  with  the  intention  of  not  returning.  In  other  words,  it  is  the  vio- 
lation of  military  discipline  familiarly  known  as  absence  without  leave  (whether 
consisting  in  an  original  absenting  without  authority  or  in  an  overstaying  of  a 
defined  leave  of  absence),  accompanied  by  an  animus  remanendi  or  non  revertendi, 
this  animus  constituting  the  gist  of  the  offense.  In  order  to  establish  the  commis- 
sion of  the  specific  offense  both  these  elements — the  fact  of  the  unauthorized  vol- 
untary withdrawal  and  the  intent  permanently  to  abandon  the  service — must  be 
proved.  The  intent  may  be  inferred  not  indeed  from  the  fact  of  absenting  alone, 
but  from  the  circumstances  attending  this  fact,  and  here  the  duration  of  the  absence 
is  especially  material.  Thus  the  circumstance  that  the- absence  has  been  exception- 
ally protracted  and  quite  unexplained  will  in  general  furnish  a  presumption  of  the 
existence  of  the  necessary  intent.  An  unauthorized  absence,  however,  of  a  few 
hours,  terminated  by  a  forcible  apprehension,  may,  under  certain  situations,  be  suffi- 
cient evidence  of  such  intent,  and  thus  proof  of  a  desertion;  while  an  absence  for  a 
considerable  interval,  unattended  by  circumstances  indicating  a  purpose  to  separate 
permanently  from  the  service,  or  to  dissolve  the  pending  engagement  of  the  soldier, 
may  be  proof  simply  of  the  minor  included  offense.  In  order  to  determine  whether 
or  not  the  officer  or  soldier  absented  himself  with  the  intent  not  to  return,  i.  e., 
whether  his  offense  was  desertion  or  absence  without  leave,  all  the  circumstances 
connected  with  his  leaving,  absence,  and  return  (whether  compulsory  or  voluntary) 
must  be  considered  together.  Each  case  must  be  governed  by  its  own  peculiar  facts, 
and  no  general  rule  on  the  subject  can  be  laid  down.  Dig.  Opin.  J.  A.  G. ,  par.  1053. 

No  man  will  be  reported  a  deserter  until  after  the  expiration  of  ten  days  (should 
he  remain  away  that  length  of  time),  unless  the  company  commander  has  conclusive 
evidence  of  the  absentee's  intention  not  to  return;  but  the  commanding  officers  will 
take  steps  to  apprehend  soldiers  absent  without  leave  as  soon  as  that  fact  is  reported. 
Should  the  soldier  not  return,  or  not  be  apprehended,  within  the  time  named,  his 
desertion  will  date  from  the  commencement  of  the  unauthorized  absence.  An 
absence  without  leave  of  less  than  one  day  will  not  be  noted  upon  the  muster  and 
pay  rolls.  Par.  144,  A.  K.,  1901. 

When  a  deserter  surrenders  or  is  delivered  at  a  military  post,  the  post  commander 
will  cause  immediate  inquiry  to  be  made  in  regard  to  dates  of  enlistment  and  deser- 
tion, and  if  these  indicate  that  trial  is  barred  by  law,  and  the  deserter  claims  to  have 
been  within  the  limits  of  the  United  States  during  two  years  of  his  absence  in  deser- 
tion and  there  is  no  attainable  evidence  in  disproof  thereof,  will  require  him  to  file 
an  affidavit  asserting  his  claim,  will  immediately  set  him  at  liberty  with  instructions 
to  apply  by  letter  to  the  Adjutant-General  of  the  Army  for  a  "deserter's  release," 
and  will  then  report  his  action  to  the  Adjutant-general  of  the  Army,  transmitting 
with  the  report  the  affidavit  above  mentioned.  Par.  131,  ibid. 

An  enlisted  man  apprehended  or  surrendering  as  a  deserter,  and  whose  trial  for 
desertion  is  not  barred  by  the  statute  of  limitations,  will  be  examined  by  a  medical 
officer  at  the  post  where  he  is  received,  and  a  report  of  this  examination  will  be  for- 
warded to  department  headquarters.  If,  on  account  of  disease,  age,  or  other  perma- 
nent disability,  the  man  is  found  unfit  for  service,  the  report,  with  the  department 


MILITARY    LAWS    OF    THE    UNITED    STATES.  523 

STATUTORY    PENALTIES    AND    FORFEITURES.1 

1396.  Every  soldier  who  deserts  the  service  of  the  United  ti^?o?tg  g°°d 
States  shall  be  liable  to  serve  for  such  period  as  shall,  with    48  Art-  War- 
the  time  he  may  have  served  previous  to  his  desertion, 
amount  to  the  full  term  of  his  enlistment;  and  such  soldier 
shall  be  tried  by  a  court-martial  and  punished,  although 
the  term  of  his  enlistment  may  have  elapsed  previous  to  his 
being  apprehended   and  tried.2     Forty -eighth  Article  of 
War. 

commander's  recommendation  thereon,  will  be  forwarded  to  the  Adjutant-General  of 
the  Army.  If  the  examination  shows  that  the  man  is  fit  for  service  the  department 
commander  will  bring  him  to  trial,  or  restore  him  to  duty  without  trial,  as  the  inter- 
ests of  the  Government  may  dictate.  Par.  132,  ibid. 

Deserters  will  be  brought  to  trial  with  the  least  practicable  delay.  While  await- 
ing trial  they  will  receive  no  pay,  nor  will  they  be  permitted  to  sign  pay  rolls,  and 
will  be  required  to  wear  the  clothes  worn  at  the  time  of  arrest,  unless  it  should  be 
imperative  to  issue  other  clothing,  when,  as  far  as  practicable,  only  deserters'  or 
other  unserviceable  clothing  will  be  issued.  Par.  140.  ibid. 

A  deserter  will  not  be  restored  to  duty  without  trial,  except  by  authority  compe- 
tent to  order  his  trial.  Such  restoration  does  not  remove  the  charge  of  desertion, 
nor  relieve  the  soldier  from  any  of  the  forfeitures  attached  to  that  offense.  He  must 
make  good  the  time  lost  by  desertion,  refund  the  reward  and  expenses  paid  for  appre- 
hension and  delivery,  and  forfeit  pay  while  absent.  Par.  132,  A.  R.,  1895. 

.DISPOSITION   OF   EFFECTS    OF   DESERTERS. 

The  clothing  abandoned  by  a  deserter  will  be  turned  over  to  the  quartermaster 
with  a  certificate  from  the  company  or  detachment  commander  showing  its  condition 
and  the  name  of  the  deserter  to  whom  it  belonged.  All  other  personal  effects  of  a 
deserter  will  be  disposed  of  as  in  the  case  of  unclaimed  effects  of  deceased  soldiers. 
Par.  141,  A.  R.,  1901. 

1  The  forfeiture  of  pay  and  allowances  prescribed  for  deserters  by  paragraphs  126, 
130,  and  132  of  the  Army  Regulations  of  1895  can  be  imposed,  in  any  case,  only  upon  a 
satisfactory  ascertainment  of  the  fact  of  desertion.     The  same  may  indeed  legally  be 
enforced  in  the  absence  of  an  investigation  by  a  military  court,  as,  for  instance,  upon 
the  restoration  to  duty  without  trial,  by  the  order  of  competent  authority,  under 
paragraph  128  of  the  Army  Regulations,  of  a  deserter  as  such.     But  in  general,  in 
this  case  equally  as  in  that  of  the  statutory  liability,  the  forfeiture  can  safely  be 
applied  only  upon  the  trial  and  conviction  by  court-martial  of  the  alleged  deserter. 
The  conviction  must,  of  course,  be  duly  approved;  if  it  be  disapproved,  the  soldier 
can  not  legally  be  subjected  to  the  forfeiture,  since  he  can  not  be  treated  as  a  deserter 
in  law.     Nor  can  he  be  subjected  to  the  forfeiture  if  he  is  acquitted,  though  the  find- 
ing be  disapproved  by  the  reviewing  authority.     A  removal,  in  orders  of  the  War 
Department,  of  a  charge  of  desertion  entered  by  mistake  upon  the  rolls  against  a 
soldier,  operates  to  relieve  him  of  any  and  all  stoppages  which  have  been  charged 
against  his  pay  account  for  forfeitures  authorized  by  the  Army  Regulations  in  cases 
of  deserters.     Dig.  Opin.  J.  A.  Gen.,  342,  par.  9. 

A  deserter  can  not  legally  be  subjected  to  any  forfeiture  other  than  those  prescribed 
by  statute  or  army  regulation.  He  incurs,  for  example,  no  forfeiture  of  his  own 
personal  property.  So,  where  it  was  proposed  to  sell  certain  private  property  belong- 
ing to  and  left  by  a  deserter  and  devote  the  proceeds  to  the  post  fund,  held  that  there 
was  no  legal  authority  for  such  appropriation  by  the  military  authorities.  So  a 
soldier,  by  reason  of  having  deserted,  does  not  forfeit  bounty  money  which  has  been 
paid  him  upon  enlistment  or  subsequently,  or  any  other  money  found  in  his  possession 
upon  his  arrest.  And  such  money  can  not  legally  be  withheld  from  him  to  be  appro- 
priated to  a  regimental  or  post  fund  or  any  other  purpose,  but  being  his  own  personal 
property,  unaffected  by  his  offense,  must  be  treated  as  such.  Ibid.,  par.  1064. 

2  A  deserter  will  make  good  the  time  lost  by  desertion,  unless  discharged  by  com- 
petent authority.     He  will  be  considered  again  in  service  upon  his  return  to  military 
control;  but  if  a  deserter  enlists  while  in  desertion,  his  services  under  such  unlawful 
enlistment  will  not  be  counted  as  making  good  any  of  the  time  lost  by  desertion. 
Par.  142,  A.  R.,  1901.     See  48th  article  of  war. 


524  MILITARY    LAWS    OF   THE    UNITED    STATES. 


1397-  All  persons  who  deserted  the  military  or  naval 
service  of  the  United  States  and  did  not  return  thereto  or 
4908'  a  13>  p'  report  themselves  to  a  provost-marshal  within  sixty  days 
sec.  1996,  K.S.  after  tne  issuance  of  the  proclamation  by  the  President 
dated  the  eleventh  day  of  March,  eighteen  hundred  and 
sixty-five,  are  deemed  to  have  voluntarily  relinquished  and 
forfeited  their  rights  of  citizenship,  as  well  as  their  right 
to  become  citizens;  and  such  deserters  shall  be  forever  in- 
capable of  holding  any  office  of  trust  or  profit  under  the 
United  States,  or  of  exercising  any  rights  of  citizens 
thereof.  * 

di?relndnsaiiSL"      1398.   No  soldier   or   sailor,    however,    who   faithfully 

?o0rfeituJS"rf  the  served  according  to  his  enlistment  until  the  nineteenth  day 

Iajuiyci9?i867,c.  of  April,  eighteen  hundred  and  sixty-five,  and  who,  with- 

^feee.W^B'.s.  out  proper  authority  or  leave  first  obtained,  quit  his  com- 

mand or  refused  to  serve  after  that  date,  shall  be  held  to 

be  a  deserter  from  the  Army  or  Navy;  but  this  section 

shall  be  construed  solely  as  a  removal  of  any  disability  such 

soldier  or  sailor  may  have  incurred,  under  the  preceding 

section,  by  the  loss  of  citizenship  and  of  the  right  to  hold 

office,  in  consequence  of  his  desertion. 

dmfvt°iding  the      1399-  "Every  person  who  hereafter  deserts  the  military 

79??2i?  V1^!?,'  p!  or  naval  service  of  the  United  States,  or  who,  being  duly 

49s'ec.i998,R.s.  enrolled,  departs  the  jurisdiction  of  the  district  in  which 

he  is  enrolled,  or  goes  beyond  the  limits  of  the  United 

States  with  intent  to  avoid  any  draft  into  the  military  or 

naval  service,  lawfully  ordered,  shall  be  liable  to  all  the 

penalties  and  forfeitures  of  section  nineteen  hundred  and 

ninety-six. 

nt°o      140°-  No  person  who  has  been  in  the  military  service  of 
e  United  States  shall,  in  any  case,  receive  a  bounty-land 
:  warrant  if  it  appears  by  the  muster  rolls  of  his  regiment 
207,  s.  i,  v.  10,  p.  or  corps  that  he  deserted  or  was  dishonorably  discharged 
Sec.  2438,  R.s.  from  service. 

0*     1401-  No  minor  under  the  age  of  sixteen  years,  no  insane 
4i  or  mtoxicated  person,  no  deserter  from  the  military  servio 
S;0^  the  United  States,  and  no  person  who  has  been  con 
F877,^.i92427'  victed  of  a  felony  shall  be  enlisted  or  mustered  into  the 
sec.  iii8,B.s.  military  service. 

1  The  forfeiture  of  the  rights  of  citizenship  and  the  incapacity  to  hold  office  under 
the  United  States,  imposed  upon  deserters  by  the  act  of  March  3,  1865  (sees.  1996, 
1998,  R.  S.),  can  be  incurred  only  upon  and  as  incident  to  a  conviction  of  desertion 
by  a  general  court-martial,  duly  approved  by  competent  authority.  These  disabili- 
ties, though  attaching  to  every  such  conviction,  may  be  removed  by  an  Executive 
pardon  of  the  offender.  Dig.  Opin.  J.  A.  G.,  par.  1061. 

Such  is  believed  to  have  been  the  uniform  course  of  ruling  in  the  civil  courts.  See 
State  v.  Symonds,  57  Maine,  148;  Holt  v.  Holt,  59  ibid.,  464;  Severance  v.  Healy,  50 


MILITARY    LAWS    OF   THE    UNITED    STATES.  525 

1402.  No  minor  under  the  age  of  fourteen  years,  no  insane  bePSgdnot  to 
or  intoxicated  person,  and  no  deserter  from  the  naval  or  ^4$,  JSy  12) 
military  service  of  the  United  States  shall  be  enlisted  inj?jj;  af^fefjj 
the  naval  service.  21&!3i42o  B.S. 

1403.  Any  enlisted  man  of  the  Army  may  deposit  his  f  Jgjosits '  ^ 
savings,  in  sums  not  less  than  five  dollars,  with  any  Army  16^syiV8r7' p' 
paymaster,  who  shall  furnish  him  a  deposit  book,  in  which  n£ec>  1306<B<S 
shall  be  entered  the  name  of  the  paymaster  and  of  the 

soldier,  and  the  amount,  date,  and  place  of  such  deposit. 
The  money  so  deposited  shall  be  accounted  for  in  the  same 
manner  as  other  public  funds,  and  shall  pass  to  the  credit 
of  the  appropriation  for  the  pay  of  the  Army,  and  shall 
not  be  subject  to  forfeiture  by  sentence  of  court-martial, 
but  shall  be  forfeited  by  desertion,  and  shall  not  be  per- 
mitted to  be  paid  until  final  payment  on  discharge,  or  to 
the  heirs  or  representatives  of  a  deceased  soldier,  and  that 
such  deposit  be  exempt  from  liability  for  such  soldier's 
debts:  Provided,  That  the  Government  shall  be  liable  for 
the  amount  deposited  to  the  person  so  depositing  the  same. 

1404.  Any  soldier  who  deserts  shall,  besides  incurring    Forfeiture   of 
the  penalties  now  attaching  to  the  crime  of  desertion,  for-  pes!sl6°n26  April, 
feit  all  right  to  pension  which  he  might  otherwise  have 
acquired.     Sec.  6,  act  of  April  26,  1898. 

AIDING,    PERSUADING,    ENTICING   TO   DESERT. 

1405.  Any  officer  or  soldier  who  advises  or  persuades  any  ad^?£hmoerntfe°rr 

other  officer  or  soldier  to  desert  the  service  of  the  United  fading  deser- 
tion. 

States,  shall,  in  time  of  war,  suffer  death,  or  such  other    61  Art-  War> 
punishment  as  a  court-martial  may  direct;  and  in  time  of 
peace,  any  punishment,  excepting  death,  which  a  court- 
martial  may  direct.     Fifty-first  Article  of  War. 

1406.  Every  person  who  entices  or  procures,  or  attempts    Enticing  deser- 

J    J  tiqns    from    the 

or  endeavors  to  entice  or  procure,  any  soldier  in  the  mili-111111^01^™1 
tary  service  of  the  United  States,  or  who  has  been  recruited  75Msa2!/'  18if '  c- 
for  such  service,  to  desert  therefrom,  or  who  aids  any  such  78!L'ru^'  1^i 
soldier  in  deserting  or  attempting  to  desert  from  such  serv-  ]jb-  '^  1877,  v! 
ice,  or  who  harbors,  conceals,  protects,  or  assists  any  such    Sec.6456,  K.S. 
soldier  who  may  have  deserted  from  such  service,  knowing 
him  to  have  deserted  therefrom,  or  who  refuses  to  give 
up  and  deliver  such  soldier  on  the  demand  of  any  officer 
authorized  to  receive  him,  shall  be  punished  by  imprison- 
ment not  less  than  six  months  nor  more  than  two  years, 
and  by  a  fine  not  exceeding  five  hundred  dollars;  and  every 

N.  Hainp.,  448;  Gotcheus  v.  Matthewson,  61  N.  Y.,  420  (and  5  Lansing,  214;  58 
Barb.,  152);  Huber  v.  Reilly,  53  Pa.  St.,  112;  McCafferty  v.  Guyer,  59  ibid.,  110; 
Kurtz  v.  Moffit,  115  U.  S.,  501. 


526  MILITARY    LAWS    OF   THE    UNITED    STATES. 

person  who  entices  or  procures,  or  attempts  or  endeavors  to 
entice  or  procure,  any  seaman  or  other  person  in  the  naval 
service  of  the  United  States,  or  who  has  been  recruited  for 
such  service,  to  desert  therefrom,  or  who  aids  any  such 
seaman  or  other  person  in  deserting  or  in  attempting  to 
desert  from  such  service,  or  who  harbors,  conceals,  pro- 
tects, or  assists  any  such  seaman  or  other  person  who  may 
have  deserted  from  such  service,  knowing  him  to  have 
deserted  therefrom,  or  who  refuses  to  give  up  and  deliver 
such  sailor  or  other  person  on  the  demand  of  any  officer 
authorized  to  receive  him,  shall  be  punished  by  imprison- 
ment not  less  than  six  months  nor  more  than  three  years, 
and  by  a  fine  of  not  more  than  two  thousand  dollars,  to  be 
enforced  in  any  court  of  the  United  States  having  juris- 
diction. x 


APPREHENSION   OF   DESERTERS — REWARDS. 


1407t  United  States  marshals  and  their  deputies,  sher- 
^s  an(^  their  deputies,  constables,  and  police  officers 
of  towns  and  cities  are  hereby  authorized  to  apprehend, 
arrest,  and  receive  the  surrender  of  any  deserter  from  the 
Army  for  the  purpose  of  delivering  him  to  any  person  in 
the  military  service  authorized  to  receive  him.2  Sec.  3, 
act  of  June  16,  1890  (26  Stat.  Z.,  157). 

1408.  It  shall  be  lawful  for  any  civil  officer  having 
!^,  Oct.  i,  authority  'under  the  laws  of  the  United  States  or  of  any 
1890,  v.  26,  p.  648.  g^ate,  Territory,  or  District,  to  arrest  offenders,  to  sum- 
marily arrest  a  deserter  from  the  military  service  of  the 
United  States  and  deliver  him  into  the  custody  of  the  mili- 
tary authority  of  the  General  Government.3  Sec.  2,  act 
of  June  18, 1898  (30  Stat.  Z.,  484). 

reherSon°ra8     1409.  For  the  apprehension,  securing,  and  delivery  (of 

MarT'is^  v  deserters  and  the  expenses  incident  to  their  pursuit,  and 

so,  p.  1070.          no  greater  sum  than  fifty  dollars  for  each  deserter  shall, 

1  Where  a  civil  official,  having  made  an  arrest  of  a  deserter,  concealed  him  from 
the  military  authorities,  and  afterwards  permitted  or  connived  at  his  escape,  recom- 
mended that  the  Attorney-General  be  requested  to  instruct  the  proper  United  States 
district  attorney  to  initiate  proceedings  under  section  5455,  Revised  Statutes.     Dig. 
Opin.  J.  A.  G.,  345,  par.  17. 

2  See,  in  this  connection.  Clay  v.  U.  S.,  Devereux,  25,  in  which  an  officer,  who, 
under  orders  of  a  superior,  had,  without  previously  procuring  proper  authority  to 
enter  and  search  from  a  civil  magistrate,  broken  into  a  dwelling  house  for  the  pur- 
pose of  securing  the  arrest  of  certain  deserters,  was  held  to  have  committed  an  un- 
justifiable trespass,  and  his  claim  to  be  reimbursed  by  the  United  States  for  the 
amount  of  a  judgment  recovered  against  him  on  account  of  his  illegal  act  was  disal- 
lowed by  the  Court  of  Claims.     See  also  Matthews  v.  U.  S.,  32  Ct.  Cls.,  123;  Spinney 
v.  U.  S.,  ibid.,  397. 

3  This  statute  replaces  section  2,  act  of  October  1,  1890  (26  Stat.  L.,  648),  in  pari 
materia. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  527 

in  the  discretion  of  the  Secretary  of  War,  be  paid  to  any 
officer  or  citizen  for  such  services  and  expenses.1  Act  of 
March  3,  1899  (30  8tat.  Z.,  1070). 

1  The  actual  payment  of  the  compensation  in  such  cases  is  authorized  by  the  an- 
nual army  appropriation  acts,  which,  in  appropriating  for  the  incidental  expenses  of 
the  Quartermaster's  Department,  include  as  an  item — "  for  the  apprehension,  securing, 
and  delivering  of  deserters,  and  the  expenses  incident  to  their  pursuit."  Prior  to 
theactof  August  6, 1894  (28  Stat.  L.,  239),  the  maximum  reward  for  the  apprehension 
and  delivery  of  a  deserter  from  the  military  service  was  fixed  at  $30.  The  act  of 
August  6,  1894  (28  Stat.  L.,  239),  fixed  the  maximum  amount  of  such  reward  at  $10, 
and  this  provision  was  repeated  in  the  acts  of  February  12,  1895  (28  Stat.  L.,  659); 
March  16,  1896,  29  ibid.,  65;  March  2,  1897,  ibid.,  614,  and  March  16,  1898,  30  ibid., 
30.  Under  the  authority  conferred  by  the  above  statute  the  following  regulation  was 
promulgated  by  the  Secretary  of  War  in  G.  O.  160,  A.  G.  0.,  1899: 

A  reward  of  $30  wTill  be  paid  to  any  civil  officer  having  authority  for  the  appre- 
hension and  delivery  to  the  proper  military  authorities  at  a  military  station  (or  at 
some  convenient  point  as  near  thereto  as  may  be  agreed  upon)  of  any  deserter  from 
the  military  service,  except  such  as  can  claim  exemption  from  trial  under  the  statute 
of  limitations,  and  such  officer  will  also  be  reimbursed  for  actual  cost  of  tickets  over 
the  shortest  usually  traveled  route  for  himself  to  and  from  such  station  or  point  and 
for  the  deserter  to  such  station  or  point  not  to  exceed  $20.  The  reward  and  actual 
cost  of  tickets  will  be  paid  by  the  Quartermaster's  Department,  and  will  be  in  full 
satisfaction  of  all  expenses  for  arresting,  keeping,  and  delivering  the  deserter.  The 
payment  will  be  reported  to  the  commander  of  the  company  or  detachment  to  which 
the  deserter  belongs.  Par.  135,  A.  R.,  1901. 

Rewards  or  expenses  paid  for  apprehending  a  deserter,  and  the  expenses  incurred 
in  transporting  him  from  point  of  apprehension,  delivery,  or  surrender  to  the  sta- 
tion of  his  company  or  detachment,  or  to  the  place  of  his  trial,  including  the  cost  of 
transportation  of  the  guard,  will  be  set  against  his  pay  upon  conviction  of  desertion 
by  a  court-martial,  or  upon  his  restoration  to  duty  without  trial.  A  soldier  con- 
victed by  a  court-martial  of  absence  without  leave  will  be  charged  with  the  expense 
incurred  in  transporting  him  to  his  proper  station.  The  transportation  and  subsist- 
ence of  witnesses  wrill  not  be  charged  against  a  deserter.  Par.  137,  ibid. 

If  a  soldier  be  brought  to  trial  under  a  charge  of  desertion  and  acquitted,  or  con- 
victed of  absence  without  leave  only,  or  if  the  sentence  be  disapproved  by  proper 
authority,  any  amount  paid  as  a  reward  for  his  arrest  will  not  be  stopped  against  his 
pay  unless,  in  case  of  conviction  of  absence  without  leave,  the  sentence  of  the  court 
shall  so  direct.  Par.  138,  ibid. 

The  reward  of  $30,  made  payable  by  paragraph  156,  Army  Regulations,  1863,  is  not 
due  merely  on  the  apprehension  of  a  deserter;  he  must  also  be  delivered  "to  an  officer 
of  the  Army  at  the  most  convenient  post  or  recruiting  station."  The  fact  of  the  offer 
of  a  reward  for  the  arrest  of  a  deserter  does  not  authorize  a  breach  of  the  peace  or 
commission  of  an  illegal  act  in  making  the  arrest.  Dig.  Opin.  J.  A.  G.,  par.  1071  and 
note. 

The  amount  of  the  reward  and  reimbursement  provided  for  in  G.  O.  160,  A.  G.  O., 
1899,  are  there  stated  to  be  "in  full  satisfaction  of  all  expenses  for  arresting,  keeping, 
and  delivering  the  deserter."  Disbursements  made  by  a  civilian,  where  no  arrest  is 
effected,  are  at  his  Ovvn  rink,  and  can  not  legally  be  reimbursed  by  the  military 
authorities.  Ibid.,  par.  1072. 

The  legal  liability  imposed  upon  the  soldier  by  paragraph  137,  Army  Regulations, 
1901,  to  have  the  amount  of  the  reward  stopped  against  his  pay,  is  quite  independent 
of  the  punishment  which  may  be  imposed  upon  him  by  sentence  of  court-martial  on 
conviction  of  the  desertion.  "  Such  stoppage  need  not  be  directed  in  the  sentence; 
courts-martial  indeed  have  sometimes  assumed  to  impose  it,  like  an  ordinary  forfeiture 
of  pay,  but  its  insertion  in  the  sentence  adds  nothing  to  its  legal  effect.  Ibid.,  par. 
1073. 

Where  a  soldier,  charged  with  desertion,  is  acquitted,  or  where,  if  convicted,  his 
conviction  is  disapproved  by  the  competent  reviewing  authority,  he  can  not  legally 
be  made  liable  for  the  amount  of  a  reward  paid  or  payable  for  his  arrest  as  a  deserter, 
since  in  such  cases  he  is  not  a  deserter  in  law.  Ibid.,  par.  1074. 

Where  a  soldier  for  whose  apprehension  as  a  supposed  deserter  the  legal  reward 
has  been  paid,  is  subsequently  brought  to  trial  upon  a  charge  of  desertion,  and  is 
found  guilty  not  of  desertion  but  only  of  the  lesser  and  distinct  offense  of  absence 
without  leave,  he  clearly  can  not  legally  be  held  liable  for  the  reward  by  a  stoppage 
of  the  amount  against  his  pay.  In  such  a  case,  the  instrumentality  resorted  to  by 


528  MILITARY    LAWS    OF    THE    UNITED    STATES. 


STATUTE   OF  LIMITATIONS   IN   DESERTION. 

1411>  No  person  shall  be  tried  or  punished  by  a  court- 
^Apr.  11, 1890,  v.  martial  for  desertion  in  time  of  peace,  and  not  in  the  face 
26,  p.  54.  of  an  enemy5  committed  more  than  two  years  before  the 

arraignment  of  such  person  for  such  offense,  unless  he  shall 

the  United  States  for  determining  the  nature  of  his  offense — the  court-martial — 
having  pronounced  that  it  was  not  desertion,  the  Government  is  bound  by  the  result, 
and  to  visit  upon  him  a  penalty  to  which  a  deserter  only  can  be  subject,  would  be 
grossly  arbitrary  and  wholly  unauthorized.  Moreover,  such  action  would  be  directly 
at  variance  with  the  terms  of  paragraph  137  of  the  Army  Regulations  of  1901,  which 
fixes  such  liability  upon  the  soldier  tried  in  the  event  only  of  his  conviction  of  deser- 
tion, unless  indeed  the  sentence  of  the  court  expressly  forfeits  the  amount.  Ibid., 
par.  1075. 

PAYMENT   OF   REWARDS. 

To  entitle  a  person  (under  paragraph  137,  Army  Regulations  of  1901)  to  the  reward 
for  the  arrest  of  a  deserter,  the  party  arrested  must  be  still  a  soldier.  Though,  at  the 
time  of  the  arrest,  the  period  of  his  term  of  enlistment  may  have  expired,  or  he  may 
be  under  sentence  of  dishonorable  discharge,  yet  if  he  has  not  been  discharged  in 
fact,  the  official  duly  making  the  arrest,  etc.,  on  account  of  a  desertion  committed 
before  the  end  of  his  term,  becomes  entitled  to  the  payment  of  the  reward  specified 
in  the  regulations.  Similarly  held,  where  the  soldier,  arrested  when  at  large  as  a 
deserter,  had  been  sentenced  to  confinement  ( without  discharge) ,  and  had  escaped 
therefrom.  Ibid.,  par.  1076. 

The  soldier  arrested  must  be  a  deserter  and  legally  liable  as  such.  If  he  has  been 
judicially  determined  to  be  not  a  deserter,  as  where  he  has  been  convicted  of  absence 
without  leave  only  (see  paragraph  126,  Army  Regulations);  or,  if,  in  view  of  the 
limitation  of  the  one  hundred  and  third  article,  he  has  a  legal  defense  to  a  prosecu 
tion  for  desertion  (General  Orders  22  of  1893),  the  reward  is  not  payable  for  his 
apprehension.  Ibid.,  347,  par.  27.  See  also  par.  127,  A.  R.,  1895. 

Where  the  soldier  when  arrested  had  been  absent  but  chree  days,  and  was  still  in 
uniform,  and  had  not  been  reported  or  dropped  as  a  deserter,  and  his  company  com- 
mander had  not  the  " conclusive  evidence "  of  his  "intention  not  to  return,"  referred 
to  in  paragraph  144,  Army  Regulations,  1901,  held  that  there  was  not  sufficient  evi- 
dence that  he  was  a  deserter  to  justify  the  payment  of  the  reward  for  his  arrest  and 
delivery.  Ibid. ,  par.  1078. 

The  arrest  made  must  be  a  legal  one.  Thus  held  that  the  reward  was  not  payable 
for  an  arrest  made  on  the  soil  of  Mexico,  involving  a  violation  of  the  territorial  rights 
of  that  sovereignty.  An  act  done  in  violation  of  law  can  not  be  the  basis  of  a  legal 
claim.  Ibid.,  par.  1080. 

Where  the  deserter  was  not  arrested  by,  but  surrendered  himself  to,  the  civil 
official,  who  in  good  faith  took  him  into  custody  and  securely  held  and  duly  deliv- 
ered him — advised  that  there  had  been  a  substantial  apprehension  and  that  the 
reward  was  properly  payable.  [See  Circular  No.  1  (H.  A.),  1886.]  Ibid.,  par.  1081. 

The  delivery  should  be  personal  and  manual  on  the  part  of  the  civil  official. 
Where  a  soldier  who  had  deserted  was  sentenced  to  a  penitentiary  as  a  horse  thief, 
and  at  the  end  of  his  term  of  imprisonment  a  United  States  marshal  caused  informa- 
tion that  he  was  a  deserter  to  be  conveyed  to  the  commander  o.f  a  neighboring  mili- 
tary post,  who  thereupon  had  him  arrested  and  brought  to  the  post,  held  that  the 
marshal  was  not  entitled  to  claim  the  reward.  Ibid.,  par.  1082. 

So,  where  a  civil  official  merely  informed  a  captain  of  artillery  that  two  soldiers 
serving  in  his  battery  were  deserters  from  the  battalion  of  engineers,  held  that, 
though  such  information  was  correct,  the  official  was  not  entitled  to  the  reward; 
and  that  the  amount  of  the  same,  which  had  been  erroneously  paid  him  on  the  cer- 
tificate of  the  captain,  should  be  charged  against  the  latter  under  paragraph  736, 
Army  Regulations,  1901.  Ibid.,  par.  1083. 

The  reward  should  be  withheld  where  there  is  evidence  of  collusion  between  the 
alleged  deserter  and  the  civil  official.  Advised  that  a  suspicion  of  such  collusion  was 
properly  entertained  in  a  case  where  the  soldier,  after  an  absence  of  but  a  few  days, 
voluntarily  surrendered  himself,  at  or  near  the  post  of  delivery,  to  a  policeman,  wdo 
turned  him  over,  without  expense  or  difficulty,  to  the  military  authorities  who  hid 


MILITARY    LAWS    OF   THE    UNITED    STATES.  529 

meanwhile  have  absented  himself  from  the  United  States, 
in  which  case  the  time  of  his  absence  shall  be  excluded  in 
computing  the  period  of  the  limitation:  Provided,  That 
said  limitation  shall  not  begin  until  the  end  of  the  term  for 
which  said  person  was  mustered  into  the  service.1  Act  of 
April  11,  1890  (26  Stat.  L.,  64). 

not  treat  him  as  a  deserter  but  caused  him  to  be  charged,  tried,  and  convicted  as  an 
absentee  without  leave  only.  Ibid.,  par.  1086. 

An  officer  of  the  customs,  empowered  by  law  to  make  arrests  of  persons  violating 
the  revenue  laws,  but  having  no  such  general  authority  as  is  ordinarily  possessed  by 
peace  officers  "to  arrest  offenders"  (according  to  the  terms  of  the  act  of  October  1, 
1890,  authorizing  certain  civil  officials  to  arrest  deserters)  —held  not  entitled  to  be 
paid  the  regulation  reward  for  the  apprehension,  etc.,  of  a  deserter  from  the  Army. 
Ibid.,  par.  1087. 

Held  that  a  justice  of  the  peace  of  Idaho  was  not,  by  the  laws  of  that  State,  a  peace 
officer  or  authorized  to  arrest  offenders,  and  was  therefore  not  within  the  terms  of 
the  act  of  October  1, 1890,  or  legally  entitled  to  be  paid  the  reward  for  the  arrest,  etc., 
of  a  deserter.  Such  justice  may  by  his  warrant  authorize  and  thus  cause  arrests,  but 
actual  arrest  pertains,  under  the  laws  of  the  State,  to  another  class — sheriffs,  consta- 
bles, city  marshals,  and  policemen.  But  held  that  a  member  of -the  Indian  police, 
established  under  the  regulations  of  the  Indian  Office,  was  a  civil  officer  having 
authority  to  arrest  offenders,  and  was  entitled  to  the  reward  for  the  arrest  of  a 
deserter.  Ibid.,  par.  1088. 

Circular  No.  11  (H.  A. ),  1883  declares  that  the  reward  shall  not  be  paid  where  the 
deserter,  at  the  time  of  arrest,  "is  serving  in  some  other  branch  of  the  Army,"  etc. 
Thus  held  that  the  reward  was  not  payable  for  the  arrest  of  a  deserter  from  the  cav- 
alry, who  subsequently  to  his  desertion,  had  enlisted  in  an  infantry  regiment  in  which 
he  was  serving  at  the  date  of  the  arrest.  Ibid.,  par.  1091. 

Where  a  civil  official  in  good  faith  and  in  compliance  with  -military  instructions, 
made  the  arrest  and  delivery  of  a  deserter,  who,  however,  was  of  the  class  of  deserters 
specified  in  General  Orders '22  of  1893,  viz,  those  who  "would  have  the  right  to  claim 
exemption  from  trial  and  punishment"  under  the  present  one  hundred  and  third 
article  of  war — a  fact  not  within  the  knowledge  of  the  official  and  which  he  could 
not  have  ascertained,  but  who  therefore  had  no  legal  claim  for  the  payment  of  the 
reward — held  that  the  reasonable  expenses  of  such  official  incurred  in  the  arrest,  etc., 
might  well  be  allowed  by  the  Secretary  of  War  out  of  the  appropriation  for  the  con- 
tingent expenses  of  the  Army.  But  the  civil  official  takes  the  risk  of  the  soldier  being 
or  not  being  an  actual  deserter.  If  he  turns  out  to  be  not  one  the  official  loses  his 
time  and  disbursements,  if  any.  Thus  held  that  such  official  could  have  no  claim  to 
be  reimbursed  his  expenses  incurred  in  making,  in  good  faith,  the  arrest  of  a  supposed 
deserter  who  was  in  fact  a  dishonorably  discharged  soldier.  Ibid.,  349,  par.  37. 

A  deserter  is  not  chargeable,  under  paragraph  137,  Army  Kegulations,  1901,  with 
the  expenses  of  transportation  therein  specified,  if  his  conviction  has  been  duly 
disapproved;  such  disapproval  being  tantamount  to  an  acquittal.  Ibid.,  par.  1067. 

The  expense  of  the  transportation  of  a  convicted  deserter,  incurred  in  the  course  of 
the  execution  of  his  sentence  is  not  chargeable  against  the  deserter  under  paragraph 
137,  Army  Regulations  of  1901,  but  must  be  borne  by  the  United  States.  Ibid., 
par.  1068. 

1  The  eo-called  "deserter's  release,"  provided  for  by  General  Orders,  55,  of  1890,  is 
accorded  when,  by  reason  of  the  period  which  has  elapsed  since  the  end  of  his  term 
of  enlistment,  the  deserter  could  successfully  plead  the  statute  of  limitations  to  a 
prosecution  for  his  desertion.  This  period  is  complete  at  the  expiration  of  two 
years  from  the  end  of  its  term.  But  where  a  soldier,  who  would  have  been  eligible 
for  such  release  %on  May  9,  1894,  was,  in  February  preceding,  arrested,  brought  to 
trial,  convicted,  and  sentenced  to  be  dishonorably  discharged,  and  was  so  discharged 
accordingly,  held  that  he  was  not  within  the  privilege  of  the  General  Orders,  and 
that  the  release  could  not  be  accorded  him.  [As  to  the  purpose  and  effect  of  this 
"release,"  see  Circular  No.  5,  H.  Q.  A.,  1894.]  Dig.  Opin.  J.  A.  G.,  par.  1100. 

The  "deserter's  release"  is  intended  for  deserters  in  whose  favor  the  limitation  of 
the  present  one  hundred  and  third  article  of  war  has  fully  run,  and  who  therefore 

22924—08 34 


530 


MILITARY    LAWS    OF   THE    UNITED    STATES. 


MISCELLANEOUS    PROVISIONS. 


Par. 

1412.  Exemption  of  enlisted  men  from 
arrest  for  debt. 


from  Carre8tIfar 


Par. 

1413.  Enlisted  men  not  to  be  u«ed 
servants. 


°  enligte<i  man  shall,  during  his  term  of  service, 
:  1287,  R.  s.  De  arrested  on  mesne  process,  or  taken  or  charged  in  exe- 
cution for  any  debt,  unless  it  was  contracted  before  his 
enlistment,  and  amounted  to  twenty  dollars  when  first 
contracted. 
notntcftbe  used     1413.  No  officer  shall  use  an  enlisted  man  as  a  servant  in 

as  servants.          onv  r»a«ip 

sec.  14,  July  is,  aiv  c     s 

1870,  v.  16,  p.  319.    Bee.  1282,  B.  S. 


DECEASED   SOLDIERS. 


Par. 

1414.  Deceased  soldiers'  effects. 


Par. 

1415.  Officers  charged  with  effects  of  de- 
ceased soldiers  to  account  for 
same. 


1414<  1°  case  °f  tne  death  of  an7  soldier,  the  command- 
126  Art.  war.  jng  officer  of  hfg  troop,  battery,  or  company  shall  immedi- 
ately secure  all  his  effects  then  in  camp  or  quarters,  and 
shall,  in  the  presence  of  two  other  officers,  make  an  inven- 
tory thereof,  which  he  shall  transmit  to  the  office  of  the 
Department  of  War.1  One  hundred  and  twenty  -sixth 
Article  of  War. 

1415-  Officers  charged  with  the  care  of  the  effects  of 


to  CaS»u5tdifor  Deceased  officers  or  soldiers  shall  account  for  and  deliver 


S?  'Art.  w.r.  tne  same,  or  the  proceeds  thereof,  to  the  legal  representa- 
tives of  such  deceased  officers  or  soldiers.  And  no  officer 
so  charged  shall  be  permitted  to  quit  the  regiment  or  post 
until  he  has  deposited  in  the  hands  of  the  commanding 

have  a  perfect  defense  to  a  prosecution.  It  was  designed  to  secure  them  against  pro- 
ceedings for  desertion  and  to  obviate  the  expenses  to  which  the  Government  might 
be  put  in  the  matter  of  their  arrest  and  their  trial.  But  it  is  not,  and  can  not,  in 
view  of  the  provisions  of  article  4,  serve  as  a  discharge  from  the  Army.  The  lan- 
guage of  General  Orders,  55,  of  1890,  which  describes  it  as  a  release  "  from  the  Army," 
is  therefore  faulty.  Ibid.,  par.  1101. 

A  deserter  who  has  been  once  dishonorably  discharged  is  not  a  subject  for  the 
"release"  —  does  not  belong  to  the  class  of  persons  for  whom  it  is  intended.  It  is 
designed  for  soldiers  actually  in  service.  It  can  not  therefore  now  be  given  to  one 
who  was  a  soldier  of  a  volunteer  organization  during  the  late  war  of  the  Rebellion. 
Nor  can  it  be  issued  in  a  case  of  a  soldier  who  has  deceased.  Ibid.,  par.  1102. 

1  DISPOSITION    OF   EFFECTS. 

When  a  soldier  is  killed  in  action,  or  dies  at  any  post,  hospital,  or  station,  it  shall 
be  the  duty  of  his  immediate  commander  to  secure  his  effects  and  to  prepare  the 
inventory  required  by  the  one  hundred  and  twenty-sixth  article  of  war,  according 
to  prescribed  form  and  to  notify  nearest  relative  of  the  fact  of  death.  Duplicates  of 
the  inventory,  with  final  statements,  will  be  forwarded  direct  to  the  Adjutant-General 
of  the  Army.  Par.  175,  A.  R.,  1901. 


MILITARY    LAWS    OF    THE    UNITED    STATKS.  531 

officer  all  the  effects  of  such  deceased  officers  or  soldiers 
not  so  accounted  for  and  delivered.1  One  hundred  arid 
twenty-seventh  Article  of  War. 

EXPENSES  OF  TRANSPORTATION'  AND  BURIAL. 

1416.  To  enable  the  Secretary  of  War,  in  his  discretion, 
to  cause  to  be  transported  to  their  homes  the  remains  of  v. 
officers  and  soldiers  who  die  at  military  camps  or  who  are 
killed  in  action  or  who  die  in  the  field  at  places  outside  of 
the  limits  of  the  United  States,  one  hundred  thousand  dol- 
lars.'    Act  of  March  3,  1899  (30  Stat.  Z.,  IMS). 

1417.  In  all  cases  where  an  officer  or  an  enlisted  man  in    Reimburse- 

in  CUT  oi 

either  the  Army.  Navy.  Marine  Corps  of  the  United  States, 
or  contract  surgeon  or  trained  nurse  in  the  employ  of  the 
Government,  has  died  while  on  duty  away  from  home 
since  the  first  day  of  January,  eighteen  hundred  and  ninety- 

1  Should  the  effects  of  a  deceased  soldier  not  be  claimed  within  thirty  days,  they 
will  be  sold  by  a  council  of  administration  under  the  authority  of  the  post  com- 
mander, an«:l  the  proceeds  transferred  to  the  commander  of  the  company  to  which 
the  deceased  belonged,  by  whom  they  will  be  deposited  with  a  paymaster  to  the 
credit  of  the  United  States.  Duplicate  receipts  will  be  taken,  one  of  which  will  be 
sent  direct  to  the  Adjutant-General  of  the  Army  and  the  other  retained  with  the 
company  records.  Par.  176,  A.  R.,  1901. 

In  all'cases  of  sale  by  a  council  of  administration,  a  detailed  statement  of  the  pro- 
ceeds, duly  certified  by  the  council  and  commanding  officer,  will  accompany  the 
paymaster's  receipt  forwarded  by  the  company  commander  to  the  Adjutant-Ge'neral 
of  the  Army.  The  statement  will  be  indorsed:  "Report  of  the  proceeds  of  the 

effects  of ,  late  of  Company , Regiment  of ,  who  died 

at ,  the day  of , "."  Par.  177,  Ibid. 

The  effects  will  be  delivered,  when  called  for,  to  the  legal  representatives  of  the 
deceased,  and  the  receipts  therefor  forwarded  to  the  Adjutant-General  of  the  Army. 
Applications  for  arrears  of  pay  and  proceeds  of  sale  of  effects  of  deceased  soldiers 
should  be  addressed  to  the  Auditor  for  the  War  Department,  Washington,  D.  C., 
who  settles  such  accounts.  Par.  178,  ibid. 

In  the  settlement  of  the  accounts  of  deceased  soldiers,  the  accounting  officers  dis- 
pense with  administration,  and,  as  it  were,  administer  themselves,  paying  to  the 
persons  entitled  such  amounts  as  may  be  found  to  be  due  the  deceased  in  a  final  set- 
tlement of  his  accounts  with  the  United  States.  3  Compt.  Dec.,  197. 

FUNERAL   EXPE 

The  remains  of  deceased  soldiers  will  be  decently  inclosed  in  coffins  and  trans- 
ported by  the  Quartermaster's  Department  to  the  nearest  military  post  or  national 
cemetery  for  burial  unless  the  commanding  officer  deem  burial  at  the  place  of  death 
to  be  proper,  when  a  report  of  the  fact  will  be  made  to  the  Adjutant-General  of  the 
Army.  The  expense  of  transporting  the  remains  is  payable  from  the  appropriation 
for  Army  transportation;  other  expenses  of  burial  are  limited  to  $15  for  noncom- 
missioned officers  and  $10  for  private  soldiers.  Par.  162,  A.  R.,  1895.  See  also  Cir- 
cular 9,  A.  (T.  O.,  1900,  note  to  paragraph  1339,  ante. 

The  annual  acts  of  appropriation  since  that  of  August  8,  1846  (9  Stat.  L.,  68),  have 
contained  provision  for  the  expenses  of  interment  of  noncommissioned  officers  and 
soldiers.  The  act  of  July  8, 1898  (30  Stat.  L. ,  730),  and  subsequent  acts  of  appropria- 
tion have  made  provision  for  transporting  to  their  homes  the  remains  of  officers  and 
soldiers  who  die  at  military  camps  or  who  are  killed  hi  action  or  who  die  in  the  field 
at  places  outside  the  territorial  limits  of  the  United  States. 

? The  acts  of  June  6,  1900  (31  Stat.  L.,  631),  and  Mar.  3,  1901  (ibid.,  1025),  con- 
tained the  same  provision. 


532  MILITAEY    LAWS    OF   THE    UNITED   STATES. 

eight,  and  the  remains  have  been  taken  home  and  buried 
at  the  expense  of  the  family  or  friends  of  the  deceased, 
the  parties  who  paid  the  cost  of  transportation  and  bury- 
ing such  remains  shall  be  repaid  at  the  expense  of  the 
United  States  by  the  Secretary  of  the  Treasury,  not  to 
exceed  what  it  would  have  cost  the  United  States  to  have 
transported  the  remains  to  their  homes. 1  Act  of  March  $, 
1899  (30  Stat.  Z.,  m5). 
Transport  a-  1418.  To  enable  the  Secretary  of  War,  in  his  discretion, 

tion  of  remains 

of  enlisted  men  to  cause  to  be  transported  to  their  homes  the  remains  of 

and  civilian  em- 

plMa626  1900  v  clvl^ian  employees  of  the  Army,  who  have  died,  or  may 
si,  p.  213;  hereafter  die,  while  in  the  employ  of  the  War  Department 
in  Cuba,  Porto  Rico,  Hawaii,  and  the  Philippines,  includ- 
ing the  remains  of  any  honorably  discharged  soldiers  who 
are  entitled  under  the  terms  of  their  discharge  to  return 
transportation  on  Government  transport  arid  who  die  while 
on  said  transport,  the  sum  of  one  hundred  thousand  dol- 
lars, which  is  hereby  appropriated  and  made  immediately 
available  for  the  above  purpose  as  long  as  may  be  required. 
Act  of  May  26,  1900  (31  Stat.  Z.,  213). 

1  The  terms  of  the  act  of  appropriation  authorizing  the  payment  of  certain  expenses 
of  burial  in  the  case  of  enlisted  men  who  die  "while  on  duty,"  have  been  held  by 
the  Comptroller  of  the  Treasury  to  prohibit  the  payment  of  such  expenses  in  the 
case  of  a  soldier  who  was  killed  while  attempting  to  run  the  guard.  VI  Compt.  Dec., 
794;  held  similarly  as  to  a  soldier  who  died  at  his  home,  ibid.,  343;  of  a  soldier  who 
died  in  confinement,  ibid.,  453;  and  of  a  soldier  who  had  once  been  buried,  ibid.,  485. 

The  expense  of  burial  in  the  case  of  an  enlisted  man,  as  establised  at  $35  by  para- 
graph 162,  A.  R.,  1895,  as  amended  by  G.  0.  141,  A.  G.  O.,  1898,  "will  be  limited 
to  the  cost  of  the  coffin  and  the  reasonable  and  necessary  expense  of  preparation  of 
the  remains  for  burial,  and  will  not  include  such  items  as:  For  guarding  remains, 
expense  of  services  of  clergyman  or  minister,  music  by  band  or  choir,  flowers,  cost 
or  hire  of  pall  to  be  used  with  horse,  tombstone,  crape  or  gloves  for  pallbearers,  and 
expense  of  grave  site  where  the  remains  are  sent  home  at  the  request  of  relatives." 
Circular  9,  A.  G.  O.,  1900 


CITAJPTER   XXX. 


THE    TROOPS    OF   THE   LINE. 
TROOPS,  BATTERIES,  COMPANIES. 


Par. 


1419-1428.  Cavalry. 
1429-1444.  The  artillery  corps. 
1445-1451.  Infantry. 
1452.  Engineer  troops. 


Par. 


1453.  Maximum  strength. 

1454.  Vacancies;  how  filled. 
1455, 1456.  The  same. 
1457.  Company  cooks. 


CAVALRY. 


1419.  Cavalry  regiment. 

1420.  Colored  regiments. 

1421.  Dismounted  cavalry. 

1422.  Sergeant-major  and  quartermaster- 

sergeants,  pay. 

1423.  Details,  regimental  staff,  etc. 


1424.  Band. 

1425.  Squadron  staff,  pay. 

1426.  Veterinarians. 

1427.  Troops. 

1428.  Increase  in  strength. 


1419.  Each  regiment  of  cavalry  shall  consist  of  one  colo-  F 
nel,  one  lieutenant-colonel,  three  majors,  fifteen  captains,  2>gec3.1i&s£]S'.8. 
fifteen  first  lieutenants,  and  fifteen  second  lieutenants; 
two  veterinarians,  one  sergeant-major,  one  quartermaster- 
sergeant,  one  commissary-sergeant,  three  squadron 
sergeants-major,  two  color-sergeants  with  rank,  pay,  and 
allowances  of  squadron  sergeant-major,  one  band,  and 
twelve  troops  organized  into  three  squadrons  of  four 
troops  each.1  Sec.  #,  'act  of  February  <2,  1901  (30  Stat.  Z., 


1  This  enactment  replaces  section  1102,  Revised  Statutes,  and  section  2,  act  of  March 
2,  1899,  inpari  materia.  Section  28  of  the  act  of  February  2,  1901  (31  Stat.  L.,  755), 
contained  the  requirement  that  "vacancies  in  the  grade  of  field  officers  and  captain 
created  by  this  act  in  the  cavalry,  artillery,  and  infantry  shall  be  filled  by  promo- 
tion, according  to  seniority  in  each  branch,  respectively.  For  the  method  of  filling 
vacancies  created  by  the  act  of  February  2,  1901,  in  the  grades  of  first  and  second 
lieutenants,  see  paragraph  1455,  post. 

Of  the  several  cavalry  regiments  now  composing  the  peace  establishment,  the  first, 
a  regiment  of  dragoons,  was  authorized  by  the  act  of  March  2,  1833  (4  Stat.  L.,  652). 
A  second  regiment  c  f  dragoons  was  authorized  by  the  act  of  May  23,  1836  (5  Stat.  L., 
32).  The  second  regiment  of  dragoons  was  converted  into  a  regiment  of  riflemen  by 
the  act  of  August  23,  1842  (5  Stat.  L.,  512),  but  was  reconverted  into  a  regiment  of 
dragoons  by  the  act  of  April  4,  1844  (5  Stat.  L.,  654).  A  regiment  of  mounted  rifle- 
men was  added  to  the  establishment  by  the  act  of  May  19,  1846  (9  Stat.  L.,  13).  Two 
regiments  of  cavalry  (known  as  the  First  and  Sticond)  were  authorized  by  the  act  of 

533 


534  MILITARY    LAWS    OF   THE    UNITED    STATES. 

^colored  regi-      i420.  The  enlisted  men  of  two  regiments  of  cavalry  shall 

TjSSB^fc*  be  colored  men- 

Xor     1  tOi  K     ^h 

Dismounted  1421.  Any  portion  of  the  cavalry  force  may  be  armed 
July  28,  1866,  s.  and  drilled  as  infantry,  or  dismounted  cavalry,  at  the  dis- 
'sec.'fio5B.  s.  cretion  of  the  President. 

jo?,er|S?i™-  1422>  ^e  regimental  sergeant-major  and  tEe  regimental 
t6MSar?ha2  ^899'  (luar^ermaster-sergeant  provided  for  in  this  section  shall 
s.  2,  v.  so,  p.  977.  '  have  the  pay  and  allowances  of  ordnance  sergeants.  Sec. 

2,  act  of  March  2,  1899  (30  Stat.  Z.,  977). 

Defcuis.^  ^  2      1423.  Of  the  officers  herein  provided,  the  captains  and 

v.  si,  p.  748.  '     'lieutenants  not  required  for  duty  with  the  troops  shall  be 

available  for  detail  as  regimental  and  squadron  staff  officers 

and  such  other  details  as  may  be  authorized  by  law  or 

regulations.1     Sec.  2,  act  of  February®,  1901  (31  Stat.  Z., 


March  3,  1855  (10  Stat.  L.,  635).  A  third  regiment  of  cavalry  was  organized  by  order 
of  the  President  on  May  4,  1861,  confirmed  by  the  act  of  July  29,  1861  (12  Stat.  L., 
279).  In  accordance  with  the  authority  conferred  by  the  act  of  August  3,  1861,  the 
six  mounted  regiments  of  the  Army  were  consolidated  into  one  corps  and  designated 
as  follows: 

The  First  Regiment  of  Dragoons,  as  the  First  Cavalry. 

The  Second  Regiment  of  Dragoons,  as  the  Second  Cavalry. 

The  Regiment  of  Mounted  Riflemen,  as  the  Third  Cavalry. 

The  First  Regiment  of  Cavalry,  as  the  Fourth  Cavalry. 

The  Second  Regiment  of  Cavalry,  as  the  Fifth  Cavalry. 

The  Third  Regiment  of  Cavalry,  as  the  Sixth  Cavalry. 

Four  regiments  of  cavalry,  the  Seventh,  Eighth,  Ninth,  and  Tenth,  the  Ninth  and 
Tenth  composed  of  colored  men,  were  added  to  the  establishment  under  the  authority 
conferred  by  the  act  of  July  28,  1866  (14  Stat.  L.,  332)  ;  the  Eleventh,  Twelfth,  Thir- 
teenth, Fourteenth,  and  Fifteenth  were  added  by  section  2,  act  of  February  2,  1901 
(31  ibid.,  748). 

1  THE   REGIMENTAL,  SQUADRON,  AND  BATTALION  STAFF. 

The  staff  of  a  regiment  consists  of  the  adjutant,  the  quartermaster,  and  the  com- 
missary, and  they  will  be  so  designated  respectively.  They  will  be  appointed  by  the 
regimental  commander,  who  will  at  once  report  his  action  to  the  Adjutant-General 
by  telegraph;  the  appointment  of  the  quartermaster  and  commissary  to  be  made 
subject  to  the  approval  of  the  Secretary  of  War.  These  appointments  will  not  be 
antedated  and  will  take  effect  on  the  day  on  which  actually  made.  An  officer  will 
be  entitled  to  the  pay  pertaining  to  his  appointment  from  the  date  he  enters  upon 
duty  under  it.  Squadron  and  battalion  adjutants  of  cavalry  and  infantry  will  be 
appointed  by  the  regimental  commander  upon  the  recommendation  of  the  squadron 
and  battalion  commanders. 

The  adjutant,  quartermaster,  and  commissary  may  hold  office  for  four  years,  and 
the  squadron  and  battalion  adjutants  and  quartermasters  for  two  years  and  no  longer. 
They  will  not  be  eligible  for  a  second  tour  of  such  duty,  nor  for  appointment  or 
reappointment  to  either  position,  except  to  serve  an  unexpired  term  of  four  or  two 
years;  but  the  time  an  adjutant  or  quartermaster  of  a  regiment  may  have  previously 
served  as  such,  with  the  rank  of  lieutenant,  and  any  period  an  officer  may  have 
served  as  squadron  or  battalion  adjutant,  will  not  be  included  in  computing  the  four 
years  for  which  he  may  hold  the  office  of  a  regimental  staff  officer.  Par.  234,  A.  R. 
1895  (Par.  260,  A.  R.  1901),  G.  O.  No.  16,  A.  G.  O.,  1899. 

Staff  appointments  in  a  regiment  are  restricted  to  officers  on  duty  with  the  regi- 
ment and  who  are  not  serving  at  a  school  of  instruction.  Should  the*  regimental 
commander  desire  to  appoint  an  officer  absent  from  the  regiment,  he  may  apply  for 
orders  for  such  officer  to  join;  but  the  officer  must  join  before  the  appointment  can 
be  made.  Par.  262,  A.  R.  1901,  G.  O.  No.  116,  A.  G.  O.,  1899.  Medical  officers  are 
no  longer  attached  to  regiments  on  the  peace  establishment. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  535 

1424.  Each   cavalry   band  shall   consist  of   one    chief    J.andv  „ 

•*  JM&rcn  2,  loyy, 

musician,  one  principal  musician,  one  drum-major,  Who8-2>v-30'p-977- 
shall  have  the  pay  and  allowances  of  a  first-sergeant,  four 
sergeants,  eight  corporals,  one  cook,  and  eleven  privates.1 
Sec.  2,  act  of  March  2,  1899  (30  Stat.  Z.,  ,977). 

1425.  Squadron  adjutants  shall  receive  eighteen  hundred  oJS^pay stafl 
dollars  per  annum  and  the  allowances  of  first  lieutenants  ;2  y6^2^1^' 8> 
squadron  quartermasters  and  commissaries  shall  receive 

sixteen  hundred  dollars  per  annum  and  the  allowances  of 
second  lieutenants.2  Sec.  2,  act  of  February  2,  1901  (31 
Stat.  Z.,  748). 

1426.  The  grade  of  veterinarian  of  the  second  class  in    Jete nnanans. 
cavalry  regiments,  United  States  Army,  is  hereby  ab°l-2%^Vpi9oiV 
ished,  and  hereafter  the  two  veterinarians  authorized  for  81»  P-  **• 
each  cavalry  regiment  and  the  veterinarians  authorized 

for  the  Artillery  Corps  shall  receive  the  pay  and  allow- 
ances of  second  lieutenants,  mounted.3  Sec.  20,  act  of 
February  2,  1901  (31  Stat.  Z.,  763);  act  of  March  2,  1901 
(ibid.,  901). 

1427.  Each  troop  of  cavalry  shall  consist  of  one  captain, 
one  first  lieutenant,  one  second  lieutenant,  one  first  ser- 
geant,  one  quartermaster  sergeant,  six  sergeants,  six  cor- 
porals,   two   cooks,    two    farriers   and    blacksmiths,    one 
saddler,  one  wagoner,  two  trumpeters,  and  forty-three 
privates,  the  commissioned  officers  to  be  assigned  from 
those  hereinbefore  authorized.4     Sec.  2,  act  of  February  2, 
1901  (31  Stat.  Z.,  748). 

1428.  The  President,  in  his  discretion,  may  increase  the  ,  . 
number  of  corporals  in  any  troop  of  cavalry  to  eight,  and  2>  Vi     p- 748-' 
the  number  of  privates  to  seventy-six,  but  the  number  of 

enlisted  men  authorized  for  the  whole  Army  shall  not  at 
any  time  be  exceeded.  Sec.  #,  act  of  February  8,  1901 
(31  Stat.  Z.,  748). 

Section  2  of  the  act  of  February  2,  1901,  contains  the  requirement  that  "each 
cavalry  band  shall  be  organized  as  now  provided  by  law." 

-  For  regulations  respecting  the  detail  and  term  of  service  of  squadron  and  battalion 
staff  officers  see  note  to  paragraph  1423,  ante. 

3  This  enactment  replaces  section  1102,  Ee vised  Statutes,  and  section  2,  act  of  March 
2,  1899.     30  Stat.  L.,  977. 

4  This  enactment  replaces  section  1103,  Revised  Statutes,  and  section  2,  act  of  March 
2,  1899.     30  ibid.,  977. 

Since  1883  companies  of  cavalry  have  been  designated  as  troops.  Circulars  8  and 
9,  A.  G.  O.,  of  1883.  By  General  Orders,  No.  79  and  120,  of  1890,  the  enlisted  men 
of  Troops  L  and  N  of  each  regiment  of  cavalry  were  distributed  among  the  other 
troops.  By  General  Orders,  No.  27,  of  1898,  issued  at  the  outbreak  of  the  war  with 
Spam,  the  skeletonized  troops  were  reestablished  and  restored  to  the  status  occupied 
by  them  prior  to  the  skeletonization  in  1890. 


536 


MILITARY    LAWS    OF    THE    UNITED    STATES. 


THE   ARTILLERY   CORPS.1 


Par. 

1429.  Organization. 

1430.  The  same,  coast  and  field  artillery. 

1431.  Composition. 

1432.  Officers  on  one  list. 

1433.  Increase,  how  effected. 

1434.  Details,  staff  duty. 
1435, 1436.  Veterinarians. 


Par. 

1437,  1438.  Company,  coast  artillery 

1439,  1440.  Battery,  field  artillery. 

1441.  Band. 

1442.  Restriction  on  enlisted  force. 

1443.  Electrician  sergeants. 

1444.  Gunners,  increased  pay. 


4,  v.  si,  p.  749. 


Feba2izi90ins  1429>  The  regimental  organization  of  the  artillery  arm 
3,  v.  si,  p.  748.  of  ^e  United  States  Army  is  hereby  discontinued,  and 
that  arm  is  constituted  and  designated  as  the  artillery 
corps.  It  shall  be  organized  as  hereinafter  specified  and 
shall  belong  to  the  line  of  the  Army.  Sec.  3,  act  of  Feb- 
ruary 2,  1901  (31  Stat.  Z.,  748). 

1430.  The  artillery  corps  shall  comprise  two  branches — 
e  coast  artillery  and  the  field  artillery.  The  coast  artil- 
lery is  defined  as  that  portion  charged  with  the  care  and 
use  of  the  fixed  and  movable  elements  of  land  and  coast  for- 
tifications, including  the  submarine  and  torpedo ~ defenses; 
and  the  field  artillery  as  that  portion  accompanying  an 
army  in  the  field,  and  including  field  and  light  artillery 
proper,  horse  artillery,  siege  artillery,  mountain  artillery, 
and  also  machine-gun  batteries:  Provided,  That  this  shall 
not  be  construed  to  limit  the  authority  of  the  Secretary  of 
War  to  order  coast  artillery  to  any  duty  which  the  public 
service  demands,  or  to  prevent  the  use  of  machine  or  other 
field  guns  by  any  other  arm  of  the  service  under  the  direc- 
tion of  the  Secretary  of  War.  Sec.  4i  ac^  °f  February  2, 
1901  (31  Stat.  Z.,  749). 

PoTsu!oSme;COIn"      143L  The  artillery  corps  shall  consist  of  a  chief  of  artil- 
e  v63i 2p l?49' s'  lery '  wno  §hall  be  selected  and  detailed  by  the  President 

1  At  the  general  reduction  of  the  Army,  effected  in  pursuance  of  the  act  of  March 
2,  1821  (3  Stat.  L.,  615),  the  artillery  was  consolidated  into  four  regiments  of  nine 
companies  each,  one  of  which,  in  each  regiment,  was  to  be  designated  and  equipped 
as  light  artillery.  The  Ordnance  Department  was  merged  in  the  artillery,  a  super- 
numerary captain,  for  ordnance  duty,  was  added  to  each  regiment,  and  the  President 
WBL  authorized  "to  select  from  the  regiments  of  artillery  such  officers  as  may  be 
necessary  to  perform  ordnance  duties  who,  while  so  detached,  shall  be  subject  only 
to  the  orders  of  the  War  Department."  The  Ordnance  Department  was  separated 
from  the  artillery  by  the  act  of  May  25,  1832  (4  Stat.  L.,  605).  One  company  was 
added  to  each  regiment  by  the  act  of  July  5, 1838  (5  Stat.  L.,  256) ,  and  two  companies 
by  section  18  of  the  act  of  March  3,  1847  (9  Stat.  L.,  184),  making  twelve  companies  in 
all.-  The  act  of  March  3,  1847,  authorized  the  President  to  designate  an  additional 
company  in  each  regiment  to  be  armed  and  equipped  as  light  artillery.  The  fifth 
regiment  was  added,  as  a  regiment  of  light  artillery,  by  order  of  the  President,  on 
May  5,  1861,  the  organization  being  confirmed  by  the  act  of  July  29,  1861  (12  Stat. 
L.,  279).  The  sixth  and  seventh  regiments  were  added,  and  the  organization  of  the 
first  five  regiments  modified,  by  the  act  of  March  8, 1898  (30  Stat.  L.,  261).  This  sec- 
tion replaces  sections  1099-1101,  Pvevised  Statutes,  the  act  of  March  8,  1898  (30  ibid., 
261),  and  section  3,  act  of  March  2,  1899  (ibid.,  977). 


MILITARY   LAWS   OF   THE   TOTTED   STATES.  537 

from  the  colonels  of  the  corps  of  artillery,  to  serve  on  the 
staff  of  the  general  officer  commanding  the  Army,  and 
whose  duties  shall  be  prescribed  by  the  Secretary  of  War; 
fourteen  colonels,  one  of  whom  shall  be  the  chief  of  artillery ; 
thirteen  lieutenant-colonels,  thirty-nine  majors,  one  hun- 
dred and  ninety-five  captains,  one  hundred  and  ninety-five 
first  lieutenants,  one  hundred  and  ninety-five  second  lieu- 
tenants; veterinarians1  *  *  *  ;  twenty-one  sergeants- 
major  with  the  rank,  pay,  and  allowances  of  regimental 
sergeants-major  of  infantry ;  twenty-seven  sergeants-major 
with  the  rank,  pay,  and  allowances  of  battalion  sergeants- 
major  of  infantry;  one  electrician  sergeant  to  each  coast- 
artillery  post  having  electrical  appliances;  thirty  batteries 
of  field  artillery,  one  hundred  and  twenty-six  batteries  of 
coast  artillery,  and  ten  bands  organized  as  now  authorized 
by  law  for  artillery  regiments.  Sec.  6,  act  of  February  2, 
1901  (31  Stat.  Z.,  749). 

1432.  All  officers  of  artillery  shall  be  placed  on  one  list,  lis?ffic 

in  respect  to  promotion,  according  to  seniority  in  their  6;  v?3i,2p.1m  s' 
several  grades,  and  shall  be  assigned  to  coast  or  to  field 
artillery  according  to  their  special  aptitude  for  the  respec- 
tive services.     Sec.  5,  act  of  February  2,  1901  (31  Stat.  Z., 
743). 

1433.  The  increase  herein  provided  for  the  artillery  shall  eflStST 

be  made  as  follows:  Not  less  than  twenty  per  centum  9 fv?3i,Vw9.' § 
before  July  first,  nineteen  hundred  and  one,  and  not  less 
than  twenty  per  centum  each  succeeding  twelve  months 
until  the  total  number  provided  for  shall  have  been 
attained.  All  vacancies  created  or  caused  by  this  act  shall 
be  filled  by  promotion  according  to  seniority  in  the  artil- 
lery arm.2  Second  lieutenants  of  infantry  and  cavalry 
may,  in  the  discretion  of  the  President,  be  transferred  to 
the  artillery  arm,  taking  rank  therein  according  to  date 
of  commission,  and  such  transfers  shall  be  subject  to 
approval  by  a  board  of  artillery  officers  appointed  to  pass 
upon  the  capacity  of  such  officers  for  artillery  service: 
Provided,  That  the  increase  of  officers  of  artillery  shall  be 
only  in  proportion  to  the  increase  of  men.  Sec.  9,  act  of 
February  2,  1901  (31  Stat.  Z.,  749). 

1434.  The  captains  and  lieutenants  provided  for  in  this    ^^2,'  1901,  s. 
section,  not  required  for  duty  with  batteries  or  companies,  6>  v-  31> p- 749> 
shall  be  available  for  duty  as  staff  officers  of  the  various 

1  Added  by  act  of  March  3,  1901  (31  Stat.  L.,  901) . 

2  For  method  of  filling  vacancies  in  the  grade  of  lieutenant  created  by  this  act  see 
section  28,  act  of  February  2,  1901  (31  Stat.  L.,  755),  paragraph  1454,  post. 


538  MILITARY   LAWS    OF   THE    UNITED   STATES. 

artillery  garrisons  and  such  other  details  as  may  be  author- 
ized by  law  and  regulations. l  Sec.  6,  act  of  February  2, 
1901  (31  Stat.  Z.,  749). 

Flbe2ini9oinv.      1435>  Twelve  of  the  veterinarians  herein  provided  for 
i96ip'v5ii  pa9bi'  ma7  be  assigned  to  the  artillery.     Act  of  February  2, 1901 

'  (31  Stat.  L.,  753);  act  of  March  2,  1901  (ibid.,  901). 
J^ennarians.      1433    Hereafter     *     *     *     the  veterinarians  authorized 
MarV3  wbf  V^  -^or  ^e  Artillery  Corps  shall  receive  the  pay  and  allowances 
P.  901.  Of  secon(i  lieutenant,  mounted.     Sec.  W,  act  of  February  2, 

1901  (31  Stat.  L.,  753);  act  of  March  3, 1901  (ibid.,  901). 
Battery,  coast     1437.  Each  company  of  coast  artillery  shall  be  organized 
7  via  2>  74?1'  s' as  *s  now  Prescrrt>ed  by  law  for  a  battery  of  artillery:  Pro- 
'sec.iibo,k.s.  vided,  That  the  enlisted  strength  of  any  company  may  be 
fixed,  under  the  direction  of  the  Secretary  of  War,  accord- 
ing to  the  requirements  of  the  service  to  which  it  may  be 
assigned.     Sec.  7,  act  of  February  2, 1901  (31  Stat.  L. ,  749). 
The  same.  1438.  Each  battery  of  (coast)  artillery  shall  consist  of  one 

Afflr   2    l&QQ    s 

3, v. so, p. 977.'" captain,  one  first  lieutenant,  one  second  lieutenant,  one 

Sec.  1100,  R.S.        r 

tirst  sergeant,  one  quartermaster-sergeant,  who  shall  nave 
the  rank,  pay,  and  allowances  of  a  sergeant,  eight  sergeants, 
twelve  corporals,  two  musicians,  two  mechanics,  who  shall 
have  the  pay  and  allowances  of  sergeants  of  artillery,  two 
cooks,  and  fifty-two  privates.  Sec.  3,  act  of  March  #,  1899 
(30  Stat.  L.,  977). 

Battery,   field      1439,  Each  battery  of  field  artillery  shall  be  organized 
s  v63i2'  l?ll' s'  as  *s  now  prescribed  by  law,  and  the  enlisted  strength 
thereof  shall  be  fixed  under  the  direction  of  the  Secretary 
of  War.     Sec.  8,  act  of  February  2, 1901  (31  Stat.  L. ,  749). 
MarS2mi899  s      1440>  ^ac^  Battery  °^  ^e^  artillery  shall  consist  of  one 
MB's  caP^am?  one  ^rs^  lieutenant,  one  second  lieutenant,  one 
first  sergeant,  one  stable  sergeant,  one  quartermaster-ser- 
geant, six  sergeants,  twelve  corporals,  four  artificers,  two 
musicians,  two  cooks,  and  fifty-one  privates.     Sec.  3,  act 
of  March  2, 1899  (30  Stat.  Z.,  977). 

Mard2  1899  s  1441.  Each  artillery  band  shall  consist  of  one  chief  rnu 
3,  v.  so,  p.  977.'  sician,  one  chief  trumpeter,  one  principal  musician,  one 
drum-major,  who  shall  have  the  rank,  pay,  and  allowances 
of  a  first  sergeant,  four  sergeants,  eight  corporals,  one 
cook,  and  eleven  privates.  Sec.  3,  act  of  March  2,  1899 
(30  Stat.  L.,  977). 

ennSSCmen  on      1442>  ^he  aggregate  number  of  enlisted  men  for  the 
6  v63i2'  I<TW  s  artillery  as  provided  for  under  this  act  shall  not  exceed 

Section  5  of  the  act  of  March  2, 1899  (30  Stat.  L.,  978),  contained  the  requirement 
that  the  additional  second  lieutenants  attached  to  each  regiment  of  artillery  should 
be  transferred  to  other  arms  where  vacancies  existed,  without  loss  of  relatiye  rank, 
leaving  but  one  second  lieutenant  in  each  battery  of  artillery  therein  authorized. 


MILITARY   LAWS    OF   THE    UNITED    STATES.  539 

eighteen  thousand  -nine  hundred  and  twenty,  exclusive  of 
electrician  sergeants.1  Sec.  6,  act  of  February  2  1901, 
(31  Stat,  L.,749). 

1443.  In  addition  to  the   enlisted  men  specified  there  ge^tricianser" 
shall  be  one  electrician  sergeant  to  each  post  garrisoned  g^^isg,  s. 
by  coast  artillery  having  electric  appliances,  who  shall 

have  the  pay  and  allowances  of  an  ordnance  sergeant.1 
Sec.  3,  act  of  March  2,  1899  (30  Stat.  L.,  978). 

1444.  First-class  gunners    shall    receive  two  dollars  a  payunners>  extra 
month  and  second-class  gunners  one  dollar  per  month  in?  v6^2^1^; s> 
addition  to  their  pay.2      Sec.  7,  act  of  February  #,  1901 

(31  Stat.  Z.,  749). 

INFANTRY. 


Par. 


1445.  Infantry  regiment. 

1446.  Colored  regiments. 

1447.  Details,  regimental  staff,  etc. 

1448.  Band. 


Par. 


1449.  Battalion  staff,  pay. 

1450.  Companies. 

1451.  Increase. 


1445.  Each  regiment  of  infantry  shall  consist  of   one  meaftantry  regi" 
colonel,  one  lieutenant-colonel,  three  majors,  fifteen  cap-  10Fvb3i2p/j§io  s' 
tains,  fifteen  first  lieutenants,  and  fifteen  second  lieuten-  sec.  no6,u.s. 
ants,  one  sergeant-major,  one  quartermaster-sergeant,  one 
commissary-sergeant,  three  battalion  sergeants-major,  two 
color-sergeants,  with  rank,  pay,  and  allowances  of  bat- 
talion sergeants-major,  one  band,  and  twelve  companies, 
organized  into  three  battalions  of  four  companies  each.3 

Sec.  10,  act  of  February  8,  1901  (31  Stat.  Z.,  750). 

1446.  The  enlisted  men  of  two  regiments  of  infantry  mg^red    re^- 
shall  be  colored  men.  4>  v.  14  p  m   ^S^t.l 

1  For  duties  and  methods  of  appointment  of  electrician  sergeants  see  paragraphs 
100-114,  Army  Regulations  of  1901. 

2  Gunners  become  entitled  to  this  increase  from  the  date  of  the  passage  of  the  act 
authorizing  it. 

3  This  enactment  replaces  section  1106,  Revised  Statutes,  and  section  4,  act  of  March 
2,  1899  (30  Stat.  L.,  977) ,  in  pnri  materia.     Section  28  of  the  act  of  February  2,  1901 
(31  Stat.  L.,  755),  contained  the  requirement  that  "vacancies  in  the  grade  of  field  offi- 
cers and  captain  created  by  this  act  in  the  cavalry,  artillery,  and  infantry  shall  be 
filled  by  promotion  according  to  seniority  in  each  branch  respectively. ' '     For  method 
of  filling  vacancies  created  by  that  enactment  in  the  grades  of  first  and  second 
lieutenant,  see  paragraphs  1455  and  1456,  post. 

The  First  Regiment  of  infantry  was  authorized  by  the  act  of  April  30,  1790  (1  Stat. 
L.,  119) ,  the  Second  by  the  act  of  March  3,  1791  (ibid.,  222),  the  Third  and  Fourth 
by  the  act  of  May  30,  1796  (ibid.,  483) ,  the  Fifth,  Sixth,  and  Seventh  regiments  by 
the  act  of  June  26,  1812  (2  Stat.  L.,  764),  and  the  number  of  regiments  of  infantry 
was  fixed  at  seven  by  the  act  to  reduce  and  fix  the  military  establishment,  approved 
March  2,  1821.  The  Eighth  Regiment  was  added  by  the  act  of  July  5,  1838,  and  the 
President  was  authorized,  "whenever  he  may  deem  it  expedient,  to  cause  not  exceed- 
ing two  of  the  regiments  of  infantry  to  be  armed  and  equipped  as  regiments  of  rifle- 
men, and  one  other  of  the  regiments  of  infantry  to  be  armed  and  equipped  and  to 
serve  as  a  regiment  of  light  infantry."  The  Ninth  and  Tenth  regiments  were  author- 


540  MILITABY   LAWS   OF   THE   UNITED   STATES. 


Fet  1901  s  1447.  Of  the  officers  herein  provided,  the  captains  and 
10,  v.  31,  p.  750.  lieutenants  not  required  for  duty  with  the  companies  shall 
be  available  for  detail  as  regimental  and  battalion  staff 
officers  and  such  other  .  details  as  may  be  authorized  by 
law  or  regulation.1  Sec.  10,  act  of  February  0,  1901  (31 
Stat.  Z.,  750. 

March  2,  1899,      1448.  Each  infantry  band  shall  consist  of  one  chief  musi- 

s.  4,  v.  so,  p.  977.    cjan^  one  principal  musician,  one  drum-major,  who  shall 

have  the  rank,  pay,  and  allowances  of  a  first  sergeant,  four 

sergeants,  eight  corporals,  one  cook,  and  twelve  privates.2 

Sec.  4,  act  of  March  8,  1899  (30  Stat.  Z.,  ,977). 

^Battalion  staff     1449    Battalion  adjutants  shall    receive    one    thousand 

lofv.^'ifpAso1'  s'  eight  hundred  dollars  per  annum,  and  the  allowances  of 

first  lieutenant^  mounted;   battalion    quartermasters  and 

commissaries  shall  receive  one  thousand  six  hundred  dol- 

ized  by  the  act  of  March  3,  1855  (10  Stat.  L.,  703  ).  The  Eleventh  to  the  Nineteenth 
regiments,  inclusive,  were  organized  by  order  of  the  President  on  May  4,  1861,  the 
organization  being  confirmed  by  the  act  of  July  29,  1861  (  12  Stat.  L.  ,  279)  .  Twenty- 
five  regiments,  from  the  Twentieth  to  the  Forty-fifth,  inclusive,  were  authorized  by 
the  act  of  July  28,  1866,  of  which  four,  from  the  Thirty-eighth  to  the  Forty-first, 
inclusive,  were  to  be  composed  of  colored  men,  and  four,  from  the  Forty-second  to 
the  Forty-fifth,  inclusive,  were  to  be  composed  of  men  who  had  been  wounded  in 
the  line  of  duty  and  were  to  constitute  a  Veteran  Reserve  Corps.  At  the  reduction 
effected  in  pursuance  of  section  2  of  the  act  of  March  3,  1869  (15  Stat.  L.,  318),  the 
number  of  infantry  regiments  was  reduced  to  twenty-five.  In  effecting  the  consoli- 
dation required  by  the  act  above  cited,  the  designations  of  the  First,  Second,  Third, 
Fourth,  Fifth,  Sixth,  Seventh,  Eighth,  Ninth,  Tenth,  Twelfth,  Thirteenth,  Twen- 
tieth, and  Twenty-third  regiments  were  not  changed;  the  Eleventh  Regiment  was 
formed,  by  consolidation,  from  the  Twenty-fourth  and  Twenty-ninth;  the  Fourteenth 
from  the  Fourteenth  and  Forty-fifth;  the  Fifteenth  from  the  Fifteenth  and  Thirty- 
fifth;  the  Sixteenth  from  the  Eleventh  and  Thirty-fourth;  the  Seventeenth  from  the 
Seventeenth  and  Forty-fourth  ;  the  Eighteenth  from  the  Eighteenth  and  Twenty- 
fifth;  the  Nineteenth  from  the  Nineteenth  and  Twenty-eighth;  the  Twenty-first  from 
the  Twenty-first  and  Thirty-second;  the  Twenty-second  from  the  Twe'nty-second 
and  Thirty-first;  the  Twenty-fourth  from  the  Thirty-eighth  and  Forty-first;  the 
Twenty-fifth  from  the  Thirty-ninth  and  Fortieth.  Five  new  regiments,  from  the 
Twenty-sixth  to  the  Thirtieth,  inclusive,  were  added  by  section  10,  act  of  February 
2,  1901  (31  Stat.  L.,  750). 

The  regiments  organized  prior  to  the  4th  of  May,  1861,  were  composed  of  ten  com- 
panies each;  those  organized  by  Executive  order  of  that  date  were  each  composed 
of  three  battalions  of  eight  companies  each.  The  organization  prescribed  by  the 
act  of  July  28,  1866,  fixed  the  organization  of  an  infantry  regiment  at  ten  companies, 
of  a  cavalry  regiment  at  twelve  companies,  and  a  regiment  of  artillery  at  the  same 
number. 

By  the  act  of  April  26,  1898  (30  Stat.  L.,  364),  a  battalion  organization  was  adopted 
for  the  infantry,  each  regiment  being  composed  of  two  battalions  of  four  companies 
each,  and  of  two  skeleton,  or  unmanned  companies.  Upon  a  declaration  of  war  by 
Congress,  the  President  was  authorized  to  organize  a  third  battalion,  to  be  composed 
of  the  two  skeleton  companies  and  two  additional  companies.  By  section  4  of  the 
act  of  March  2,  1899  (30  Stat.  L.,  977),  the  regimental  organization  of  infantry  was 
made  to  consist  of  three  battalions  of  four  companies  each;  by  section  15  of  the  same 
enactment,  however,  the  regimental  organization,  as  it  existed  on  April  1,  1898,  was 
required  to  be  restored  by  the  discharge  of  supernumerary  officers  and  enlisted  men. 
The  artillery  regiments  were  exempted  from  this  reduction. 

1  For  regulations  respecting  the  detail  and  tour  of  duty  of  regimental  and  battalion 
staff  officers,  see  note  to  paragraph  1423,  antf. 

2  Section  10,  act  of  February  2,  1901  (31  Stat.  L.,  750),  contained  the  requirement 
that  "each  infantry  band  shall  be  organized  as  now  required  by  law." 


MILITARY    LAWS    OF   THE    UNITED    STATES.  541 

lars  per  annum  and  the  allowances  of  second  lieutenants, 
mounted.  Sec.  10,  act  of  February  #,  1901  (31  Stat.  L., 
750). 

1450.  Each  infantry  company  shall  consist  of  one  cap-  a^fantry  com' 
tain,  one  first  lieutenant,  one  second  lieutenant,  one  first  £ft-a 

&6C*  1  lUi  ,  n.  S. 

sergeant,  one  quartermaster-sergeant,  four  sergeants,  six 
corporals,  two  cooks,  two  musicians,  one  artificer,  and 
forty-eight  privates,  the  commissioned  officers  to  be  as- 
signed from  those  hereinbefore  authorized.1  Ibid. 

1451.  The  President,  in  his  discretion,  may  increase  the 
number  of  sergeants  in  any  company  of  infantry  to  six, 
the  number  of  corporals  to  ten,  and  the  number  of  pri- 
vates to  one  hundred  and  twent}T-seven,  but  the  total  num- 
ber of  enlisted  men  authorized  for  the  whole  Army  shall 
not  at  any  time  be  exceeded.     Ibid. 

ENGINEERS. 

1452.  The  enlisted  force  (of  the  Corps  of  Engineers) 
provided  in  section  eleven  of  this  act  and  the  officers  serv-  1901  s 
ing  therewith  shall  constitute  a  part  of  the  line  of  the  22>  v-  ^' >p- 75*- ' 
Army.2     Sec.  2%,  act  of  February  2, 1901  (31  Stat.  L. ,  764). 

MAXIMUM   STRENGTH. 

1453.  The  President  is  authorized  to  maintain  the  enlisted  gtrenath *  m  u  m 
force  of  the  several  organizations  of  the  Army  at  their  o/ebof  19^k s- 

»  OU,    V.   OJLj   p..  /OO. 

maximum  strength  as  fixed  by  this  act  during  the  present 
exigencies  of  the  service,  or  until  such  time  as  Congress 
may  hereafter  otherwise  direct.3  Sec.  30,  act  of  February 
2,  1901(31  Stat.  Z.,  756). 

VACANCIES. 

1454.  Vacancies  in  the  grade  of  field  officers  and  captain  ho^aficiied  cies; 
created  by  this  act,  in  the  cavalry,  artillery,  and  infantry  28F^'  p19^ s- 
shall  be  filled  by  promotion  according  to  seniority  in  each 

branch  respectively.  Sec.  28,  act  of  February  2,  1901  (31 
Stat.  Z.,  755]. 

1  See  note  to  paragraph  1445,  ante. 

2  For  requirements  of  law  in  respect  to  the  battalions  of  engineer  troops,  see  the 
title  Enlisted  Men  of  Engineers  in  the  chapter  entitled  THE  ENGINEER  CORPS. 

3  For  the  maximum  strength  referred  to  in  this  section,  see,  as  to  the  cavalry  troop, 
section  2,  act  of  February,  1901  (31  Stat.  L.,  748),  paragraph  1427,  ante;  as  to  the 
artillery  arm,  see  section  6,  ibid.,  paragraphs  1437-1440,  ante;  as  to  the  infantry  com- 
pany, see  section  10,  ibid.,  paragraphs  1450,  1451,  ante;  as  to  the  engineer  company,  see 
section  11,  ibid.,  paragraph  961,  ante;  for  a  similar  authority  to  increase  the  strength 
of  the  several  organizations  in  time  of  war,  see  the  act  of  April  26,  1898  (30  Stat.  L., 
364).     Section  36,  act  of  February  2,  1901  (31  Stat.  L.,  757),  contains  the  requirement 
that  the  "total  of  the  enlisted  men  of  the  line  of  the  Army,  together  with  the  native 
force  therein  authorized,  shall  not  exceed,  at  any  tune,  one  hundred  thousand  men." 


542 


MILITARY    LAWS    OF   THE    UNITED    STATES. 


The  same. 
Ibid. 


1455.  Vacancies  existing  after  the  promotions  have  been 
made  shall  be  provided  for  as  follows:  A  sufficient  number 
shall  be  reserved  in  the  grade  of  second  lieutenant  for  the 
next  graduating  class  at  the  United  States  Military  Acad- 
emy.    Persons  not  over  forty  years  of  age  who  shall  have, 
at  any  time,  served  as  volunteers  subsequent  to  April 
twenty -first,  eighteen  hundred  and  ninety-eight,  may  be 
ordered  before  boards  of  officers  for  such  examination  as 
may  be  prescribed  by  the  Secretary  of  War,  and  those 
who  establish  their  fitness  before  these  examining  boards 
may  be  appointed  to  the  grades  of  first  or  second  lieutenant 
in  the  Regular  Army,  taking  rank  in  the  respective  grades 
according  to  seniority  as  determined  by  length  of  prior 
commissioned  service;  but  no  person  appointed  under  the 
provisions  of  this  section  shall  be  placed  above  another  in 
the  same  grade  with  longer  commissioned  service,  and 
nothing  herein  contained  shall  change  the  relative  rank  of 
officers  heretofore  commissioned  in  the  Regular  Army.1 
TUd. 

1456.  Enlisted  men  of  the  Regular  Army  or  volunteers 
may  be  appointed  second  lieutenants  in  the  Regular  Army 
to  vacancies  created  by  this  act,  provided  that  they  shall 
have  served  one   year   under   the   same  conditions   now 
authorized  by  law  for  enlisted  men  of  the  Regular  Army. 
lUd. 

COMPANY   COOKS. 


M°a°rkS2, 1899,  s.      1457-  The  GQC^>  authorized  by  this  act  shall  have  the 
9,  v. so, p. 979.     pay  an(j  allowances  of  sergeants  of  infantry.2    -Sec.  9,  act 
of  March  0,  1899  (30  Stat.  L.,  979). 

1  See  also  the  act  of  March  2,  1901  (31  Stat.  L.,  900),  paragraph  578,  ante. 

2  This  enactment  repeals  and  replaces  the  act  of  July  7, 1898  ( 30  Stat.  L. ,  721 ) ,  which 
authorized  the  enlistment  of  one  cook  for  each  troop,  battery,  and  company  in  the 
Kegular  and  Volunteer  armies  of  the  United  States.     The  person  so  enlisted  as  cook 
was  to  ' '  take  rank  as  and  be  allowed  the  pay  of  a  corporal  of  the  arm  of  the  service 
to  which  he  belongs,  and  whose  duties  in  connection  with  the  preparation  and  serv- 
ing of  the  food  of  the  enlisted  men  of  the  company,  battery,  or  troop,  and  with  the 
supervision  and  instruction  of  enlisted  men  hereby  authorized  to  be  detailed  to  assist 
him,  shall  be  prescribed  in  the  regulations  for  the  government  of  the  Army." 


The  same. 
Ibid. 


CHAJPTEH  XXXI. 


THE  UNITED   STATES  MILITARY  ACADEMY— THE  ARMY 
WAR  COLLEGE— THE  SERVICE  SCHOOLS. 


Par. 

1458-1513.  The   United    States   Military 
Academy. 

1514.  The  Army  War  College. 

1515.  The  Engineer  School. 


Par. 

1516, 1517.  The  Artillery  School. 

1518.  The  Infantry  and  Cavalry  School. 

1519.  The  Cavalry  and  Light  Artillery 

School. 


THE    MILITARY    ACADEMY. 


Par. 

1458-1478.  Organization,    academic    and 

military  staff. 

1479-1494.  The  Corps  of  Cadets. 
1495,1496.  Courts-Martial:  Hazing. 
1497-1500.  The  Board  of  Visitors. 
1501-1507.  Leaves  of  absence,  purchases, 

contingent  funds. 


Par. 

1508.  The  Military  Academy  band. 
1509-1511.  General  Army  service  men, 
Quartermaster's  Department. 

1512.  The  Cullum  Memorial. 

1513.  Chapels. 


ORGANIZATION:  ACADEMIC  AND  MILITARY  STAFF. 


Par. 

1458.  Officers,  professors,  and  instructors. 

1459.  Assignment  of  law  professor. 

1460.  Associate  professor  of  mathematics. 

1461.  Chaplain,  appointment  and  tenure. 

1462.  Supervision  of  the  Academy. 

1463.  Appointment  of  officers  and  pro- 

fessors. 

1464.  Selection  of  officers. 

1465.  Kestriction  on  detail  of  graduates. 

1466.  Rank  of  superintendent  and  com- 

mandant. 

1467.  Superintendent  to  command. 

1468.  The  same,  pay  and  allowances. 


Par. 

1469.  The  commandant  of  cadets. 

1470.  Command  of  academic  staff. 

1471.  Professors,  pay  and  allowances. 

1472.  Master  of  the  sword. 

1473.  The  same,  retirement. 

1474.  Assistant  professors,  pay  and  allow- 

ances. 

1475.  The  same,  assistant  instructors  of 

tactics. 

1476.  Librarian;  assistant  librarian. 

1477.  Adjutant. 

1478.  Quartermaster  and  commissary  of 

cadets. 


££$£ 


1458.  The   United  States  Military   Academy  at  West 
Point,  in  the  State  of  New  York,1  shall  be  constituted  as*01*8 

1  The  Military  Academy  was  established  in  pursuance  of  authority  conferred  by  the 
act  of  March  16,  1802  (2  Stat.  L.,  137),  which  contained  a  requirement  authorizing  the 
President  to  establish  a  corps  of  engineers:  "The  said  corps,  when  so  organized, 
shall  be  stationed  at  West  Point,  in  the  State  of  New  York,  and  shall  constitute  a 
military  academy.  Sections  26  and  .27,  act  of  March  16,  1802  (2  Stat.  L.,  137).  The 
post  of  West  Point  ceased  to  be  an  engineer  station  and  the  control  of  the  Military 
Academy  was  transferred  from  the  Chief  of  Engineers  to  such  officer  or  officers  as  the 
Secretary  of  War  may  assign  to  that  duty  by  the  act  of  July  13,  1866  (14  Stat.  L.,  92.) 

543 


544  MILITARY    LAWS    OF   THE    UNITED    STATES. 


:  There  shall  be  one  superintendent;  one  comnian- 
v18n;  p.;  dant  °f  cadets;  one  senior  instructor  in  the  tactics  of  artil- 
Tiz^ifv.^p^y'i  one  senior  instructor  in  the  tactics  of  cavalry;  one 
c2°e;if  SVv.  s!1?,'  seni°r  instructor  in  the  tactics  of  infantry  ;  one  professor 
3?v.  5?p,'  anc^  one  assistant  professor  of  civil  and  military  engineer- 
'1  one  Professor  and  one  assistant  professor  of  natural 
experimental  philosophy;2  one  professor  and  one  as- 
c1;8itvgio6;p1829:s^stant  professor  of  mathamatics;3  one  professor  and  one 
4?bv  ^i  ^iei1  assistant  professor  of  chemistry,  mineralogy,  and  geology;  * 
t^'ta^FS0116  prof  essor  and  one  assistant  professor  of  drawings;5 
^i^SeTFeb:0116  professor  of  modern  languages;6  one  assistant  pro- 
ii!  p^i6i%ec.  I'  fessor  of  the  French  language;  one  assistant  professor  of 
2inp.  34!  Jan9'  16,'  *^e  Spanish  language;  7  one  assistant  professor  of  law;  one 
one  master  of  the  sword;9  and  one  teacher  of 


. 

°      1459-  The  Secretary  of  War  may  assign  one   of    the 

aw.     Act 
That  the 


i8Jpn6o6'  !iu7ne  T  j  udge-advocates  of  the  Army  to  be  professor  of  law.     Act 
i88o;v.2i;P.i63.'^y  june  ^   igty  y8  jgtat%  JT  ?  60^     Provided,  Th 


1  The  office  of  professor  of  civil  and  military  engineering  was  established  by  section 
2  of  the  act  of  April  29,  1802  (2  Stat.  L.,  720). 

2  The  office  of  professor  of  natural  and  experimental  philosophy  was  established 
by  section  2  of  the  act  of  April  29,  1802  (2  Stat.  L.,  702). 

3  The  office  of  professor  of  mathematics  was  established  by  section  2  of  the  act  of 
April  29,  1802  (2  Stat.  L.,  702). 

4  The  office  of  professor  of  chemistry,  mineralogy,  and  geology  was  established  by 
section  19  of  the  act  of  July  5,  1838  (5  Stat.  L.,  259). 

5  The  office  of  teacher  of  drawing,  first  created  by  Executive  order,  received  statu- 
tory recognition  in  section  2  of  the  act  of  April  29,  1802  (2  Stat.  L.,  720)  .     The  office 
of  professor  of  drawing  was  established  by  section  3  of  the  act  of  August  8,  1846  (9 
Stat.  L.,  161). 

6  The  office  of  teacher  of  French,  first  established  by  Executive  regulation,  received 
statutory  recognition  in  section  2  of  the  act  of  April  29,  1802  (2  Stat.,  L.,  702).     The 
office  of  professor  of  French  was  established  by  section  3  of  the  act  of  August  8,  1846 
(9  Stat.L.,  161).     The  act  of  June  20,  1879  (  21  Stat.  L.,  34)  ,  contained  the  requirement 
that  '  '  when  a  vacancy  occurs  in  the  office  of  professor  of  the  French  language  or  in 
the  office  of  professor  of  the  Spanish  language  in  the  Military  Academy,  both  these 
offices  shall  cease,  and  the  remaining  one  of  the  two  professors  shall  be  professor  of 
modern  languages;  and  thereafter  there  shall  be  in  the  Military  Academy  one,  and 
only  one,  professor  of  modern  languages."     On  June,  30,  1882,  a  vacancy  having 
occurred  in  the  office  of  professor  or  Spanish,  the  statute  became  operative  and  the 
offices  of  professor  of  French  .and  professor  of  Spanish  were  merged,  by  operation 
of  law,  in  the  office  of  professor  of  modern  languages.     The  office  of  professor  of 
Spanish,  created  by  section  2  of  the  act  of  February  15,  1857  (11  Stat.  L.,  161),  ceased 
to  exist,  by  operation  of  law,  on  June  30,  1882,  having  been  merged  in  the  office  of 
professor  of  modern  languages  in  conformity  to  section  4  of  the  act  of  June  20,  1879 
(21  Stat.  L.,  34). 

For  notes  in  respect  to  the  establishment  of  the  offices  of  instructor  of  ordnance  and 
gunnery  and  practical  military  engineering,  see  notes  1  and  2  on  page  548,  post. 

7  The  offices  of  assistant  professor  of  civil  and  military  engineering,  natural  and 
experimental  philosophy,  and  mathematics  were  established  by  section  2  of  the  act 
of  April  29,  1802  (2  Stat.  L.,  702);  that  of  chemistry,  mineralogy  and  geology  by  sec- 
tion 19  of  the  act  of  July  5,  1838  (5  Stat.  L.,  259)";  those  of  French  and  drawing  by 
section  2  of  the  act  of  August  6,  1852  (10  Stat.  L.,  29);  that  of  Spanish  by  section  3  of 
the  act  of  February  28,  1857  (14  Stat.  L.,  416),  and  that  of  law  by  the  act  of  January 
5,  1895  (28  Stat.  L.,  630). 

8For  the  status  of  this  office  see  paragraph  1477,  post. 
9  For  the  status  of  this  office  see  paragraph  1472,  post. 


MILITAEY    LAWS    OF   THE    UNITED    STATES.  545 

Secretary  of  War  may,  in  his  discretion,  assign  any  officer 
of  the  Army  as  professor  of  law.1  Act  of  June  1,  1880 
(21  Stat.  L.,  153). 

1460.  There  shall  be  appointed  at  the  Military  Academy  fe^r°Sat£ag£; 
f  rom  the  Army,  in  addition  to  the  professors  authorized  "^^and  ailow. 
by  the  existing  laws,  an  associate  professor  of  mathemat-anc^ngevit 
ics,  who  shall  receive  the  pay  and  allowances  of  a  captain  Pa^-ar  1  1893 
mounted,  and  when  his  service  as  associate  prof  essor  of  27>  P-  &i6' 
mathematics  at  the  Academy  exceeds  ten  years,  he  shall 

receive  the  pay  and  allowances  of  major;  and  hereafter 
there  shall  be  allowed  and  paid  to  the  said  associate  pro- 
fessor of  mathematics  ten  per  centum  of  his  current'yearly 
pay  for  each  and  every  term  of  five  years'  service  in  the 
Army  and  at  the  Academy  :  Provided,  That  such  addition 
shall  in  no  case  exceed  forty  per  centum  of  said  yearly 
pay  ;  and  said  associate  professor  of  mathematics  is  hereby 
placed  upon  the  same  footing  as  regards  restrictions  upon 
pay  and  retirement  from  active  service  as  officers  of  the 
Army.  Act  of  March  1,  1893  (27  Stat.  L.,  515). 

1461.  The  duties  of  chaplain  at  the  Military  Academy  T$S^$gg_ 
shall  hereafter  be  performed  by  a  clergyman  to  be  ap-  erj£b  18    1896 
pointed  by  the  President  for  a  term  of  four  years,  and  the  V-29>P-8- 
said  chaplain  shall  be  eligible  for  reappointment  for  an 
additional  term  or   terms  and    shall,  while  so    serving, 

receive  the  same  pay  and  allowances  as  are  now  allowed 
to  a  captain  mounted.2  Act  of  February  18,  1896  (29 
Stat.  L.,  8). 

SUPERVISION. 

1462.  The  supervision  and  charge  of  the  Academy  shall  A®J$fmVision  of 


be  in  the  War  Department,  under  such  officer  or  officers  ?<}*&  c' 
as  the  Secretary  of  War  may  assign  to  that  duty.3  92seli33i  R.S 


THE   ACADEMIC  STAFF. 


1463.  The  superintendent,  the  commandant  of  cadets,  and  ofAjerean 
the  professors  shall  be  appointed  by  the  President.4     Xhe  professors- 

1  The  acts  of  June  27,  1881  (21  Stat.  L.,  319),  and  June  30,  1882    (22  Stat.  L.,  125), 
contain  a  similar  provision. 

2  The  office  of  chaplain  was  established  by  the  act  of  April  4,  1818  (3  Stat.  L.,  426), 
which  authorized  the  appointment  of  a  chaplain  at  the  Military  Academy,  who  shall 
also  be  professor  of  geography,  history,  and  ethics.     By  the  act  of  February  18,  1896 
(29  Stat  L.,  8),  the  professorship  thus  authorized  was  discontinued,  the  duties  of 
chaplain  being  performed  by  the  officer  whose  appointment  was  authorized  by  that 
statute,  and  the  duty  of  giving  instruction  in  history  being  transferred  by  executive 
regulation  to  the  department  of  law. 

3  The  Military  Academy  is  withdrawn  from  the  control  and  supervision  of  depart- 
ment commanders  by  the  terms  of  paragraph  208,  Army  Regulations  of  1901. 

*See,  for  status  of  these  officers,  paragraphs  1466,  1469,  and  1471,  post. 

22924—08  -  35 


546  MILITABY   LAWS    OF   THE    UNITED   STATES. 


professors,  acting  assistant  professors,  and  the 
is?  1  12'  v1^'  p!  adjutant  shall  be  officers  of  the  Army,  detailed  and  assigned 
jps^Ap^  29,  W12,  £o  Sucj1  (juties  by  the  Secretary  of  War,  or  cadets  assigned 
c2°iV<3Usy  6%^'  by  the  superintendent,  under  the  direction  of  the  Secretary 
^1818,^8.'  of  War. 

officeerlct  1464-  Tne    superintendent  and  commandant  of   cadets 

ne^^Vi^'p'  may  be  selected,  and  all  other  officers  on  duty  at  the  Acad- 

92sec.isi4,R.s.  emv  maybe  detailed,  from  any  arm  of  the  service;  but  the 

academic  staff  as  such  shall  not  be  entitled  to  any  command 

in  the  Army  separate  from  the  Academy. 

beNafsteiedteto     1465<  Hereafter  no  graduate  of  the  Military  Acade'my 

emy  withfif  two  Snall  ^e  assigned  or  detailed  to  serve  at  said  Academy  as 

uationafter  gT&^'  a  professor,  instructor,  or  assistant  to  either,  within  two 

v  J28ly  ill  1894>  Jears  after  his  graduation,  and  so  much  of  the  act  of  June 

thirtieth,  eighteen  hundred  and  eighty  -two,  as  requires  a 

longer  service  than  two  years  for  said  assignments  or  de- 

tails is  hereby  repealed.1    Act  of  July  26,  1894  (®8  Stat. 

L.,  151). 

su^ntScu  ntf  1466-  The  superintendent  and  the  commandant  of  cadets, 
dant  comman  'while  serving  as  such,  shall  have,  respectively,  the  local 
iwTiVi^pPlss'  rank  °f  colonel  and  lieutenant-colonel  of  engineers.2 

Sec.  1310,  K.S.' 

enStTc?mmand."  1467>  The  superintendent,  and,  in  his  absence,  the  next 
9  i^Sj'vVp'is?'-  in  rank,  shall  have  the  immediate  government  and  military 
^6gs26'  v84!'  p'  command  of  the  Academy,  and  shall  be  commandant  of  the 
51I'ec.i8ii  B.S.  military  Post  of  West  Point.3 

:The  act  of  June  30,  1882  (22  Stat.  L.,  123),  contained  the  requirement  that  no 
graduate  of  the  Military  Academy  should  be  assigned  or  detailed  to  serve  as  a 
professor,  instructor,  or  assistant  to  either,  within  four  years  after  his  graduation. 

2  The  office  of  superintendent  was  created  by  section  28  of  the  act  of  March  16,  1802, 
(2  Stat.  L.,  137),  which  contained  the  requirement  that  "the  principal  engineer  and, 
in  his  absence,  the  next  in  rank,  shall  have  the  superintendence  of  the  Military 
Academy  under  the  direction  of  the  .President  of  the  United  States."     So  much  of 
the  act  of  March  16,  1802,  as  restricted  the  appointment  to  this  office  to  the  Corps 
of  Engineers  was  replaced  by  section  6  of  the  act  of  July  16,  1866  (14  Stat.  L.,  92), 
which  vested  the  supervision  of  the  Academy  in  the  War  Department,  under  such 
office  or  officers  as  the  Secretary  of  War  may  assign  to  that  duty.     By  the  act  of 
January  12,  1858  (11  Stat.  L.,  333),  the  local  rank  of  colonel  of  engineers  was  conferred 
upon  the  superintendent. 

The  act  of  June  20,  1840  (5  Stat.  L.,  398),  contained  the  requirement  that  the 
commander  of  the  corps  of  cadets  should  be  either  the  instructor  of  infantry  tactics, 
of  cavalry  or  artillery  tactics,  or  of  practical  engineering;  and  his  pay  and  emolu- 
ments were  in  no  case  to  be  less  than  those  allowed  by  law  to  the  professor  of  mathe- 
matics. By  the  act  of  June  12,  1858  (11,  ibid.,  333)  ,  the  pay  of  this  officer  was  fixed 
at  that  of  a  lieutenant-colonel. 

3  The  post  of  West  Point  is  one  of  the  military  posts  of  the  United  States,  and  the 
appropriation  for  the  construction  of  buildings  at  military  posts  is  applicable  to  the 
erection  of  such  quarters  as  are  for  the  use  of  the  military  post  at  that  place  and 
independent  of  the  Military  Academy  located  there.     5  Compt.  Dec.,  812;  3  Dig. 
Dec.  Sec.  Compt.,  216. 

Expenditures  for  the  support  of  the  Military  Academy  must  be  limited  to  the 
amounts  appropriated  in  the  acts  for  the  support  of  the  Academy,  unless  a  contrary 
purpose  on  the  part  of  Congress  clearly  appears  in  its  legislation.  Ibid.,  216. 

A  sum  legally  payable  out  of  a  specific  appropriation  can  not  be  transferred  to  the 
credit  of  another  appropriation.  But  this  rule  does  not  affect  the  proper  disburse- 


MILITARY    LAWS    OF    THE    UNITED    STATES.  547 


1468.  The  commandant  of  the  cadets  shall  have  the  i 
mediate  command  of  the  battalion  of  cadets,  and  shall 

instructor  in  the  tactics  of  artillery,  cavalry,  and  infantry.  33|c.  m2,  R.  s. 

1469.  The  superintendent  of  the  Military  Academy  shall 
have  the  pay  of  a  colonel,  and  the  commandant  of 

shall  have  the  pay  of  a  lieutenant-colonel. 

1470.  The  academic  staff,  as  such,  shall  not  be  entitled 

to  any  command  in  the  Army  separate  from  the  Academy.    Sec-  i8u,B.s. 

1471.  Each  of  the  professors  of  the  Military  Academy    Pay  of  profes- 
whose  service  as  professor  at  the  Academy  exceeds  ten    Feb.  23,  1373,  c. 

210  V.  17  p.  479. 

years  shall  have  the  pay  and  allowances  of  colonel,  and  all  sec.'  4,  June  23, 
other  professors  shall  have  the  pay  and  allowances  of  lieu-  sec.  i336,k.s. 
tenant-colonels;1  and  the  instructors  of  ordnance  and 

ment  of  the  sum  appropriated.  Thus  where,  in  the  Military  Academy  appropriation 
act,  a  certain  amount  was  appropriated  for  models  of  guns  and  carriages,  held,  that 
the  Secretary  of  War  was  authorized  to  transfer  this  amount  for  disbursement  to  the 
disbursing  officer  at  Watervliet  Arsenal,  where  the  models  were  to  be  manufactured, 
instead  of  leaving  the  disbursement  to  the  disbursing  officer  at  West  Point.  Dig. 
Opin.  J.  A.  G.,  par.  457. 

Residents  and  visitors  at  the  Academy.  No  person  can  be  entitled,  as  a  matter  of  right, 
to  enter  within  the  limits  of  this  post  unless  he  be  authorized  to  do  so  by  the  laws 
of  the  United  States,  or  by  some  officer  having  authority  under  the  law  to  grant  per- 
mission to  enter  such  limits.  The  Superintendent  of  the  Academy,  as  commandant 
of  this  post,  has  a  general  authority  to  prevent  any  person  in  civil  life  residing  per- 
manently or  temporarily  at  the  post,  or  occasionally  resorting  to  the  post,  from 
interrupting  its  discipline,  or  obstructing  in  any  way  the  performance  of  the  duties 
assigned  by  law  to  the  officers  and  cadets.  In  the  exercise  of  a  sound  discretion,  the 
commandant  of  the  post  may  therefore  order  from  it  any  person  not  attached  to  it 
by  law  whose  presence  is,  in  his  judgment,  injurious  to  the  interests  of  the  Academy. 
And  in  case  any  person  so  ordered  shall  refuse  to  depart,  after  reasonable  notice  and 
within  a  reasonable  time,  having  regard  to  the  circumstances  of  the  case,  I  think  the 
Superintendent  may  lawfully  remove  him  by  force.  Ill  Opin.  Att.  Gen.,  268-273. 
When,  however,  the  United  States  have  leased  a  dwelling  house  within  the  post 
belonging  to  them  to  an  individual,  they  have  no  greater  right  than  an  individual 
would  have  in  respect  to  the  ejectment  of  the  lessee.  Ibid. 

No  person  has  the  right  to  enter  the  limits  of  the  post  of  West  Point,  not  even  to 
visit  the  post-office  there,  unless  specially  authorized  by  the  laws  of  the  United 
States  or  by  some  officer  having  authority  to  grant  permission.  Ibid. 

The  Superintendent  of  the  Military  Academy  is  not  in  general  authorized  to  arrest 
and  confine  in  the  guardhouse  a  civilian  for  a  mere  breach  of  the  police  regulations 
of  the  post  or  Academy.  His  proper  remedy  is  to  have  the  offender  removed  as  soon 
as  practicable,  and  without  unnecessary  force,  from  the  reservation.  Dig.  Opin.  J.  A. 
G.,  par.  520. 

xThe  act  of  April  29,  1812  (2  Stat.  L.,  702)  ,  conferred  upon  the  professor  of  natural 
and  experimental  philosophy  the  pay  and  emoluments  of  a  lieutenant-colonel;  and 
that  of  major  upon  the  professors  of  engineering  and  mathematics.  The  professor  of 
chemistry,  mineralogy,  and  geology  was  placed  upon  the  same  footing,  in  respect  to 
pay  and  emoluments,  as  the  professor  of  mathematics,  by  section  19  of  the  act  of 
July  5,  1838  (5  Stat.  L.,  259).  By  the  act  of  March  3,  1851  (9  Stat.  L.,  594),  the  pay 
of  the  professors  of  engineering,  natural  and  experimental  philosophy,  mathematics, 
and  chemistry  was  fixed  at  $2,000  per  annum,  and  that  of  the  professors  of  French 
and  drawing  at  $1,500  per  annum,  these  sums  to  be  "in  lieu  of  pay  proper,  ordinary 
rations,  forage,  and  servants."  By  section  2  of  the  act  of  February  16,  1857  (11  Stat. 
L.,  161),  the  pay  of  professor  of  Spanish  was  fixed  at  $2,000  per  annum,  subject  to 
the  restrictions  contained  in  the  act  of  March  3,  1851.  By  section  13  of  the  act  of 
July  15,  1870  (16  Stat.  L.,  319),  professors  whose  service  exceeded  thirty-five  years 
were  to  receive  the  pay  and  allowances  of  colonels;  those  whose  service  had  been 
less  than  thirty-five  years,  but  exceeded  twenty-five  years,  were  to  receive  the  pay 
and  allowances  of  lieutenant-colonels,  and  all  other  professors  were  to  receive  the 
pay  and  emoluments  of  major.  By  the  act  of  February  28,  1873  (17  Stat.  L.,  479), 
professors  whose  service  exceeded  ten  years  were  to  receive  the  pay  and  emoluments 


548  MILITAEY    LAWS    OF    THE    UNITED    STATES. 

science  of  gunnery1  and  of  practical  engineering2  shall 
have  the  pay  and  allowances  of  major;  and  hereafter  there 
shall  be  allowed  and  paid  to  the  said  professors  ten  per 
centum  of  their  current  yearly  pay  for  each  and  every 
term  of  five  years'  service  in  the  Army  and  at  the  Acad- 
emy :  Provided,  That  such  addition  shall  in  no  case  exceed 
forty  per  centum  of  said  yearly  pay;  and  said  professors 
are  hereby  placed  upon  the  same  footing,  as  regards 
restrictions  upon  pay  and  retirement  from  active  service, 
as  officers  of  the  Army. 

swSter  °f  the  1472-  The  master  of  the  sword  shall  hereafter  act  as 
31^914' 1901'  v'  instructor  of  military  gymnastics  and  physical  culture  at 
sec.  ms,  K.  s.  f^e  Military  Academy,  and  shall  have  the  relative  rank 
and  shall  be  entitled  to  the  pay,  allowances,  and  emolu- 
ments of  a  first  lieutenant,  mounted:  Provided,  however, 
That  whenever  a  vacancy  shall  occur  in  the  office  of  master 
of  the  sword  and  instructor  of  military  gymnastics  and 
physical  culture  the  said  office  shall  cease  and  determine, 
and  the  duties  thereunto  pertaining  shall  thereafter  be 
performed  by  an  officer  of  the  line  of  the  Army  to  be 
selected  for  that  purpose  by  the  Secretary  of  War.  Act 
of  March  0,  1901  (31  Stat.  L.,  914). 

piSSSET  1473.  The  professors  of  the  Military  Academy  at  West 
294)Usyi3!v18i6;p.  Point  are  placed  on  the  same  footing,  as  to  retirement  from 
31s'ec.i338,B.s.  active  service,  as  officers  of  the  Army. 

of  colonels,  and  all  other  professors  the  pay,  etc. ,  of  lieutenant-colonels.  This  statute 
was  amended  by  section  4  of  the  act  of  June  23,  1874  (21  Stat.  L.,  34) ,  so  as  to  require 
ten  years'  service  as  a  professor  at  the  Military  Academy  as  a  condition  precedent  to 
receiving  the  pay  and  allowances  of  colonel. 

The  professors  of  the  Military  Academy  do  not  belong  to  the  staff  of  the  Army 
within  the  meaning  of  section  1205,  Revised  Statutes,  since  they  have  no  military 
rank  or  grade.  The  fact  that  they  are  authorized  by  the  President  to  wear  the  uni- 
form of  the  rank  as  of  which  they  are  paid  does  not  invest  them  with  such  rank. 
This  can  be  given  them  by  Congress  alone.  Dig.  Opin.  J.  A.  Gen.,  615,  par.  2. 

A  captain  cf  cavalry  does  not  vacate  his  office  as  such  by  the  acceptance  of  that  of 
professor  of  the  Military  Academy,  there  being  no  incompatibility  in  the  functions 
of  the  two  offices.  Ibid.,  par.  3. 

The  professors  of  the  Military  Academy  at  West  Point  are  commissioned  officers 
of  the  Army,  whose  pay  and  allowances  are  assimilated  to  those  of  a  lieutenant- 
colonel  and"  a  colonel;  and  in  case  of  such  disability  as  is  described  in  section  4693, 
Revised  Statutes,  they  are  entitled  to  pensions  at  the  same  rate  with  officers  of  the 
rank  of  lieutenant-colonel.  XVII  Opin.  Att.  Gen.,  359. 

1  The  office  of  instructor  of  ordnance  and  gunnery  was  established  by  the  Secre- 
tary of  War,  on  the  recommendation  of  the  academic  board,  on  December  31, 1856;  the 
duties  of  the  former  instructor  of  artillery,  which  were  not  connected  with  instruc- 
tion in  the  drill  regulations  of  the  arm,  being  transferred  to  the  office  thus  established. 
By  the  act  of  June  12, 1858  (11  Stat.  L.,  333),  the  duty  of  instruction  in  the  drill  regu- 
lationswas  vested  in  the  commandant  of  cadets  and  the  assistant  instructors  authorized 
by  that  enactment.  An  officer  of  ordnance  was  assigned  to  duty  as  instructor  of 
ordnance  and  gunnery  by  Special  Orders,  No.  31,  H.  Q.  U.  S.  Military  Academy  on 
February  27,  1857. 

2 The  office  of  instructor  of  practical  military  engineering  was  established  by  sec- 
tion 2  of  the  act  of  July  20,  1840  (5  Stat.  L.,  397);  upon  the  recommendation  of  the 
Chief  of  Engineers,  dated  April  24,  1844,  an  officer  of  engineers  was  appointed  to  the 
office.  ' 


MILITARY    LAWS    OF    THE    UNITED    STATES.  549 


1474.  Each  assistant  professor  and  each  senior  assistant 
instructor  of  cavalry,  artillery,  and  infantry  tactics  shall  st  A^g;  1812,  c 
receive  the  pay  of  a  captain.1  ?26;SJuiyV5,  isss 

c.  162,  s.  19,  v.  5,  p.  259;  July  20,  1840,  c.  50,  s.  3,  v.  5,  p.  398;  Aug.  6,  1852,  c.  81,  s.  2,  v.  10,  p 
29-  June  12,  1858,  c.  156,  s.  1,  v.  11,  p.  333;  Feb.  28,  1867,  c.  100,  s.  3,  v.  14,  p.  416;  Feb.  28 
1873,  v.  17,  p.  479;  Jan.  16,  1895,  v.  28,  p.  630.  Sec.  1837,  R.  S. 

1475.  The  assistant  instructors  of  tactics  commanding 
cadet  companies  at  West  Point  shall  receive  the  pay  and 
allowances  as  assistant  professors  in  the  other  branches  of  18>  p-  467- 
study.2    Act  of  March  3,  1875  (18  Stat.  L.,  JfiT). 

1476.  The  librarian  and  assistant  librarian  at  the  Military  assistant. 
Academy  shall  each  receive  one  hundred  and  twenty  dollars  1»J?S,  Y'IVP.?! 

",  ,.,.          ,  o  Sec.  1840,  R.S. 

a  year  additional  pay. 


THE    MILITARY    STAFF. 


1477.  The  adjutant  of  the  Military  Academy  shall  have  of Adjutant,  pay 
the  pay  of  an  adjutant  of  a  cavalry  regiment.  32^ai'v'9185594' 

Sec.  1335,  R.S. 

1478.  The  Secretary  of  War  is  hereby  directed  to  detail    Quartermaster 

.  and  commissary 

a  competent  officer  to  act  as  quartermaster  and  commissary  of  cadets. 

for  the  battalion  of  cadets,  b}^  whom  all  purchases  and 

issues  of  supplies  of  all  kinds  for  the  cadets,  and  all  provi-  coftupplies  at 

sions  for  the  mess,  shall  be  made,  and  that  all  supplies  of  19Apgi276' 1876>  v> 

all  kinds  and  description  shall  be  furnished  to  the  cadets 

at  actual  cost,  without  any  commission  or  advance  over 

said  cost;  and  such  officer  so  assigned  shall  perform  all  the 

duties  of  purveying  and  supervision  for  the  mess,  as  now 

done  by  the  purveyor,  without  other  compensation/     Act 

of  August  7,  1876  (19  Stat.  Z.,  126). 

1  Assistant  professors  at  the  Military  Academy  are  entitled  to  the  quarters  of  cap- 
tains. IX  Opin.  Att.  Gen.,  284.  The  distinction  contended  for  at  the  Military 
Academy  between  academic  and  military  rank  is  not  allowable  in  the  choice  of 
quarters.  5  ibid.,  627. 

2 Section  2  of  the  act  of  July  20,  1840  (5  Stat.  L.,  398),  contained  the  requirement 
that  the  pay  and  emoluments  of  instructors  in  cavalry,  artillery,  and  infantry  tac- 
tics should  not  be  less  than  was  allowed  by  law  (captain  mounted)  to  the  assistant 
professor  of  mathematics.  This  statute  was  replaced  by  the  act  of  June  12,  1858  (11 
Stat.  L.,  333),  which  conferred  the  pay  of  captain  mounted  upon  the  senior  assistant 
instructor  in  each  of  the  arms  of  service. 

The  annual  acts  of  appropriation  for  the  support  of  the  Military  Academy,  since 
that  of  February  10, 1897  29  (Stat.  L.,  518) ,  have  contained  a  pro  vision  for  the  pay  of 
a  senior  instructor  in  the  Department  of  Ordnance  and  Gunnery.  Those  since  March 
5,  1898  (30  Stat.  L.,  254) ,  have  contained  a  similar  provision  in  respect  to  the  pay  of 
the  senior  assistant  in  the  Department  of  Practical  Military  Engineering. 

3 The  annual  acts  of  appropriation  from  that  of  February  18, 1871  (16  Stat.  L.,  414), 
to  that  of  July  26,  1894  (28  Stat.  L.,  156),  contained  a  provision  authorizing  the  pay- 
ment of  $1,000  per  annum  for  compensation  of  the  librarian's  assistant.  In  the  acts 
of  February  12,  1895  (28  Stat.  L.,  631),  and  March  6,  1896  (29  Stat.  L.,  49),  the 
compensation  of  the  librarian's  assistant  was  fixed  at  $1,200  per  annum. 

4  The  annual  appropriation  acts,  since  that  of  March  31,  1884,  have  contained  a 
provision  for  extra  pay  for  the  quartermaster  and  commissary  of  cadets  at  the  rate 
of  $700  per  annum,  in" addition  to  his  pay  as  a  captain  of  infantry.  The  act  of  June 
30,  1892  (22  Stat.  L.,  123),  authorizes  the  Secretary  of  War  to  detail  a  commissarj 
sergeant  to  act  as  assistant  to  the  commissary  of  cadets. 


550 


M1LITAKY    LAWS    OF    THE    UNITED    STATES. 


THE    CORPS    OF    CADETS. 


Par. 

1479.  Number  and  appointment. 

1480.  Appointment  in  advance. 

1481.  Age  of  appointees. 

1482.  Qualifications  for  admission. 

1483.  Oath. 

1484.  Engagement  for  service. 

1485.  Pay  and  allowances. 

1486.  Promotion  of  graduates,  additional 

second  lieutenants. 

1487.  One  additional  officer  only  to  each 

company. 


Par. 

1488.  Pay  of  graduated  cadets. 

1489.  Organization  of  corps  into  compa- 

nies, etc. 

1490.  Liability  to  duty. 

1491.  No  study  on  Sunday. 

1492.  Instruction  in  physiology,  etc. 

1493.  The  same. 

1494.  Deficient  cadets. 


Number    and 
appointment. 


1479.  The  corps  of  cadets  shall  consist  of  one  from  each 
4  JyU!3i  p  65o' s'  Congressional  district,  one- from  each  Territory,  one  from 
sec.  isi5,R.s.  the  District  of  Columbia,  two  from  each  State  at  large, 
and  thirty  from  the  United  States  at  large.  They  shall  be 
appointed  by  the  President,  and  shall,  with  the  exception 
of  the  thirty  cadets  appointed  from  the  United  States  at 
large,  be  actual  residents  of  the  Congressional  or  Terri- 
torial districts,  or  of  the  District  of  Columbia,  or  of  the 
States,  respectively,  from  which  they  purport  to  be  ap- 
pointed.1 Sec.  4,  act  of  June  6,  1900  (31  Stat.  Z.,  656). 

xThe  first  authorization  of  the  employment  of  cadets  in  the  military  service  will 
be  found  in  the  act  of  May  9,  1794  (1  Stat.  L.,  366),  for  raising  a  corps  of  artillerists 
and  engineers;  the  new  organization  was  to  be  formed  by  the  consolidation  of  the 
existing  corps  of  artillery  with  the  additional  force  therein  authorized,  and  was  to 
consist  of  four  companies,  to  each  of  which  two  cadets  were  to  be  attached,  with  the 
pay,  rations,  and  clothing  of  sergeants  of  artillery.  An  additional  regiment  of 
artillerists  and  engineers  was  established  by  the  act  of  April  27,  1798  (ibid.,  552), 
with  the  same  organization  as  the  regiment  already  in  service;  by  section  3  of  the  act 
of  March  3,  1799  (ibid.,  750),  the  pay  of  cadets  was  fixed  at  ten  dollars  per  month, 
with  two  rations  per  day  or  their  equivalent  in  money;  by  this  enactment  ten  cadets 
were  allowed  for  each  regiment  of  cavalry  and  infantry  a'nd  thirty-two  for  each  reg- 
iment of  artillery. 

The  act  to  fix  the  military  peace  establishment,  approved  on  March  16,  1802  (2 
ibid.,  132),  provided  for  one  regiment  of  artillerists  and  engineers;  it  was  to  consist 
of  twenty  companies,  to  each  of  which  two  cadets  were  attached.  By  section  26  of 
this  enactment  authority  wab  conferred  upon  the  President  .to  establish  a  corps  of 
engineers,  to  which  ten  cadets  were  to  be  attached,  and  the  monthly  pay  of  the 
cadets  was  fixed  at  sixteen  dollars  and  one  ration  per  day;  by  section  27,  the  corps 
of  engineers,  when  organized,  \vas  to  be  stationed  at  West  Point  and  was  to  consti- 
tute the  Military  Academy.  The  acts  of  April  12,  1808  (2  ibid.,  481),  and  June  11, 
1812  (ibid.,  671),  authorized  additions  to  the  military  establishment;  by  the  former, 
156  cadets  were  provided  for,  and  by  the  latter,  64;  in  neither  case,  however,  was 
the  authorized  establishment  completed,  nor  does  any  considerable  number  of  cadets 
seem  to  have  been  attached  to  the  Military  Academy,  as  is  indicated  by  a  report  of 
the  superintendent  of  January  5,  1810,  at  which  date  forty-seven  cadets' were  under- 
going instruction  at  the  academy.  An  act  making  further  provision  for  the  Corps 
of  Engineers,  approved  April  29,  1812  (ibid.,  720),  fixed  the  number  of  cadets  in  all 
arms  of  the  service  at  250,  and  authorized  the  President,  in  his  discretion,  to  attach 
them,  as  students,  to  the  Military  Academy.  The  present  apportionment  by  repre- 
sentative districts  was  established  by  section  2  of  the  act  of  March  1,  1843  5  (ibid., 
604),  which  required  cadets  to  be  selected  from  the  Congressional  districts  of  the 
States  or  Territories  from  which  the  appointments  purported  to  have  been  made.  By 
this  enactment  authority  was  conferred  upon  the  President  to  appoint  ten  cadets  at 


MILITARY   LAWS    OF   THE    UNITED    STATES.  551 


1480.  Cadets  shall  be  appointed  one  year  in  advance  of  . 

the  time  of  their  admission  to  the  Academy,  except  in  cases  ,^£49®  s*i;  y8^; 
where,  by  reason  of  death  or  other  cause,  a  vacancy  occurs  p-s^c.'i3i7,ii.s. 
which  can  not  be  provided  for  by  such  appointment  in 
advance;  but  no  pay  or  other  allowance  shall  be  given  to 
any  appointee  until  he  shall  have  been  regularly  admitted, 
as  herein  provided;  and  all  appointments  shall  be  condi- 
tional, until  such  provisions  shall  have  been  complied  with.1 

1481.  Appointees  shall  be  admitted  to  the  Academy  only  ^Age  of  appoint- 
between  the  ages  of  seventeen  and  twenty-two  years,  except 

in  the  following  case:  Any  person  who  has  served  honor- 
ably  and  faithfully  not  less  than  one  year,  in  either  the  vol- 
unteer or  regular  service  of  the  United  States,  in  the  late 
war  for  the  suppression  of  the  rebellion,  and  who  possesses 

large  without  being  restricted  to  selection  from  Congressional  districts.  The  act  of 
March  3,  1875  (18  ibid.,  467),  authorized  the  President  "to  fill  any  vacancy  occurring 
at  said  academy  by  reason  of  death  or  other  cause  of  any  person  appointed  by 
him;"  but  this  clause  was  expressly  repealed  by  section  4  of  the  act  of  June  11, 
1878  (20  ibid.,  Ill),  which  restricted  the  number  of  appointments  at  large  to  ten  in 
all.  The  acts  of  March  1  ,  1843,  and  section  10  of  the  act  of  March  2,  -1899  (30  Stat.  L.  , 
979),  which  authorized  the  appointment  of  twenty  cadets  at  large,  were  replaced  by 
section  4  of  the  act  of  June  6,  1900  (31  ibid.,  656),  which  fixed  the  number  of  cadets 
at  one  from  each  Congressional  district,  one  from  the  District  of  Columbia,  two  from 
each  State  at  large,  and  thirty  from  the  United  States  at  large. 

1  Appointments  —  How  made.  —  Each  Congressional  district  and  Territory,  also  the 
District  of  Columbia,  is  entitled  to  have  one  cadet  at  the  Academy.  Two  cadets  at 
large  from  each  State,  and  thirty  from  the  United  States  at  large  are  also  appointed. 
The  appointments  (except  those  at  large)  are  made  by  the  Secretary  of  War,  at  the 
request  of  the  Representative  or  Delegate  in  Congress  from  the  district  or  Territory; 
and  the  person  appointed  must  be  an  actual  resident  of  the  district  or  Territory  from 
which  the  appointment  is  made.  Those  for  a  State  at  large  are  made,  each  upon  the 
request  of  a  Senator  from  the  State  so  entitled.  The  appointments  at  large  are 
specially  conferred  by  the  President  of  the  United  States. 

Manner  of  making  applications.  —  Applications  can  be  made  at  any  time  by  letter  to 
the  Secretary  of  War,  to-have  the  name  of  the  applicant  placed  upon  the  register  that 
it  may  be  furnished  to  the  proper  Representative  or  Delegate  when  a  vacancy  occurs. 
The  application  must  exhibit  the  full  name,  date  of  birth,  and  permanent  abode  of 
the  applicant,  with  the  number  of  the  Congressional  district  in  which  his  residence 
is  situated. 

Date  of  appointments.  —  Appointments  are  required  by  law  to  be  made  one  year  in 
advance  of  the  date  of  admission,  except  in  cases  where,  by  reason  of  death  or  other 
cause,  a  vacancy  occurs  which  can  not  be  provided  for  by  such  appointment  in 
advance.  These  vacancies  are  filled  in  time  for  the  next  annual  examination. 

Alternates..  —  The  Representative  or  Delegate  in  Congress  may  nominate  a  legally 
qualified  second  candidate,  to  be  designated  the  alternate.  The  alternate  will  receive 
from  the  War  Department  a  letter  of  appointment,  and  will  be  examined  with  the 
regular  appointee,  and  if  duly  qualified  will  be  admitted  to  the  Academy  in  the  event 
of  the  failure  of  the  principal  to  pass  the  prescribed  preliminary  examinations.  The 
alternate  will  not  be  allowed  to  defer  his  reporting  at  West  Point  until  the  result  of 
the  examination  of  the  regular  appointee  is  known,  but  must  report  at  the  time  des- 
ignated in  his  letter  of  appointment.  The  alternate,  like  the  nominee,  should  be 
designated  as  nearly  one  year  in  advance  of  date  of  admission  as  possible. 

There  being  no  provision  whatever  for  the  payment  of  the  traveling  expenses  of 
either  accepted  or  rejected  candidates  for  admission,  no  candidate  should  fail  to  pro- 
vide himself  in  advance  with  the  means  of  returning  to  his  home  in  case  of  his  rejec- 
tion before  either  of  the  examining  boards,  as  he  may  otherwise  be  put  to  considerable 
trouble,  inconvenience,  and  even  suffering  on  account  of  his  destitute  condition.  If 
admitted,  the  money  brought  by  him  to  meet  such  a  contingency  can  be  deposited 
with  the  treasurer  on  account  of  his  equipment  as  a  cadet  or  returned  to  his  friends. 


652  MILITARY    LAWS    OF    THE    UNITED    STATES. 

the  other  qualifications  required  by  law,  may  be  admitted 
between  the  ages  of  seventeen  and  twenty-four  years.1 
^  Examination  1482.  Appointees  shall  be  examined  under  regulations* 
UTpr  29  1812  c  ^°  ^e  framed  by  the  Secretary  of  War  before  they  shall 
june3i6Vi866'Jes:^e  admitted  to  the  Academy  and  shall  be  required  to  be 
MarV<  21'4'i9oi35v;  we^  versed  in  such  subjects  as  he  may  from  time  to  time 
31Sc.9i3i9,B.s.  prescribe.8  Act  of  March  0,  1901  (31  Stat.  Z.,  911). 

Auth<3  1861  c      1^83.  Each  cadet  shall,  previous  to  his  admission  to  the 
SA®'  'V?^'  Academy,  take  and  subscrbe  an  oath  or  affirmation  in  the 

ZooJ  JU.I1C  Oj  J-oOO, 

c.  no,s.  2,  v.  14,  following  form: 

Sec.i820,B.s.  u  I,  A  B,  do  solemnly  swear  that  I  will  support  the  Con- 
stitution of  the  United  States,  and  bear  true  allegiance  to 
the  National  Government;  that  I  will  maintain  and  defend 
the  sovereignty  of  the  United  States,  paramount  to  any 
and  all  allegiance,  sovereignty,  or  fealty  I  may  owe  to  any 
State,  county,  or  country  whatsoever;  and  that  I  will  at 
all  times  obey  the  legal  orders  of  my  superior  officers,  and 
the  rules  and  articles  governing  the  armies  of  the  United 
States." 

And  any  cadet  or  candidate  for  admission  who  shall  re- 

fuse to  take  this  oath  shall  be  dismissed  from  the  service. 

fo^vfceemeilt      1484-  Each  cadet  shall  sign  articles,  with  the  consent  of 

72AsP3  vVp1?^'-  his  Pai*ents  or  guardian  if  he  be  a  minor,  [and]  if  any  he 

sU28  v^'S*)62'  nave5  by  which  he  shall  engage  to  serve  eight  years  unless 

se'c.i82i,R.s.  sooner  discharged. 


PAY   AND   ALLOWANCES. 


22,  p.  123;  Mar.  1.  r 
1893,  v.  27,  p.  515.    L 
.  Sec.  1339,  B.  S. 

1485.  Hereafter  no  cadet  shall  receive  more  than  a 
ate  of  five  hundred  and  forty  dollars'  a  year.4 

ithe 

1  It  being  impossible  for  a  candidate  to  conform  to  the  conditions  of  this  statute,  it 
is  now  obsolete  and  no  longer  operative. 

2  For  regulations  prepared  in  accordance  with  the  foregoing  enactment  see  THE 
MILITARY    ACADEMY    REGULATIONS.      Circulars  containing  the    same    information 
respecting  the  physical  and  mental  examinations  for  admission  are  furnished  candi- 
dates and  others  interested  upon  applications  addressed  to  the  Adjutant  of  the  Mili- 
tary Academy  at  West  Point,  New  York,  or  to  the  Adjutant-General  of  the  Army  in 
Washington. 

3  This  enactment  replaces  the  requirements  of  section  1319,  Revised  Statutes,  act  of 
June  16,  1866  (14  Stat.  L.,  359),  inpari  materia,  which  required  candidates  to  "be  well 
versed  in  reading,  writing,  and  arithmetic,  and  to  have  a  knowledge  of  the  elements 
of  English  grammar,  of  descriptive  geography,  particularly  that  of  the  United  States, 
and  of  the  history  of  the  United  States." 

*The  pay  of  cadets  was  fixed  by  the  act  of  March  16,  1802,  2  Stat.  L.,  137,  at  six- 
teen dollars  per  month  and  two  rations  per  day.  By  the  act  of  March  3,  1857,  11 
Stat.  L.,  252,  their  pay  was  fixed  at  thirty-two  dollars  per  month.  Section  3  of  the 
act  of  April  1,  1864,  13  Stat.  L.,  39,  contained  the  requirement  that  the  cadets  at  the 
Military  Academy 'should  receive  the  same  pay  (five  hundred  dollars  per  annum)  as 
the  midshipmen  at  the  Naval  Academy;  section  2  of  the  act  of  February  28,  1867, 
14  Stat.  L.,  416,  contained  the  requirement  that  they  should  also  be  entitled  to  the 
ration  (one  hundred  and  nine  dollars  and  fifty  cents  annual  commutation  value) 
then  allowed  to  active  midshipmen.  This  fixed  the  pay  and  emoluments  of  a  cadet 


MILITARY    LAWS    OF    THE    UNITED    STATES.  553 


GRADUATION    AND    APPOINTMENT. 

• 

1486.  That  when  any  cadet  of  the  United  States  Military 
Academy  has  gone  through  all  its  classes  and  received  ft 

regular  diploma  from  the  academic  staff,  he  may  be  pro-  ^Yste.chvacancy 
moted  and  commissioned  as  a  second  lieutenant  in  any  arm 
or  corps  of  the  Army  in  which  there  may  be  a  vacancy 
the  duties  of  which  he  may  have  been  judged  competent  to  24Apay7)  1886>  v- 
perform ;  and  in  case  there  shall  not  at  the  time  be  a  vacancy    ^ec-  1213»K-S- 
in  such  arm  or  corps,  he  may,  at  the  discretion  of  the  Pres- 
ident, be  promoted  and  commissioned  in  it  as  an  additional 
second  lieutenant,  with  the  usual  pay  and  allowances  of  a 
second  lieutenant,  until  a  vacancy  shall  happen.1     Act  of 
May  17,  1886  (24  Stat.  Z.,  50}. 

1487.  Only  one  supernumerary  officer  shall  be  attached  ni^era?|  officer 
to  any  company  at  the  same  time  under -the  provisions  of  each  comply10 
the  preceding  section. 2  2  pp72i?'I8ug. \ 

'    1854,  v.  10,  p.  575.     Sec.  1215,  B.'S.' 

1488.  That  every  cadet  who  has  heretofore  graduated  or 
may  hereafter  graduate  at  the  West  Point  Military 

emy ,  and  who  has  been  or  may  hereafter  be  commissioned  24>  P-  351- 
a  second  lieutenant  in  the  Army  of  the  United  States, 
under  the  laws  appointing  such  graduates  to  the  Army, 
shall  be  allowed  full  pay  as  second  lieutenant  from  the  date 
of  his  graduation  to  the  date  of  his  acceptance  of  and  qual- 

at  $609.50  per  annum.  The  act  of  June  30,  1882,  27  Stat.  L.,  515,  contained  the 
requirement  that  no  cadet  should  thereafter  ' '  receive  more  than  at  the  rate  of  five 
hundred  and  forty  dollars  a  year." 

Four  dollars  a  month  shall  be  deposited  with  the  Treasurer  from  the  pay  of  each 
cadet,  to  be  applied,  at  the  time  of  his  promotion,  to  the  purchase  of  a  uniform  and 
equipments.  Par.  117,  Reg.  U.  S.  M.  A.,  1894. 

A  person  appointed  to  a  position  in  the  Army,  either  as  a  cadet  or  an  officer, 
becomes  a  cadet  or  officer  de  facto  when  he  accepts  the  appointment;  but,  in  view 
of  the  act  of  July  2,  1862,  12  Stat.  L.,  502,  his  pay  can  not  commence  until  he  takes 
the  oath  of  office.  When  a  candidate  passes  the  examinations  and  enters  upon  the 
duties  of  a  cadet,  he  thereby  accepts  his  appointment,  and  his  service  in  the  Army 
begins  for  all  purposes  of  longevity,  but  his  pay  can  not  commence  until  he  takes 
the  oath  of  office  required  by  law.  3  Dig.  2nd  Compt.  Dec. ,  par.  884.  The  require- 
ments of  section  1 310  of  the  Revised  Statutes  that  ' '  no  person  who  has  served  in  any 
capacity  in  the  military  or  naval  service  of  the  so-called  Confederate  States,  or  of 
either  of  the  States  in  insurrection  during  the  late  rebellion  shall  be  appointed  a 
cadet,"  were  repealed  by  the  act  of  March  31,  1896,  29  Stat.  L.,  84. 

'The  requirement  of  section  3  of  the  act  of  June  18,  1878,  20  Stat.  L.,  150,  "  That 
hereafter  all  vacancies  in  the  grade  of  second  lieutenant  shall  be  filled  by  appoint- 
ment from  the  graduates  of  the  Military  Academy  so  long  as  any  such  remain  in 
service  unassigned;  and  any  vacancies  thereafter  remaining  shall  be  filled  by  promo- 
tion of  meritorious  noncommissioned  officers  of  the  Army,  recommended  under  the 
provisions  of  the  next  section  of  this  act:  Provided,  That  all  vacancies  remaining, 
after  exhausting  the  two  "classes  named,  may  be  filled  by  appointment  of  persons  in 
civil  life,"  was  repealed  by  section  5  of  the  act  of  July  30,  1892,  27  Stat.  L.,  336.  See 
the  chapter  entitled  COMMISSIONED  OFFICERS. 

2  The  Secretary  of  War  is  authorized  to  assign  recent  graduates,  noncommissioned 
officers,  and  civilians  to  the  cavalry  or  infantry,  although  "additional"  second  lieu- 
tenants remain  in  the  engineers  and  artillery,  and  no  vacancies  exist  in  the  last- 
named  branches.  XX  Opin.  Att.  Gen.,  149. 


554  MILITARY    LAWS    OF    THE    UNITED    STATES. 

ification  under  his  commission  and  during  his  graduation 
leave,  in  accordance  with  the  uniform  practice  which  has 
prevailed  since  the  establishment  of  the  Military  Academy. 
Act  of  December  80,  1886  ($4  Stat.  Z.,  351). 


INSTRUCTION. 
battal- 


1?^';  panies,  according  to  the  directions  of  the  superintendent, 
8it'  £  each  °^  wnicn  shall  be  commanded  by  an  officer  of  'the 
^sec.  1322,  K.  s.  Army,  for  the  purpose  of  military  instruction.     To  each 
company  shall  be  added  four  musicians.     The  corps  shall 
be  taught  and  trained  in  all  the  duties  of  a  private  soldier, 
noncommissioned  officer,  and  officer,  shall  be  encamped  at 
least  three  months  in  each  year,  and  shall  be  taught  and 
trained  in  all  the  duties  incident  to  a  regular  camp. 
d  where  to  do      1490    Cadets  shall  be  subject  at  all  times  to  do  duty 
9  ?27'vVp°i37'  *n  such  places  and  on  such  service  as  the  President  may 


sundaytudies  °u      149L  The  Secretary  of  War  shall  so  arrange  the  course 

294?sy2i%18i6,'p;:of  studies  at  the  Academy  that  the  cadets  shall  not  be  re- 

3s9ec.  1324,  R.  s.  <luired  to  pursue  their  studies  on  Sunday.1 

ofst?ic  Shuffle      1492<  The  nature  of  alcoholic  drinks  and  narcotics,  and 

codes8  and  nar-  special  instruction  as  to  their  effects  upon  the  human  sys- 

24Mpay69°'1886>v'  ^ern'  in  connection  with  the  several  divisions  of  the  sub- 

ject of  physiology  and  hygiene,  shall  be  included  in  the 

branches  of  study  taught  in  the  common  or  public  schools 

and  in  the  military  and  naval  schools,  and  shall  be  studied 

and  taught  as  thoroughty  and  in  the  same  manner  as  other 

like  required  branches  are  in  said  schools,  by  the  use  of 

text-books  in  the  hands  of  pupils  where  other  branches  are 

thus  studied  in  said  schools,  and  by  all  pupils  in  all  said 

schools  throughout  the  Territories,  in  the  Military  and 

Naval  Academies  of  the  United  States,  and  in  the  District 

of  Columbia,  and  in  all  Indian  and  colored  schools  in  the 

Territories  of  the  United  States.     Act  of  May  20,  1886 

(24  Stat.  Z.,  69). 

Enforcement.       1493.  It  shall  be  the  duty  of  the  proper  officers  in  con- 

Sec  2   MRV  20 

1886,  v.  24,  p.  69.  '  trol  of  any  school  described  in  the  foregoing  section  to 
enforce  the  provisions  of  this  act;  and  an}*-  such  officer, 
school  director,  committee,  superintendent,  or  teacher  who 

1  The  course  of  study  at  the  Military  Academy  is  fixed,  in  part  by  the  statutes  cre- 
ating the  several  departments  of  instruction  (paragraphs  1458  and  1459,  ante]  and 
other  enactments  of  Congress  (paragraph  1492,  post),  and  in  part  by  Executive  regu- 
lation. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  555 

shall  refuse  or  neglect  to  comply  with  the  requirements  of 
this  act,  or  shall  neglect  or  fail  to  make  proper  provisions 
for  the  instruction  required  and  in  the  manner  specified  by 
the  first  section  of  this  act,  for  all  pupils  in  each  and  every 
school  under  his  jurisdiction,  shall  be  removed  from  office, 
and  the  vacancy  filled  as  in  other  cases.  Sec.  #,  act  of  May 
20,  1886(24  Stat.  Z.,  69). 

1494.  No  cadet  who  is  reported  as  deficient,  in  either  detee 
conduct  or  studies,  and  recommended  to  be  discharged  from  ^ JJ^fv ^2,'  p. 
the  Academy  shall,  unless  upon  reccommendation  of  the  2^c.  1335,  B.  s. 
academic  board,  be  returned  or  reappointed  or  appointed 

to  any  place  in  the  Army  before  his  class  shall  have  left 
the  Academy  and  received  their  commissions.1 

COURTS-MARTIAL. 

1495.  The  Superintendent  of  the  Military  Academy  shall  fo^riatT^1- 
have  power  to  convene  general  courts-martial  for  the  trial  de^r  3  1873  c 
of  cadets,  and  to  execute  the  sentences  of  such  courts,  ^s'el'm^'K. 
except  the  sentences  of  suspension  and  dismission,  subject 

to  the  same  limitations  and  conditions  now  existing  as  to 
other  general  courts-martial.2 

1  Where  a  cadet  was,  by  order  of  the  Secretary  of  War,  on  the  recommendation  of 
the  academic  board,  discharged  from  the  Military  Academy  for  deficiency  in  studies; 
Held,  (1)  that  the  order  of  discharge,  having  been  completely  executed,  is  beyond  the 
power  of  revocation;  (2)  that  section  1325,  Revised  Statutes,  prohibits  the  returning 
or  reappointing  of  the  cadet  to  the  Academy,  except  upon  the  recommendation  of 
the  academic  board;  (3)  that  Congress  may  thus  limit  or  restrict  the  .authority  of 
the  President  to  appoint  cadets;  (4)  that  accordingly  it  is  not  competent  for  the 
President  to  revoke  the  said  order  or  to  restore  the  cadet  to  the  Academy,  irrespec- 
tive of  the  recommendation  of  the  academic  board.     XVII  Opin.  Att.  Gen.,  67. 

A  cadet  applied  to  have  his  name  changed  on  the  register  of  the  Military  Academy; 
Held,  that  the  Secretary  of  War  would  not  be  empowered  to  change  the  name  as  such, 
though  he  might  make  a  new  contract  with  the  cadet  in  the  new  name.  But  advised, 
as  the  preferable  mode  of  proceeding,  that  the  cadet  first  procure  the  name  to  be 
changed  in  the  mode  prescribed  by  the  statutes  of  his  own  State,  after  which  the 
register  would  of  course  be  made  to  correspond.  Dig.  Opin.  J.  A.  G.,  par.  657. 

2  These  courts  have  the  same  composition  as  the  general  courts-martial  authorized 
to  be  convened  by  the  seventy-second  and  seventy-third  articles  of  war. 

Professors  of  the  Military  Academy  are  "commissioned  officers  of  the  Army." 
Decision  of  the  Secretary  of  War,  May  27,  1857.  But  they  are  not  commissioned 
officers  within  the  meaning  of  the  seventy-fifth  article  of  war,  and  therefore  can  not 
be  detailed  as  members  of  courts-martial.  Scott's  Digest,  paragraph  169,  note  16. 
The  President  may,  by  his  regulations  of  the  civil  police  of  the  Academy,  invest  them 
with  authority  adequate  to  all  the  purposes  of  their  professorships;  but  he  can  invest 
them  with  no  portion  of  judicial  power  to  affect  the  life  or  liberty  of  others.  I  Opin. 
Att.  Gen.,  469;  see  also  last  clause  of  paragraph  1463,  ante. 

The  undergraduate  cadets  are  not  commissioned  officers,  and  are,  therefore,  not 
competent  to  sit  on  a  court-martial,  and  are  triable  by  a  regimental  or  garrison 
cour.t-martial.  VII  Opin.  Att.  Gen.,  323.  In  their  internal  academic  organization  as 
officers,  noncommissioned  officers,  and  privates  they  are  not  subject  to  the  Articles 
of  War  as  respects  their  relation  to  one  another,  but  only  as  respects  their  relation 
to  commissioned  officers  of  the  Army,  on  duty  as  such  at  the  Academy.  Ibid. 

Cadets  are  amenable  to  trial  by  court-martial  for  violations  of  the  regulations  of 


556  MILITARY    LAWS    OF    THE    UlSnTED    STATES. 

Ma?Ti9oi,  v.  1496-  The  Superintendent  of  the  Military  Academy  shall 
si,  p. 911.  make  such  rules,  to  be  approved  by  the  Secretary  of  War, 

as  will  effectually  prevent  the  practice  of  hazing;  and  any 
cadet  found  guilty  of  participating  in  or  encouraging  or 
countenancing  such  practice  shall  be  summarily  expelled 
from  the  Academy  and  shall  not  thereafter  be  reappointed 
to  the  Corps  of  Cadets  or  be  eligible  for  appointment  as  a 
commissioned  officer  in.  the  Army  or  Navy  or  Marine 
Corps,  until  two  years  after  the  graduation  of  the  class  of 
which  he  was  a  member. 1  Act  of  March  3, 1901  (31  Stat.  L. , 
911). 

the  Academy,  (a)  as  "conduct  to  the  prejudice  of  good  order  and  military  discipline." 
Dig.  Opin.  J.  A.  G.,  par.  654. 

They  are  not  the  "noncommissioned  officers"  of  the  acts  of  Congress  and  the 
General  Regulations  of  the  Army,  which  expression-  means  ' '  sergeants  and  cor- 
porals," and  is  inapplicable  to  the  cadets.  Ibid.  They  are  inchoate  officers  of  the 
Army,  and  subject  to  no  discipline  incompatible  with  that  character.  Ibid. 

Where  a  cadet  at  West  Point  is  sentenced  by  a  court-martial  to  be  dismissed  the 
service,  and  the  President  commutes  the  sentence  to  suspension  for  a  fixed  period, 
it  will  not  be  inferred  that  his  purpose  was  to  deprive  him  of  pay  unless  it  is  expressly 
so  stated  or  is  clearly  established  that  such  was  his  purpose.  Conrad  v.  U.  S.,  32  Ct. 
Cls.,  139.  Where  the  President  commutes  the  sentence  of  one  cadet  to  suspension 
and  of  another  to  suspension  without  pay  it  is  conclusive  that  he  did  not  intend  the 
former  sentence  to  extend  to  loss  of  pay.  Ibid. 

The  Superintendent  of  the  Military  Academy  can  have  no  power,  by  virtue  of  a 
regulation  of  the  Academy,  to  try  and  punish  a  cadet  for  a  military  offense  for  which, 
under  the  Articles  of  War,  he  is  amenable  to  trial  by  court-martial.  A  regulation 
assuming  to  confer  upon  him  such  power  would  be  in  contravention  of  law  and 
inoperative.  Otherwise  of  a  regulation  which  merely  authorized  a  measure  of  school 
discipline.  So,  where  a  cadet,  on  arraignment  for  a  military  offense,  pleaded  in  bar 
that  he  had  already  for  the  same  offense  been  punished  by  reduction  from  cadet 
officer  to  cadet  private,  under  par.  107,  Academy  Regulations,  held  that,  regarding 
such  reduction  as  a  form  of  discipline  only,  the  plea  was  properly  overruled  by  the 
court.  Dig.  Opin.  J.  A.  G.,  par.  656. 

xThis  enactment  replaces  the  penalty  imposed  by  the  act  of  March  31,  1854  (23 
Stat.  L.,  7).  Under  the  authority  conferred  by  this  statute  regulations  have  been 
prepared  by  the  Superintendent  and  promulgated  with  the  approval  of  the  Secretary 
of  War.  See  paragraphs  125,  136,  137,  and  140,  Regulations  for  U.  S.  Military 
Academy. 

In  a  case  arising  at  the  Naval  Academy,  under  the  act  of  June  23, 1874,  it  was  held 
by  the  Attorney-General  (XVIII  Opin.  Att.  Gen.,  292)  that  the  offense  of  hazing,  not 
being  an  offense  at  the  common  law,  and  not  being  defined  by  statute,  the  definition 
of  the  offense  must  be  gleaned  from  the  rules  and  regulations" of  the  Naval  Academy 
that  were  in  force  at  the  date  of  the  passage  of  the  act  in  question.  It  was  also  held 
' '  that,  to  constitute  the  offense  of  hazing  under  the  statute,  it  is  essential  that  the 
victim  of  the  maltreatment  should  be  a  new  cadet  of  the  fourth  class. ' ' 

Where  a  cadet  entered  the  Naval  Academy  and  became  a  member  of  the  fourth 
class  in  1885,  and  also  remained  a  member  of  the  same  class  in  1886,  he  is  at  the  latter 
period  as  much  an  "  older  cadet"  within  the  definition  of  the  offense  of  "hazing"  as 
a  cadet  who,  having  entered  the  Academy  at  the  same  time  (1885),  has  since  been 
advanced  to  a  higher  class,  and  (equally  with  the  latter)  is  capable  of  committing 
that  offense. (6)  XVIII  Opin.  Att.  Gen.,  507. 


a  ACADEMIC  REGULATIONS. 


The  regulations  of  the  Military  Academy  may  be  altered  by  the  Secretary  of  War  with  the  appro- 
bation of  the  President.  I  Opin.  Att.  Gen.,  469. 

b  In  this  connection  may  be  noted  the  opinion  of  the  Solicitor-General  (XV  Opins.,  634),  that,  except 
for  the  offense  of  hazing,  specially  made  punishable  by  the  act  of  June  23, 1874,  cadets  of  the  Naval 
Academy  are  not  subject  to  trial  by  court-martial. 


MILITARY    LAWS    OF   THE    UNITED   STATE8.  557 


Par. 


THE   BOARD    OF    VISITORS. 


Par. 


1497.  Appointment. 

1498.  Duties. 


1499.  Compensation. 

1500.  The  same,  mileage,  per  diem. 


1497.  There  shall  be  appointed  every  year,  in  the  follow-  01Joard  of  yisitr 
ing   manner,  a  board   of   visitors,  to   attend  the   annual  %ASU|-  v'918p8Vr 
examination  of  the  Academy:  Seven  persons  shall  be  ap-SoTi^v'is^!'^ 
pointed  b}^  the   President,  and  two   Senators   and  three  f8eb^  ^1,  ISTO,  c! 
members  of  the  House  of  Representatives  shall  be  desig-    kec.isa7,  B.S. 
nated  as  visitors,  by  the  Vice-President,  or  President  pro 
tempore  of  the  Senate,  and  the  Speaker  of  the  House  of 
Representatives,  respectively,  at  the  session  of  Congress 

next  preceding  such  examination. 

1498.  It  shall  be  the  duty  of  the  board  of  visitors  to    Duties  of  visit- 
inquire  into  the  actual  state  of  the  discipline,  instruction,    Aug.  s,  IMS,  c. 

,.  ,  '96,8.  2,  v.  9,  p.  71; 

police  administration,  fiscal  affairs,  and  other  concerns  of  Feb.  21,  1370,  c. 
the  Academy.     The  visitors  appointed  by  the  President    sec.i328,R.s. 
shall  report  thereon  to  the  Secretary  of  War,  for  the  infor- 
mation of  Congress,  at  the  commencement  of  the  session 
next  succeeding  such  examination,  and  the  Senators  and 
Representatives  designated  as  visitors  shall  report  to  Con- 
gress, within  twenty  days  after  the  meeting  of  the  session 
next  succeeding  the  time  of  their  appointment,  their  action 
as  such  visitors,  with  their  views  and  recommendations 
concerning  the  Academy. 

1499.  No  compensation  shall  be  made  to  the  membeis  of 
said  board  beyond  the  payment  of  their  expenses 1  f  or  board  ^e 
and  lodging  while  at  the  Academy,  and  an  allowance,  not  J- 
exceeding  eight  cents  a  mile,  for  traveling  by  the  shortest  ^fc&lsan  R V 
mail -route  from  their  respective  homes  to  the  Academy, 

and  thence  to  their  homes.2 

1500.  Hereafter  the  expenses  allowed  by  section  thirteen    compensation. 

i-i-ii  Ju.n.6    11,    1878, 

hundred  and  twenty-nine  of  the  Revised  Statutes  shall  bev-20>P-110- 
paid  as  follows:  Each  member  of  the  board  of  visitors  shall 
receive  not  exceeding  eight  cents  per  mile  for  each  mile 
traveled  by  the  most  direct  route  from  his  residence  to 
West  Point  and  return,  and  shall  in  addition  receive  five 
dollars  per  day  for  expenses  during  each  day  of  his  service 
at  West  Point.2  Act  of  June  11,  1878  (W  Stat.  Z.,  110). 

1  The  amount  payable  under  this  paragraph  for  expenses  is,  by  the  act  of  June  11, 
1878,  par.  1500,  post,  limited  to  $5  per  day. 

2  Under  section  1339  of  the  Revised  Statutes,  as  amended  by  the  acts  of  March  3, 
1877  (19  Stat.  L.,  382),  and  June  11,  1878  (20  Stat.  L.,  110),  the  mileage  of  the  board 
of  visitors  must  be  computed  by  "the  most  direct  route"  from  their  respective  homes 
to  West  Point  and  return,  and  not  by  the  ' '  shortest  mail  route. ' '     3  Dig.  2nd  Compt. 
Dec.,  par.  830. 


558 


MILITARY    LAWS    OF   THE    UNITED    STATES. 


LEAVES   OF    ABSENCE — PURCHASES CONTINGENT    FUNDS. 


Par. 

1501.  Leaves  of  absence. 

1502.  Documents  for  library. 

1503.  Government  publications. 

1504.  Purchases  of  supplies. 


Par. 

1505.  Purchases  of  books  for  library. 

1506.  Contingencies  of  Superintendent. 

1507.  Contingent  fund. 


senceves  °f  ab      1501.  Leave  of  absence  may  be  granted  by  the  Superin- 

ResUl6?  v  is8^'  tendent,  under  regulations  prescribed  by  the  Secretary  of 

41|'ec  1330  R  s  War,  to  the  professors,  assistant  professors,  instructors, 

and  other  officers  of  the  Academy,  for  the  entire  period  of 

the  suspension  of  the  ordinary  academic  studies,  without 

deduction  from  pay  or  allowances. 

d(£uS5i<m  to  1502<  The  Secretary  of  the  Senate  shall  furnish  annually 
library^  Ig56  c  to  the  library  of  the  Academy  one  copy  of  each  document 
!"  published,  during  the  preceding  year,  by  the  Senate. 

1503'  Tne  libraries  of  the  eight  Executive  Departments, 
i895Cv928Jpn624!  of  tlie  United  States  Military  Academy,  and  United  States 
Naval  Academy  are  hereby  constituted  designated  deposi- 
tories of  Government  publications,  and  the  superintendent 
of  documents  shall  supply  one  copy  of  said  publications, 
in  the  same  form  as  supplied  to  other  depositories,  to  each 
of  said  libraries.  Sec.  98,  act  of  January  12,  1895  (28  Stat. 
L.,  62fi. 

1504.  -^or  increase  and  expense  of  the  library,  namely: 
periodicals,  stationer}^  binding  books,  and  scientific, 
historical,  biographical,  and  general  literature,  to  be  pur- 
chased in  open  market  on  the  written  order  of  the  Super- 
intendent, [two  thousand  dollars].1  Act  of  March  6,  1896 
(29  Stat.  L.,  52}. 

sc5ntificses  and      1505.  That  all  technical  and  scientific  supplies  for  the 
sup  departments  of  instruction  of  the  Military  Academy  shall 
29Mpar526'  18%>  v'  ^e  purchased  by  contract  or  otherwise,  as  the  Secretary 
of  War  may  deem  best.1     Act  of  June  6,  1900  (31  Stat. 


iibrarchases  for 
29Mar526'  1896>  v' 


1  The  annual  acts  of  appropriation  since  that  of  May  1,  1888  (25  Stat.  L.,  112)  have 
contained  this  provision. 

An  appropriation  for  a  library  is  a  specific  appropriation  for  books  and  other  pub- 
lications necessary  or  appropriate  therefor.  (VI  Compt.  Dec.,  736.  ) 


CLERKS   AND    EMPLOYEES. 


The  employment  of  clerical  and  other  services  is  regulated  by  the  annual  acts  of 
appropriation.     That  of  February  27,  1891,  contains  provision  — 

For  pay  of  the  master  of  the  sword,  one  thousand  five  hundred  dollars;  (a) 
For  pay  of  one  teacher  of  music,  one  thousand  and  eighty  dollars;  (a) 
For  clerk  to  the  disbursing  officer  and  quartermaster,  one  thousand  five  hundred 
dollars; 


a  This  salary  is  fixed  by  law.    See  paragraph  1472,  ante. 


MILITAEiT    LAWS    OF    THE    UNITED    STATES.  559 


CONTINGENT    FUNDS. 

1506.  For  contingencies  for  Superintendent  of  the  Acad- 
emv,  one  thousand  dollars.1     Act  of  March  6,  1896  (%9a 

v    7  lYLeir.  O,   -LotTO,  V. 

Stat.  L.,49).  29'P-49- 

1507.  All  funds  arising  from  the  rent  of  the  hotel  on  Contingent 
Academy  grounds,  and  other  incidental  sources,  from  an(i  25May  ^2188^'ap 
after  this  date  be,  and  are  hereby,  made  a  special  con- 21^1893,  v.' 27,  P.' 
tingent  fund,  to  be  expended  under  the  supervision  of  the 
Superintendent  of  the  Academy,  and  that  he  be  required 

to  account  for  the  same,  annually,  accompanied  by  proper 

[Footnote — Continued.] 

For  clerk  to  adjutant  in  charge  of  cadet  records,  one  thousand  five  hundred  dollars; 

For  one  clerk  to  the  adjutant,  one  thousand  two  hundred  dollars; 

For  clerk  to  treasurer,  one  thousand  five  hundred  dollars; 

For  one  clerk  to  the  quartermaster,  one  thousand  two  hundred  dollars; 

For  pay  of  librarian's  assistant,  one  thousand  five  hundred  dollars; 

For  pay  of  one  superintendent  of  gas  works,  one  thousand  five  hundred  dollars; 

For  pay  of  engineer  of  heating  and  ventilating  apparatus  for  the  academic  build- 
ing, the  cadet  barracks  and  office  building,  cadet  hospital,  chapel,  and  philosophical 
building,  including  the  library,  one  thousand  five  hundred  dollars; 

For  pay  of  assistant  engineer  of  same,  one  thousand  dollars; 

For  pay  of  eight  firemen,  four  thousand  eight  hundred  dollars; 

For  pay  of  one  draftsman  in  department  of  civil  and  military  engineering,  one 
thousand  dollars; 

For  pay  of  mechanic  employed  in  chemical  and  geological  section  rooms  and  in 
lecture  rooms,  one  thousand  dollars; 

For  pay  of  mechanic  assistant  in  department  of  natural  and  experimental  philoso- 
phy, one  thousand  dollars; 

For  pay  of  custodian  of  new  Academy  building,  one  thousand  dollars; 

For  pay  of  one  electrician,  nine  hundred  dollars; 

For  pay  of  one  civilian  plumber,  one  thousand  two  hundred  dollars; 

For  pay  of  one  assistant  plumber,  six  hundred  dollars; 

For  pay  of  one  scavenger,  at  sixty  dollars  a  month,  seven  hundred  and  twenty 
dollars; 

For  compensation  of  chapel  organist,  two  hundred  dollars; 

For  pay  of  keeper  of  post  cemetery,  seven  hundred  and  twenty  dollars; 

For  pay  of  engineer  and  janitor  for  Memorial  Hall,  nine  hundred  dollars; 

For  pay  of  printer  at  Headquarters  U.  S.  Military  Academy,  one  thousand  two 
hundred  dollars; 

In  all,  for  civilians  employed  at  the  Military  Academy,  thirty  thousand  five  hun- 
dred and  twenty  dollars. 

1  Any  appropriation  for  contingencies  for  the  Superintendent  of  the  Military  Acad- 
emy is  available  for  such  casual  expenses  as  are  necessary,  or  at  least  appropriate 
and  convenient,  in  order  to  the  performance  of  the  duties  required  by  law  of  the 
Superintendent.  *  *  *  The  certificate  of  the  Superintendent,  as  to  the  correct- 
ness and  justness  of  expenditures  from  the  appropriation  for  contingencies  for  said 
Superintendent  may  be  accepted  in  the  adjustment  and  settlement  of  Military  Acad- 
emy accounts.  (3  Dig.  2nd  Compt.  Dec.,  par.  828. )  This  provision  has  been  repeated 
in  the  annual  appropriation  acts  from  that  of  February  2,  1869,  to  that  of  March  6, 
1886,  with  the  exception  of  those  from  August  7,  1876,  to  January  27,  1881. 

All  accounts  for  the  expenditure  of  public  moneys  should  be  itemized  so  far  as 
practicable,  and  a  discretion  given  to  the  officer  having  control  of  an  appropriation 
does  not  dispense  with  this  requirement.  Expenditures  for  contingencies  of  the 
Superintendent  of  the  Naval  Academy,  appropriated  by  the  act  of  March  3, 1897 
(29  Stat.  L.,  662),  should  be  made  by  the  Superintendent,  under  the  general  direc- 
tion of  the  Secretary  of  the  Navy.  (IV  Compt.  Dec.,  159.) 

An  appropriation  for  contingencies  for  the  Superintendent  of  the  Military  Acad- 
emy is  an  appropriation  for  purposes  of  a  contingent  character — that  is,  such  as 
might  or  might  not  happen,  and  which  Congress  could  not  easily  foresee,  and  there- 
fore could  not  provide  for  definitely.  (Ill  Dig.  Dec.  2  Compt.,  par.  827.) 


560  MILITARY    LAWS    OF    THE    UNITED    STATES. 

vouchers  to  the  Secretary  of  War.  Act  of  May  1,  1888 
(25  Stat.  Z.,  112).  Provided,  That  all  proceeds  of  the  sale 
of  gas  shall  be  paid  into  the  post  fund.  Act  of  March  1, 
1893  (27  Stat.  Z., 


THE    MILITARY    ACADEMY    BAND. 

1508.  The  Military  Academy  Band  shall  hereafter  consist 

1901,  v.  nf 
81,  p.  912. 


a,  etc. 
arqi2  1901>  v'  °^  one  teacher  of  music,  who  shall  be  the  leader  of  the 


band,  and  of  forty  enlisted  musicians.  The  teacher  of 
music  shall  receive  the  pay  of  a  second  lieutenant,  not 
mounted;  and  of  the  enlisted  musicians  of  the  band,  twelve 
shall  each  receive  thirty-four  dollars  per  month,  twelve  shall 
each  receive  twenty -five  dollars  per  month,  and  the  remain- 
ing sixteen  shall  each  receive  seventeen  dollars  per  month, 
and  each  of  the  aforesaid  enlisted  men  shall  also  be  entitled 
to  the  clothing,  fuel,  rations,  and  other  allowances  of 
musicians  of  cavalry ;  and  the  said  teacher  of  music  and  the 
enlisted  musicians  of  the  band  shall  be  entitled  to  the  same 
benefits  in  respect  to  pay,  emoluments,  and  retirement 
arising  from  longevity,  reenlistment,  and  length  of  service 
as  are,  or  may  hereafter  become,  applicable  to  other  en- 
listed men  of  the  Army.1  Act  of  March  2,  1901  (31  Stat. 
Z.,  912). 

GENEKAL  ARMY  SERVICE  MEN,  QUARTERMASTER'S  DEPARTMENT. 


Par. 


1509.  Organization. 

1510.  Restriction  on  strength. 


Par. 


1511.  Pay  of  certain  enlisted  men. 


n  eTcy  1509>  The  enlisted  men  known  as  the  artillery  detach - 
26Jpn1e670'18^0'v>nient  at  West  Point  shall  be  mustered  out  of  the  service 
as  artillery  men  and  immediately  reenlisted  as  Army 
Service  men  in  the  Quartermaster's  Department,  continu- 
ing to  perform  the  same  duties  and  to  have  the  same  pay, 
allowances,  rights,  and  privileges,  and  subject  to  the  rules, 
regulations,  and  laws  in  the  same  manner  as  if  their  service 
had  been  continuous  in  the  artillery,  and  their  said  service 
shall  be  considered  and  declared  to  be  continuous  in  the 
Army.2  Act  of  June  20,  1890  (26  Stat.  Z.,  167). 

JThis  enactment  replaces  sections  1111  and  1278,  Revised  Statutes,  and  the  act  of 
March  3,  1877  (19  Stat.  L.,  380),  in  pari  materia. 

2  The  act  of  June  20,  1890  (26  Stat.  L.  167),  which  changed  the  name  of  the  artil- 
lery detachment  at  West  Point  to  "Army  Service  men  in  the  Quartermaster's  De- 
partment," contemplated  only  a  change  of  name  of  the  corps,  without  affecting  their 
duties,  pay,  or  allowances,  including  extra  duty  and  extra  pay  therefor.  (IV  Compt. 
Dec.,  353.)  The  act  of  June  6,  1900  (31  Stat.  L.,  647),  makes  provision  for  the  pay 
of  an  artillery  detachment  of  forty  enlisted  men. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  561 


1510.  The  detachments  of  enlisted  men  at  the  Military  g^^h*     of 
Academy,  heretofore  designated  as   the   General  Army  29Feb^'1897'v> 
Service,  Quartermaster's  Department,  and  the  cavalry  de- 
tachment, shall  be  fixed  at  such  numbers,  not  exceeding 

two  hundred  and  fifteen  enlisted  men  in  both  detachments, 
as  in  the  opinion  of  the  Secretary  of  War  the  necessities 
of  the  public  service  may  from  time  to  time  require  ;  but 
the  number  of  enlisted  men  of  the  Army  shall  not  be  in- 
creased on  account  of  this  proviso  or  the  two  preceding 
paragraphs  of  this  act.1  Act  of  February  10,  1897  (29 
Stat.  Z.,  519). 

1511.  The  noncommissioned   officer  in   charge  of  me-    ?.a?"  9f  certain 

P  enlisted  men. 

chanics  and  other  labor  at  the  Military  Academy,  the  sol- 
dier  acting  as  clerk  in  the  adjutant's  office,  and  the  four 
enlisted  men  in  the  philosophical  and  chemical  depart- 
ments and  lithographic  office,  shall  receive  fifty  dollars  a 
year  additional  pay.2 


THE   CULLUM   MEMORIAL   HALL. 


1512.  The  Memorial  Hall  to  be  erected  under  the  pro-    Purpose  of  the 

r,  ,  i  .  i     n    i  i          t>  Memorial  Hall. 

visions  of  this  act  shall  be  a  receptacle  of  statues,  busts,  sec.  6,  ma. 
mural  tablets,  and  portraits  of  distinguished  and  deceased 
officers  and  graduates  of  the  Military  Academy,  of  paint- 
ings of  battle  scenes,  trophies  of  war,  and  such  other  objects 
as  may  tend  to  give  elevation  to  the  military  profession; 
and  to  prevent  the  introduction  of  unworthy  subjects  into 
this  hall  the  selection  of  each  shall  be  made  by  not  less  than 
two-thirds  of  the  members  of  the  entire  academic  board  of 
the  United  States  Military  Academy,  the  vote  being  taken 
by  ayes  and  nays  and  to  be  so  recorded.  Sec.  6,  act  of  July 
23,1892(27  Stat.  L., 


1  The  act  of  April  26,  1898  (30  Stat.  L.,  365),  which  provides  that  in  time  of  war  no 
additional  compensation  shall  be  allowed  to  soldiers  performing  what  is  known  as 
"extra  or  special  duty,"  applies  to  enlisted  men  at  the  Military  Academy.     4  Dec 
Compt.,  616. 

The  act  of  July  26,  1894  (28  Stat.  L.,  155),  conferred  authority  upon  the  Secretary 
of  War  to  increase  the  strength  of  this  detachment  to  one  hundred  and  fifty  men. 
The  act  of  March  6,  1896  (29  Stat.  L.,  48),  fixes  the  strength  of  the  cavalry  detach- 
ment as  follows:  One  first  sergeant,  five  sergeants,  four  corporals,  two  farriers,  one 
saddler,  one  wagoner,  and  fifty-two  privates.  The  authorized  strength  of  these  de- 
tachments is  now  215  enlisted  men. 

2  The  act  of  March  6,  1896  (29  Stat.  L.,  48),  contains  an  appropriation  for  the  pay- 
ment of  extra-duty  pay  to  seventeen  enlisted  men  with  the  proviso  that  none  of  the 
money  so  appropriated  shall  be  paid  to  any  enlisted  man  who  receives  extra-duty 
pay  under  existing  laws  or  Army  Regulations.     The  acts  of  June  20,  1890  (26  Stat. 
L.,  167),  March  2,  1891  (26  Stat.  L.,  820),  July  14,  1892  (27  Stat.  L.,  171),  March  1, 
1893  (27  Stat.  L.,  520) ,  July  26,  1894  (28  Stat.  L.,  155) ,  and  January  16, 1895  (28  Stat. 
L.,  631),  contain  similar  restrictions. 

22924—08 36 


562 


MILITARY    LAWS    OF    THE    UNITED    STATES. 


BUILDINGS   FOR  RELIGIOUS   WORSHIP. 


1513.  The  Secretary  of  War,  in  his  discretion,  may 
30  722  1898>  v-  authorize  the  erection  of  a  building  for  religious  worship 
by  any  denomination,  sect,  or  religion  on  the  West  Point 
Military  Reservation :  Provided,  That  the  erection  of  such 
building  will  not  interfere  with  the  uses  of  said  reservation 
for  military  purposes.  Said  building  shall  be  erected 
without  any  expense  whatever  to  the  Government  of  the 
United  States,  and  shall  be  removed  from  the  reservation, 
or  its  location  changed  by  the  denomination,  sect,  or 
religious  body  erecting  the  same  whenever,  in  the  opinion 
of  the  Secretary  of  War,  public  or  military  necessity  shall 
require  it,  and  without  compensation  for  such  building  or 
any  other  expense  whatever  to  the  Government.  Act  of 
July  8,  1898  (30  Stat.  L., 


THE    ARMY    WAR   COLLEGE. 


THE   SERVICE   SCHOOLS. 


Par. 


1514.  The  Army  War  College. 

1515.  The  U.  S.  Engineer  School. 

1516.  The  Artillery  School. 

1517.  Sewers,  wharves,  streets,  repairs. 


Par. 

1518.  The  U.  S.  Infantry  School. 

1519.  The  Cavalry  and  Light  Artillery 

School. 


THE   ARMY    WAR   COLLEGE. 


pu^aor8e.College; 
May 


1814-  For  the  establishment  of  the  Army  War  College, 
3iMpay209.'  19°°'  v<  Caving  for  its  object  the  direction  and  coordination  of  the 
instruction  in  the  various  service  schools,  extension  of 
the  opportunities  for  investigation  and  study  in  the  Army 
and  militia  of  the  United  States,  and  the  collection  and 
dissemination  of  military  information,  twenty  thousand 
dollars.  Act  of  May  26,  1900  (31  Stat.  Z.,  209). 

THE   UNITED   STATES   ENGINEER   SCHOOL1    AT  WILLETTS   POINT,    N.    Y. 


1515«  For  purchase  of  materials  for  use  of  the  United 
3ifpay2i6.'  19°°'  v'  States  Engineer  School  and  for  the  instruction  of  engineer 

1The  U.  S.  Engineer  School  was  established  by  Executive  order,  but  has  been  recog- 
nized in  the  several  acts  of  appropriation.  See  acts  of  March  3,  1871,  16  Stat.  L.,  523; 
March  3,  1873,  17  Stat.  L.,  546;  June  16,  1874,  ISStat.  L.,  74;  July  24,  1876,  19  Stat  L., 
100;  March  3,  1878,  20  Stat.  L.,  32;  March  3,  1879,  ibid.,  467;  May  4,  1880,  21  Stat.  L., 
13;  February  24,  1881,  ibid.,  349;  June  30,  1882,  22  Stat  L.,  121;  March  3,  1883,  ibid., 
459;  July  5,  1884,  23  Stat.  L.,  112;  March  3,  1885,  ibid.,  434;  June  30,  1886,  24  Stat.  L., 
98;  February  9,  1887,  ibid.,  400;  September  22,  1888,  25  Stat.  L.  487;  March  2,  1889, 
ibid.,  832;  June  13,  1890,  26  Stat.  L.,  155;  February  24,  1891,  ibid.,  778;  July  16,  1892, 
27  Stat.  L.,  181;  February  29,  1893,  ibid.,  485;  August  6,  1894,28  Stat.  L.,  241;  Feb- 
ruary 12,  1895  ibid,  662,  March  16,  1896  29  Stat.  L.,  67;  March  2,  1897,  ibid.,  617;  and 
March  15,  1898,  30,  ibid,  325. 


MILITAEY    LAWS    OF    THE    UNITED    STATES.  563 

troops  at  Fort  Totten,  Willets  Point,  in  their  special  duties 
as  sappers,  miners,  for  land  and  submarine  mines,  and 
pontoniers,  torpedo  drill,  and  signaling,  one  thousand  five 
hundred  dollars;  for  purchase  and  binding  of  professional 
works  of  recent  date  treating  of  military  and  civil  engi- 
neering and  kindred  scientific  subjects,  for  the  library  of 
the  United  States  Engineering  School,  five  hundred  dol- 
lars. Act  ofMa/y  26,  1900  (31  Stat.  L.,  216). 

THE   UNITED   STATES    ARTILLERY   SCHOOL1    AT   FORT    MONROE,    VA. 

1516.  To  provide  means  for  the  theoretical  and  practical    Designation 

A  and  purpose. 

instruction  at  the  Artillery  School  at  Fortress  Monroe,  31^0256' 1900>  v- 

Virginia,     *     *     *     by  the  purchase  of  text-books,  books 

of  reference,  scientific  and  professional  papers,  and  for 

all  other  absolutely  necessary  expenses,  to  be  allotted  in 

such  proportions  as  may,  in  the  opinion  of  the  Secretary 

of  War,  be  for  the  best  interest  of  the  military  service, 

eight  thousand  dollars.     Act  of  May  26,  1900  (31  Stat. 

Z.,  205). 

1517.  The  Secretary  of  War  is  hereby  further  authorized  w^|f     for 
to  assess  upon  vessels  using  the  wharf  at  Fort  Monroe, 
Virginia,  one-half  of  the  actual  cost  of  repairs  rendered 
necessary  by  the  ordinary  wear  and  tear  of  said  wharf,  and 

any  damage  done  to  said  wharf  by  any  vessel  shall  be  paid 

for  by  the  owner  or  owners  of  said  vessel;  and  he  is  also    charges     for 

i        •       -.  -IT  -i  street       repairs, 

authorized  and  directed  from  time  to  time  to  cause  to  be  etc. 

Aug.  1,  1894,  v. 

assessed  upon   and  collected  from   the   owners   of   non-  28,  p.  212. 
military  buildings  situated  within  the  limits  of  the  Fort 
Monroe  Military  Reservation,  and  from  individuals  or  cor- 
porations engaged  in  business  thereat,  other  than  water 
navigation  companies,  one-half  of  such  sum  or  sums  of 

xThe  Artillery  School  was  established  at  Fortress  Monroe,  Va.,  in  pursuance  of 
General  Orders,  No.  18,  Adjutant-General's  Office,  of  April  5, 1824.  It  ceased  to  exist, 
in  1835,  by  reason  of  the  transfer  of  the  troops  composing  the  school  to  other  duties. 
It  was  reestablished  by  General  Orders,  No.  9,  Adjutant-General's  Office,  of  October 
30,  1856.  A  code  of  regulations  and  plan  of  instruction  was  approved  by  the  Secre- 
tary of  War  and  published  to  the  Army  in  General  Orders,  No.  5,  Adjutant-General's 
Office,  of  May  18,  1858.  The  school  was  again  discontinued  at  the  outbreak  of  the 
war  of  the  rebellion  in  1861.  It  was  again  organized  on  its  present  foundation  by 
General  Orders,  No.  99,  Adjutant-General's  Office,  of  November  13,  1867.  Although 
not  created  by  statute,  its  existence  has  been  recognized  and  the  courses  of  study 
pursued  have  been  sanctioned  by  Congress  in  several  acts  of  appropriation.  See  acts 
of  June  20, 1878,  20  Stat.  L.,  223;  March  3,  1879,  ibid.,  389;  March  3,  1881,21  Stat.  L., 
445;  August  7, 1882,  22  Stat.  L.,  320;  March  3, 1883,  ibid.,  618;  July  7, 1884,  23 Stat.  L., 
222;  March  3,  1885,  ibid.,  510;  August  4, 1886, 24  Stat.  L.,251;  October  2, 1888,  25 Stat. 
L.,540;  March 2, 1889,  ibid.,  971;  August  30,  1890,  26 Stat.  L.,402;  March  3, 1891,  ibid., 
979;  Augusts,  1892,  27  Stat.  L.,  379;  March  3,  1893,  ibid.,  601;  August  18, 1894, 28 Stat. 
L.,  406;  March  2,  1895,  ibid.,  951,  June  11,  1896,  29  Stat.  L.,  444;  March  2,  1897, 
ibid..  617;  March  15,  1898,  30  Stat.  L.,  327;  May  26,  1900,  31  ibid,  209:  and  March 
2,  1901,  ibid.,  895. 


564  MILITARY   LAWS    OF   THE    UNITED   STATES. 

money  as  he  may  deem  just,  reasonable,  and  necessary  for 
expenditure  upon  the  repair  and  operation  of  such  roads, 
pavements,  streets,  lights,  sewerage,  and  general  police, 
as,  in  the  opinion  of  the-  Secretary  of  War,  should  be  con- 
structed and  maintained  in  order  to  protect  the  interests 
of  the  United  States  and  the  interests,  health,  and  general 
.  welfare  of  the  said  nonmilitary  interests  now  established  or 

Use  of  receipts. 

that  may  hereafter  be  established  at  Fort  Monroe:1  Pro- 
vided further,  That  all  funds  collected  as  above  provided, 
or  that  may  be  received  from  other  incidental  sources  from 
and  after  this  date,  be,  and  are  hereby,  made  special  con- 
tingent funds,  to  be  collected  and  expended  for  the  above 
purposes  in  accordance  with  rules  and  regulations  to  be 
prescribed  by  the  Secretary  of  War,  who  will  render  annu- 
ally to  Congress  a  detailed  account  of  all  receipts  and 
expenditures.2  Act  of  August  1,  1894  (®$  Stat.  Z., 


THE  UNITED   STATES    INFANTRY   AND   CAVALRY   SCHOOL3  AT   FORT  LEAVENWORTH,   KANS. 


i|Jst.tion  1518-  To  provide  means  for  the  theoretical  and  practical 
3if£a2oi6'  196o>  v-  instruction  at  *  *  *  the  Infantry  and  Cavalry  School 
at  Fort  Leavenworth,  Kansas;  *  *  by  the  purchase 
of  text-books,  books  of  reference,  scientific  and  profes- 
sional papers,  and  for  all  other  absolutely  necessary 
expenses,  to  be  allotted  in  such  proportions  as  may,  in  the 
opinion  of  the  Secretary  of  War,  be  for  the  best  interest 
of  the  military  service,  eight  thousand  dollars.  Act  of  May 
m,  1900(31  Stat.  L.,205). 


of  August  1,  1894  (28  Stat.  L.,  212),  had  contained  the  requirement  that 
"the  owners  of  hotels  and  other  nonmilitary  buildings  now  at  Fort  Monroe,  Virginia, 
shall  bear  one-half  of  the  expense  of  constructing  said  sewer,"  and  the  Secretary  of 
War  was  authorized  to  "  equitably  and  justly  apportion  among,  assess  against,  and 
collect  from  the  said  owners  and  expend  in  construction  of  said  sewer  the  moiety  of 
the  estimated  cost  thereof." 

2  Regulations  for  the  apportionment  and  collection  of  assessments  under  this  statute 
have  been  prepared  and  promulgated  by  the  Secretary  of  War.  Under  the  provision 
in  the  act  of  June  11,  1896  (29  Stat.L.,  414),  making  an  appropriation  for  a  post-office 
building  at  Fortress  Monroe,  "that  the  building  shall  be  erected  upon  plans,  specifi- 
cations, etc.,  to  be  approved  by  the  Secretary  of  War,"  the  building  was  placed,  for 
the  purpose  of  erection,  under  the  control  of  the  War  Department,  but  upon  the 
completion  of  the  building  it  will  pass  by  operation  of  law  into  the  custody  of  the 
Treasury  Department.  (IV  Cornpt.  Dec.,  521.) 

3The  Infantry  and  Cavalry  School  was  established  at  Fort  Leavenworth,  Kans., 
in  pursuance  of  General  Orders,  No.  42,  Adjutant-General's  Office,  of  May  7,  1881. 
Although  not  created  by  statute,  its  existence  has  been  recognized  by  Congress  in 
several  acts  of  appropriation.  See  acts  of  March  2,  1889,  25  Stat.  L.,  966;  August  30, 
1890,  26  Stat.  L.,  462;  March  3,  1891,  ibid.,  979;  Augusts,  1892,  27  Stat.  L.,  379; 
March  3,  1893,  ibid.,  601;  August  18,  1894,  28  Stat.  L.,  400;  March  2,  1895,  ibid,,  951; 
and  June  11,  1896,  29  Stat.  L.,  444;  and  subsequent  acts  of  appropriation,  including 
those  of  May  26,  1900,  31  Stat.  L.,  205,  and  March  2,  1901,  ibid,  895. 


MILITARY    LAWS    OF   THE    UNITED   STATES.  565 


THE   CAVALRY   AND    LIGHT   ARTILLERY    SCHOOL1    AT    FORT   RILEY,  KANS. 


1519.  That  the  Secretary  of  War  be,  and  he- is  hereby,  al* 
authorized  and  directed  to  establish  upon  the  military  res-  ^JJfJJ 
ervation  at  Fort  Riley ,  a  permanent  school  of  instruction  ^eed  gj^s Fort 
for  drill  and  practice  for  the  cavalry  and  light  artillery  24Jan^' 18®7' v* 
service  of  the  Army  of  the  United  States,  and  which  shall 
be  the  depot  to  which  all  recruits  for  such  service  shall  be 
sent;  and  for  the  purpose  of  construction  of  such  quarters, 
barracks,  and  stables  as  may  be  required  to  carry  into 
effect  the  purposes  of  this  act  the  sum  of  two  hundred 
thousand  dollars,  or  so  much  thereof  as  may  be  necessary, 
is  hereb}^  appropriated  out  of  any  money  in  the  Treasury 
not  otherwise  appropriated.  Act  of  January  £9,  1887  (24 
Stat.  Z., 


1  The  Cavalry  and  Light  Artillery  School  was  established  in  pursuance  of  the  act 
of  January  29,  1887,  by  General  Orders,  No.  17,  Adjutant-General's  Office  of  March 
14,  1882.  See  also  in  connection  with  this  school  the  acts  of  October  2,  1888,  25  Stat. 
L.,  534,  and  March  2,  1889,  ibid.,  966;  and  subsequent  acts  of  appropriation,  includ- 
ing those  of  May  26,  1900,  31  Stat.  L.,  205,  and  March  2,  1901,  ibid,  896. 


OHA.FTER   XXXII. 


CONTRACTS  AND  PURCHASES. 


Par. 
1520-1528.  General  provisions  respecting 

contracts  and  purchases. 
1529-1533.  Advertising. 
1534-1538.  Bids  and  proposals. 
1539-1541.  Preparation  and  execution  of 

contracts. 

1542-1556.  Miscellaneous  requirements. 
1557.  Assignments. 
1558-1566.  Penal  offenses  in  connection 

with  contracts  and  purchases. 


Par. 

1567-1570.  The  Returns  Office. 

1571.  Copy  of  contract  to  Auditor  for 
War  Department. 

1572-1575.  The  Eight-Hour  law. 

1576, 1577.  Bonds  to  secure  payment  for 
labor  and  materials. 

1578-1580.  Inspection  of  fuel  in  the  Dis- 
trict of  Columbia. 


GENERAL   PROVISIONS. 


1520.  Contracts  to  be  made  under 'direc- 

tion of  the  Secretary  of  War. 

1521.  Unauthorized  contracts  prohibited. 

1522.  Erection    and     repair    of    public 

buildings. 
Purchases  of  land. 


1523. 


Contracts  for 
the  military  serv- 
ice to  be  made 
under  direction 
of  Secretary  of 
War. 

July  16, 1798,  c. 
85,s.  3,  V.I, p. 610; 
Feb.  27,  1877,  c. 
69,  v.  19,  p.  249. 

Sec.  3714,E.S. 


1524.  The  same,  building  sites. 

1525.  Acceptance  of  volunteer  service. 

1526.  Contracts,  how  made. 

1527.  The  same,  advertisements. 

1528.  The  same,  restriction. 


1520.  All  purchases  and  contracts  for  supplies  or  serv- 
ices for  the  military  and  naval  service  shall  be  made  by  or 
under  the  direction  of  the  chief  officers  of  the  Departments 
of  War  and  of  the  Navy,  respectively.2  And  all  agents  or 
contractors  for  supplies  or  service  as  aforesaid  shall  render 
their  accounts  for  settlement  to  the  accountant  of  the 


1  The  United  States  in  its  political  capacity  may,  within  the  sphere  of  the  constitutional 
powers  confided  to  it,  and  through  the  instrumentality  of  the  departments  to  which 
those  powers  are  intrusted,  enter  into  contracts  not  prohibited  by  law  and  appropri- 
ate to  the  just  exercise  of  these  powers;  no  legislative  authorization  is  required,  such 
power  being  incident  to  the  general  right  of  sovereignty.     Dugan  v.  U.  S.,  3  Whea- 
ton,  172;  U.  S.  v.  Tingey,  5  Peters,  114;  U.  S.  v.  Bradley,  10  ibid.,  343;  U.  S.  v.  Linn, 
15  ibid.,  290;  Cotton  v.  U.  S.,  11  Howard,  229;  Fowler  v.  U.  S.,  3  Ct.  Cls.,  43;  Allen 
v.  U.  S.,  ibid.,  91. 

2  Under  this  statute  the  Secretary  of  War  is  the  source  of  all  authority  to  make 
contracts  or  purchases  in  all  branches  of  the  military  establishment.     "Whether  he 
makes  the  contracts  himself,  or  confers  the  authority  upon  others,  it  is  his  duty  to 
see  that  they  are  properly  and  faithfully  executed;  and  if  he  becomes  satisfied  that 
contracts  which  he  has  made  himself  are  being  fraudulently  executed,  or  those  made 
by  others  were  made  in  disregard  of  the  rights  of  the  Government,  or  with  the  intent 
to  defraud  it,  or  are  being  unfaithfully  executed,  it  is  his  duty  to  interpose,  arrest 

566 


MILITARY   LAWS    OF   THE   UNITED   STATES.  567 

proper  department  for  which  such  supplies  or  services  are 
required,  subject,  nevertheless,  to  the  inspection  and  revi- 
sion of  the  officers  of  the  Treasury  in  the  manner  before 
prescribed.1 

1521.  No  contract  or  purchase  on  behalf  of  the  United  ?on?mcte?rohibd 
States  shall  be  made,  unless  the  same  is  authorized  by  law  lt(Mar.  2,  isei,  c. 
or  is  under  an  appropriation  adequate  to  its  fulfillment,  |!0S- 10)  v<  12>  p- 
except  in  the  War  and  Navy  Departments,  for  clothing,    Sec-3782>B-S- 
subsistence,    forage,    fuel,    quarters,    or   transportation, 
which,  however,  shall  not  exceed  the  necessities  of  the  cur- 
rent year. 2 

the  execution,  and  adopt  effectual  measures  to  protect  the  Government  against  the 
dishonesty  of  subordinates."  U.  S.  v.  Adams,  7  Wall,  463,  477;  Parish  v.  U.  S.,  8 
Wall.,  489. 

The  head  of  an  Executive  Department  may,  when  not  prejudicial  to  the  interests 
of  the  Government,  or  for  its  benefit,  alter  or  modify  the  terms  of  a  contract  made 
under  his  direction,  but  his  subordinates  may  not  take  such  action  without  express 
authority  from  him.  2  Compt.  Dec.,  182. 

The  laws  governing  the  purchase  of  supplies  for  the  Army  are  equally  applicable 
whether  the  purchases  are  made  from  funds  received  from  the  sale  of  stores  or  from 
the  regular  appropriations  available  therefor.  3  Dig.  2  Compt.  Dec.,  287. 

It  is  only  an  express  contract  which  (in  the  absence  of  special  authority  from 
Congress)  can  legally  be  entered  into  by  the  Secretary  of  War,  or  a  military  officer,  or 
can  be  recognized  and  acted  upon  as  binding  upon  the  United  States.  Claims  against 
the  United  States  arising  upon  alleged  implied  contract  can  not  be  entertained,  but 
the  claimants  must  be  referred  to  the  Court  of  Claims  or  Congress.  Further,  the 
contract,  to  be  legally  made  or  recognized  as  legal,  must  be  in  writing  (a)  (except 
only — according  to  the  ruling  in  Cobb's  Case  (b)  when  entered  into  without  previous 
advertisement  by  reason  of  the  existence  of  a  "  public  exigency;"  see  infra).  So, 
in  a  case  where  the  only  evidence  of  an  alleged  contract  of  lease  consisted  of  vouch- 
ers, setting  forth  accounts  for  rent  claimed,  approved  by  an  assistant  quartermaster, 
held,  that  there  was  no  sufficient  evidence  of  an  express  or  written  contract  upon 
which  payment  could  be  authorized  by  the  Secretary  of  War.  (c)  Dig.  Opin.  J.  A. 
Gen.,  275,  par.  1. 

The  Secretary  of  War  has  authority  to  extend  the  time  for  the  execution  of  a  con- 
tract made  on  behalf  of  his  Department  when  the  interests  of  the  Government  are 
not  thereby  prejudiced,  and  particularly  when  its  noncompletion  within  the  time 
limited  is  not  due  to  the  negligence  of  the  contractor.  2  Compt.  Dec. ,  242 ;  Solomon  v. 
U.  S.,  19  Wall.,  17;  U.  S.  v.  Corliss  Steam  Engine  Co.,  91  U.  S.,  321;  XVIII  Opin. 
Att.  Gen.,  101;  2  Compt.  Dec.,  635. 

Approval  of  contract  by  superior  authority. — Where  a  contract  in  terms  "  is  subject  to 
the  approval  of  the  Quartermaster-General,"  approval  is  a  condition  precedent  to 
the  legal  effect  of  the  agreement,  Darragh  v.  U.  S.,  33  Ct.  Cls.,  377;  Monroe  &  Rich- 
ardson v.  U.  S.,  35  ibid.,  199.  The  refusal  of  the  Quartermaster-General  to  approve 
a  contract  after  work  has  been  begun  by  the  contractor  is  not  a  rescission.  The  con- 
tractor who  begins  work  before  approval  does  so  at  his  own  risk;  and  if  he  is  paid 
for  the  work  done,  he  can  not  recover  profits  as  if  there  had  been  a  breach.  Ibid. 
Such  approval  need  not  be  in  writing.  Speed's  Case,  8  Wallace,  77.  Though  the 
failure  of  the  Quartermaster-General  to  act  within  a  reasonable  time  might  validate 
a  contract  made  subject  to  his  approval,  he  is  nevertheless  entitled  to  time  for  inquiry 
and  investigation  and  the  discharge  of  the  ordinary  business  of  his  department. 
Darragh  v.  U.  S.,  33  Ct.  Cls.,  377. 

1  For  statutes  in  respect  to  accounting,  see  the  title  ' '  The  Accounting  Officers, ' '  in 
the  chapter  entitled  THE  DEPARTMENT  OP  THE  TREASURY. 

2  The  United  States  when  it  enters  .into  a  contract  with  an  individual  relinquishes 
its  sovereign  character  quoad  that  transaction,  is  subject  to  the  rules  of  right  and 
justice  between  man  and  man,  and  is  controlled  by  the  same  laws  that  govern  indi- 
viduals with  respect  to  such  contract.     Clark  v.  U.  S.,  6  Wallace,  546;  U.  S.  v.  Smoot, 

a  See 'Henderson  r.  U.  S.,  4  Ct.  Cls.,  75;  XIV  Opin.  Att.  Gen.,  229;  Clark  v.  U.  S.,  95  U.  S.,  539. 
6  Cobb  v.  U.  S.,  7  Ct.  Cls.,  470,  and  9  ibid.,  291.    And  see  Thompson  v.  U.  S.,  ibid.,  198. 
cSee  XIV  Opin.  Att.  Gen.,  230. 


568  MILITAEY    LAWS    OF   THE    UNITED    STATES. 


cf     15^2.  ^°  contract  shall  be  entered  into  for  the  erection, 
233Usy325v1i58'p  rePa^r?  or  furnishing  of  any  public  building,  or  for  any 
17slc  8788  B  s  P11^0  improvement  whih  shall  bind  the  Government  to 
pay  a  larger  sum  of  money  than  the  amount  in  the  Treas- 
ury appropriated  for  the  specific  purpose.  * 

purchases    of     1523.  No  land   shall  be  purchased  on   account  of  the 
May  i,  1820,  c.  United  States,  except  under  a  law  authorizing  such  pur- 

52,  s.  7,  v.  3.  p.  568.     , 
Sec.  3786,  B.  8.  chase.2 

^sites  for  build-  ^524.  No  money  shall  be  paid  nor  contracts  made  for 
I8*pa37i'  1875>  v*  payment  for  any  site  for  a  public  building  in  excess  of  the 

amount  specifically  appropriated  therefor.  3     Act  of  March 

3,  1875(18  Stat.  L.,371). 

15  ibid.,  47;  Cooke  v.  U.  S.,  91  U.  S.,  398;  U.  S.  v.  Bostwick,  94  U.  S.,  592;  Mann  v. 
U.  S.,  3  Ct.  Cls.,  404;  Chic.  K.  R.  Co.  v.  U.  £.,  104,  U.  S.,  680;  U.  S.  v.  No.  Am.  Com. 
Co.,  74  Fed.  Rep.,  145.  The  United  States  is  liable  in  damages  for  breach  of  contract 
to  the  same  extent  as  an  individual.  Chicago  R.  R.  Co.  v.  U.  S.  ,  104  U.  S.  ,  680;  Eastern 
R.  R.  Co.  y.  U.  S.,  129  U.  S.,  396.  Such  right  of  action  against  the  United  States, 
however,  is  subject  to  the  limitation  that  the  Government  can  not  be  be  sued  with- 
out its  consent.  U.  S.  v.  McLemore,  4  Howard,  286;  Hill  v.  Clarke,  8  Peters,  444; 
U.  S.  v.  Clarke,  8  Peters;  DeGrootv.  U.  S.,  5  Wallace,  419;  U.  S.  v.  Eckford,  6  ibid., 
484;  U.  S.  v.  Lee,  106  U.  S.,  204;  Nock  v.  U.  S.,  2  Ct.  Cls.,  451.  Such  consent  to 
be  sued,  in  respect  to  certain  causes  of  action,  has  been  given  by  the  establishment  of 
the  Court  of  Claims.  For  the  jurisdiction  of  this  court,  see  chapter  VII,  ante. 

The  restrictions  of  section  3732,  Revised  Statutes,  are  in  the  alternative,  prohibit- 
ing a  contract  or  purchase  on  the  part  of  the  United  States  unless  ''authorized  by 
law"  or  unless  such  contract  or  purchase  is  made  "under  an  appropriation  adequate 
to  its  fulfillment."  Contracts  to  be  valid  must  be  shown  to  come  under  one  or  the 
other  of  these  provisions.  Shipman  v.  U.  S.,  18  Ct.  Cls.,  138. 

When  the  authority  to  enter  into  a  contract  for  a  parlicular  work  in  behalf  of  the 
United  States  depends  wholly  upon  an  appropriation  of  money  made  for  that  pur- 
pose, no  officer  of  the  Government  has  power  to  create  a  liability  therefor  beyond 
the  amount  of  the  appropriation,  and  a  contractor  can  not  recover  more  than  the 
money  appropriated,  whatever  may  be  the  extent  of  his  work.  When  an  alleged 
liability  rests  wholly  upon  the  authority  of  an  appropriation  they  must  stand  or  fall 
together,  so  that  when  the  latter  is  exhausted  the  former  is  at  an  end,  to  be  revived, 
if  at  all,  only  by  subsequent  legislation  by  Congress.  Shipman  v.  U.  S.,  18  Ct,  Cls., 
138,  147;  McCullom  v.  U.  S.,  17  ibid.,  92,  103;  Trenton  Co.  v.  U.  S.,  12  ibid.,  147,  157. 

If  an  officer  is  clothed  with  authority  to  do  a  piece  of  work  without  limitation  as  to 
cost,  the  contracts  made  by  him  therefor  are  binding  upon  the  Government  whether 
money  is  appropriated  for  the  purpose  or  not.  Shipman  v.TJ.  S.,  18  ibid.,  138;  Col- 
lins v.  U.  S.,  15  ibid.,  22',  35;  XIII  Op.  Att.  Gen.,  315;  XV  ibid.,  236. 

Acknowledgments  and  promises  made  by  executive  officers  of  the  Government  do 
not  bind  the  United  States  when  they  are  not  made  under  express  or  implied  authority 
of  Congress.  Leonard  et  al.  v.  U.  S.,  18  Ct.  Cls.,  382. 

1  Authority  to  contract  for  the  completion  of  an  entire  structure,  the  plan  of  which 
has  been  determined  on,  can  not  be  inferred  from  the  mere  fact  that  an  appropriation 
of  a  certain  sum,  to  be  expended  on  the  structure,  has  been  made.     Hence  a  contract, 
though  it  be  good  to  the  extent  of  such  appropriation,  could  not  affix  itself  to  future 
appropriations  and  control  their  expenditure.     A  contract  of  this  character  would 
be  in  violation  of  the  spirit  of  section  3,  act  of  July  25,  1868,  sec.  3733,  R.  S.,  if  not 
of  its  express  terms.     XV  Op.  Att.  Gen.,  236. 

Under  section  5  of  the  act  of  June  20,  1874,  18  Stat.  L.,  Ill,  all  appropriations  for 
"public  buildings"  are  available  until  otherwise  ordered  by  Congress.  3  Dig.  2 
Comp.  Dec.,  29.  A  subappropriation  for  a  public  building  must,  under  the  act  of 
June  20,  1874,  18  Stat.  L.,  110,  111,  remain  available  until  its  object  has  been  accom- 
plished or  until  it  has  been  exhausted,  unless  otherwise  ordered  by  Congress.  Ibid. 
See  also  2  Comp.  Dec.,  365;  3  ibid.,  487. 

2  The  act  of  Congress  does  not  prohibit  the  acquisition  by  the  United  States  of  the 
legal  title  to  land,  without  express  legislative  authority,  when  it  is  taken  by  way  of 
security  for  debt.     Neilson  v.  Lagow,  12  How.,  98. 

8  See,  also,  for  additional  restrictions  the  act  of  March  3,  1875  (18  Stat.  L.,  371). 


MILITAEY    LAWS    OF    THE    UNITED    STATES.  569 


1525.  Hereafter  no  Department  or  officer  of  the  United 
States  shall  accept  voluntary  service  for  the  Government  ^e^1 

or  employ  personal  service  in  excess  of  that  authorized  23Mpay171;  184'  v- 
by  law,  except  in  cases  of  sudden  emergency  involving 
the  loss  of  human  life  or  the  destruction  of  property.1 
Act  of  May  1,  1884  (23  Stat.  L.,  17). 

1526.  All  purchases  and  contracts  for  supplies  2  or  serv- 
ices  in  any  of  the  Departments  of  the  Government,  except  S|fep 

f  or  personal  services,  shall  be  made  by  advertising  3  a  suf-  ^S,  isei,  c. 
ficient  time  previously  for  proposals  respecting  the  same  226  s'  10)  v'12'  p' 
when  the  public  exigencies  do  not  require  the  immediate  ecut?veiMDepar£ 
delivery  of  the  articles  or  performance  of  the  service.  m|2ffg7a9,  B.  s. 
When  immediate  delivery  or  performance  is  required  by 
the  public  exigency  3  the  articles  or  service  required  may 
be  procured  by  open  purchase  or  contract  at  the  places 
and   in   the   manner  in  which  such  articles  are  usually 
bought  and  sold  or  such  services  engaged  between  indi- 
viduals.4 

Venison  v.  U.  S.,  168  U.  S.  241. 

2  The  word  "  supplies,"  as  used  in  section  3709  of  the  Revised  Statutes  evidently 
has  reference  to  those  things  which  the  well-known  needs  of  the  public  service  will 
from  time  to  time  require  in  its  different  branches  for  its  successful  and  efficient 
administration,  and  the  statute  was  intended  to  afford  the  Government  the  pecu- 
niary benefits,  as  well  as  the  protection  against  fraud  and  favoritism,  which  open 
and  honest  competition  is  always  likely  to  secure.     It  could  not  have  been  in  the 
mind  of  the  lawmaking  power  to  require  that  purchases  could  only  be  made  after 
advertisement  of  small  articles  which  may  occasionally  be  needed,  and  where  in 
many  cases  the  cost  of  advertising  itself  would  exceed  the  value  of  the  article  pur- 
chased.    It  can  not  be  said  that  such  cases  are  governed  by  the  emergency  provision 
in  the  statute,  for  there  may  be,  and  are,  many  instances  where  the  officer  could  not 
truthfully  certify  that  immediate  delivery  was  necessary.     3  Dig.  2  Compt.  Dec.,  288. 

3  The  act  of  March  2,  1861,  sec.  3709,  R.  S.,  while  requiring  such  advertisement  as 
the  general  rule,  invests  the  officer  charged  with  the  duty  of  procuring  supplies  or 
services  with  a  discretion  to  dispense  with  advertising  if  the  exigencies  of  the  public 
service  require  immediate  delivery  or  performance.     It  is  too  well  settled  to  admit 
of  dispute  at  this  day  that  where  there  is  a  discretion  of  this  kind  conferred  on  an 
officer  or  board  of  officers,  and  a  contract  is  made  in  which  they  have  exercised  that 
discretion,  the  validity  of  the  contract  can  not  be  made  to  depend  on  the  degree  of 
wisdom  or  skill  which  may  have  accompanied  its  exercise.     U.  S.  v.  Speed,  8  Wall., 
77,  83;  Child  v.  U.  S.,  4  Ct.  Cls.,  176;  Mason  v.  U.  S.,  4  Ct.  Cls.,  495;  Wentworth 
v.  U.  S.,  5  Ct.  Cls.,  302.     See,  also,  III  Compt.  Dec.,  175,  314,  470. 

*  Section  3709,  Revised  Statutes,  provides,  generally,  that  the  making  of  public  con- 
tracts for  supplies,  etc.,  shall  be  preceded  by  an  advertising  for  proposals  "when  the 
public  exigencies  do  not  require  the  immediate  delivery  of  the  articles  or  performance 
of  the  service.  '  '  Exigencies  growing  out  of  a  state  of  war,  or  hostilities  with  Indians, 
were  probably  mainly  had  in  view,  and  it  is  exigencies  of  this  class  which  have  been 
considered  in  the  adjudged  cases  in  the  Supreme  Court  and  Court  of  Claims,  (a)  It 
is  clear,  however,  that  other  exigencies  may  exist  requiring  that  contracts  or  pur- 
chases be  made  at  once  or  without  the  delay  incident  to  advertising  for  proposals. 
Thus  a  loss  of  stores,  structures,  etc.,  on  hand,  caused  by  an  actus  Dei  or  vis  major, 
as  fire,  storm,  freshet,  or  a  sudden  riot  or  violent  disorder;  or  a  loss  of  supplies  occa- 
sioned by  the  neglect  of  military  subordinates  in  charge;  or  a  failure  of  a  contractor 
to  fulfill  a  contract  for  supplies,  transportation,  or  other  service,  might  properly  be 

aSee  U.  S.  v.  Speed,  8  Wallace,  83;  Reeside  v.  U.  S.,  2  Ct.  Cls.,  1;  Mowry  v.  U.  S.,  ibid.,  68;  Stevens 
v.  U.  S.,  ibid.,  95;  Floyd  v.  U.  S.,  ibid.,  429;  Crowell  v.  U.  S.,  ibid.,  501;  Baker  v.  U.  S.,  3  ibid.,  343;  Hen- 
derson v.  U.  S.,  4  ibid.,  75;  Childs  v.  U.  S.,  ibid.,  176;  Wentworth  v.  U.  S.,  5  ibid.,  302;  Wilcox  v.  U.  S., 
ibid.,  386;  Cobb  v.  U.  S.,  7  ibid.,  471,  and  9  ibid.,  291;  Thompson  v.  U.  S.,  ibid.,  187;  McKee  v.  U.  S.,  12 
ibid.,  505. 


570  MILITARY    LAWS    OF   THE    UNITED   STATES. 

1527<  Tlie  advertisement  for  such  proposals  shall  be 


e  day6  made  bJ  a11  tiie  Executive  Departments,  including  the 
l  ap'  33  Department  of  Labor,  the  United  States  Fish  Commission, 
B.  s.  Sec.  3709.  fae  Interstate  Commerce  Commission,  the  Smithsonian 
Institution,  the  Government  Printing  Office,  the  govern- 
ment of  the  District  of  Columbia,  and  the  superintendent 
of  the  State,  War,  and  Navy  building,  except  for  paper 
and  materials  for  use  of  the  Government  Printing  Office, 
and  materials  used  in  the  work  of  the  Bureau  of  Engrav- 
ing and  Printing,  which  shall  continue  to  be  advertised 
^or  and  Purchased  as  now  provided  by  law,  on  the  same 
days  and  shall  each  designate  two  o'clock  post  meridian  of 
such  days  for  the  opening  of  all  such  proposals  in  each 

regarded  as  constituting  an  '  '  exigency  '  '  under  the  statute,  if  of  such  magnitude  or 
injurious  consequence  to  the  Army  as  to  necessitate  an  immediate  making  good  of 
the  deficiency,  (a)  The  general  rule,  however,  of  the  statute  in  requiring  a  notice 
and  invitation  to  the  public  as  a  preliminary  to  the  awarding  of  a  contract,  is  founded 
upon  a  sound  and  well-considered  public  policy,  and  exceptions  thereto,  especially 
in  time  of  peace,  should  be  recognized  as  admissible  only  where,  if  the  rule  were 
strictly  complied  with,  the  public  interests  would  manifestly  be  most  seriously  pre- 
judiced. (6)  Dig.  Opin.  J.  A.  G.,  279,  par.  9. 

An  exigency  can  not  be  created  by  the  simple  certificate  of  a  public  officer  that  it 
exists.  An  exigency  involves  a  state  of  pressing  necessity  so  great  that  the  public 
interests  would  be  prejudiced  if  the  contemplated  purchase  was  not  made.  A  cer- 
tificate made  after  the  purchase  of  the  articles  is  of  no  effect.  3  Dig.  Compt.  Dec.  ,  286. 
The  term  "public  exigency"  refers  to  an  exceptional  and  urgent  necessity  requiring 
the  immediate  performance  of  the  work  or  service.  Ibid.,  328. 

Proof  of  the  existence  of  an  exigency  must  be  presented  in  order  to  authorize  the 
accounting  officers  to  pass  a  voucher  for  an  exigency  purchase  under  section  3709  of 
the  Kevised  Statutes.  Such  proof  must  accompany  the  voucher  in  the  form  of  a 
certificate  by  the  officer  who  made  the  purchase  that  a  public  exigency  required  the 
immediate  delivery  of  the  articles  purchased,  and  that  they  were,  therefore,  pur- 
chased in  open  market.  In  other  words,  there  must  be  proof  that  the  proper  officer 
has  actually  determined  that  an  exigency  existed.  The  certificate  may  be  made  in 
the  following  form:  "The  exigencies  of  the  public  service  required  the  immediate 
delivery  of  the  articles  specified  in  the  voucher,  and  they  were,  therefore,  obtained 
by  purchase  in  open  market,  without  advertisement,  and  at  the  lowest  market  rates." 
Ibid. 

Except  in  the  case  of  an  existing  public  exigency  a  contract  for  supplies  in  the 
War  Department  or  military  branch  of  the  service  is  to  be  preceded  by  an  advertise- 
ment for  proposals  as  directed  in  section  3709,  Revised  Statutes.  This  advertisement 
is  not  a  mere  facility  for  the  convenience  of  an  executive  Department,  which  may  be 
waived  at  discretion,  but  an  essential  proceeding  prescribed  by  the  statute  as  a  con- 
dition to  the  exercise  of  the  authority  to  enter  into  a  contract  for  the  United  States. 
Thus  enjoined,  no  omission  or  evasion  of  this  prerequisite,  however  convenient  such 

aSee  G.  0.  10  of  1879,  sees.  22-25,  pp.  14-15;  do.  72,  ibid.,  p.  52;  do.  40  of  1880,  p.  58;  also  McKee  v. 
U.S.,  12  Ct.  Cls.,  529-530. 

6  As  to  the  authority  who  is  to  decide  whether  there  exists  such  an  exigency  as  is  contemplated  by 
the  statute,  the  Supreme  Court,  in  the  United  States  v.  Speed,  8  Wallace,  83,  has  held  that  it  is  "  the 
officer  charged  with  the  duty  of  procuring  supplies  or  services  who  is  invested  with  this  discretion." 
This  description  is  rather  general,  nor  is  the  term  "the  purchasing  officer,"  by  which  the  Court  of 
Claims  explains  it,  in  Thompson  v.  U.  S.,  9  Ct.  Cls.,  196,  a  much  more  precise  definition.  It  is  clear, 
however,  that  a  subordinate  officer  charged  with  the  duty  of  being  the  immediate  representative  of 
the  United  States  in  a  contract  or  purchase  should  not,  in  general,  venture  to  dispense  with  advertis- 
ing, on  the  theory  of  the  existence  of  a  public  exigency,  in  the  absence  of  instructions  or  orders  from 
a  proper  superior.  Nor,  on  the  other  hand,  will  a  superior  officer,  in  entering  into  u  contract  for  his 


command  or  branch  of  the  service,  properly  assume  that  an  "exigency"  exists  authorizing  him  to 
dispense  with  the  statutory  forms  when  the  period  is  time  of  peace  and  no  imperative  necessity  exists 
for  the  immediate  delivery  of  the  supplies  or  performance  of  the  service  proposed  to  be  contracted 
for.  It  is  to  be  noted  that  the  cases  both  of  Speed  and  Thompson  related  to  contracts  entered  into 
during  the  civil  war.  In  the  instructive  opinions  of  the  Attorney-General  on  the  "Fifteen  per  cent 
contracts"  of  April  27  and  May  3,  1877,  XV  Opin.,  235,  253,  it  is  held  that  the  "exigency"  contem- 
plated by  the  statute  can  be  one  of  time  only,  and  that  it  can  be  regarded  as  existing  only  where  an 
immediate  delivery  or.performance  is  required  by  a  public  necessity.  Dig.  Opin.  J.  A.  G.,  par.  853,  notel. 


MILITAEY   LAWS    OF   THE   UNITED   STATES.  571 

Department  and  other  Government  establishment  in  the 
city  of  Washington;  and  the  Secretary  of  the  Treasury 
shall  designate  the  day  or  days  in  each  year  for  the  open- 
ing of  such  proposals  and  give  due  notice  thereof  to  the 
other  Departments  and  Government  establishments.  Such 
proposals  shall  be  opened  in  the  usual  way  and  schedules 
thereof  duly  prepared  and,  together  with  the  statement 
of  the  proposed  action  of  each  Department  and  Govern- 
ment establishment  thereon,  shall  be  submitted  to  a  board 
consisting  of  one  of  the  Assistant  Secretaries  of  the  Treas- 
ury  and  Interior  Departments  and  one  of  the  Assistant al 
Postmasters-General,  who  shall  be  designated  by  the 
heads  of  said  Departments  and  the  Postmaster-General, 

an  omission  or  evasion  may  be,  can  legally  be  allowed,  (a)  So,  held,  that  it  was  no 
excuse  for  a  noncompliance  with  the  statute  by  a  quartermaster  that  his  contracts 
(made  without  advertisement)  had  been  made  with  the  most  reliable  parties  and  to 
the  advantage  of  the  United  States.  And,  held,  that  the  requirement  as  to  advertis- 
ing for  proposals  must  be  complied  with  in  contracting  for  a  supply  of  articles  pur- 
chased for  trial,  equally  as  if  the  contract  were  for  the  regular  yearly  supplies.  Dig. 
Opin.  J.  A.  G.,  par.  849. 

The  main  object  of  the  advertisement  is  to  induce  a  free  and  open  competition  for 
the  contracts  of  the  Government,  and  thus  to  protect  the  United  States  from  fraudu- 
lent combinations  and  collusive  preferences  in  its  business  transactions.  (6)  At  the 
same  time  the  advertisement,  in  inviting  proposals  from  the  public,  is  properly  to  be 
viewed  as  a  pledge  on  the  part  of  the  United  States  that  the  contract  will,  as  a  general 
rule,  be  awarded  to  the  lowest  bidder,  provided  he  is  a  responsible  person  and  his  bid 
is  a  reasonable  one,  and  provided,  of  course,  he  complies  with  the  existing  regulations 
as  to  bond,  etc.  Ibid.,  par.  855.  See,  also,  1  Compt.  Dec.,  363. 

A  military  emergency  can  not  be  measured  by  precise  rules.  Thompson  v.  U.  S., 
9  Ct.  Cls.,  187.  The  act  of  March  2,  1861  (sec.  3709,  E.  S.),  requires  of  a  quarter- 
master that  openness,  diligence,  prudence,  and  care  which  an  individual  might  be 
supposed  to  exercise 
such  circumstances, 
sarily  be  construed  liberally. 
What  was  right  for  a  quartermaster  to  do  under  certain  circumstances  can  be  lawful 
and  right  only  when  the  precise  cirsumstances  are  repeated.  Childs  &  Co.  v.  U.  S., 
4  Ct.  Cls.,  176. 

An  officer  charged  with  the  duty  of  making  a  contract  or  purchase  is  responsible 
under  the  laws  and  regulations  for  his  action.  Permission  or  orders  to  make  a  con- 
tract or  purchase  without  inviting  competition  will  not  justify  that  procedure  and 
will  not  be  given.  Par.  597,  A.  R.,  1901. 

In  the  absence  of  any  emergency  in  fact,  or  any  declared  by  the  head  of  the  Depart- 
ment in  which  a  public  work  is  being  carried  on,  or  any  emergency  that  can  be 
judicially  inferred,  the  requirements  of  this  section,  in  respect  to  advertisement,  are 
mandatory,  and  a  contract  made  in  violation  of  it  is  void.  Schneider  v,  U.  S.,  1"9  Ct. 
Cls.,  547,  551. 

Personal  services  are  such  as  the  individual  employed  or  contracted  with  must  per- 

aSee  VI  Opin.  Att.  Gen.,  406;  10  ibid.,  28;  also  opinion  of  the  Solicitor-General  of  March  20, 1876,  XV 
Opin.,  539,  vyherein,  in  holding  contracts  made  without  advertising  to  be  not  binding  on  the  United 
States,  he  dissents  from  the  opinion  of  Attorney-General  Bates,  in  X  Opin.,  416,  to  the  effect  that  while 
an  absence  of  the  prescribed  advertisement  will  render  illegal  and  inoperative  an  unexecuted  con- 
tract, the  Government  can  not,  on  account  of  such  omission,  rescind,  to  the  damage  of  a  contractor, 
a  contract  entered  into  by  him  in  good  faith  and  partly  performed.  In  a  later  opinion  of  April  27, 
1877,  XV  Opin.,  236,  the  Attorney-General  refers  to  the  question,  whether  the  provision  of  section  3709, 
Revised  Statutes,  requiring  that  contracts  in  general  shall  be  preceded  by  advertisement,  is  mandatory 
or  only  directory,  as  one  which  has  been  much  discussed  (see,  for  example,  the  reference  to  this  ques- 
tion in  Fowler  v.  U.  S.,  3  Ct.  Cls.,  47),  but  is  not  required  to  be  decided  in  that  opinion.  But  what- 
ever may  be  the  true  construction  of  this  section,  it  is  clear  that  no  officer  of  the  Army,  in  the  absence 
of  express  authority  to  do  so  from  the  Secretary  of  War,  can  be  justified  in  omitting  to  comply  with 
the  provision  in  regard  to  advertising. 

6See  Harvey  v.  U.  S.,  8  Ct.  Cls.,  506.  In  regard  to  a  statute  (similar  to  section  3709),  governing  the 
Post-Office  Department,  the  Supreme  Court,  in  Garlield  v.  U.  S.,  3  Otto,  246,  say:  "The  object  of  the 
statute  was  to  secure  notice,  *  *  *  that  bidders  might  compete,  that  favoritism  should  be  pre- 
vented, that  efficiency  and  economy  in  the  service  should  be  obtained." 


572  MILITARY    LAWS    OF    THE    UNITED    STATES. 

respectively,  at  a  meeting  to  be  called  by  the  official  of  the 
Treasury  Department,  who  shall  be  chairman  thereof,  and 
said  board  shall  carefully  examine  and  compare  all  the 
proposals  so  submitted  and  recommend  the  acceptance  or 

mento?re'ectedrej'ec^on  °^  &n^  OT  a^  °^  sa^  proposals.1  And  if  any  or 
kids.  a]l  Of  such  proposals  shall  be  rejected  advertisements  for 

Jan.  27,  1894,  s. 

i,v.  28,  p.  33.      proposals  shall  again  be  invited  and  proceeded  with  in 
the  same  manner.     Sec.  1,  act  of  January  27,  1894  (®8 
Stat.  Z.,  33). 
ResetricTion.          1528-  Tne  act  entitled  uAn  act  to  amend  section  thirty - 

v.i8,rp.  62.'  1894>  seven  hundred  and  nine  of  the  Revised  Statutes  relating 
to  contracts  for  supplies  in  the  Departments  at  Washing- 
ton," approved  January  twenty-seven,  eighteen  hundred 
and  ninety -four,  be,  and  the  same  is  hereby,  so  amended 

itedrcvisionslim "that  the  provisions  thereof  shall  apply  only  to  advertise- 

Sec.8709,H.s.  men^.g  £ol>  prOpOsals  for- fuel,  ice,  stationer}7,  and  other 

miscellaneous  supplies  to  be  purchased  at  Washington  for 

the  use  of  the  Executive  Departments  and  other  Grovern- 

no^nvand' etc''  ment  establishments  therein  named;  and  no  advertisements 
made  or  contracts  awarded  or  to  be  awarded  thereon  since 
January  twent3r-seven,  eighteen  hundred  and  ninet}r-four, 
in  accordance  with  the  laws  in  force  prior  to  said  date, 

form,  in  person,  directly  under  the  control  and  supervision  of  an  officer  or  agent  of 
the  Government,  as  distinguished  from  services  the  performance  of  which  may  be 
delegated  by  the  contractor  to  others.  Par.  596,  A.  R.,  1901.  They  are  contracts  for 
expert  or  skilled  service  to  be  performed  by  the  contractor  in  person.  Dig.  Opin. 
J.  A.  G.,  231,  par.  11. 

Where  the  essential  part  of  a  contract  is  for  personal  services,  advertising  for  pro- 
posals under  section  3709,  Revised  Statutes,  is  not  required.  2  Compt.  Dec.,  185. 

Section  3709  does  not  require  the  advertising  for  proposals,  nor  the  entering  into 
contracts  for  the  purchase  of  patented  or  copyrighted  articles  where  the  benefit  of 
competition  can  not  be  secured.  2  Compt.  Dec.,  632.  For  provisions  of  regulations 
respecting  purchases,  etc.,  see  paragraphs  593-597,  Army  Regulations  of  1901. 

METHODS   OF   PURCHASE. 

A  purchase  of  supplies  or  engagement  of  services  will  be  made: 

1.  By  contract,   "reduced  to  writing  and  signed  by  the  contracting  parties  with 
their  names  at  the  end  thereof."     Agreements  of  this  character  only  are  termed 
"contracts"  in  these  regulations. 

2.  By  written  proposal  and  written  acceptance. 

3.  By  oral  agreement. 

When  delivery  or  performance  does  not  immediately  follow  an  award  or  bargain 
the  first  method  will  be  used;  when  delivery  or  performance  immediately  follows  an 
award  or  bargain  the  second  method  may  be  resorted  to.  Par.  627,  A.  R.,  1901. 

Contracts  will  be  made  on  forms  furnished  by  the  chiefs  of  bureaus,  in  cases  where 
such  forms  are  applicable,  and  those  forms  will  be  modified  only  to  such  extent  as  is 
necessary.  All  conditions  will  be  stated  therein  as  fully  and  clearly  as  possible. 
Par.  628,  ibid. 

If  a  contract  made  by  a  subordinate  is,  in  terms,  subject  to  the  approval  of  his 
superior,  approval  is  a  condition  precedent  to  the  validity  of  the  agreement.  Mon- 
roe and  Richardson  v.  U.  S.,  35  Ct.  Cls.,  199;  Darragh  v.  U.  S.,  33  ibid.,  377. 

Where  a  contract  provides  that  it  is  subject  to  the  approval  of  a  designated  pfficer, 
such  approval  need  not  be  in  writing.  Monroe  and  Richardson  v.  U.  S.,  35  Ct.  Cls., 
199;  Speed's  Case,  8  Wallace,  77. 

JFor  a  restriction  upon  the  operation  of  this  paragraph  see  the  act  of  April  21,  1894 
(28  Stat.  L.,  62).  Par.  1528,  post. 


MILITARY    LAWS    OF   THE   UNITED    STATES. 


573 


shall  be  declared  to  be  illegal  or  invalid  for  noncompliance 
with  said  law  of  January  twenty-seventh,  eighteen  hundred 
and  ninety-four.  Act  of  April  21,  1894  (28  Stat.  Z.,  62). 


ADVERTISING. 


Par. 
1529 


Par. 

1532.~The  same. 

1533.  Advertisements  on  Pacific  coast. 


No  advertisement  without  author- 
ity. 

1530.  Rates. 

1531.  Advertising  in  District  of  Colum- 

bia; restriction. 

1529.  No  advertisement,  notice,   or  proposal  for 
Executive  Department  of  the  Government,  or  for  any  th^yj5  1870  c 
Bureau  thereof,  or  for  any  office  therewith  connected,  |J| s- 2)  v-  16)  p- 
shall  be  published  in  any  newspaper  whatever,  except  in    Sec*  3828>B'S' 
pursuance  of  a  written  authority  for  such  publication  from 
the  head  of  such  Department;    and  no  bill  for  any  such 
advertising,  or  publication,  shall  be  paid,  unless  there  be 
presented,  with  such  bill,  a  copy  of  such  written  authority.1 


requirements  of  section  3828,  Revised  Statutes,  are  complied  with  by  the 
issue  of  a  general  circular  of  instructions,  and  it  is  not  necessary  to  file  authority 
with  each  particular  bill.  Compt.  Dec.,  1893-94,  103;  U.  S.  v.  Odeneal,  10  Fed.  Rep., 
616. 

By  the  terms  of  section  3709,  Revised  Statutes,  and  the  acts  of  July  5,  1884  (23 
Stat.  L.,  109) ,  and  February  12,  1895  (28  Stat.  L.,  654),  advertising  is  required  prior 
to  purchase  in  the  case  of  "all  supplies  for  the  use  of  the  various  departments  and 
posts  of  the  Army  and  all  branches  of  the  Army  service, "  including  the  procure- 
ment of  steel  for  gun  construction.  Advertising  may  be  dispensed  with  in  the  emer- 
gency contemplated  in  section  3709  of  the  Revised  Statutes;  in  the  purchase  of  cer- 
tain ordnance  stores,  when  the  aggregate  of  said  purchase  does  not  exceed  $200  (act 
of  July  16,  1892,  27  Slat.  L.,  174),  and  in  the  purchase  of  medicines  and  medical 
supplies  (act  of  February  27,  1893,  27  Stat.  L.,  478).  See  also  notes  to  paragraph 
1151,  ante. 

A  disbursing  officer  is  not  authorized  to  pay  bills  for  newspaper  advertising  when 
he  is  satisfied  that  the  price  exceeds  the  commercial  rates  charged  to  private  indi- 
viduals, with  the  usual  discounts,  notwithstanding  the  affidavit  of  the  proprietor  of 
the  newspaper  to  the  contrary.  1  Compt.  Dec. ,  312. 

When  the  proprietors  of  a  newspaper  show  by  affidavit  that  the  rates  theretofore 
sworn  to  by  them  were,  although  not  so  limited,  intended  simply  to  cover  advertising 
of  a  certain  kind,  they  may  be  paid  at  their  usual  commercial  rates  for  advertising 
not  of  the  kind  intended  by  their  first  statement  of  rates.  Ibid. ,  373. 

When  advertising  in  connection  with  the  purchase  of  subsistence  supplies  for  the 
Army  is,  by  law,  a  necessary  condition  precedent  to  the  purchase  of  such  supplies, 
and  there  is  no  specific  appropriation  for  such  advertising,  the  cost  thereof  is  prop- 
erly chargeable  to  the  appropriation  "Subsistence  of  the  Army."  3  Dig.  Comp. 
Dec.,  23. 

Under  section  3709  of  the  Revised  Statutes  and  paragraph  1486  of  the  Army  Regu- 
lations (1881),  the  length  of  time  for  the  publication  of  advertisements  inviting 
proposals  for  furnishing  Army  supplies  was  left  somewhat  to  the  discretion  of  the 
purchasing  officer.  But  the  act  of  July  5,  1884  (23  Stat.  L.,  109),  has  fixed,  in  all 
cases  excepting  emergency  purchases,  the  minimum  period  during  which  public 
notice  shall  be  given,  authorizing  the  purchase  of  "small  amounts  for  immediate 
use"  after  public  notice  of  not  legs  than  ten  days,  while  all  other  purchases  are 
required  to  be  made  after  public  notice  of  not  less  than  thirty  days.  Ibid.,  23. 

tinder  the  Army  Regulations,  advertisement  may  be  made  by  handbills;  but  when 
this  method  is  resorted  to  it  must  be  shown  that  the  handbills  were  circulated  to 
such  an  extent  as  to  render  it  probable  that  a  large  number  of  persons  engaged  in 
the  business  of  furnishing  the  articles  desired  had  thus  been  afforded  an  opportunity 
to  compete  for  the  contract  which  was  to  be  let.  Ibid.,  24.  See  also  3  Comp. 
Dec.,  730. 


574  MILITARY   LAWS    OF   THE   UNITED    STATES. 

^  Rates  of  adver-     153Q,  Hereafter  all  advertisements,   notices,   proposals 

v  J2onp  216  1878)  ^or  contracts,  and  all  forms  of  advertising  required  by 
law  for  the  several  Departments  of  the  Government  may 
be  paid  for  at  a  price  not  to  exceed  the  commercial  rates 
charged  to  private  individuals,  with  the  usual  discounts; 
such' rates  to  be  ascertained  from  sworn  statements  to  be 
furnished  by  the  proprietors  or  publishers  of  the  news- 
papers proposing  so  to  advertise:  Provided,  That  all  ad- 
vertising in  newspapers  since  the  tenth  day  of  April, 
eighteen  hundred  and  seventy-seven,  shall  be  audited  and 
paid  at  like  rates;  but  the  heads  of  the  several  Depart- 
ments may  secure  lower  terms  at  special  rates  whenever 
the  public  interest  requires  it.  Act  of  June  W,  1878  (20 
Stat.  L.,  216). 

etPcrocladvaerSse-     1^31.  All  executive  proclamations,  and  all  treaties  re- 
^6^  ky  -^aw  ^°  ^e  published,  shall  be  published  in  only 
one  newspaper,  the  same  to  be  printed  and  published  in  the 

19,  p.  105.  District  of  Columbia  and  to  be  designated  by  the  Secre- 

tary of  State  and  in  no  case  of  advertisement  for  contracts 
for  the  public  service  shall  the  same  be  published  in  any 
newspaper  published  and  printed  in  the  District  of  Colum- 
bia unless  the  supplies  or  labor  covered  by  such  advertise- 
ment are  to  be  furnished  or  performed  in  said  District  of 
Columbia.  Act  of  July  31,  1876  (19  Stat.  Z.,  105). 
The  same.  1532.  All  advertising  required  by  existing  laws  to  be 

21,  p.  si?.'  '  done  in  the  District  of  Columbia  by  any  of  the  depart- 
*  ments  of  the  Government  shall  be  given  to  one  daily  and 
one  weekly  newspaper  of  each  of  the  two  principal  political 
parties  and  to  one  daily  and  one  weekly  neutral  newspaper: 
Provided,  That  the  rates  of  compensation  for  such  service 
shall  in  no  case  exceed  the  regular  commercial  rate  of  the 
newspapers  selected;  nor  shall  any  advertisement  be  paid 
for  unless  published  in  accordance  with  section  thirty- 
eight  hundred  and  twenty-eight  of  the  Revised  Statutes.1 
Act  of  January  21,  1881  (21  Stat.  L.,  317). 
Ad verti^e-  1533.  The  Quartermaster's  Department  of  the  Army,  in 

plies  for  Quar-  obtaining  supplies  for  the  military  service,  shall  state  in  all 

tennaster's    De-  e 

partment.          advertisements  for  bids  for  contracts  that  a  preference 

July  13, 1866,  c.  . 

176,  s.  4,  v.  14,  p.  shall  be  given  to  articles  of  domestic  production  and  manu- 

sec.  37i6,B.s.  facture,  conditions  of  price  and  quality  being  equal,  and 

that  such  preference  shall  be  given  to  articles  of  American 

production  and  manufacture  produced  on  the  Pacific  coast, 

1  The  subject  of  advertising  in  the  War  Department  and  its  several  bureaus  and 
offices,  and  in  the  military  establishment  generally,  is  regulated  by  the  provisions  of 
paragraphs  598-602,  Army  Regulations  of  1901.  See  notes  to  paragraph  1526,  ante. 


MILITARY   LAWS    OF   THE    UNITED    STATES. 


575 


to  the  extent  of  the  consumption  required  by  the  public 
service  there.  In  advertising  for  Army  supplies  the  Quar- 
termaster's Department  shall  require  all  articles  which 
are  to  be  used  in  the  States  and  Territories  of  the  Pacific 
coast  to  be  delivered  and  inspected  at  points  designated  in 
those  States  and  Territories;  and  the  advertisements  for 
such  supplies  shall  be  published  in  newspapers  of  the  cities 
of  San  Francisco,  in  California,  and  Portland,  in  Oregon. 

PROPOSALS — BIDDERS'  BONDS. 


Par. 

1537.  Separate  proposals  and  contracts. 

1538.  The    same    exception;    river   and 

harbor  works. 


etc-; 
1878' 


Par. 

1534.  Secretary  of  War  to  prescribe  reg- 

ulations. 

1535.  Bidders'  bonds. 

1536.  Opening  bids. 


1534.  The  Secretary  of  War  is  hereby  authorized  to 
prescribe  rules  and  regulations  to  be   observed   in   the 
preparation  and  submission  and  opening  of  bids  for  con- 
tracts  under   the  War   Department.  l     Act  of  April  10, 
1878  (20  Stat.  Z.,  36}. 

1535.  He  may  require  every  bid  to  be  accompanied  by  a 
written    guaranty,  signed    by  one  or  more   responsible  22>  p-  488- 
persons,  to  the  effect  that  he  or  they  undertake  that  the 
bidder,  if  his  bid  is  accepted,  will,  at  such  time  as  may  be 
prescribed  by  the  Secretary  of  War  or  the  officer  author- 

ized to  make  a  contract  in  the  premises,  give  bond,  with 
good  and  sufficient  sureties,  to  furnish  the  supplies  pro- 
posed or  to  perform  the  service  required.  If  after  the 
acceptance  of  a  bid  and  a  notification  thereof  to  the  bidder 
he  fails  within  the  time  prescribed  by  the  Secretary  of 
War  or  other  duly  authorized  officer  to  enter  into  a  con- 
tract and  furnish  a  bond  with  good  and  sufficient  security 
for  the  proper  fulfillment  of  its  terms,  the  Secretary  or 
other  authorized  officer  shall  proceed  to  contract  with 
some  other  person  to  furnish  the  supplies  or  perform  the 
service  required,  and  shall  forthwith  cause  the  difference 
between  the  amount  specified  by  the  bidder  in  default  in 
the  proposal  and  the  amount  for  which  he  may  have  con- 
tracted with  another  party  to  furnish  the  supplies  or  per- 
form the  service  for  the  whole  period  of  the  proposal  to 
be  charged  up  against  the  bidder  and  his  guarantor  or  Bidders. 
guarantors,  and  the  sum  may  be  immediately  recovered 
by  the  United  States  for  the  use  of  the  War  Department 

1  For  regulations  prepared  by  the  Secretary  of  War  under  the  authority  conferred 
by  this  statute,  see  paragraphs  598-626,  Army  Regulations  of  1901. 


576 


MILITARY   LAWS    OF   THE   UNITED   STATES. 


Resans  v!' 
24|ec  87io,B  s 


in  an  action  of  debt  against  either  or  all  of  such  persons.1 
Act  of  March  3,  1883  (22  Stat.  L.,  488). 

1536>  Whenever  proposals  for  supplies  have  been  solic- 
he  parties  responding  to  such  solicitation  shall  be 
duly  notified  of  the  time  and  place  of  opening  the  bids, 
and  be  permitted  to  be  present  either  in  person  or  by 
attorney,  and  a  record  of  each  bid  shall  then  and  there  be 
made. 

1537-  Whenever  the  Secretary  of  War  invites  proposals 
^or  any  works,  or  for  any  material  or  labor  for  works, 
there  shall  be  separate  proposals  and  separate  contracts 
for  each  work,  and  also  for  each  class  of  material  or  labor 
for  each  work. 

1538.  Nothing  contained  in  section  thirty-seven  hundred 
™n?ract,netc°  n  *  and  seventeen  of  the  Revised  Statutes  of  the  United  States, 
modilelfcv3725i  nor  m  section  three  of  the  river  and  harbor  act  of  August 
p'sec.'2,  sept.  19,  eleventh,  eighteen  hundred  and  eighty  -eight,  shall  be  so 
1890,  v.  26,  p.  452.  construed  as  to  prohibit  or  prevent  the  cumulation  of  two 
or  more  works  of  river  and  harbor  improvement  in  the 
same  proposal  and  contract  where  such  works  are  situated 
in  the  same  region  and  of  the  same  kind  or  character. 
Sec.  2,  act  of  September  19,  1890  (26  Stat.  Z., 


PREPARATION  AND  EXECUTION  OF  CONTRACTS. 


Par. 

1539.  Contracts  to  be  in  writing. 

1540.  No  member  of  Congress  to  be  in- 

terested. 


Par. 


1541.  Copies  to  be  filed  with  Auditor  for 
War  Department. 


s 


'contacts  1539'  lfc  siiaU  be  the  duty  of  the  Secretary  of  War,  of  the 
Secretary  of  the  Navy,  and  of  the  Secretary  of  the  Interior, 
*°  cause  and  require  every  contract  made  by  them  severally 
on  behalf  of  the  Government,  or  by  their  officers  under 
them  appointed  to  make  such  contracts,  to  be  reduced  to 
writing,  and  signed  by  the  contracting  parties  with  their 
names  at  the  end  thereof;2  a  copy  of  which  shall  be  filed  by 
the  officer  making  and  signing  the  contract  in  the  Returns 
Office  of  the  Department  of  the  Interior,  as  soon  after  the 
contract  is  made  as  possible,  and  within  thirty  days, 
together  with  all  bids,  offers,  and  proposals  to  him  made  by 
persons  to  obtain  the  same,  and  with  a  copy  of  any  adver- 
tisement he  may  have  published  inviting  bids,  offers,  or 
proposals  for  the  same.  All  the  copies  and  papers  in  rela- 

1  For  requirements  of  regulations  in  respect  to  guaranties  in  support  of  bids  and 
proposals,  see  paragraphs  611-613,  Army  Regulations  of  1901. 

2  For  instructions  respecting  the  preparation  and  execution  of  contracts,  see  para- 
graphs 627-637,  Army  Regulations  of  1901. 


MILITARY    LAWS    OF   THE    UNITED    STATES.  577 

tion  to  each  contract  shall  be  attached  together  by  a  ribbon 
and  seal,  and  marked  by  numbers  in  regular  order,  accord- 
ing to  the  number  of  papers  composing  the  whole  return.1 

1540.  In  every  such  contract  or  agreement  to  be  made  or  stipulation  that 

*  no    member    of 

entered  into,  or  accepted  by  or  on  behalf  of  the  United  {Jjjfgf8  has  an 
States,  there  shall  be  inserted  an  express  condition  that  n°48AsP3  ^'2180^: 
member  of  [or  Delegate  to]  Congress  shall  be  admitted  to  F®b.  27,  i877,c.69,' 

v.  19,  p.  249. 

any  share  or  part  of  such  contract  or  agreement,  or  to  any  sec.374i,R.s. 
benefit  to  arise  thereupon.2 

1541.  All  contracts  to  be  made,  by  virtue  of  any  law,  and  t^f^SfSK- 
requiring  the  advance  of  money,  or  in  any  manner  connected  toj^ly  31  1894  s 
with  the  settlement  of  public  accounts,  shall  be  deposited  ^sIc^l'j^B.  s. 
promptly  in  the  offices*  of  the  Auditors  of  the  Treasury, 
according  to  the  nature  of  the  contracts:  Provided,  That 

this  section  shall  not  apply  to  the  existing  laws  in  regard 
to  the  contingent  funds  of  Congress.3  Act  of  July  31, 1894 
(28  Stat.  Z.,  9AO). 

1  It  may  be  considered  as  settled  that  so  much  of  section  3744  as  provides  that 
all  contracts  shall  "be  reduced  to  writing  and  signed  by  the  contracting  parties 
with  their  names  at  the  end  thereof"  is  mandatory,  and  contracts  which  do  not 
comply  with  its  requirements  are  void.     In  looking  at  the  scope  and  purpose  of  this 
law  and  at  the  words  in  which  it  is  couched,  I  can  not  doubt  of  the  intention  of  Con- 
gress in  its  enactment.     To  my  mind  it  is  clear  that  it  was  designed  to  require  every 
executory  contract,  at  least,  to  be  put  in  writing,  so  that  its  terms  might  not  be  mis- 
taken and  that  the  character  and  extent  of  the  outstanding  engagements  of  the  United 
States  might  at  all  times  be  known  to  the  executive  and  legislative  departments,  or 
be  capable  of  being  ascertained  in  a  reasonable  time  and  with  appropriate  exactitude. 
Henderson  v.  U.  S.,  4  Ct.  Cls.,  75,  83.     There  is  no  class  of  cases  in  which  a  statute 
for  preventing  frauds  and  perjuries  is  more  needed  than  in  this.     And  we  think  that 
the  statute  in  question  was  intended  to  operate  as  such.     It  makes  it  unlawful  for 
contracting  officers  to  make  contracts  in  any  other  way  than  by  writing  signed  by 
the  parties.     This  is  equivalent  to  prohibiting  any  other  mode  of  making  contracts. 
Clark  v.   U.  S.,  95  U.  S.,  539,  542;  South  Boston  Iron  Co.,  18  Ct.  Cls.,  165,  176; 
U.  S.  v.  Lament,  2  D.  C.  App.,  532.     The  provisions  of  this  section  apply  to  contracts 
made  in  emergencies.     Cobb  et  al.  v.  U.  S.,  18  Ct.  Cls.,  514,  532;  Clark  v.  U.  S., 
95  U.  S.,  539.     Offers  and  acceptances  by  letter  are  preliminary  memoranda  only 
and  do  not  constitute  a  valid  contract  within  the  meaning  of  the  statute.     South  Bos- 
ton Iron  Co.  v.  U.  S.,  118  U.  S.,  37,  42.     Where,  however,  a  parol  contract  has  been 
wholly  or  partly  executed  on  one  side,  the  party  performing  will  be  entitled  to  recover 
the  fair  value  of  his  property  or  services  as  upon  an  implied  contract  for  a  quantum 
meruit.     Clark  v.  U.  S.,  95  U.  S.,  539.     See  also  Warren  &  Goss  v.  U.  S.,  23  Ct.  Cls., 
77;    South   Boston  Iron  Co.  v.  U.  S.,  18  ibid.,   165,  and  118   U.  S.,  37;   Clark  v. 
U.  S.,  95  U.  S.,  543;  The  International  Contracting  Co.  u,  Lament,  2  Ct.  App.  D.  C., 
532.     See  also  Lindsley  v.  U.  S.,  4  Ct.  Cls.,  359;  Burchiel  v.  U.  S.,  4  Ct.  Cls.,  549; 
Bernheimer  v.  U.  S.,  5  Ct.  Cls.,  65.     The  formal  execution  of  contracts  for  Gov- 
ernment work,  as  a  prerequisite  for   their  legality  and  binding  effect,  after  the 
acceptance  of  proposals,  as  required  by  section  3744,  Revised  Statutes,  was  not  dis- 
pensed with  by  the  acts  of  March  23,  1883   (22  Stat.  L.,  488),  and  section  3  of  the 
act  of  August  11,  1888  (25  Stat.  L.,  400,  423).     U.  S.  v.  Lament,  2  D.  C.  App.,  532. 

2  See  paragraph  1558,  post. 

3  All  formal  written  contracts  connected  with  the  settlement  of  public  accounts 
should  be  placed,  and  should  remain,  on  file  in  the  offices  designated  by  law  as  their 
proper  depositories.     3  Dig.  2d  Compt.  Dec.,  112. 

Under  paragraph  633  of  the  Army  Regulations  of  1901  formal  written  contracts  are 
to  be  executed  in  quintuplicate,  one  of  which  is  to  be  filed,  in  accordance  with  section 

22924—08 37 


578 


MILITAEY    LAWS    OF   THE    UNITED    STATES. 


MISCELLANEOUS   REQUIREMENTS. 


Par. 

1542.  American  material  preferred. 

1543.  Purchases,  where  made. 

1544.  Cavalry  and  artillery  horses. 

1545.  The  same,  restriction  on  purchases. 

1546.  Draft  animals,  restriction. 

1547.  Means  of  transportation. 

1548.  Transportation  of  stores  by  con- 

tract. 

1549.  Expenditures  on  buildings,  restric- 

tion. 


Par.       , 

1550.  Post  bakeries,  schools,  etc. 

1551.  Post  gardens,  exchanges. 

1552.  Contracts  for  subsistence. 

1553.  Purchases  of  steel. 

1554.  Purchases  from  Indians. 

1555.  Names  of  contractors  to  appear  on 

articles  purchased. 

1556.  Contracts    for    stationery,   restric- 

tion. 


1542.  In  all  contracts  for  material  for  any  public  im- 
f°ovemente  im  pi'ovement  the  Secretary  of  War  shall  give  preference  to 


American  ma- 
terial   preferred 


American  material;  and  all  labor  thereon  shall  be  per- 
1875,  v.  is,  P.  455.  formed  within  the  jurisdiction  of  the  United  States.     Sec. 
2,  act  of  March  3,  1875  (18  Stat.  L., 


3743  of  the  Kevised  Statutes,  with  the  proper  Comptroller  of  the  Treasury,  because 
they  are  connected  with  the  settlement  of  public  accounts.  Ibid.,  p.  111. 

Under  section  3743  of  the  Revised  Statutes  all  contracts  in  any  manner  connected 
with  the  settlement  of  public  accounts  by  the  Second,  Third,  and  Fourth  Auditors 
and  the  Second  Comptroller  are  to  be  deposited  or  filed  in  the  Second  Comptroller's 
Office  within  ninety  days  after  their  respective  dates.  This  statutory  requirement 
includes  not  only  all  formal  written  contracts  or  specialties  in  any  manner  connected 
with  the  settlement  of  accounts,  but  also  all  properly  authorized  extensions  or  other 
modifications  of  such  contracts,  every  modification  of  a  contract  being  in  the  nature 
of  a  new  contract  and  connected  with  the  settlement  of  accounts.  Ibid.,  p.  112. 

Only  formal  written  contracts  are  required  under  section  3743  of  the  Revised 
Statutes  to  be  filed  in  the  office  of  the  Second  Comptroller.  Informal  contracts  and 
the  papers  pertaining  thereto  should  be  filed  with  the  accounts  or  vouchers  to  which 
they  relate,  in  order  to  facilitate  the  examination  and  revision  of  accounts  and 
vouchers.  Ibid.,  109. 

A  separate  notification  is  required  in  each  case  of  extension  of  a  contract,  so  that 
it  can  be  filed,  with  the  contract  to  which  it  pertains,  in  the  office  of  the  Second 
Comptroller.  Otherwise  notifications  of  extensions  of  contracts  will  fail  of  the 
purpose  contemplated  in  section  3743  of  the  Revised  Statutes.  Ibid.,  112. 

Formal  written  contracts  made  and  filed  in  the  proper  office  in  pursuance  of  law 
must  be  regarded  as  necessary  in  the  settlement  of  public  accounts  or  claims,  and 
therefore  can  not  properly  be  returned  either  for  cancellation  or  amendment.  Ibid. 

The  Second  Comptroller  is  not  authorized  to  deliver  to  either  of  the  parties  to  a 
contract,  for  any  purpose  whatever,  any  contract  connected  with  the  settlement  of 
public  accounts  which  has  been  properly  placed  in  his  custody  under  the  provisions 
of  section  3743  of  the  Revised  Statutes.  Ibid. 

CONTRACTORS'  BONDS. 

Bonds  for  the  faithful  performance  of  contracts  for  supplies  or  service  will  be  required 
in  the  following  cases: 

1.  When  the  consideration  is  $3,000  or  more,  whatever  may  be  the  length  of  time 
required  for  the  full  performance  of  the  contract. 

2.  When  the  consideration  is  over  $250,  but  less  than  $3,000,  and  the  contract  can 
not  be  fully  performed  within  thirty  days  from  its  date. 

Bonds  may  be  exacted  or,  in  the  discretion  of  the  respective  chiefs  of  bureaus  con- 
cerned, waived  in  the  following  cases: 

1.  When  the  consideration  is  less  than  $3,000  and  the  contract  is  to  be  fully  per- 
formed within  thirty  days  from  its  date. 

2.  When  the  consideration  is  not  more  than  $250,  whatever  may  be  the  length  of 
time  required  for  full  performance. 

3.  When  the  contract  is  for  furnishing  meals  to  recruits  and  recruiting  parties. 
The  amount  of  penalty  in  a  contractor's  bond  will  be  fixed  by  the  contracting 


MILITAEY    LAWS    OF    THE    UNITED    STATES.  579 


1543.  Hereafter,  except  in  cases  of  emergency  or 
it  is  impracticable  to  secure  competition,  the  purchase  of  31Mpar^|  19°'  v- 
all  supplies  for  the  use  of  the  various  departments  and 
posts  of  the  Army  and  of  the  branches  of  the  army  serv- 
ice shall  only  be  made  after  advertisement,  and  shall  be 
purchased  where  the  same  can  be  purchased  the  cheapest, 
quality  and  cost  of  transportation  and  the  interests  of  the 
Government  considered;  but  every  open-market  emer- 
gency purchase  made  in  the  manner  common  among  busi- 
ness men  which  exceeds  in  amount  two  hundred  dollars 
shall  be  reported  for  approval  to  the  Secretary  of  War 
under  such  regulations  as  he  may  prescribe.1  Act  of 
March  3,  1901  (31  Stat.  L.,  905). 

officer,  and  will  not  be  less  than  one-tenth  nor  more  than  the  full  amount  of  the  con- 
sideration of  the  contract. 

Nothing  in  this  paragraph  is  to  be  construed  as  authorizing  the  waiving  of  bonds 
required  under  paragraph  644.  Par.  638,  A.  R.,  1901. 

When  bonds  for  the  faithful  performance  of  contracts  are  exacted,  they  will  be 
made  and  executed  with  the  necessary  justification  and  certification  of  sufficiency  of 
sureties,  in  accordance  with  the  instructions  printed  on  the  blank  forms  of  con- 
tractors' bonds  furnished  by  the  chief  of  bureaus.  Such  bonds  must  be  executed  by 
the  contractor  as  principal,  and  by  a  surety  company,  or  by  at  least  two  sufficient 
and  responsible  persons  who  must  be  citizens  of  the  United  States,  as  sureties.  Each 
must  affix  his  signature  and  seal,  and  each  signature  must  be  attested  by  at  least  one 
witness.  When  practicable  there  will  be  a  separate  witness  to  each  signature.  Par. 
639.  Ibid. 

A  company  duly  incorporated  under  the  laws  of  the  United  States,  or  of  any  State, 
and  legally  authorized  to  guarantee  bonds,  may  be  accepted  as  surety,  under  the 
conditions  prescribed  in  Article  LVI.  A  firm,  as  such,  will  not  be  accepted  as 
surety,  nor  a  partner  for  a  copartner  or  firm  of  which  he  is  a  member.  Stock- 
holders who  are  not  officers  of  a  corporation  may  be  accepted  as  sureties  for  such 
corporation.  Par.  640,  ibid. 

A  guarantor,  or  the  guarantors,  to  a  bidder's  guaranty  may  be  accepted  as  surety, 
or  sureties,  to  the  bond  of  the  same  person  as  contractor,  provided  such  guarantor  or 
guarantors  are  able  to  justify  as  required  for  the  bond.  Par.  641,  ibid. 

The  sureties,  if  individuals,  must  jointly  justify  in  double  the  amount  of  the  penalty. 
The  affidavit  of  justification  must  be  taken  before  a  person  authorized  by  the  laws  of 
the  United  States,  State,  Territory,  or  District,  to  administer  oaths.  Justification  will 
be  followed  by  the  certificate  of  a  judge  or  clerk  of  a  United  States  court,  a  United 
States  district  attorney,  United  States  commissioner,  a  judge  or  clerk  of  a  State  court  of 
record  with  the  seal  of  said  court  attached,  that  the  sureties  are  known  to  him,  and 
that,  to  the  best  of  his  knowledge  and  belief,  each  is  worth,  over  and  above  all  debts 
and  liabilities,  the  sum  stated  in  his  affidavit  of  justification.  If  found  necessary, 
separate  certificates  may  be  furnished  as  to  each  surety.  Par.  642,  ibid. 

Contractors'  bonds  will  be  executed  in  duplicate,  one  to  accompany  the  copy  of 
the  contract  which  is  sent  to  the  Auditor  for  the  War  Department,  and  the  other 
retained  by  the  officer  who  makes  the  contract.  Par.  643,  ibid. 

When  a  contract  is  entered  into  for  the  construction  of  any  public  building,  or  the 
prosecution  and  completion  of  any  public  work,  or  for  repairs  on  any  public  building 
or  public  work,  the  contractor  will  be  required,  before  entering  upon  performance  of 
the  same,  to  include  in  the  bond  given  for  the  faithful  performance  of  the  contract 
the  further  obligation  that  he  will  promptly  make  payments  to  all  persons  who  sup- 
ply him  with  labor  and  materials  for  the  prosecution  of  the  work  provided  for  in 
such  contract.  A  certified  copy  of  this  contract  and  bond  will  be  furnished  to  any 
person  who  has  supplied  such  labor  or  materials,  upon  his  application  to  the  War 
Department,  accompanied  by  an  affidavit  that  the  labor  or  materials  have  been  sup- 
plied by  him  and  have  not  been  paid  for  by  the  contractor.  Par.  644,  ibid. 

^his  enactment  replaces  the  acts  of  July  5,  1884  (23  Stat.  L.,  109),  February  27, 
1893  (27  ibid.,  483),  August  6,  1894  (28  ibid.,  233),  March  15,  1898  (30  ibid.,  322), 


580  MILITARY   LAWS    OF   THE   UNITED   STATES. 

artifierylrhoreef      1544.  Hereafter  all  purchases  of  horses  under  appropri- 
23J]M09' 1884)  v  ations  for  horses  fqr  the  cavalr}^  and  artillery  and  for  the 
Indian  scouts  shall  be  made  by  contract,  after  legal  adver- 
tisement,   by   the    Quartermaster's    Department,    under 
instructions  of  the  Secretary  of  War,   the  horses  to  be 
inspected  under  the  orders  of  the  General  Commanding 
the  Army;  and  no  horse  shall  be  received  and  paid  for 
until  duly  inspected.  *  Act  of  July  5, 1884  (®3  Stat.  L. ,  109). 
Limitation  on     1545.  The  number  of  horses  purchased  under  this  appro- 
Feb.  12, 1895,  v.  priation,  added  to  the  number  on  hand,  shall  be  limited  to 
1961, V. si, p.m.'  the  actual  needs  of  the  mounted  service;  and  unless  other- 
wise ordered  by  the  Secretary  of  War  no  part  of  this 
appropriation  shall  be  paid  out  for  horses  not  purchased 
by  contract,  after  competition  duly  invited  by  the  Quar- 
termaster's Department,  and  an  inspection  by  such  Depart- 
ment, all  under  the  direction  and  authorit}^  of  the  Secretary 
of  War.2     Act  of  March  2,  1901  (31  Stat.  Z.,  906). 
iimitaftofnirnurs;      1546.  Hereafter  no  part  of  this  appropriation  shall  be 
chFebS>9  1887  v  exPended  m  the  purchase   for    the  Army  of   draft  ani- 
24,  jg^s;  Jfcpk  mals  until  the  number  on  hand  shall  be  reduced  to  five 
4g6-  thousand,  and  thereafter  shall  only  be  expended  for  the 

purchase  of  a  number  sufficient  to  keep  the  supply  up  to 
five  thousand.    Act  of  September  28, 1888  (25  Stat.  L. ,  486). 

and  section  3729  of  the  Revised  Statutes.     For  regulations  governing  open-market 
purchases,  see  paragraphs  645-648,  Army  Regulations  of  1901. 

It  has  been  held  by  the  Attorney-General  that  "the  object  of  this  legislation  is  to 
secure  for  the  Government  the  benefit  of  competition  in  obtaining  supplies  and  to 
prevent  favoritism  in  making  the  purchases  thereof.  It  contemplates  one  general 
mode  of  purchase,  namely,  by  contract,  after  advertisement,  with  'the  lowest  respon- 
sible bidder  for  the  best  and  most  suitable  article,'  with  but  a  single  exception,  and 
that  is  where  an  'emergency'  exists  requiring  the  purchase  to  be  otherwise  made. 
Such  emergency  may  arise  not  only  before  the  required  public  notice  can  be  given, 
but  after  it  has  once  been  given,  in  consequence  of  the  failure  to  receive  any  bids  or 
proposals;  in  either  case  the  purchase  thereupon  would  be  an  emergency  purchase, 
and  come  within  the  requirement  of  the  statute  for  an  immediate  report  to  the  Sec- 
retary of  War  for  his  approval.  This  requirement  is,  I  think,  designed  to  extend  to 
all  purchases  which  are  not  made  agreeably  to  the  general  mode  above  indicated, 
and  hence  it  applies  to  the  purchase  of  parts  of  machinery,  or  parts  of  stoves  or 
ranges,  for  repairs,  or  of  patented  articles,  when  the  same  is  (as  in  cases  of  emergency, 
and  those  only,  it  may  be)  made  in  open  market."  XVIII  Opin.  Att.  Gen.,  349. 

lrThe  provisions  of  the  act  of  July  5,  1884  (23  Stat,  L.,  109),  that  purchases  of  sup- 
plies for  the  Quartermaster's  and  Commissary's  departments  in  cases  of  emergency 
"must  be  at  once  reported  to  the  Secretary  of  War  for  his  approval"  is  directory, 
only,  and  the  failure  of  certain  officers  of  these  departments  to  make  reports  of  such 
purchases  does  not  invalidate  the  purchases  or  the  payments  therefor.  5  Compt. 
Dec.,  259. 

2  This  paragraph  has  appeared,  as  a  proviso,  in  each  annual  appropriation  bill  since 
June  30,  1886.  See  acts  of  June  30,  1886  (24  Stat.  L.,  97);  February  5,  1887  (24 
ibid.,  398) ;  September  22,  1888  (25  ibid.,  485) ;  March  2,  1889  (ibid.,  830) ;  June  13, 
1890  (26  ibid.,  153);  February  24,  1891  (ibid.,  775);  July  16,  1892  (27  ibid.,  179); 
February  27,  1893  (ibid.,  483);  August  6,  1894  (28  ibid.,  239);  February  12,  1895 
(ibid.,  660).  The  several  acts  of  appropriation  for  the  support  of  the  Army  since 
that  of  June  30,  1886  (24  Stat.  L.,  96),  have  contained  a  proviso  that  no  part  of  the 
appropriations  "shall  be  expended  for  printing  unless  the  same  shall  be  done  by 
contract,  after  due  notice  and  competition,  except  in  such  case  as  the  emergency  will 
not  admit  of  the  giving  notice  for  competition." 


MILITARY   LAWS    OF   THE    UNITED   STATES.  581 


1547.  Hereafter  all  purchases  of  horses,  mules,  or  oxen 

wagons,    carts,  drays,  ships  and  other  seagoing*  vessels,        y    1884  v 
also  all  other  means  of  transportation,  shall  be  made  by  ^  P-  n°- 
the  Quartermaster's  Department,   by  contract,  after  due 
legal  advertisement,  except  in  cases  of  extreme  emergency. 
Act  of  July  5,  1884  (®$  Stat.  Z.,  110). 

1548.  The  number  of  draft  animals  purchased  from  this    Transportation 
appropriation,  added  to  those  now  on  hand,  shall  be  lim-  contract'. 

.  .        ,  July  5,  1884,  v. 

ited  to  such   numbers  as   are   actuallv    required   tor   the  23,  p.  109;  Mar.2, 

„  .  .        1901,  V.  31,  p.  907. 

service;  all  transportation  or  stores  by  private  parties 
for  the  Army  shall  be  done  by  contract,  after  due  legal 
advertisement,  except  in  cases  of  emergency,  which  must 
be  at  once  reported  to  the  Secretary  of  War  for  his 
approval.  Ibid.  (23  Stat.  L.,109).  Act  of  March  2,  1901 
(31  Stat.  L.,907). 

1549.  Hereafter  no  expenditures  exceeding  five  hundred  ^f*ajjg55 
dollars  shall  be  made  upon  any  building  or  military  post,  ^j^11*8  and 
or  grounds  about  the  same,  without  the  approval  of  the  27Fp  ^847>  1898>  v' 
Secretary  of  War  for  the  same,  upon  detailed  estimates 

by  the  Quartermaster's  Department;  and  the  erection,  con- 
struction, and  repair  of  all  buildings  and  other  public 
structures  in  the  Quartermaster's  Department  shall,  as  far 
as  may  be  practicable,  be  made  by  contract,  after  due  legal 
advertisement.  l  Act  of  February  87  ,  1893  (27  Stat.  L.  ,  484). 

1  This  paragraph  continued  to  appear  as  a  proviso  in  several  acts  of  appropriation 
for  the  support  of  the  Army  prior  to  the  act  of  February  27,  1893  (27  Stat.  L.,  454). 
See  acts  of  March  3,  1885  (23  Stat.  L.,  360)  ;  June  30,  1886  (24  ibid.,  97)  ;  February 
9,  1887  (ibid.,  399)  ;  September  22,  1888  (25  ibid.,  486)  ;  March  2,  1889  (ibid.,  830); 
June  13,  1890  (26  ibid.,  154);  February  24,  1891  (ibid.,  776)  ;  July  16,  1892  (27  ibid., 
180)  ;  February  27,  1893  (ibid.,  484)  .  The  same  act  requires  that  the  posts  at  which 
hospital  stewards'  quarters  are  to  be  constructed  shall  be  designated  by  the  Secretary 
of  War,  and  that  such  quarters  shall,  whenever  practicable,  be  built  by  contract. 
27  Stat.  L.,484. 

Government  contracts,  by  whom  made,  binding  force,  etc.  —  Where  a  public  agent  acts 
in  the  line  of  his  duty  and  by  legal  authority,  his  contracts  made  on  account  of  the 
Government  are  public  and  not  personal.  They  inure  to  the  benefit  of  and  are  oblig- 
atory on  the  Government,  not  the  officer.  Hodgin  v.  Dexter,  1  Cranch,  345,  363; 
Parks  v.  Ross,  11  Howard,  362.  The  Government  is  not  bound  by  the  act  of  its 
agent,  unless  it  clearly  appear  that  he  acted  within  the  scope  of  his  authority,  or  was 
employed  as  a  public  agent  to  do,  or  was  held  out  as  having  authority  to  do,  such  act. 
Whiteside  v.  U.  S.,  93  U.  S.,  247;  Lee  v.  Munroe,  7  Cranch,  366;  Filer  r.  U.  S.,  9 
Wall.,  45.  Where  service  was  performed  under  a  general  appropriation,  the  con- 
tractor is  not  bound  to  know  the  condition  of  the  appropriation.  Myerlev.  U.  S.,  33 
C/t.  Cls.,  1. 

Where  a  contract  is  subject  to  the  approval  of  superior  authority,  such  approval  is 
a  condition  precedent.  Monroe  and  Richardson  v.  U.  S.,  35  Ct.  Cls.,  199;  Filor  v. 
U.  S.,  9  Wallace,  45.  Such  approval  need  not  be  in  writing.  Speed  v.  TJ.  S.,  8 
Wallace,  77;  Monroe  and  Richardson  v.  TJ.  S.,  35  Ct.  Cls.,  199,  204. 

Where  a  contract  provides  that  an  officer  named  in  the  contract  may,  on  inspec- 
tion, accept  or  reject  any  part  of  the  work  done  under  it  if  not,  in  his  opinion, 
''strictly  in  accordance  with  the  drawings  and  specifications,"  his  decision,  in  the 
absence  of  fraud,  or  such  gross  error  as  would  imply  bad  faith,  is  final.  Driscoll  v. 
U.  S.,  34  Ct.  Cls.,  508.  Such  action  on  the  part  of  the  officer  being  final  and  con- 
clusive, it.  becomes  the  duty  of  the  contractor,  at  his  own  expense,  to  "remedy  any 
defect  or  unsatisfactory  material  or  work"  so  rejected,  by  conforming  the  same  to 


582  MILITAEY    LAWS    OF    THE    UNITED    STATES. 


schools  ^t^h8-      !550.  For  the  current  fiscal  year  and  thereafter  there 

e^unerdi3nsi89o"  may  be  expended  from  the  appropriation  for  regular  sup- 

v.  26,  p.  152.        plies  the  amounts  required  for  the  necessary  equipments 

of  the  bakehouse  to  carry  on  post  bakeries;  for  the  neces- 

sary furniture,  text-books,  paper,  and  equipments  of  the 

post  schools;  for  the  tableware  and  mess  furniture  for 

kitchens  and  mess  halls;     *     *     *     each  and  all  for  use  of 

the  enlisted  men  of  the  Army.     Act  of  June  13,  1890  (26 

Stat.  Z.,  152). 

an^°exc£igesns  1551.  Hereafter  no  money  appropriated  for  the  support 
27Jplyi7s'  1892>  v'  °^  the  Army  shall  be  expended  for  post  gardens  or  ex- 
changes, but  this  proviso  shall  not  be  construed  to  prohibit 
the  use  by  post  exchanges  of  public  buildings  or  public 
transportation  when,  in  the  opinion  of  the  Quartermaster- 
General,  not  required  for  other  purposes.  Act  of  July  16, 
1892(27  Stat.  Z.,  178). 

subsStenc?  sup-  1552.  Contracts  for  subsistence  supplies  for  the  Army, 
plApr  14  1818  c  made  ^J  the  Commissary-General,  on  public  notice,  shall 
Mar  73^836Pc449;  Proyide  f°r  a  complete  delivery  of  such  articles,  on  inspec- 
5ii  Iz'isei'c7!?^011'  ^  sucn  places  as  shall  be  stipulated. 

Seci  8715,'B.  S.'  s.  10,  v.  12,  p.  220 

steeirchase  °f  1553.  No  contract  for  the  expenditure  of  any  portion  of 
26Fe*767'  1891>  v'  ^ne  money  herein  provided,  or  that  may  be  hereafter  pro- 
vided, for  the  purchase  of  steel  sir  11  be  made  until  the 
same  shall  have  been  submitted  to  public  competition  by 
the  Department  by  advertising.  Act  of  February  2^ 
1891  (26  Stat.  Z.,  767). 

from  Indians8  es  15§4.  The  Secretary  of  War  is  hereby  authorized  and 
4  v&26  *p  '72i91'  s'  directed  when  making  purchases  for  the  military  posts  or 
service  on  or  near  Indian  reservations  to  purchase  in  open 
market,  from  the  Indians  as  far  as  practicable,  at  fair  and 
reasonable  rates,  not  to  exceed  the  market  prices  in  the 
localities,  any  cattle,  grain,  hay,  fuel,  or  other  produce  or 
merchandise  they  may  have  for  sale  and  which  may  be 

the  drawings  and  specifications.  Kihlberg  v.  U.  S.,  97  U.  S.,  97;  Kimball  v.  U.  S., 
24  Ct.  Cls.,  122;  Gleason  v.  Gosnell,  33  C.  Cls.  R.,  65;  Quinn  v.  U.  S.,  99  U.  S.,  32; 
Sweeny  v.  U.  S.,  109  ibid.,  618;  Martinsburg  Co.  v.  March,  114  ibid.,  549;  Chicago 
R.  R.  Co.  v.  Price,  38  ibid.,  185;  Ogden  v.  U.  S.,  60  Fed.  Rep.,  725;  Elliott  v.  R.  R. 
Co.,  74  ibid.,  711. 

Where  extensions  of  time  are  granted  to  complete  a  contract,  all  prior  delays  or 
defaults  are  waived  and  can  not  be  revived.  Gleason  &  Gosnell  v.  U.  S.,  33  Ct.  Cls., 
65;  Pigeon  v.  U.  S.,  27  ibid,  167,  175. 

Where  additional  work  was  necessary,  and  the  officer  in  charge  ordered  it  to  be 
done,  and  the  Government  received  the  benefit  of  it,  the  Government  is  liable. 
Haliday  v.  U.  S.,  33  Ct.  Cls.,  453. 

Where  performance  is  prevented  by  act  of  God  no  breach  can  be  assigned,  although 
no  reference  was  made  thereto  in  the  contract.  Gleason  &  Gosnell  v.  U.  S.,  33  Ct. 
Cls.,  65;  McDermott  v.  Jones,  2  Wall.,  1,  7;  Satterlee,  administrator,  v.  U.  S.,  30 
Ct  Cls.,  31,  50,  and  ca^es  there  cited. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  583 

required  for  the  military  service.     Sec.  4->  act  of  January 
19,  1891  (26  Stat.  L.,  721). 

1555.  Every  person  who  shall  furnish  supplies  of  any  tr^^eto°^  c£n~ 
kind  to  the  Army  or  Navy  shall  be  required  to  mark  and  on  -supplies^  c 
distinguish  the  same  with  the  name  of  the  contractor  fur-  200,  s.  15,  V.  12,'  p! 
nishing  such  supplies,  in  such  manner  as  the  Secretary  of  s«c.  3731,  K.  s. 
War  and  the  Secretary  of  the  Navy  may,  respectively, 

direct;    and   no    supplies  of    any  kind  shall  be  received 
unless  so  marked  and  distinguished. 

1556.  It  shall  not  be  lawful  for  any  of  the  Executive  De-  ^^f  etf£ 
partments  to  make  '  contracts  for  stationery  or  other  sup-j™jted  to  one 
plies  for  a  longer  term  than  one  year  from  the  time  the  R^NO?^  V185|; 
contract  is  made.  Psec?3735,  B.  s. 

ASSIGNMENTS. 

1557.  No  contract  or  order,  or  any  interest  therein,  shall    Transfers  of 

contracts  pronib- 

be  transferred  by  the  party  to  whom  such  contract  or  order  ited. 

„  July  17,  1862,  c. 

is  given  to  any  other  party,  and  any  such  transfer  shall  200,  s.  14,  v.  12,  p. 
cause  the  annulment  of  the  contract  or  order  transferred,  sec.  3737,  R.  s. 
so  far  as  the  United  States  are  concerned.     All  rights  of 
action,  however,  for  an}^  breach  of  such  contract  by  the 
contracting  parties,  are  reserved  to  the  United  States.1 


clause  is  imperative  and  bars  any  action  by  the  assignor  as  well  as  the 
assignee.  Wanless  v.  U.  S.,  6  Ct.  Cls.,  123.  The  purpose  of  the  act  o.f  July  17,  1862 
(sec.  3737,  R.  S.),  prohibiting  the  transfer  of  Government  contracts,  was  to  secure 
the  personal  attention  and  services  of  the  contractor  and  to  render  him  liable  to 
punishment  undersection  16  of  the  same  act.  *  *  *  No  formal  or  written  trans- 
fer is  necessary  to  bring  thp  case  within  the  prohibition  of  the  act.  It  is  sufficient  to 
annul  the  contract  that  the  facts  disclose  a  substantial  transfer.  Francis  v.  U.  S.,  11 
Ct.  Cls.,  638;  Wheelan  v.  U.  S.,  5  Ct.  Cls.,  504;  McCord's  Case,  9  Ct.  Cls.,  155. 

In  view  of  the  positive  prohibition  of  section  3737,  Revised  Statutes,  that  no  con- 
tract or  interest  therein  shall  be  transferred  by  the  contractor,  and  the  further  pro- 
vision that  any  such  transfer  shall  ope'rate  as  an  annulment  of  the  contract,  "so  far 
as  the  United  States  are  concerned,"  held  that  an  officer  of  the  Army  representing 
the  United  States  in  a  contract  for  military  transportation  would  not  be  authorized, 
of  his  own  discretion,  to  consent  or  wraive  objection  to  an  assignment,  in  whole  or 
in  part,  of  a  contract,  by  the  contractor,  so  as  to  admit  the  assignee  to  perform  the 
service.  (a)  I  ig.  Opin.  J.  A.  G.,  par.  897. 

Where  a  contract  has  been  once  formally  entered  into  with  a  certain  party,  for  the 
officer  representing  the  United  States  to  assume  to  admit  additional  parties  into  the 

a  That  an  assignment  of  a  contract  transfers  no  legal  claim  or  right  of  action  to  the  assignee,  and 
that  a  contract  when  assigned  is  no  longer  binding  upon  the  United  States,  see  Wheeler  v.  U.  S.,  5  Ct. 
Cls.,  504;  Wanless  v.  U.  S.,  6  ibid.,  123;  Gill  i>.  U.  S.,  7  ibid.,  523;  McCord  v.  U.  S.,  9  ibid.,  156;  Francis 
v.  U.  S.,  11  ibid.,  638;  X  Opin.  Att.  Gen.,  523.  But  it  has  been  held  by  the  Attorney-General  that  the 
statute  on  the  subject  (sec.  3737,  R.  S.)  is  intended  simply  for  the  benefit  and  protection  of  the  United 
States,  which,  therefore,  is  not  compelled  to  avail  itself  of  a  transfer  by  the  contractor  to  annul  the 
contract,  but  may  recognize  the  same  and  accept  and  pay  th(;  >  -signee.  "Were  it  to  be  held," 
observes  the  Attorney-General,  "  that  a  transfer  of  an  interest  wour:  absolutely  avoid  the  contract,  it 
would  enable  any  party  making  a  contract  with  the  United  States  f  avoid  it  by  simply  transferring  an 
interest  therein,  which  isa  construction  manifestly  inadmissible."  Opinion  in  the  case  of  the  "Fifteen 
per  cent  contracts  "  (XV  Opins.,  235).  And  similarly  held  by  the  tame  authority  in  a  later  opinion,  in 
XVI  Opins.,  277,  that  while  the  United  States  may  avail  itself  of  an  assignment  to  declare  the  contract 
annulled,  it  is  not  required  to  do  so,  but,  if  deemed  to  be  for  its  interests,  may  recognize  the  assignee. 
But  it  is  clear  that  an  officer  of  the  Army  could  not  properly  assume  to*  treat  an  assignment  of  a  con- 
tract (or  interest  therein)  as  valid  without  the  authority  and  direction  of  the  Secretary  of  War.  That 
for  a  mail  contractor  to  contract  with  another  person  'to  transport  the  mail  for  him,  and  as  his  serv- 
ant or  employee,  was  not  an  assignment  of  his  contract  with  the  United  States,  was  held  in  the  recent 
case  of  Frye  v.  Burdick,  67  Maine,  408. 


584 


MILITARY    LAWS    OF   THE    UNITED    STATES. 


PENAL   OFFENSES. 


Par. 

1558.  Members  of  Congress  not  to  be  in- 

terested in  contracts. 

1559.  The  same;  what  interest  allowable. 

1560.  The  same;  stipulation  to  be  inserted. 

1561.  The  same;  penalty. 

1562.  Consideration  for  procuring   con- 

tract, etc. 


Par. 

1563.  Compensation  in  matter  to  which 

United  States  is  a  party. 

1564.  Bribery  of  public  officer. 

1565.  Accepting  bribe. 

1566.  Extortion. 


to      1558-  No  Member  of   or   Delegate   to   Congress   shall 
contractsSted  in  directly  or  indirectly,  himself,  or  by  any  other  person  in 
48/sPi'  vVjftsS'-  trust  for  him,  or  for  his  use  or  benefit,  or  on  his  account, 
389ny2i8  p87n7Ct  undertake,  execute,  hold,  or  enjoy,  in  whole  or  in  part, 
sec. 3739,  U.S.  any  contract  or  agreement  made  or  entered  into  in  behalf 

agreement  and  undertaking  (thus  in  fact  consenting  to  a  transfer  by  the  contractor 
of  an  interest  in  the  contract),  would  be  wholly  unauthorized.  Ibid.,  par.  898. 

A  mere  power  of  attorney  given  by  a  contractor  to  another  person  authorizing  him 
to  receive  for  the  contractor  moneys  coming  due  under  the  contract  can  not,  of 
course,  operate  as  a  transfer  of  an  interest  therein;  but  where,  by  a  written  agree- 
ment between  a  contractor  and  another  party,  the  latter  was  empowered  to  receive 
the  payments  from  the  United  States,  in  consideration  of  which  he  undertook  to  con- 
tinue and  complete  the  work  contracted  for,  held  that  such  agreement  was  a  power 
coupled  with  an  interest,  and  operated  as  a  transfer  within  the  meaning  of  section 
3737,  Revised  Statutes.  (6)  Ibid.,  par.  899.  A  contractor  with  the  United  States  for 
the  construction  of  a  public  improvement  does  not,  by  contracting  with  a  third  party 
to  furnish  material  for  such  work,  make  an  assignment  or  a  transfer  of  his  contract 
within  the  prohibition  of  section  3737,  Revised  Statutes.  U.  S.  v.  Farley,  91  Fed. 
Rep.,  474. 

Under  no  circumstances  can  the  United  States  permit  or  recognize  the  transfer  of 
a  contract  to  a  third  party,  for  the  reason  that  such  transfers  are  prohibited  by  sec- 
tion 3737  of  the  Revised  Statutes,  and  that,  if  the  United  States  could  permit  any 
such  transfer,  its  assent  would  release  the  sureties  on  the  contractor's  bond.  3  Dig. 
2ndCompt.  Dec.,  113. 

Under  section  3737,  Revised  Statutes,  the  assignment  of  a  contract  wholly  invali- 
dates it,  unless  the  Government  elects  to  treat  it  as  still  in  force.  Where  the  Gov- 
ernment accepts  from  the  assignee  work  or  materials  under  the  contract,  or  permits 
a  part  performance,  it  ratines  the  assignment,  (c)  Where  the  War  Department 
assented  to  the  transfer  of  a  contract  for  the  manufacture  of  ordnance  from  one  iron 
works  to  ariother,  and  accepted  deliveries  from  the  latter,  held  that  the  contract 
remained  in  full  force.  Dig.  Opin.  J.  A.  Gen.,  p.  299,  par.  61. 

An  assignment,  to  have  the  effect  of  invalidating  a  contract,  need  not  be  express, 
nor  need  it  be  technical,  formal,  or  written,  (d)  It  may  be  evidenced  by  the  various 
facts  or  circumstances  illustrating  the  relations  and  intention  of  the  parties.  Ibid., 
par.  902. 

This  provision  is  intended  only  for  the  protection  of  the  United  States.  The  Gov- 
ernment may  avail  itself  of  the  assignment  or  transfer  to  annul  the  contract,  but  it  is 
not  compelled  to  do  so.  XVI  Opin.  Att.  Gen.,  278;  15  ibid.,  236.  Dulaney  v.  Scud- 
der94,  Fed.  Rep.,  6. 

There  is  a  distinction  between  the  assignment  of  a  Government  contract  and  an 
assignment  of  a  claim  for  money  due  under  a  contract.  The  former  is  void  under 
the  act  of  July  17,  1862  (sec.  3737,  R.  S.),  and  passes  no  title,  legal  or  equitable;  the 
latter  passes  title  to  the  money  due,  as  though  it  were  the  sale  of  a  chattel.  McCord 
v.  U.  S.,  9  Ct.  Cls.,  155;  Lawrence  v.  U.  S.,  8  ibid.,  252.  The  sale  of  a  quarter- 
master's voucher  by  a  contractor  to  a  third  party  works  a  transfer  of  his  claim  against 
the  Government,  or  of  so  much  of  it  as  is  represented  by  the  voucher.  But  such 
vouchers  are  in  no  sense  negotiable  paper,  and  the  purchaser  will  take  them  subject 
to  all  the  equities  that  may  exist  against  a  contractor.  Lawrence  &  Crowell  v,  U.  S., 


bSee  authorities  above  cited,  XV  Opin.  Att.  Gen.,  236;  16  ibid.,  277;  Francis  v.  U.  S.,  11  Ct.  Cls.,  638 
c  Wheeler  v.  U.  S.,  5  Ct.  Cls.,  604. 
d  Francis  v.  U.  S.,  11  ibid.,  638. 


MILITARY    LAWS    OF   THE    UNITED    STATES.  585 

of  the  United  States,  by  any  officer  or  person  authorized 
to  make  contracts  on  behalf  of  the  United  States.  Every 
person  who  violates  this  section  shall  be  deemed  guilty  of 
a  misdemeanor,  and  shall  be  fined  three  thousand  dollars. 
All  contracts  or  agreements  made  in  violation  of  this  sec- 
tion shall  be  void;  and  whenever  any  sum  of  money  is  ad- 
vanced on  the  part  of  the  United  States,  in  consideration " 
of  any  such  contract  or  agreement,  it  shall  be  forthwith 
repaid;  and  in  case  of  refusal  or  delay  to  repa}^  the  same, 
when  demanded,  by  the  proper  officer  of  the  Department 
under  whose  authority  such  contract  or  agreement  shall 
have  been  made  or  entered  into,  every  person  so  refusing 
or  delaying,  together  with  his  surety  or  sureties,  shall  be 
forthwith  prosecuted  at  law  for  the  recovery  of  any  such 
sum  of  money  so  advanced.1 

1559.  Nothing  contained  in  the  preceding  section  shall 
extend,  or  be  construed  to  extend,  to  any  contract  or  agree-  ^ yp; 
ment  made  or  entered  into,  or  accepted  by  any  incorpo-  pfJ^g7'  1877'v' 19> 
rated  company,  where  such  contract  or  agreement  is  made    Sec-87*0'  R-s- 

8  ibid.,  252.  An  officer  purchasing  an  article  is  without  authority  of  law  to  issue  a 
voucher  for  the  purchase  money  to  a  third  person,  at  the  vendor's  request,  there  being 
no  privity  of  contract  between  the  United  States  and  such  third  person.  Johnston  v. 
U.  S.,  13"ibid.,  217. 

It  has,  however,  been  held  that  section  3477,  which  prohibits  or  makes  null  and 
void  all  transfers  and  assignments  of  claims  against  the  Government  does  not  apply 
to  involuntary  assignments  in  bankruptcy  (Erwint>.  United  States,  97  U.  S.,  392), 
or  even  to  voluntary  assignments  for  the  benefit  of  creditors  (Goodman  v.  Niblack, 
102  U.  S.,  556).  It  seems  to  me  that  the  reasoning  of  these  cases  applies  with  equal 
force  to  section  3737.  2  Compt.  Dec.,  50. 

Under  sections  3477  and  3737  of  the  Revised  Statutes,  a  person  having  a  contract 
can  not  assign  any  part  of  the  money  coining  to  him  thereunder  so  as  to  affect  any  one 
but  himself,  and  the  acceptance  by  a  disbursing  agent  of  the  United  States  of  an  order 
upon  such  fund  has  no  validity  against  third  persons.  Greeneville  Sav.  Bank  et  al. 
v.  Lawrence  et  al.,  76  Fed.  Rep.,  545. 

1  Under  sections  3739-3742,  Revised  Statutes,  it  is  illegal  for  an  officer  of  the  United 
States  to  enter  into  a  contract  or  make  a  purchase  of  a  firm  or  association  (not  incor- 
porated) of  which  a  Member  of  or  Delegate  to  Congress  is  a  member,  or  in  which 
one  is  pecuniarily  interested. (a)  Dig.  Opin.,  Opin.  J.  A.  G.,  par.  895. 

Paragraph  671  of  the  Army  Regulations  of  1901  prohibits  purchases  by  officers  of 
the  Army  "from  any  other  person  in  the  military  service."  Held  that  this  prohibi- 
tion did  not  embrace  civilians  employed  in  the  public  service  under  the  War  Depart- 
ment, or  in  connection  with  the  military  administration,  and  therefore  did  not 
preclude  the  making  of  a  contract  by  an  ordnance  officer,  as  representing  the  United 
States,  with  a  civil  employee  at  an  arsenal,  for  the  use  of  an  invention  patented  by 
the  latter. (b)  Ibid.,  par.  896. 

The  form  of  a  proposed  contract  contained  the  stipulation  that  ' '  no  person  belong- 
ing to  or  employed  in  the  military  service  of  the  United  States  is  or  shall  be  admitted 
to  any  share  or  part  of  this  contract."  The  description  "person  employed  in"  is 
understood  to  mean  all  such  clerks,  mechanics,  laborers,  or  other  civilians  as  are 
legally  employed  by  the  military  authorities  in  or  in  connection  with  military  works, 
operations,  or  other  authorized  transactions.  So  where  a  lowest  bidder  was  a  civilian 
laborer  at  the  Springfield  Armory,  advised  that  the  contract  be  made  with  the  next 
lowest  bidder,  who  was  under  no  such  incapacity.  Ibid.,  296,  par.  52. 


a  That  section  3739,  Revised  Statutes,  does  not  affect  contracts  made  with  persons  who  have  been 
simply  elected  Members  of  or  Delegates  to  Congress,  but  have  not  actually  become  such  by  being 
sworn  in— see  opinion  of  the  Attorney-General  of  May  19, 1877  (XV  Opins.  Att.  Gen. ),  citing  16  ibid.,  406. 

6  See  U.  S.  v.  Burns,  12  Wallace,  251,  252;  X  Opins.  Att.  Gen.,  2;  20  ibid.,  329. 


586  MILITARY    LAWS    OF    THE    UNITED    STATES. 

for  the  general  benefit  of  such  incorporation  or  company; 
nor  to  the  purchase  or  sale  of  bills  of  exchange  or  other 
property  by  any  Member  of  or  Delegate  to  Congress, 
where  the  same  are  ready  for  delivery,  and  payment  there- 
for is  made,  at  the  time  of  making  or  entering  into  the 
contract  or  agreement. 

that  noUMember  1^60.  In  every  such  contract  or  agreement  to  be  made  or 
an  interest88  has  ^^red  into,  or  accepted  by  or  on  behalf  of  the  United 
48AsP3  vV80^  States,  there  shall  be  inserted  an  express  condition  that  no 
v\b9'2p'^897>c'69' 'Member  of  for  Delegate  to]  Congress  shall  be  admitted  to 
sec.374i,R.s.  any  share  or  part  of  such  contract  or  agreement,  or  to  any 

benefit  to  arise  thereupon.1 

Ip^Tsos  c      1561.  Every  oflfoer  who,  on  behalf  of  the  United  States, 
Feb  27Vi877 *c469:  directly  or  indirectly  makes  or  enters  into  any  contract, 
R  s  bargain,  or  agreement,  in  writing  or  otherwise,  other  than 
such  as  are  hereinbefore  excepted,  with  any  Member  of  or 
Delegate  to  Congress,  shall  be  deemed  guilty  of  a  misde- 
meanor, and  shall  be  fined  three  thousand  dollars.1 

1562>  Every  member  of  Congress  or  any  officer  or  agent 
e  Government  who,  directly  or  indirectly,  takes,  re- 
jy  leic cerves?  or  agrees  to  receive,  any  money,  property,  or  other 
18Feb  2!  i863?7c  valuable  consideration  whatever,  from  any  person  for  pro- 
61slc  ^rfi^.'s.  curin£o  or  aiding  to  procure,  any  contract,  office,  or  place, 
from  the  Government  or  any  Department  thereof,  or  from 
any  officer  of  the  United  States,  for  any  person  whatever, 
or  for  giving  any  such  contract,  office,  or  place  to  any 
person  whomsoever,  and  every  person  who,  directly  or 
indirectly,  offers  or  agrees  to  give,  or  gives,  or  bestows 
any  money,  property,  or  other  valuable  consideration 
whatever,  for  the  procuring  or  aiding  to  procure  any  such 
contract,  office,  or  place,  and  every  member  of  Congress 
who,  directly  or  indirectly,  takes,  receives,  or  agrees  to 
receive  any  money,  property.,  or  other  valuable  considera 
tion  whatever  after  his  election  as  such  member,  for  his 
attention  to,,  services,  action,  vote,  or  decision  on  any 
question,  matter,  cause,  or  proceeding  which  may  then  be 
pending,  or  may  by  law  or  under  the  Constitution  be 
brought  before  him  in  his  official  capacity,  or  in  his  place 
as  such  member  of  Congress,  shall  be  deemed  guilty  of  a 
misdemeanor,  and  shall  be  imprisoned  not  more  than  two 
years  and  fined  not  more  than  ten  thousand  dollars.  And 
any  such  contract  or  agreement  may,  at  the  option  of  the 
President,  be  declared  absolutely  null  and  void;  and  any 
member  of  Congress  or  officer  convicted  of  a  violation  of 

1  See  note  to  section  1558  p.  585. 


MILITAEY    LAWS    OF   THE    UNITED   STATES.  587 

this  section  shall,  moreover,  be  disqualified  from  holding 
any  office  of  honor,  profit,  or  trust  under  the  Government 
of  the  United  States.1 

1563.  No  Senator,  Representative,  or  Delegate,  after  ^®*  XJ^*^*I}J 
election  and  during-  his  continuance  in  office,  and  no  head  matters  to  which 

United  States  is 

of  a  Department,  or  other  officer  or  clerk  in  the  employ  a  Pjrty-    Igg4 
of  the  Government,  shall  receive  or  agree  to  receive  any  119, v. is' p.  122 C 

.  Sec.  l<s_,  K.s. 

compensation  whatever,  directly  or  indirectly,  for  any 
services  rendered,  or  to  be  rendered,  to  any  person,  either 
by  himself  or  another,  in  relation  to  any  proceeding,  con- 
tract, claim,  controversy,  charge,  accusation,  arreet,  or 
other  matter  or  thing  in  which  the  United  States  is  a 
party,  or  directly  or  indirectly  interested,  before  any 
Department,  court-martial,  Bureau,  officer,  or  any  civil, 
military,  or  naval  commission  whatever.  Every  person 
offending  against  this  section  shall  be  deemed  guilty  of  a 
misdemeanor,  and  shall  be  imprisoned  not  more  than  two 
years,  and  fined  not  more  than  ten  thousand  dollars,  and 
shall,  moreover,  by  conviction  therefor,  be  rendered  for- 
ever thereafter  incapable  of  holding  any  office  of  honor, 
trust,  or  profit  under  the  Government  of  the  United 
States.1 

1564.  Every  person  who  promises,  offers,  or  gives,  or 
causes  or  procures  to  be  promised,  offered,  or  given,  any 

money  or  other  thing  of  value,  or  makes  or  tenders  any  7&Msag  \1^23>  £ 
contract,  undertaking,  obligation,  gratuity,  or  security  for74^^ 1866  c 
the  payment  of  money,  or  for  the  delivery  or  convey ance  ™*,  s.  62,  v.  14,  p. 
of  anything  of  value,  to  any  officer  of  the  United  States,  2oiUsy358V18u' p* 
or  to  any  person  acting  for  or  on  behalf  of  the  United  States 18^  g  v  Wor 
in  any  official  function,   under  or  by  authority  of  any  T&^c2t^fi^'f 
department  or  office  of  the  Government  thereof,  or  to  an}^ 
officer  or  person  acting  for  or  on  behalf  of  either  House 
of  Congress,  or  of  any  committee  of  either  House,  or  both 
Houses  thereof,  with  intent  to  influence  his  decision  or 
action  on  any  question,  matter,  cause,*  or  proceeding  which 
may  at  any  time  be  pending,  or  which  may  by  law  be 
brought  before  him  in  his  official  capacity,  or  in  his  place 
of  trust  or  profit,  or  with  intent  to  influence  him  to  com 

1  Sections  1781  and  1782  make  it  illegal  for  an  officer  of  the  United  States  to  have 
such  connection  with  a  Government  contract  as  an  agent,  attorney,  or  solicitor  assumes 
when  he  procures  or  aids  to  procure  such  a  contract  for  another,  or  when  he  prose- 
cutes for  another  against  the  Government  any  claim  founded  on  a  Government  con- 
tract. But  they  do  not  prohibit  executive  officers  of  the  Government,  including 
pension  agents,  from  contracting  directly  with  the  Government  as  principals  in  matters 
separate  from  their  offices  and  the  performance  of  their  official  duties,  or  being  inter- 
ested in  such  contracts  after  they  are  procured.  XIV  Opin.  Att.  Gen.,  482;  ibid.,  133. 

No  person  dealing  with  a  public  officer  can  be  permitted  to  influence  him  in  a  way 
prejudicial  to  the  Government.  Garman  v.  U.  S.,  34  Ct.  Cls.,  237. 


588  MILITARY    LAWS    OF   THE    UNITED   STATES. 

mit  or  aid  in  committing,  or  to  collude  in,  or  allow,  any 
fraud,  or  make  opportunity  for  the  commission  of  any 
fraud,  on  the  United  States,  or  to  induce  him  to  do  or  omit 
to  do  any  act  in  violation  of  his  lawful  duty,  shall  be  pun- 
ished as  prescribed  in  the  preceding  section.1 

offic^ccep^S     1565>  EverJ  officer  of  the  United  States,  and  every  per- 

bribfdetc          son  acting  f°r  or  on  behalf  of  the  United  States,  in  any 

76Msar68V18if '  p'  offici^  capacity  under  or  by  virtue  of  the  authority  of  any 

74juiyi3  i860  c  department  or  office  of  the  Government  thereof;  and  every 

168' s' 62>  v' 14' P'  °fficer  or  person  acting  for  or  on  behalf  of  either  House 

2oiUsly358'v18M' c'  °^  Congress,  or  of  any  committee  of  either  House,  or  of 

18Mar  3  1875  c  both  Houses  thereof,  who  asks,  accepts,  or  receives  any 

14Secl55oipR4s>'money<»  or  anv  contract,  promise,  undertaking,  obligation, 

gratuity,  or  security  for  the  payment  of  money,  or  for  the 

delivery  or  conveyance  of  anything  of  value,  with  intent  to 

have  his  decision  or  action  on  any  question,  matter,  cause, 

or  proceeding  which  may,  at  any  time,  be  pending,  or  which 

may  be  by  law  brought  before  him  in  his  official  capacity, 

or  in  his  place  of  trust  or  profit,  influenced  thereby,  shall 

be  punished  as  prescribed  in  the  preceding  section.2 

unHeedrs°tfate!     1566-  Every  officer  of  the  United  States  who  is  guilty 

uonty  °f  ext°r"  °*  extortion  under  color  of  his  office  shall  be  punished  by 

65Msari23'v824'  p' a  fine  °^  no^  more  tnan  fiye  hundred  dollars,  or  by  inipris- 

118viar  3  1875  c  onment  n°t  Hiore  than  one  year,  except  those  officers  or 

l4MaVr;  38'iP75,7c:  agents  of  the  United  States  otherwise  differently  and  spe-, 

480  v  18>  PP  4?9>  Cia^7  provided  for  in  subsequent  sections  of  this  chapter. 

Sec.  5481,  B.S. 

1  Though  an  officer  may  have  full  power  to  enter  into  a  contract,  yet  the  contract 
may  be  void  for  fraud  as  having  been  made  by  the  collusion  of  the  officer,  and  all 
negotiations  and  circumstances  surrounding  the  contract,  as  well  as  its  terms,  may  be 
examined  to  prove  fraud.     Hitchcock  v.  City  of  Galvestion,  3  Woods,  292.     Three 
persons,  one  of  them  the  Government  agent  who  had  charge  of  letting  the  contract, 
entered  into  an  agreement  by  which  two  were  to  do  the  work,  and  each  was  to  have 
one-third  of  the  profits.     Held  that  such  a  contract  was  a  fraud  on  the  Government, 
and  that  an  action  founded  thereon  by  one  partner  against  the  other  could  not  be 
maintained.     Bartle  v.  Coleman,  3  Cranch,  C.  C.,  283. 

2  An  agreement  to  use  personal  influence  with  a  Government  agent  in  order  to  pro- 
cure a  Government  contract  is  void.     So  wrhere  plaintiff,  being  consul-general  of  the 
Turkish  Government,  agreed  with  defendant  to  use  his  personal  influence  with  a 
special  agent  of  the  Turkish  Government  to  procure  contracts  between  that  Govern- 
ment and  defendant,  and  did  use  such  influence  with  success,  it  was  held  that 
plaintiff  could  maintain  no  action  for  his  services  in  procuring  such  contracts. 
Oscanyan  v.  Arms  Company,  13  Otto,  261. 

For  the  penalty  referred  to  in  this  paragraph  see  section  5500,  Revised  Statutes, 
which  provides  that  "every  person  who  promises,  offers,  gives,  or  causes  or  procures 
to  be  promised,  offered,  or  given,  any  money  or  other  thing  of  value,  or  makes  or 
tenders  any  contract,  undertaking,  obligation,  gratuity,  or  security  for  the  payment 
of  money,  or  for  the  delivery  or  conveyance  of  anything  of  value,  to  any  member  of 
either  House  of  Congress,  either  before  or  after  such  member  has  been  qualified  or 
has  taken  his  seat,  with  intent  to  influence  his  vote  or  decision  on  any  question,  mat- 
ter, cause,  or  proceeding  wrhich  may  be  at  any  time  pending  in  either  House  of  Con- 
gress, or  before  any  committee  thereof,  shall  be  fined  not  more  than  three  times  the 
amount  of  money  or  value  of  the  thing  so  offered,  promised,  given,  made,  or  tendered, 
or  caused  or  procured  to  be  so  offered,  promised,  given,  made,  or  tendered,  and  shall 
be,  morever,  imprisoned  not  more  than  three  years." 


MILITARY    LAWS    OF    THE    UNITED    STATES. 


589 


THE    RETURNS    OFFICE. 


Par. 


Par. 

1569.  Penalty  for  omission  to  make  re- 

turn. 

1570.  Instructions  to  be  furnished. 


-  93>  v-  12>  p- 
Sec.3744,u.s. 


1567.  The  returns  office;  contracts  to  be 

in  writing. 

1568.  Oath  to  return,  etc. 


1567.  It  shall  be  the  duty  of  the  Secretary  of  War,  of 
the  Secretary  of  the  Navy,  and  of  the  Secretary  of  tfo 
Interior  to  cause  and  require  every  contract  made  by 
them  severally  on  behalf  of  the  Government,  or  by  their 
officers  under  them  appointed  to  make  such  contracts,  to 
be  reduced  to  writing",  and  signed  by  the  contracting  par- 
ties with  their  names  at  the  end  thereof;  a  copy  of  which 
shall  be  filed  by  the  officer  making  and  'signing  the  con- 
tract in  the  Returns  Office  of  the  Department  of  the  Inte- 
rior, as  soon  after  the  contract  is  made  as  possible,  and 
within  thirty  days,  together  with  all  bids,  offers,  and  pro- 
posals to  him  made  by  persons  to  obtain  the  same,  and 
with  a  copy  of  any  advertisement  he  may  have  published 
inviting  bids,  offers,  or  proposals  for  the  same.  All  the 
copies  and  papers  in  relation  to  each  contract  shall  be 
attached  together  by  a  ribbon  and  seal,  and  marked  by 
numbers  in  regular  order,  according  to  the  number  of 
papers  composing  the  whole  return.1 

1  It  may  be  considered  as  settled  that  so  much  of  section  3744  as  provides  that  all 
contracts  shall  "be  reduced  to  writing  and  signed  by  the  contracting  parties  with 
their  names  at  the  end  thereof"  is  mandatory,  and  contracts  which  do  not  comply 
with  its  requirements  are  void.  In  looking  at  the  scope  and  purpose  of  this  law  and 
at  the  words  in  which  it  i-s  couched,  I  can  not  doubt  of  the  intention  of  Congress  in 
its  enactment.  To  my  mind  it  is  clear  that  it  was  designed  to  require  every  execu- 
tory contract,  at  least,  to  be  put  yi  writing  so  that  its  terms  might  not  be  mistaken 
and  that  the  character  and  extent  of  the  outstanding  engagements  of  the  United 
States  might  at  all  times  be  known  to  the  executive  and  legislative  departments,  or 
be  capable  of  being  ascertained  in  a  reasonable  time  and  with  appropriate  exactitude. 
Henderson  v.  U.  S.,  4  Ct,  Cls.,  75,  83.  There  is  no  class  of  cases  in  which  a  statute 
for  preventing  frauds  and  perjuries  is  more  needed  than  in  this.  And  we  think  that 
the  statute  in  question  was  intended  to  operate  as  such.  It  makes  it  unlawful  for 
contracting  officers  to  make  contracts  in  any  other  wray  than  by  writing  signed  by 
the  parties.  This  is  equivalent  to  prohibiting  any  other  mode  of  making  contracts. 
Clark  v.  U.  S.,  95  U.  S.,  539,  542;  South  Boston  Iron  Co.,  18  Ct,  Cls.,  165,  176.  The 
provisions  of  this  section  apply  to  contracts  made  in  emergencies.  Cobb  et  al.  r. 
U.  S.,  18  Ct.  Cls.,  514,  532;  Clark  r.  U.  S.,  <J5  U.  S.,  539.  Offers  and  acceptances  by 
letter  are  preliminary  memoranda  only,  and  do  not  constitute  a  valid  contract  within 
the  meaning  of  the  statute.  South  Boston  Iron  Co.  v.  U.  S.,  118  U.  S.,  37,  42.  Where, 
however,  a  parol  contract  has  been  wholly  or  partly  executed  on  one  side,  the  party 
performing  will  be  entitled  to  recover  the  fair  value  of  his  property  or  services  as 
upon  an  implied  contract  for  a  quantum  raeruit.  Clark  v.  U.  S.,  95  U.  S.,  539.  See 
also  Warren  &  Goss  v.  U.  S.,  23  Ct.  Cls.,  77;  South  Boston  Iron  Co.  v.  U.  S.,  18  ibid., 
165,  and  118  U.  S.,  37,  Clark  v.  U.  S.,  95  U.  S.,  543;  The  International  Contracting 
Co.  v.  Lamont,  2  Ct.  App.  D.  C.,  532.  See  also  Lindsley  v.  U.  S.,  4  C.  Cls.  K.,  359; 
•Burchiel  r.  U.  S.,  4  Ct.  Cls.,  549;  Bernheimer  r.  U.  S.,  5  Ct.  Cls.,  65. 

The  verification  and  return  provided  for  in  these  sections  have  been  held  to  be 
mandatory  only  upon  the  officer  who  made  the  contract,  A  contract  reduced  to 
writing  and  executed  with  all  the  formality  which  the  law  requires  will  not  be  invali- 


590  MILITARY    LAWS    OF    THE    UNITED    STATES. 

etOath  to  return,  1568  jt  ghall  be  the  further  duty  of  the  officer,  before 
ie£l$Sfii.s.  making  his  return,  according  to  the  preceding  section,  to 
affix  to  the  same  his  affidavit  in  the  following  form,  sworn 
to  before  some  magistrate  having  authority  to  administer 
oaths:  "I  do  solemnly  swear  (or  affirm)  that  the  copy  of 
contract  hereto  annexed  is  an  exact  copy  of  a  contract 
made  by  me  personally  with  -  — ;  that  I  made  the  same 
fairly  without  any  benefit  or  advantage  to  myself,  or 
allowing  any  such  benefit  or  advantage  corruptly  to  the 
said  -  — ,  or  any  other  person;  and  that  the  papers 
accompanying  include  all  those  relating  to  the  said  con- 
tract, as  required  by  the  statute  in  such  case  made  and 
provided." 

omfuVng  f to      1569.  Every  officer  who  makee  any  contract,  and  fails  or 

mge returns,  neglects  to  make  return  of  the  same,  according  to  the  pro- 
sec.8746,B.s.  visions  of  the  two  preceding  sections,  unless  from  unavoid- 
able accident  or  causes  not  within  his  control,  shall  be 
deemed  guilty  of  a  misdemeanor,  and  shall  be  fined  not 
less  than  one  hundred  dollars  nor  more  than  five  hundred, 
and  imprisoned  not  more  than  six  months. 

be'SSSffi810  1570'  Tt  sha11  be  the  duty  of  the  Secretary  of  War,  of 
!ec.'87«^B.s.  ^e  Secretary,  of  the  Navy,  and  of  the  Secretary  of  the 
Interior  to  furnish  every  officer  appointed  by  them  with 
authority  to  make  contracts  on  behalf  of  the  Government 
with  a  printed  letter  of  instructions,  setting  forth  the 
duties  of  such  officer  under  the  two  preceding  sections, 
and  also  to  furnish  therewith  forms,  printed  in  blank,  of 
contracts  to  be  made,  and  the  affidavit  of  returns  required 

dated  by  a  failure  of  the  officer  to  make  a  proper  return  of  the  same.  That  is  made 
his  exclusive  duty  by  the  law,  and  he  alone  is  to  be  punished  for  it  by  the  stringent 
and  severe  penalties  prescribed  by  the  act.  Henderson  v.  U.  S.,  4  Ct.  Cls.,  75,  81; 
Clark  v.  U.  S.,  95  U.  S.,  539;  Power  v.  U.  S.,  18  Ct.  Cls.,  263. 

A  mere  understanding  or  oral  agreement  can  not  constitute  a  contract  in  the  War 
Department.  Were  it  not  indeed  for  the  provisions  of  section  3744,  Revised  Statutes, 
the  acceptance  of  a  bid  would,  under  the  general  law  of  contracts,  bind  the  United 
States.  But  this  section  has  been  construed  by  the  Supreme  Court  as  being  in  the 
nature  of  a  statute  of  frauds  and  mandatory  in  its  requirements,  and  therefore  mak- 
ing it  essential  that  a  contract,  to  be  legal  and  obligatory,  shall  be  in  writing  and 
signed  by  the  parties,  (a)  The  mere  proposal  of  a  bidder,  accepted  on  the  part  of  the 
Government,  does  not  therefore  operate  as  a  contract,  but  is  simply  a  proceeding  pre- 
liminary to  contract;  nor  does  such  an  acceptance  bind  the  United  States  to  enter 
into  a  contract.  Dig.  Opin.  J.  A.  Gen.,  295,  par.  48: 

It  is  proper  to  remark  that  in  the  event  of  a  suit  being  instituted  against  a  principal 
or  surety  on  a  contract  of  the  United  States,  the  copy  of  the  contract  filed  in  the 
Returns  Office  would  have  no  evidential  value,  and  a  copy  of  the  original  filed  in  the 
office  of  the  Comptroller  of  the  Treasury  under  the  provisions  of  section  3743,  Revised 
Statutes,  paragraph  1185,  supra,  would  have  to  be  produced  subject  to  the  authenti- 
cation required  in  section  886  of  the  Revised  Statutes. 

a  Clark  v.  U.  S.,  95  U.  S.,  539;  South  Boston  Iron  Co.  v.  U.  S.,  118  U.  S.,  37. 


MILITARY    LAWS    OF    THE    UNITED    STATES. 


591 


to  be  affixed  thereto,  so  that  all  the  instruments  may  be  as 
nearly  uniform  as  possible.1 

COPY  FOR  AUDITOR  OF  TREASURY  FOR  WAR  DEPARTMENT. 

1571.  All  contracts  to  be  made  by  virtue  of  any  law,  and  fll^n^actsto be 
requiring  the  advance  of  money,  or  in  any  manner  con- toj^ly  31>  1894  s 
nected  with  the  settlement  of  public  accounts,  shall  be18^c- 
deposited  promptly  in  the  offices  of  the  Auditors  of  the 
Treasury,  according  to  the  nature  of  the  contracts:  Pro- 
vided, That  this  section  shall  not  apply  to  the  existing 
laws  in  regard  to  the  contingent  funds  of  Congress.2  Act 
of  July  31,  1894  (%8  Stat.  L.,  210). 


THE    EIGHT-HOUR   LAW. 


Par. 


Par. 

1574.  The  same;  penalty. 

1575.  Ihe  same;  exceptions. 


1572.  Eight  hours  to  be  a  day's  work. 

1573.  The  same;  contracts,  emergencies. 


1572.  Eight  hours  shall  constitute  a  day's  work  for  all 
laborers,  workmen,  and  mechanics  who  may  be  employed    Sec- 3738' R-s- 
by  or  on  behalf  of  the  United  States.3 

1573.  That  the  service  and  employment  of  all  laborers 

and  mechanics  who  are  now  or  may  hereafter  be  employed  gej£iesj  1892 
by  the  Government  of  the  United  States,  by  the  District  27>  P-  34°- 
of  Columbia,  or  by  any  contractor  or  subcontractor  upon 
any  of  the  public  works  of  the  United  States  or  of  the  said 
District  of  Columbia,  is  hereby  limited  and  restricted  to 
eight  hours  in  any  one  calendar  day,  and  it  shall  be  unlaw- 
ful for  any  officer  of  the  United  States  Government  or  of 
the  District  of  Columbia  or  any  such  contractor  or  sub- 
contractor whose  duty  it  shall  be  to  employ,  direct,  or  con- 

1  For  requirements  of  regulations  in  respect  to  the  furnishing  of  contracts,  and 
papers  pertaining  thereto,  to  the  Returns  Office  of  the  Interior  Department,  see. 

2  See,  for  other  requirements  of  law  and  regulations  in  respect  to  the  disposition  of 
copies  of  contracts,  paragraphs  1539  and  1567,  ante. 

*  Congress  has  power  to  regulate  the  hours  of  labor  which  may  be  required  or  per- 
mitted on  public  works  of  the  United  States,  though  such  works  may  be  carried  on 
within  the  territorial  jurisdiction  of  a  State.  U.  8.  v.  San  Francisco  Bridge  Co.,  88 
Fed.  Rep.,  891. 

The  eight-hour  law  is  in  the  nature  of  a  direction  from  a  principal  to  his  agentt  in 
which  third  party  has  no  interest.  It  does  not  make  a  contract,  nor  prevent  officers 
from  contracting,  by  express  agreement,  for  day's  labor  of  more  or  less  than  eight 
hours.  Martin  v.  IT.  S.,  12  Ct.  Cls.,  87  and  94  U.  S.,  400. 

The  eight-hour  law  does  not  establish  an  inflexible  rule  for  the  payment  of  wages. 
Its  intent  is  not  to  increase  wages,  but  to  elevate  the  condition  of  laboring  men  by 
diminishing  their  hours  of  labor.  Averill  v.  U.  S.,  14  Ct.  Cls.,  200. 

Section  3738,  Revised  Statutes,  providing  that  eight  hours  shall  constitute  a  day's 
work  ' '  for  all  laborers,  workmen,  and  mechanics ' '  in  the  employ  of  the  Government, 
does  not  include  a  night  watchman  employed  in  a  Government  office.  Gordon  v. 
U.  S.,  31  ibid.,  254.  ' 


592  MILITARY    LAWS    OF    THE    UNITED    STATES. 

trol  the  services  of  such  laborers  or  mechanics  to  require 
or  permit  any  such  laborer  or  mechanic  to  work  more  than 
eight  hours  in  any  calendar  day  except  in  case  of  extraor- 
dinary emergency.1  Act  of  August  1,  1892  (27  8tat.  Z., 
340). 

violation  by  offi-  1574-  Tnat  anv  °fficer  or  agent  of  the  Government  of  the 
celecC™ibMtOT'  United  States  or  of  the  District  of  Columbia,  or  any  con- 
tractor or  subcontractor  whose  duty  it  shall  be  to  employ, 
direct,  or  control  any  laborer2  or  mechanic  employed  upon 
any  of  the  public  works  of  the  United  States  or  of  the 
District  of  Columbia  who  shall  intentionally  violate  any 
provision  of  this  act,  shall  be  deemed  guilty  of  a  misde- 
meanor, and  for  each  and  every  such  ofi'ense  shall  upon 
conviction  be  punished  by  a  fine  not  to  exceed  one  thousand 
dollars  or  by  imprisonment  for  not  more  than  six  months, 
or  by  both  such  fine  and  imprisonment,  in  the  discretion  of 
the  court  having  jurisdiction  thereof.3  Sec.  2,  ibid. 

1  The  term  " extraordinary  emergency,"  employed  in  the  first  section  of  the  act  of 
August  1,  1892,  can  not  properly  be  construed  in  advance  as  referring  or  applicable 
to  any  particular  class  of  cases.     The  question  whether  there  is  or  was  such  emer- 
gency should  be  left  to  be  determined  by  the  facts  of  each  special  instance  as  it 
arises.     A  case  in  which  it  appeared  that  a  compliance  with  the  statute  was  not  pos- 
sible might  well  be  held  to  be  one  of  "extraordinary  emergency."    Dig.  Opin.  J.  A. 
G.,  par.  1239. 

2  Held,  that  the  term  "  laborer,"  as  used  in  the  act  of  1892,  was  apparently  intended 
in  a  comprehensive  sense,  and  that  to  declare  certain  classes  of  employment  as 
"  peculiar,"  and  therefore  excepted  from  the  operation  of  the  act,  would  be  a  restric- 
tion not  warranted  by  the  language  of  the  statute.     Thus  a  proposed  regulation 
excepting  "watchmen,  messengers,  teamsters,  engineers,  firemen,  seamen,"  and  some 
others,  as  not  included  in  the  description  "laborers  and  mechanics,"  not  recom- 
mended to  be  adopted.     Dig.  Opin.  J.  A.  Gen.,  380,  par.  4. 

Seamen  on  a  Government  vessel  are  employed  upon  the  "public  works  of  the 
United  States"  within  the  meaning  of  the  act  of  August  1,  1892  (27  Stat.  L.,  340), 
when  engaged  in  removing  obstructions  to  navigation  in  rivers  and  harbors,  and  to 
exact  from  them  more  than  eight  hours'  labor  per  day  at  this  work  or  in  the  actual 
care  and  repair  of  appliances  necessary  to  carry  it  on  will  subject  the  offender  to 
indictment.  U.  S.-r.  Jefferson,  60  Fed.  Rep.,  736. 

Extra  pay  fixed  by  statute  for  services  in  excess  of  eight  hours  a  day  is  a  matter  of 
public  policy  which  can  not  be  interfered  with  by  a  postmaster."  Rush  r.  U.  S.,  25 
Ct.  Cls.,  223. 

A  timber  dry  dock  is  one  of  the  "public  works"  of  the  United  States  under  the 
eight-hour  law  of  August  1,  1892.  XX  Opin.  Att.  Gen.,  445. 

*  The  original  statute  on  this  subject — the  act  of  June  25,  1868,  incorporated  in 
section  3738,  Revised  Statutes — merely  provided  that  eight  hours  should  "constitute 
a  day's  work"  for  laborers,  etc.,  employed  by  the  United  States.  It  has  been  held 
by  the  Supreme  Court,  U.  S.  v.  Martin,  94  U.  S.,  400,  (a)  that  this  enactment  was 
merely  "a  direction  by  the  Government  to  its  agents,"  not  "a  contract  between  the 
Government  and  its  laborers,  that  eight  hours  shall  constitute  a  day's  work,"  and 
that  it  did  not  "prevent  the  Government  from  making  agreements  with  them  by 
which  their  labor  may  be  more  (or  less)  than  eight  hours  a  day."  The  act  thus 
failed  of  its  apparent  object.  To  cure  this  defect  was  passed  the  act  of  August  1,  1892, 
chapter  352.  Held,  therefore,  that  the  term  "public  works  of  the  United  States," 
used  in  the  first  section  of  the  latter  act,  should  not  be  narrowly  construed.  Dig. 
Opin.  J.  A.  G.,  par.  1235. 

Thus  held  that  the  construction  of  levees  on  the  banks  of  the  Mississippi  River, 
in  accordance  wriththe  plans  of  the  Mississippi  River  Commission,  wa«  a  public  work 

a  And  see  XIX  Opin.  Att.  Gen.,  685. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  593 


1575.  The  provisions  of  this  act  shall  not  be  so  cons  trued 
as  to  in  any  manner  apply  to  or  affect  contractors  or  sub-  fegg?-3|  ibid, 
contractors,  or  to  limit  the  hours  of  daily  service  of  labor- 
ers or  mechanics  engaged  upon  the  public  works  of  the 
United  States  or  of  the  District  of  Columbia  for  which 
contracts  have  been  entered  into  prior  to  the  passage  of 
this  act.  Sec.  3,  ibid. 


1576.  That  hereafter  any  person  or  persons  entering  bond  to 


BONDS    TO    SECURE     PAYMENT    FOR   LABOR   AND    MATERIALS. 

\ 

Penal  b 

^curity 

into  a  formal  contract  with  the  United  States  for  the  can-gggj**1* 
struction  of  any  public  building,  or  the  prosecution  andv^2^|  1894) 
completion  of  any  public  work,  or  for  repairs  upon  any 

of  the  United  States  in  the  sense  of  the  act  of  August  1,  1892,  chapter  352,  section  1, 
although  the  United  States  did  not  own  the  land.  A  proprietorship  in  or  jurisdic- 
tion over  the  thing  constructed  is  not  necessary.  The  United  States  expends  annually 
more  than  twenty  millions  for  the  improvement  of  rivers  and  harbors,  but  the  greater 
part  of  this  is  done  without  acquiring  title  or  jurisdiction  to  or  over  the  premises. 
The  question  under  the  act  is  not  in  whom  is  the  title  or  jurisdiction,  but  who  is 
doing  the  work.  The  construction  of  these  levees  is  a  particular  work  appropriated 
for  by  Congress  and  to  be  contracted  for  by  the  United  States.  It  is  therefore  one 
of  the  public  works  of  the  United  States/  and  subject  to  the  provisions  of  this 
statute. (a)  Ibid.,  par.  1236. 

Held,  that  it  was  not  essential  that  the  requirement  of  the  act  of  August  1,  1892, 
be  embodied  in  a  contract,  the  law  itself  being  self-acting.  The  responsibility  rests  on 
contractors  to  comply  with  it,  irrespective  of  the  terms  and  conditions  of  their  con- 
tracts. The  officers  who  enter  into  contracts  on  behalf  of  the  United  States  are  not 
charged  with  the  duty  of  enforcing  the  law  with  reference  to  those  with  whom  they 
contract,  the  latter  being  directly  responsible  in  the  matter.  Any  construction  by 
the  War  Department  of  the  requirements  of  the  act  would,  if  erroneous  and  not 
sustained  by  the  courts,  be  no  protection  to  contractors.  Ibid.,  par.  1237. 

Inquiry  having  been  made  of  the  War  Department  by  certain  contractors  whether 
the  men  employed  on  dredges,  scows,  and  tugs  on  Lake  Erie,  under  contracts  with 
the  United  States,  were  not  to  be  regarded  as  excepted  from  the  application  of  the 
act  of  1892,  held  that  it  was  not  the  duty  or  province  of  this  Department  to  deter- 
mine such  questions,  but  the  same  were  for  the  courts  to  decide,  on  trials  under  the 
second  section  of  the  act,  of  persons  charged  with  violations  of  its  provisions. 
Neither  this  or  other  Department  of  the  Government  can  lay  down  rules  or  make 
constructions  of  the  law  for  contractors  which  would  effectually  protect  them  were 
they  brought  to  trial,  (b)  Ibid.,  par.  1238. 

No  provision  is  contained  in  the  act  of  1892  for  the  suspension  of  its  operation, 
and  the  Secretary  of  War  has  no  power  to  suspend  it  as  to  certain  work  or  places  of 
work  on  the  theory  that  an  "emergency"  exists  as  to  the  same.  Nor  can  he  lay 
down  in  advance  any  general  rule  as  to  what  would  be  such  an  emergency  as  would 
relieve  an  officer  or  contractor  from  liability,  or  give  him  an  immunity  from  prose- 
cution. The  question.of  the  existence  of  an  emergency  is  to  be  determined,  in  the 
first  instance,  by  the  person  carrying  on,  or  in  charge  of  the  work;  in  the  second, 
by  the  court,  if  the  case  come  before  one.  It  may  be  said  generally  that  when  the 
emergency  can  be  foreseen  it  is  not  extraordinary;  that  increased  expense  and  incon- 
venience can  not  constitute  an  emergency  which  can  not  be  foreseen  and  guarded 
against.  Ibid.,  par.  1240. 

a  In  the  recent  case  of  U.  S.  v.  Jefferson,  60  Fed.  Rep.,  736,  it  is  held  that  seamen  employed  on  a 
steam  snag  boat  belonging  to  the  War  Department,  engaged  in  removing  obstructions  to  navigation, 
were  employed  upon  a  "public  work  of  the  United  States,"  and  that  the  master  of  the  boat,  in  exact- 
ing from  them  more  than  eight  hours  labor  per  diem,  was  indictable  under  the  act  of  August  1,  1892. 

o  In  a  communication  to  the  Secretary  of  War  of  August  29,  1892,  the  Attorney-General,  whose 
opinion  had  been  asked  with  regard  to  the  application  in  general  of  the  act  to  the  "construction  of 
levees  on  the  Mississippi  River,"  declines  to  give  an  official  opinion  with  a  view  to  the  guidance  of 
persons  who  may  propose  to  enter  in  contract  relations  with  the  United  States,  in  the  absence  of  a 
special  case  requiring  the  action  of  the  Secretary.  See  XX  Opin.  Att,  Gen.,  459. 

22924—08 38 


594  MILITAKY    LAWS    OF    THE    UNITED    STATES. 

public  building-  or  public  work,  shall  be  required  before 
commencing  such  work  to  execute  the  usual  penal  bond, 
with  good  and  sufficient  sureties,  with  the  additional  obli- 
gations that  such  contractor  or  contractors  shall  promptly 
make  payments  to  all  persons  supplying  him  or  them  labor 
and  materials  in  the  prosecution  of  the  work  provided  for 
in  such  contract;  and  any  person  or  persons  making  appli- 
cation therefor,  and  furnishing  affidavit  to  the  Depart- 
ment under  the  direction  of  which  said  work  is  being,  or 
has  been,  prosecuted  that  labor  or  materials  for  the  prose- 
cution of  such  work  has  been  supplied  by  him  or  them, 
and  payment  for  which  has  not  been  made,  shall  be  fur 
nished  with  a  certified  copy  of  said  contract  and  bond, 
upon  which  said  person  or  persons  supplying  such  labor 
Action  on  bond  and  materials  shall  have  a  right  of  action,  and  shall  be 
teriafsbfurrn£ned!  authorized  to  bring  suit  in  the  name  of  the  United  States 
for  his  or  their  use  and  benefit  against  said  contractor  and 
sureties  and  to  prosecute  the  same  to  final  judgment  and 
execution :  Provided,  That  such  action  and  its  prosecutions 
shall  involve  the  United  States  in  no  expense.1  Act  of 
August  13,  1894  (%$  Stat.  L., 


1  When  a  contract  is  entered  into  for  the  construction  of  any  public  building,  of 
the  prosecution  and  completion  of  any  public  work,  or  for  repairs  on  any  public 
building  or  public  work,  the  contractor  wrill  be  required,  before  entering  upon  per- 
formance of  the  same,  to  include  in  the  bond  given  for  the  faithful  performance  of 
the  contract  the  further  obligation  that  he  will  promptly  make  payments  to  all  per- 
sons who  supply  him  with  labor  and  materials  for  the  prosecution  of  the  work  pro- , 
vided  for  in  such  contract.  A  certified  copy  of  this  contract  and  bond  will  be 
furnished  to  any  person  who  has  supplied  such  labor  or  materials,  upon  his  applica- 
tion to  the  War  Department,  accompanied  by  an  affidavit  that  the  labor  or  materials 
have  been  supplied  by  him  and  have  not  been  paid  for  by  the  contractor.  Par.  644, 
A.  R,  1901. 

The  act  of  August  13,  1894,  which  requires  that  the  bond  given  to  the  United 
States  by  any  contractor  on  a  Government  work  shall  contain  the  additional  obliga- 
tion that  such  contractor  will  promptly  make  payments  to  all  persons  supplying  him 
with  labor,  materials,  etc.,  does  not  establish  any  privity  between  the  United  States 
and  such  persons  so  as  to  authorize  the  officers  of  the  Government  to  satisfy  such 
claims  from  the  moneys  due  the  contractor  on  the  failure  of  the  latter  to  do  so.  3 
Compt.  Dec.,  708. 

The  act  of  August  13,  1894,  giving  to  persons  supplying  labor  and  materials  to  a 
contractor  on  a  Government  work  the  right  to  maintain  a  suit  in  the  name  of  the 
United  States  for  their  own  benefit  against  the  contractor  and  the  sureties  on  his 
bond,  does  not  authorize  payment  of  the  amount  due  the  contractor  from  the  United 
States  to  the  sureties  upon  their  claim  that  they  will  be  held  liable  for  certain 
amounts  due  for  labor  and  materials  which  the  contractor  had  failed  to  pay.  Ibid. 

When  a  contract  has  been  fully  completed  payment  of  the  balance  remaining  due 
from  the  United  States  to  one  of  two  copartners  appearing  as  contractors  in  the  name 
of  the  partnership  will  be  a  valid  acquittance  of  the  United  States  whether  the 
other  partner  was  ever  legally  bound  as  a  party  to  the  contract  or  not.  Ibid. 

When  the  Government,  under  the  terms  of  a  contract,  takes  possession  of  and 
finishes  the  uncompleted  portion  of  the  work  for  less  than  the  amount  which  would 
have  been  payable  to  the  contractor  therefor,  the  latter  is  not  entitled  to  the  profit 
thus  accruing' to  the  Government.  Ibid. 

Where,  in  the  erection  of  a  public  building,  the  United  States  reserves  the  right  to 
withhold  a  part  of  the  money  in  case  the  contractor  fails  to  pay  claims  for  material 
and  labor,  the  contractor  can  not,  by  an  assignment  of  moneys  so  withheld,  give  the 


MILITARY    LAWS    OF   THE    UNITED   STATES. 


595 


1577.  Provided  that  in  such  case  the  court  in  which  such    security  for 

costs. 

action  is  brought  is  authorized  to  require  proper  security    sec.2,*wd. 

for  costs  in  case  judgment  is  for  the  defendant.     Sec.  #, 

ibid. 

INSPECTION   OF   FUEL   IN   THE    DISTRICT   OF   COLUMBIA. 


Par. 


Par. 


1580.  No  payment  without  certificate. 


1578.  Appointment  of  inspectors. 

1579.  Certificates  of  appointment. 


1578.  It  shall  not  be  lawful  for  any  officer  or  person  in 
the  civil,  military,  or  naval  service  of  the  United  States  in 
the  District  of  Columbia  to  purchase  anthracite  or  bitumi-  i.v.ie,p.229. 
nous  coal  or  wood  for  the  public  service  except  on  condi- 
tion that  the  same  shall,  before  delivery,  be  inspected  and 
weighed  or  measured  by  some  competent  person  to  be  Appointment 

.          T    ,         ,       ,         ,  i  .    /.  of  inspectors,  etc. 

appointed  by  the  head  of  the  Department  or  chief  of  the    Mar.  2, 1895,  s. 
branch  of  the  service  for  which  the  purchase  is  made  from  'sec.37ii,Ris. 
among  the  persons  authorized  to  be  employed  in  such 
Department  or  branch  of  the  service:  Provided,  That  the 
weigher  or  measurer  of  the  Navy  Department  may  be 
appointed   outside   of   said    Department,    and  that  such 
weigher  and  measurer  shall  give  bond  and  be  paid  as  here- 
tofore provided  by  law.     The  person  appointed  under  this 
section  shall  ascertain  that  each  ton  of  coal  weighed  by 
him  shall  consist  of  two  thousand  two  hundred  and  forty 

assignee  any  standing  to  participate  in  the  fund  until  all  labor  and  material  claims 
have  been  paid.  Greeneville  Sav.  Bank  et  al.  v.  Lawrence  et  al.,  76  Fed.  Rep.,  545. 

The  act  of  August  13,  1894,  28  Stat.  L.,  278,  for  the  protection  of  persons  furnish- 
ing material  and  labor  for  the  construction  of  public  works,  and  providing  that,  on 
furnishing  an  affidavit  to  the  department  of  the  Government,  any  person  may  have 
a  copy  of  the  bond  and  contract,  upon  which  such  person  may  bring  suit,  has  refer- 
ence only  to  the  procuring  of  the  copy  of  the  contract  and  bond,  and  is  not  a  pre- 
requisite to  the  right  to  maintain  an  action.  This  requirement  is  for  the  purpose  of 
satisfying  the  Government  official  that  the  person  has  furnished  labor  or  material 
on  the  particular  contract.  Surety  Co.  v.  U.  S.,  77  Illinois,  App.  106. 

The  condition  in  the  bond  of  a  contractor  with  the  United  States  for  public  work, 
prescribed  by  the  act  of  August  13,  1894,  28  Stat.  L.,  278,  is  intended  to  cover  pay- 
ments only  for  the  visible  material  furnished  for  direct  use  and  incorporation  in  the 
work,  and  of  wages  to  tho  men  whose  services  are  directly  employed  in  doing  the 
work;  and  an  action  against  the  sureties  on  such  a  bond  can  only  be  maintained, 
under  the  statute,  by  one  who  has  title  to  a  claim  for  labor  or  materials  so  supplied. 
A  person  furnishing  board  and  lodging  to  laborers  employed  on  the  work  does  not 
supply  either  labor  or  materials  within  the  meaning  of  the  statute.  U.  S.  v.  Kimp- 
land,  93  Fed.  Rep.,  403. 

The  terms  of  this  statute  do  not  include  the  claim  of  a  railroad  for  freight  due  on 
materials  which  are  loaded  and  unloaded  by  the  contractor,  such  charges  being 
neither  labor  nor  materials  within  the  meaning  and  purpose  of  the  act.  U.  8.  v. 
Hyatt,  92  Fed.  Rep.,  442. 

A  government  contractor  for  public  work,  who  has  given  a  bond  conditioned  that 
he  will  fl make  full  payments  to  all  persons  supplying  him  with  labor  or  materials," 
is  not  liable  thereon  for  unpaid  wages  due  from  a  subcontractor  who  has  supplied 
him  with  materials,  when  he  paid  such  contractor  in  full  therefor.  U.  S.  v,  Farley 
et  al.}  91  Fed.  Rep.,  474. 


596  MILITARY    LAWS    OF    THE    UNITED    STATES. 

pounds,  and  that  each  cord  of  wood  to  be  so  measured  shall 
be  of  the  standard  measure  of  one  hundred  and  twenty- 
eight  cubic  feet.     Each  load  or  parcel  of  wood  or  coal 
weighed  and  measured  by  him  shall  be  accompanied  by  his 
certificate  of  the  number  of  tons  or  pounds  of  coal  and 
the  number  of  cords  or  parts  of  cords  of  wood  in  each 
load  or  parcel.1     Act  of  March  8,  1895  (28  Stat.  Z.,  808). 
of^igSSc.8     1579-  The  Pr°Per  accounting  officer   of   the   Treasury 
accboeunetingHffii  s^a^  be  furnished  with  a  copy  of  the  appointment  of  each 
cesec  2  ma      inspector,   weigher,  and  measurer  appointed   under   the 

Sec.37i2,  B.S.  preceding  section.     Sec.  #,  ibid. 

for°f ue^etc8      1580>  ^  8ka^  not  be  lawfu^  f°r  anJ  accounting  officer  to 

cafe°ut  >certif*~  pass  or  allow  to  the  credit  of  any  disbursing  officer  in  the 

Se?37i8  B  s  District  of  Columbia  any  money  paid  by  him  for  purchase 

of  anthracite  or  bituminous  coal  or  for  wood  unless  the 

voucher  therefor  is  accompanied  by  a  certificate  of  the 

proper  inspector,  weigher,  and  measurer  that  the  quantity 

paid  for  has  been  determined  by  such  officer.      Ibid. 

1  For  requirements  of  regulations  in  respect  to  open-market  purchases  see  para- 
graphs 645-649,  A.  R.,  1901. 


CHAPTER  XXXIII. 


THE  PUBLIC  LANDS— MILITARY  RESERVATIONS— MILL 

TARY  POSTS. 


Par. 

1581-1583.  The  public  lands. 

1584-1592.  Homesteads. 

1593-1599.   Acquisitions  of   land  by  the 

United  States. 
1600-1601.  Jurisdiction  over  reservations. 


Par. 

1602-1614.  Protection  of  reservations. 

1615-1619.  Disposition  of  lands.     Rights 

of  way. 

1620.  Leases  of  public  property. 
1621-1630.  Military  posts. 


THE    PUBLIC    LANDS.1 


Par. 


Par. 


1582.  Lands  not  subject  to  entry. 

1583.  The  same,  military  reservations. 


Jln 


jrar. 

1581.  Lands  subject  to  preemption  and 
homestead  entry. 

1581.  All  lands  belonging  to  the  United  States,  to  which 
the  Indian  title  has  been  or  may  hereafter  be  extinguished,  94 
shall  be  subject  to  the  right  of  preemption,  under  the  con-  c^sf^isl'p18!^ 
ditions,  restrictions,  and  stipulations  provided  by  law.        Sfv.2^,1??5^,' 

Apr.  21,  1876,  c.  72,  v.  19,  p.  35,  Shepley  et  al.  v.  Cowen  et  al.,  91  U.  S.,  330.      Sec.2257,  R.S.' 

1  Lands  acquired  by  the  United  States  for  public  uses,  by  purchase  with  the  con- 
sent of  the  legislatures  of  the  States,  or  acquired  by  an  exercise  of  the  right  of  emi- 
nent domain  are  not  ' '  public  lands, ' '  that  term  applying  only  to  such  lands  as  are 
subject  to  sale  or  other  disposition  under  general  laws.  Newhall  v.  Sanger,  92  U.  S., 
761;  V  Opin.  Att.  Gen.,  578.  Power  over  such  lands  is  vested  in  Congress  by  the 
Constitution,  without  limitation,  and  is  the  foundation  upon  which  the  Territorial 
governments  rest.  U.  S.  v.  Gratiot,  14  Pet.,  526.  The  power  of  Congress  over  the 
public  land  and  the  effect  of  its  grants  can  not  be  interferred  with  by  State  legislation. 
Gibson  v.  Chouteau,  13  Wall.,  92. 

Congress  has  the  sole  power  to  declare  the  dignity  and  effect  of  titles  emanating 
from  the  United  States,  and  the  whole  legislation  of  the  Federal  Government,  in 
reference  to  the  public  lands,  declares  the  patent  the  superior  and  conclusive  evidence 
of  legal  title.  Until  its  issuance  the  fee  is  in  the  Government;  by  the  patent,  it  passes 
to  the  grantee,  and  he  is  entitled  to  recover  the  possession  in  ejectment.  Bagnell  v. 
Broderick,  13  Peters,  436,  450;  Wilcoxv.  Jackson,  ibid.,  498,  516;  Langdon  v.  Sher- 
wood, 124  U.  S.,  74,  83;  Hussman  v.  Dunham,  165  U.  S.,  144;  Carter  v.  Ruddy,  166 
U.  S.,  493;  Kirwan  v.  Murphy,  83  Fed.  Rep.,  275. 

There  is  no  way  for  titles  to  land  to  be  divested  out  of  the  United  States,  except 
in  strict  pursuance  of  some  law  of  the  United  States,  and,  as  no  statute  of  limitations 
runs  against  the  United  States,  occupancy  and  possession 'alone,  even  for  a  great 
length  of  time,  can  not  ripen  into  title  as  against  the  United  States.  Drew  v.  Valen- 
tine, 18  Fed.  Rep.,  712. 

In  the  administration  of  the  public  lands  the  decisions  of  the  Land  Department 
upon  questions  of  fact  are  conclusive,  and  only  questions  of  law  can  be  reviewed  by 
the  courts.  Catholic  Bishop  of  Nesqually  v.  U.  S.  158  U.  S.,  155. 

597 


598  MILITARY    LAWS    OF    THE    UNITED    STATES. 

jeJfnto8pr°eeSmp-      1582-  Tlle  following  classes  of  lands,  unless  otherwise 
11        4,  1841,  c.  sPecia%  provided  for  by  law,  shall  not  be  subject  to  the 
S,!^;1^*81  of  preemption,  to  wit: 

piack-     First.  Lands  included  in  any  reservationjjy  any  treaty, 
josephsvetu.4s8;  law?  or  proclamation  of  the  President,  for  any  purpose.  l 

Second.  Lands  included  within  the  limits  of  any  incor- 
f  a5pMc-Pora^e(^  town,  or  selected  as  the  site  of  a  city  or  town. 
nr^'ad     Third.  Lands  actually  settled  and  occupied  for  purposes 
parnyd  I  McLean  °^  trade  and  business,  and  not  for  agriculture. 

Fourth.  Lands  on  which  are  situated  any  known  salines 


1583-  The  provisions  of  this  chapter2  shall  not  apply  to 
ti(Ma're2C'i867  c  notary  or  other  reservations3  heretofore  made  by  the 
Feb  V28lim'cn  United  States,  nor  to  reservations  for  light-houses,  custom- 

7  or  sucn  other  public  purposes  as  the  inter- 


1  Under  this  head  fall  military  and  Indian  reservations,  the  Yellowstone  National 
Park,  and  the  forest  reservations  in  California  set  apart  by  the  President  under  the 
authority  conferred  by  section  24  of  the  act  of  March  3,  1891.     See  the  chapter  enti- 
tled NATIONAL  PARKS. 

2  Chapter  8,  Revised  Statutes,  relating  to  the  reservation  and  survey  of  town  sites 
on  the  public  lands.     See  also  the  chapter  entitled  NATIONAL  PARKS. 

>  3  MILITARY    RESERVATIONS. 

No  specific  statutory  authority  exists  empowering  the  President  to  reserve  public 
lands;  but  the  right  to  reserve  such  lands  for  public  uses  is  recognized  by  the  courts. 
14  Dec.  Int.  Dep.,  426,  607,  628;  Wolsey  v.  Chapman,  101  U.  S.,  755,  768;  Walcott^. 
Des  Moines  Co.,  5  Wall.,  681.  Such  reservation  may  be  effected  by  proclamation  or 
by  Executive  order.  13  Dec.  Int.  Dep.,  426.  For  cases  in  which  the  specific  author- 
ity of  law  exists  for  the  establishment  of  reservations,  see  the  title  Forest  Reservations, 
in  the  chapter  entitled  NATIONAL  PARKS. 

A  military  reservation,  being  simply  territory  of  the  United  States  withdrawn 
from  sale,  preemption,  (a)  etc.  (VII  Opin.  Att.  Gen.,  574,  757;  14  ibid.,  775),  the  mere 
fact  of  the  establishing  of  such  a  reservation  can  not  affect  the  power  of  the  State  or 
Territorial  authorities  (according  as  it  may  be  located  in  a  State  or  Territory)  to 

aThe  Constitution  (Art.  IV.  sec.  3,  f  2)  has  vested  in  Congress  the  exclusive  power  "to  dispose  of 
and  make  all  needful  rules  and  regulations  respecting  the  territory"  (held  in  U.  S.  v.  Gratiot  (14 
Peters,  537  )  to  mean  "lands  ")  "or  other  property  belonging  to  the  United  States.  "  •  As  a  consequence 
perhaps  of  the  indefiniteness  of  this  grant  (see  7  Opin.  Att.  Gen.,  574)  no  general  enactment  providing 
for  the  setting  apart  of  land  for  military  reservations  has  ever  been  made  by  Congress.  In  a  few  cases, 
indeed,  a  special  authority  to  establish  a  military  reserve  has  been  conferred  upon  the  President  by 
statute,  but  the  great  majority  of  the  military  reservations  heretofore  located  or  now  existing  have 
been  made  by  the  President  without  any  sucn  specific  authority  whatever.  But  though  no  general 
authority  has  been  directly  given  by  Congress  for  the  reserving  of  lands  for  military  purposes,  an 
authority  for  the  purpose  has  been  deemed  to  exist,  and  this  authority  is  found  in  the  usage  of  the 
executive  department  of  the  Government,  as  indirectly  sanctioned  by  Congress  in  repeated  preemp- 
tion acts,  acts  relating  to  the  survey  of  the  public  domain,  appropriation  acts,  etc.,  in  which  lands 
reserved  for  military  purposes  by  the  President  have  been  in  general  terms  excepted  from  sale, 
exempted  from  entry,  etc.  ,  or  special  provision  has  been  made  for  the  cost  of  improvements  to  be 
erected  upon  the  same.  In  Grisar  v.  McDonald  (6  Wallace,  381)  the  United  States  Supreme  Court,  by 
Field,  J.,  observes:  "From  an  early  period  in  the  history  of  the  Government  it  has  been  the  practice 
of  the  President  to  order,  from  time  to  time,  as  the  exigencies  of  the  public  service  required,  parcels 
of  land  belonging  to  the  United  States  to  be  reserved  from  sale  and  set  apart  for  public  uses." 
Further,  "  The  authority  of  the  President  in  this  respect  is  recognized  in  numerous  acts  of  Congress." 
The  court  then  cites  several  statutes  as  containing  this  recognition,  including  the  preeemption  acts 
of  May  29,  1830,  and  September  4,  1841,  and  adds:  "The  action  of  the  President  in  making  the 
(military)  reservations"  (the  title  to  which  was  at  issue  in  the  particular  case)  "was  indirectly 
approved  by  the  legislation  of  Congress  in  appropriating  moneys  for  the  construction  of  fortifica- 
tions and  other  public  works  upon  them."  And  see  XII  Opin.  Att.  Gen.,  381;  XIV  ibid.,  182;  XVII 
ibid.,  258;  Wilcox  v.  Jackson,  13  Peters,  512;  U.  S.  v.  Hare,  4  Sawyer,  653;  also  U.  S.  v.  R.  R.  Bridge 
Co.,  6  McLean,  517; 

It  is,  moreover,  to  be  noted  that  the  provision  of  the  act  of  1841,  referred  to  by  the  Supreme  Court, 
has  been  incorporated  as  a  general  enactment  in  the  Revised  Statutes  in  the  chapter  (chapter  4  of 
title  32)  on  preemptions,  section  2258  expressly  excepting  from  the  hinds  of  the  United  States,  "sub- 
ject to  the  rights  of  preemption,"  "  lands  included  in  any  reservation  by  any  treaty,  law,  or  proclama- 
tion of  the  President  for  any  purpose."  And  see  section  2393,  specific'ally'excepting  military  reser- 
vations from  the  operation  of  the  laws  authorizing  the  establishing  of  town  sites. 

The  "proclamation"  of  the  President  reserving  lands  for  military  purposes  is  usually  in  the  form 


MILITARY   LAWS    OF   THE    UNITED   STATES.  599 

ests  of  the  United  States  may  require,  whether  held  under 
reservations  through  the  Land  Office  by  title  derived  from 
the  Crown  of  Spain  or  otherwise. 


of  exclusive  jurisdiction  over  the  land  by  the  State  to  the  United  States,  the  ques- 
tion whether  the  State  authorities  may  still  serve  process  within  the  reservation  on 
account  of  liabilities  incurred  or  crimes  committed  outside  of  its  limits  will  depend 
upon  the  terms  of  the  cession.  Dig.  Opin.  J.  A.  Gen.,  par.  1699. 

Land  which  has  been  set  apart  as  a  portion  of  an  Indian  reservation,  under  a 
treaty,  can  not  be  occupied  as  a  military  reservation;  nor  can  even  a  military  post 
be  maintained  thereon,  in  derogation  of  the  terms  of  the  treaty  or  against  the  con- 
sent of  the  Interior  Department,  (c)  Ibid.,  par.  1701. 

Held  that  the  right  to  the  "free  and  open  exploration  and  purchase"  of  mineral 
lands,  accorded  to  citizens,  etc.,  by  section  2319  Revised  Statutes,  could  not  authorize 
an  entry,  for  the  purpose  of  prospecting  for  mines,  upon  a  military  reservation  once 
duly  denned  and  established  by  the  President,  the  mineral  lands  intended  by  the 
statute  being  clearly  such  as  are  included  within  the  "public  lands"  of  the  United 
States.  Ibid.,  par.  1703. 

Mineral  lands  belonging  to  the  public  domain,  which  are  reserved  from  sale  under 
section  2318  of  the  Revised  Statutes,  may  be  reserved  for  military  or  other  purposes 
by  the  President.  Where  such  lands  are  included  in  a  military  reservation,  they 
are  not  open  to  exploration  and  purchase  under  section  2319  of  the  Revised  Statutes. 
It  is  otherwise  where  a  right  has  once  attached  to  mineral  land,  under  the  laws 
relating  thereto,  in  favor  of  the  locator  of  a  mining  claim.  Here  the  land,  during 
the  existence  of  such  right,  is  not  subject  to  reservation  by  the  President;  and  if  it- 
be  subsequently  reserved,  the  locator  may  nevertheless  perfect  his  title.  XVII 
Opin.  Att,  Gen.,  230. 

When  public  land  subject  to  homestead  settlement  has  been  duly  entered  under 
the  homestead  law,  it  thenceforth  ceases  to  be  at  the  disposal  of  the  Government  so 
long  as  the  entry  of  the  settler  subsists.  Hence  it  can  not,  while  such  entry  stands, 
beset  apart  by  the  President  for  a  military  reservation.  Ibid.,  160. 

Where  a  part  of  the  public  domain  has  once  been  reserved  by  the  President  for 
military  or  other  public  purposes,  and  subsequently  the  land  so  reserved  becomes 
unnecessary  for  such  purposes,  it  can  not  be  restored  to  the  public  domain  without 
authority  from  Congress.  Ibid.,  168;  XVI  ibid.,  123. 

The  President's  power  in  the  matter  of  military  reservations  is  limited  to  the  setting 
apart  and  declaring  of  the  reservation;  and,  for  the  purpose  of  adding  to  and  modify- 
ing the  boundaries  of  the  original  reserved  tract,  a  reservation  may  be  redeclared  by 
the  Executive.  But  the  President  can  not  unreserve  duly  reserved  land,  either  by 
revoking  the  order  of  reservation  or  otherwise.  After  lands  have  once  been  reserved 
for  military  purposes,  the  President,  in  the  absence  of  authority  from  Congress,  is  not 
empowered  to  withdraw  or  restore  them.  By  the  authority,  indeed,  of  the  act  of 
July  5,  1884,  he  may  abandon  a  useless  military  reservation  and  turn  the  lands  over 
to  the  Interior  Department  for  disposition  and  sale.  But  he  can  not  rereserve  lands 
once  turned  over,  they  being  no  longer  a  part  of  the  public  domain,  but  lands  in 
regard  to  which  Congress  has  expressed  a  different  will.  Dig.  Opin.  J.  A.  G.,  para- 
graphs 1706, 1707. 

Land  Dec.  Int.  Dept.,  30,  1702;  6  id.,  18,  317;  13  id.,  426,607,628;  8  Fed.  Rep., 
883;  12  id.,  449;  92  U.  S.  733;  101  id.,  768;  5  Wallace  681. 

of  a  military  general  order,  issued  by  the  Secretary  of  War,  whose  act  in  this,  as  in  other  administra- 
tive proceedings  pertaining  to  the  military  administration,  is  in  legal  contemplation  the  act  of  the 
President,  whom  he  represents.  But  no  head  of  a  Department  or  executive  official  inferior  to  the 
President  can,  of  his  own  authority,  make  a  reservation  of  public  lands.  The  power  is  vested  only  in 
Congress  and  the  President.  United  States  r.  Hare,  4  Sawyer,  653,  669. 

In  this  connection  may  be  noted  the  ruling  of  Attorney-General  Bates  (X  Opins.,  359),  in  opposition 
to  that  of  Justice  McLean,  of  the  Supreme  Court  (in  U.  S.  v.  The  Railroad  Bridge  Co.,  6  McLean,  517), 
but  apparently  concurred  in  by  Attorney-General  Williams  (XIV  Opins.,  246),  to  the  effect  that  where 
a  tract  of  land  of  the  United  States  has  once  been  legally  reserved  for  military  purposes  the  President 
is  cot  empowered,  in  the  absence  of  authority  from  Congress,  to  relinquish  such  reservation  and 
restore  the  land  reserved  to  the  general  body  of  the  public  lands. 

b  As  by  section  1237,  Revised  Statutes,  exempting  enlisted  men  from  arrest  for  certain  debts,  or  by 
the  operation  of  the  provisions  of  the  fifty-ninth  article  of  war  as  to  the  form  to  be  observed  in  making 
criminal  arrests  of  military  persons. 

cBy  Article  VI,  section  2,  of  the  Constitution,  "all  treaties  made  under  the  authority  of  the  United 
States"  are  declared  to  be  "the  supreme  law  of  the  land;"  and  Indian  reservations  "  have  generally 
been  made  through  the  exercise  of  the  treaty-making  power,  and  in  fulfillment  of  treaty  obligations. 
XIV  Opin.  Att,  Gen.,  182.    That  land  cannot  be  reserved  or  occupied  for  military  purposes  to  th 
prejudice  of  a  title  previously  vested  in  an  individual  or  a  corporation,  see,  further,  IX  Opin.,  339; 
X.III  ibid.,  469. 


600 


MILITARY   LAWS    OF   THE    UNITED    STATES. 


HOMESTEADS. 


Par. 

1584.  Who  may  enter. 

1585.  Procedure. 

1586.  Soldiers,  homesteads. 

1587.  Deduction  for  military  service. 

1588.  The  same;  smaller  tracts. 

1589.  Widows  and  children. 


Par. 

1590.  Service  in  Army,  etc.,   equivalent 

to  residence. 

1591.  Entry  by  agent. 

1592.  Absence  of  settler  in  military  serv- 

ice. 


1584.  Every  person  who  is  the  head  of  a  family,  or  who 
p      ichas  arrived  at  the  age  of  twenty  -one  years,  and  is  a  citizen 
of  the  United  States,  or  who  has  tiled  his  declaration  of 
v.!1  P.  intention  to  become  such,  as  required  by  the  natural  iza- 
39leb.  11,  1874,  c.  tion  laws,  shall  be  entitled  to  enter  one  quarter  section  or 
Mar.  13^1874,  c.  a  less   quantit}^   of   unappropriated  public   lands,    upon 
5,'  §74,  c.  which  such  person  may  have  filed  a  preemption  claim,  or 
isTsjc.  which  may,  at  the  time  the  application  is  made,  be  subject 
.  to  preemption    at  one  dollar  and  twenty  -five  cents  per 


il!pS42o5'  16>  V'  acre;  or  eighty  acres  or  less  of  such  unappropriated  lands, 


Ar^L15'  c"  at  two  dollars  and  fifty  cents  per  acre,  to  be  located  in  a 

19,  pC 
*ec'2289'R's' 


72v.9p.35. 

127^19,  p8405C'  body,  in  conformity  to  the  legal  subdivisions  of  the  public 

And 


Mode  of  pro- 


lands,  and  after  the  same  have  been  surveyed. 
every  person  owning  and  residing  on  land  may,  under  the 
provisions  of  this  section,  enter  other  land  lying  contigu- 
ous to  his  land,  which  shall  not,  with  the  land  so  already 
owned  and  occupied,  exceed  in  the  aggregate  one  hun- 
dred and  sixty  acres.1 

1585.  The  person  applying  for  the  benefit  of  the  pre- 
May2o^i862,c.  ceding  section  shall,  upon  application  to  the  register  of 
2.  the  land  office  in  which  he  is  about  to  make  such  entry, 

Mar  21.,  1864,  c.  •       . 

38,  s.  2,  v.  is,  p.  36.  make  affidavit  before  the  register  or  receiver  that  he  is 

June  21,  1866,  c. 

i27,s.2,v.i4,p.67.  the  head  of  a  family,  or  is  twenty-one  years  or  more  of 

June  22,  1874,  c.  J  '  /  J 

394,  v.  is,  p.  192.    ag-e.  or  has  performed  service  in  the  Army  or  Navv  of 

Mar.  3,  1875,  c.     &    '  J 

ISMS,  is,  16,  v.  is,  the  United  States,  and  that  such  application  is  made  for 
sec.  2290,  B.S.  his  exclusive  use  and  benefit,  and  that  his  entry  is  made 
for  the  purpose  of  actual  settlement  and  cultivation,  and 
not  either  directly  or  indirectly  for  the  use  or  benefit  of 
any  other  person;  and  upon  filing  such  affidavit  with  the 
register  or  receiver,  on  payment  of  five  dollars  when  the 
entry  is  of  not  more  than  eighty  acres,  and  on  payment 
of  ten  dollars  when  the  entry  is  for  more  that  eighty 
acres,  he  shall  thereupon  be  permitted  to  enter  the  amount 
of  land  specified. 


1  For  other  statutes  respecting  the  acquisition  of  lands  under  the  homestead  laws 
see  Title  XXXII,  chapters  5  to  11,  inclusive,  of  the  Revised  Statutes. 


MILITARY    LAWS    OF    THE    UKITED    STATES.  601 

1586.  Every  private  soldier  and  officer  who  has  served  stf|Jlfcier'shome' 
in  the  Army  of  the  United  States  during  the  recent  rebel-  g^J^'  1901'v- 
lion  for  ninety  days,  and  who  was  honorably  discharged    Sec.2304,B.s. 
and  has  remained  loyal  to  the  Government,  including  the 
troops  mustered  into  the  service  of  the  United  States  by 
virtue  of  the  third  section  of  an  act  approved  February 
thirteenth,   eighteen  hundred  and  sixty-two,   and  every 
seaman,  marine,  and  officer  who  has  served  in  the  Navy 
of  the  United  States  or  in  the  Marine  Corps  during  the 
rebellion  for  ninety  days,  and  who  was  honorably  dis- 
charged and  has  remained  loyal  to  the  Government,  and 
every  private  solder  and  officer  who  has  served  in  the 
Army  of  the  United  States  during  the  Spanish  war,  or 
who  has  served,  is  serving,  or  shall  have  served  in  the  said 
Army  during  the  suppression  of  the  insurrection  in  the 
Philippines   for   ninety  days,  and  who   was  or   shall   be 
honorably  discharged;  and   every    seaman,    marine,    and 
officer  who  has  served  in  the  Navy  of  the  United  States  or 
in  the  Marine  Corps  during  the  Spanish  war,  or  who  has 
served,  is  serving,  or  shall  have  served  in  the  said  forces 
during  the  suppression  of  the  insurrection  in  the  Philip- 
pines for  ninety  days,  and  who  T^as  or  shall  be  honorably 
discharged,  shall,  on  compliance  with  thie  provisions  of 
this  chapter,  as  hereinafter  modified,  be  entitled  to  enter 
upon  and  receive  patents  for  a  quantity  of  public  lands 
not  exceeding  one  hundred  and  sixty  acres,  or  one  quarter 
section,  to  be  taken  in  compact  form,  according  to  legal 
subdivisions,  including  the  alternate  reserved  sections  of 
public  lands  along  the  line  of  any  railroad  or  other  public 
work  not  otherwise  reserved  or  appropriated,  and  other 
lands  subject  to  entry  under  the  homestead  laws  of  the 
United  States;  but  such  homestead  settler  shall  be  allowed 
six  months  after  locating  his  homestead  and  filing  his 
declaratory  statement  within  which  to  make  his  entry  and 
commence  his  settlement  and  improvement.    Act  of  March 
1,  1901(31  Stat.  Z.,  847). 

1587.  The  time  which  the  homestead  settler  has  served  mnietarCtservicer 
in  the  Army,  Navy,  or  Marine  Corps  shall  be  deducted  31Maig417>  1900t  v> 
from  the  time  heretofore  required  to  perfect  title,  or  if    ^ec.  2305,B.s. 
discharged  on  account  of  wounds  received  or  disability 
incurred  in  the  line  of  duty,  then  the  term  of  enlistment 
shall  be  deducted  from  the  time  heretofore  required  to 
perfect  title,  without  reference  to  the  length  of  time  he 
may  have  served;  but  no  patent  shall  issue  to  any  home- 
stead settler  who  has  not  resided  upon,  improved,  and  cu! 


602  MILITARY   LAWS    OF   THE   UiaTED   STATES. 

tivated  his  homestead  for  a  period  of  at  least  one  year 
after  he  shall  have  commenced  his  improvements:  Pro- 
vided, That  in  every  case  in  which  a  settler  on  the  public 
land  of  the  United  States  under  the  homestead  laws  died 
while  actually  engaged  in  the  Army,  Navy,  or  Marine 
Corps  of  the  United  States  as  private  soldier,  officer, 
seaman,  or  marine,  during  the  war  with  Spain  or  the  Phil- 
ippine insurrection,  his  widow,  if  unmarried,  or  in  case 
of  her  death  or  marriage,  then  his  minor  orphan  children 
or  his  or  their  legal  representatives,  may  proceed  forth- 
with to  make  final  proof  upon  the  land  so  held  by  the  de- 
ceased soldier  and  settler,  and  that  the  death  of  such  sol- 
dier while  so  engaged  in  the  service  of  the  United  States 
shall,  in  the  administration  of  the  homestead  laws,  be  con- 
strued to  be  equivalent  to  a  performance  of  all  require- 
ments as  to  residence  and  cultivation  for  the  full  period  of 
five  years,  and  shall  entitle  his  widow,  if  unmarried,  or  in 
case  of  her  death  or  marriage,  then  his  minor  orphan  chil- 
dren or  his  or  their  legal  representatives,  to  make  final 
proof  upon  and  receive  Government  patent  for  said  land; 
and  that  upon  proof  produced  to  the  officers  of  the  proper 
local  land  ofiice  by  the  widow,  if  unmarried,  or  in  case  of 
her  death  or  marriage,  then  his  minor  orphan  children  or 
his  or  their  legal  representatives,  that  the  applicant  for 
patent  is  the  widow,  if  unmarried,  or  in  case  of  her  death 
or  marriage,  his  orphan  children  or  his  or  their  legal  rep- 
resentatives, and  that  such  soldier,  sailor,  or  marine  died 
while  in  the  service  of  the  United  States  as  hereinbefore 
described,  the  patent  for  such  land  shall  issue.  Ibid. 
Persons  who  1588.  Every  person  entitled,  under  the  provisions  of 
than  eieor  acres!  section  twenty  -three  hundred  and  four,  to  enter  a  home- 
n  june°8,  1872,  c.  stead  who  may  have  heretofore  entered,  under  the  home- 
17>  p'  stead  laws,  a  quantity  of  land  less  than  one  hundred  and 
'  sixty  acres,  shall  be  permitted  to  enter  so  much  land  as, 
when  added  to  the  quantity  previously  entered,  shall  not 
exceed  one  hundred  and  sixty  acres. 

widow  and  mi-      1589.  In  case  of  the  death1  of  any  person  who  would  be 
titled  to  a  homestead  under  the  provisions  of  section 


etc.  !a  '  twenty-three  hundred  and  four,  his  widow,  if  unmarried, 

338,Us.e3%18i7,'  p!  or  in  case  of  her  death  or  marriage,  then  his  minor  orphan 

3?ec.  2807,  B.S.  children,  by  a  guardian  duly  appointed  and  officially  accred- 

ited at  the  Department  of  the  Interior,  shall  be  entitled  to 

Section  6  of  the  act  of  March  2,  1889  (25  Stat.  L.,  855),  provides  that  the  require- 
ments of  that  section  shall  not  "be  construed  as  affecting  any  rights  to  location  of 
soldiers'  certificates  heretofore  issued  under  section  2306  of  the  Revised  Statutes." 


MILITARY    LAWS    OF   THE    UNITED    STATES.  603 

all  the  benefits  enumerated  in  this  chapter,  subject  to  all 
the  provisions  as  to  settlement  and  improvements  therein 
contained;  but  if  such  person  died  during  his  term  of  en- 
listment, the  whole  term  of  his  enlistment  shall  be  deducted 
from  the  time  heretofore  required  to  perfect  the  title. 

1590.  Where  a  party  at  the  date  of  his  entry  of  a  tract 
of  land  under  the  homestead  laws,  or  subsequently  thereto, 

was  actually  enlisted  and  employed  in  the  Army  or  Navy  ^nne^ua,  c. 
of  the  United  States,  his  services  therein  shall,  in  the  ad-  3^  2308,E.S. 
ministration  of  such  homestead  laws,  be  construed  to  be 
equivalent,  to  all  intents  and  purposes,  to  a  residence  for 
the  same  length  of  time  upon  the  tract  so  entered.  And 
if  his  entry  has  been  canceled  by  reason  of  his  absence 
from  such  tract  while  in  the  military  or  naval  service  of 
the  United  States,  arid  such  tract  has  not  been  disposed  of, 
his  entry  shall  be  restored;  but  if  such  tract  has  been  dis- 
posed of,  the  party  may  enter  another  tract  subject  to 
entry  under  the  homestead  laws,  and  his  right  to  a  patent 
therefor  may  be  determined  by  the  proofs  touching  his 
residence  and  cultivation  of  the  first  tract  and  his  absence 
therefrom  in  such  service. 

1591.  Every  soldier,   sailor,   marine,    officer,    or  other  b  who  may  enter 
person  coming  within  the  provisions  of  section  twenty-  33gune58)v18i7'  c' 
three  hundred  and  four,  may,  as  well  by  an  agent  as 

person,  enter  upon  such  homestead  by  filing  a  declaratory 
statement,  as  in  preemption  cases;  but  such  claimant  in 
person  shall  within  the  time  prescribed  make  his  actual 
entry,  commence  settlements  and  improvements  on  the 
same,  and  thereafter  fulfill  all  the  requirements  of  law. 

1592.  In  every  case  in  which  a  settler  on  the  public  land    Absence  of  set- 

J  tier  enlisted   as 

of  the  United  States  under  the  homestead  laws  enlists  or  soldier,  etc.,  to 

be  equivalent  to 

is  actually  engaged  in  the  Army,  Navy,  or  Marine  Corps  residence, 


of  the  United  States  as  private  soldier,  officer,  seaman,  01'30^  427|54  K  s 
marine,  during  the  existing  war  with  Spain,  or  during  any 
other  war  in  which  the  United  States  may  be  engaged,  his 
services  therein  shall,  in  the  administration  of  the  home- 
stead laws,  be  construed  to  be  equivalent  to  all  intents  and 
purposes  to  residence  and  cultivation  for  the  same  length 
of  time  upon  the  tract  entered  or  settled  upon;  and  here- 
after no  contest  shall  be  initiated  on  the  ground  of  aban- 
donment, nor  allegation  of  abandonment  sustained  against 
any  such  settler,  unless  it  shall  be  alleged  in  the  prelimi- 
nary affidavit  or  affidavits  of  contest,  and  proved  at  the 
hearing  in  cases  hereafter  initiated,  that  the  settler's 
alleged  absence  from  the  laud  was  not  due  to  his  employ- 


604  MILITARY    LAWS    OF   THE    UNITED   STATES. 

Discharge  formenfc  m  suc^  service:  Provided,  That  if  such  settler  shall 
disability.  ^  discharged  on  account  of  wounds  received  or  disability 
incurred  in  the  line  of  duty,  then  the  term  of  his  enlist- 
ment shall  be  deducted  from  the  required  length  of  resi- 
dence without  reference  to  the  time  of  actual  service: 
Provided  further ,  That  no  patent  shall  issue  to  any  home- 
stead settler  who  has  not  resided  upon,  improved,  and 
cultivated  his  homestead  for  a  period  of  at  least  one  year 
after  he  shall  have  commenced  his  improvements.  Act 
of  June  16,  1898  (30  Stat.  L.,  473). 

ACQUISITION   OF   LANDS   BY   THE   UNITED   STATES. 

Par.  j  Par. 

1593.  Examination  of  titles.  I  1597.  Acquisition  by  condemnation. 

1594.  Purchases  to  be  authorized  by  law. 


1595.  Assent  of  States. 


1598.  The  same. 

1599.  The  same;  sites  for  fortifications. 


1596.  Releases. 

1593.  No  public  money  shall  be  expended  upon  any  site 


states.  Unitedor  land  purchased  by  the  United  States  for  the  purpose  of 
Res6  NO.  G^1!^'.  erecting  thereon  any  armory,  arsenal,  fort,  fortification, 
4^«c.  355,  K.  s.  navy -yard,  custom-house,  light-house,  or  other  public 
building,  of  any  kind  whatever,  until  the  written  opinion 
of  the  Attorney-General  shall  be  had  in  favor  of  the 
validity  of  the  title,  nor  until  the  consent  of  the  legisla- 
ture of  the  State  in  which  the  land  or  site  may  be,  to  such 
purchase,  has  been  given.  The  district  attorneys  of  the 
United  States,  upon  the  application  of  the  Attorney-Gen- 
eral, shall  furnish  any  assistance  or  information  in  their 
power  in  relation  to  the  titles  of  the  public  property  lying 
within  their  respective  districts.  And  the  Secretaries  of 
the  Departments,  upon  the  application  of  the  Attorney- 
General,  shall  procure  any  additional  evidence  of  title 
which  he  may  deem  necessary,  and  which  may  not  be  in 
the  possession  of  the  officers  of  the  Government,  and  the 
expense  of  procuring  it  shall  be  paid  out  of  the  appropria- 
tions made  for  the  contingencies  of  the  Departments 
respectively.1 

1  See  chapters  entitled  THE  DEPARTMENT  OF  JUSTICE,  CONTRACTS  AND  PURCHASES, 
THE  ENGINEER  CORPS,  NATIONAL  PARKS,  and  NATIONAL  CEMETERIES  for  additional 
provisions  respecting  the  acquisition  of  lands.  "  When,  in  an  act  appropriating  for 
the  purchase  of  additional  land  for  a  public  building,  the  piece  of  ground  to  be  pur- 
chased is  particularly  described,  the  appropriation  can  not  be  used  for  the  purchase 
of  another  tract  equally  suitable  for  the  purpose,  and  at  a  price  within  the  sum  pro- 
vided, although  the  piece  named  can  not  be  secured  within  the  amount  appropri- 
ated." 2  Compt.  Dec.,  77.  See  also  section  1136,  Revised  Statutes  (par.  1216,  post), 
for  provision  requiring  all  officers  of  the  United  States  having  title  papers  of  prop- 


MILITARY    LAWS    OF    THE    UNITED    STATES.  605 


1594.  No  land  shall   be  purchased  on   account   of         p 
United  States,  except  under  a  law  authorizing  such  pur-  lanjday  l  1820  c 

' 


52,  s.  7,  v.s,  p.  568 
Sec.3736,  R.S. 


erty,  purchased  or  about  to  be  purchased,  in  their  possession  to  furnish  the  same 
forthwith  to  the  Attorney-General. 

Joint  resolution  No.  21,  of  April  11,  1898  (30  Stat.  L.,  737),  contains  the  require- 
ment that  '  '  in  case  of  emergency,  when,  in  the  opinion  of  the  President,  the  immediate 
erection  of  any  temporary  fort  or  fortification  is  deemed  important  and  urgent,  such 
temporary  fort  or  fortification  may  be  constructed  upon  the  written  consent  of  the  owner 
of  the  land  upon  which  such  work  is  to  be  placed;  and  the  requirements  of  section 
three  hundred  and  fifty-five  of  the  Revised  Statute?  shall  not  be  applicable  in  such 
cases.  '  ' 

The  expense  of  procuring  an  abstract  of  title  to  land  to  be  used  as  a  site  for  a 
fortification  is  a  proper  charge  against  the  appropriation  made  for  the  purchase  of 
the  site,  if  the  abstract  is  needed  by  the  United  States  attorney  to  assist  him  in 
examining  the  title,  provided  the  land  is  to  be  purchased  and  not  condemned.  Ill 
Compt.  Dig.,  216. 

The  title  to  lands  purchased  on  account  of  the  United  States  is  not  properly 
assured  by  a  certificate  of  "no  liens,"  signed  by  the  attorney  who  made  the  abstract 
of  title.  The  proper  person  to  make  such  a  certificate  is  the  custodian  of  the  records 
of  judgments  and  other  record  liens  in  the  county  in  which  the  land  is  located,  (a) 
Dig.  Opin.  J.  A.  Gen.,  par.  2114: 

"Section  355  of  the  Revised  Statutes  prescribes  that  no  public  money  shall  be 
expended  upon  any  site  or  land  purchased  by  the  United  States  for  the  purpose  of 
erecting  thereon  any  armory,  arsenal,  fort,  fortification,  navy-yard,  custom-house, 
light-house,  or  other  building,  of  any  kind  whatever,  until  the  *  •  *  consent  of 
the  legislature  of  the  State  in  which  the  land  or  site  may  be,  to  such  purchase,  has 
been  given.  This  section  is  part  based  on  the  clause  of  the  Constitution  referred  to, 
and  in  part  not.  The  consent  of  the  State  to  a  purchase,  given  in  order  to  satisfy 
the  requirement  of  this  section,  would  invest  the  United  States  with  exclusive  juris- 
diction, if  the  purchase  be  for  one  of  the  constitutional  purposes;  but  the  section 
provides  for  other  purposes  also,  and  as  to  these  it  would  seem  that  a  simple  consent 
to  the  purchase  (assuming  that  such  consent,  being  for  a  purpose  not  falling  under 
the  clause  of  the  Constitution,  amounts  to  a  cession  of  jurisdiction)  would  only  carry 
with  it  so  much  jurisdiction  as  would  be  necessary  for  the  purpose  of  the  purchase. 
Probably  this  would  be  held  to  be  concurrent  jurisdiction.  Taking  into  consideration 
the  fact  that  States  can  not,  under  any  circumstances,  interfere  with  the  instrumen- 
talities of  the  Government  of  the  United  States,  it  may,  indeed,  be  questioned  whether, 
even  under  this  view,  unnecessary  precautions  have  not  been  taken  in  regard  to  the 
acquisition  of  jurisdiction;  and  certainly  it  can  not  be  presumed  that  a  State  intends 
to  part  with  more  of  its  sovereignty  than  is  necessary.  A  consent  to  the  purchase, 
under  section  355,  Revised  Statutes,  if  the  purchase  be  for  other  than  one  of  the 
purposes  described  in  the  clause  of  the  Constitution,  may,  therefore,  be  accompanied 
with  any  limitations  not  interfering  with  an  instrumentality  of  the  Government  of 
the  United  States. 

"The  most  common  way  of  acquiring  jurisdiction,  however,  is  by  the  State's 
expressly  ceding  it  to  the  United  States.  In  such  case  the  State  may  make  similar 
limitations,  and  this  even  if  the  place  be  used  by  the  United  States  for  one  of  the 
purposes  mentioned  in  the  clause  of  the  Constitution.  To  bring  the  case  under  the 
clause  there  must  be  a  purchase  with  consent.  Fort  Leaven  worth  R.  R.  Co.  v.  Lowe, 
1  14  U.  S.,  539  ;  Chicago  and  Pacific  Ry.  Co.  v.  McGlinn,  114  U.  S.,  549  ;  Benson  v.  U.  S., 
146  U.S.,  331;  in  re  Kelly,  71  Fed.  Rep.,  545;  in  re  Ladd,  74  Fed.  Rep.,  399.)" 
Gen.  G.  N.  Lieber,  Sept.  28,  1897  (see  Military  Res.,  etc.,  Title  and  Jurisdiction, 
p.  288). 

1  In  the  absence  of  statutory  authority,  land  can  not  be  purchased  for  the  United 
States  with  any  more  legality  than  land  of  the  United  States  can  be  sold  or  disposed 
of.  By  a  provision  of  an  act  of  May  1,  1820,  now  contained  in  section  2736,  Revised 
Statutes,  it  is  declared  that  "No  land  shall  be  purchased  on  account  of  the  United 
States  except  under  a  law  authorizing  such  purchase."  Held  that  the  term  "pur- 
chase" was  to  be  understood  in  its  legal  sense,  as  embracing  any  mode  of  acquiring 
property  other  than  by  descent;  (ft)  and  that  therefrom  the  Secretary  of  War  would 

«  Sec  i;.  o.  47  of  1881  for  Attorney-General's  regulations  as  to  making  deeds,  proving  title  to  lands, 

etc. 

6  See  .Vil  Opin.  Att.  Gen.,  114,  121;  Ex  parte  Hebard,  4  Dillon,  384. 


606  MILITARY    LAWS    OF    THE    UNITED    STATES. 

statls8  e  to1  pur-      1595-  The  President  of  the  United  States  is  authorized 

chAper!°28,ani828, to  procure  the  assent  of  the  legislature  of  any  State  within 

o4i,  s. 2,  v. 4,  p.  whicn  any  purchase  of  land  has  been  made  for  the  erection 

Stc.  i838,B.s.  Of  forts?  magazines,  arsenals,  dockyards,  and  other  needful 

buildings  without  such  consent  having  been  obtained.1 

not  be  empowered  to  accept  a  gift  of  land  or  interest  in  land  for  any  use  or  purpose 
independently  of  statutory  authority,  (a)  And  similarly  held  as  to  the  construction 
of  the  same  word  ("purchase")  as  employed  in  section  355,  Revised  Statutes,  and 
advised  that  an  appropriation  of  public  money  could  not  legally  be  expended  for  the 
erection  of  a  public  building  upon  land  donated  to  the  United  States  until  the 
Attorney-General  had  passed  the  title  and  the  legislature  of  the  State  in  which 
the  land  was  situated  had  given  its  consent  to  the  grant,  (b)  Dig.  Opin.  J.  A.  Gen., 
627,  par. '5. 

The  statutory  authority  relied  upon  for  the  purchase  of  land  by  a  head  of  a  Depart- 
ment should  be  clear  and  indisputable.  Thus,  held  that  authority  to  purchase 
additional  land  for  the  interment  of  soldiers  could  not  be  derived  from  the  general 
provision  of  the  annual  appropriation  act,  appropriating  a  certain  sum  for  maintain- 
ing the  existing  national  cemeteries.  Dig.  Opin.  J.  A.  Gen.,  par.  2105. 

A  statute  conferring  a  specific  authority  to  purchase  certain  land  should,  in  the 
exercise  of  the  authority,  be  strictly  construed.  Thus,  where  a  statute  authorized 
the  Secretary  of  War  to  purchase,  for  a  certain  stated  sum,  a  certain  described  tract 
containing  a  specified  number  of  acres,  held  that  the  act  did  not  invest  him  with 
discretion  to  purchase  a  portion  only  of  such  tract.  Ibid.,  par.  2108. 

Authority  to  acquire  land  in  a  State,  by  the  exercise  of  the  right  of  eminent 
domain,  whether  by  proceedings  for  condemnation  in  the  United  States  circuit  court 
or  in  the  courts  of  the  State,  (c)  can  be  vested  in  an  executive  official  of  the  United 
States  only  by  express  legislation  of  Congress.  Ibid.,  2109. 

The  Constitution  vests  in  Congress  the  exclusive  power  to  dispose  of  the  property 
of  the  United  States,  real  or  personal.  (<f)  The  Secretary  of  War,  in  the  absence  of 
authority  from  Congress,  can  not  alienate  land  of  the  United  States.  Thus,  where 
a  company  proposed  to  cut  out  and  remove  a  part  of  a  dam  (some  140  feet)  on  Fox 
River,  Wisconsin,  belonging  to  the  United  States,  and  to  substitute  another,  as  a 
private  improvement,  below,  held  that  this  was  a  proposition  for  the  alienation  by  an 
executive  official  of  public  property,  and  could  not  legally  be  entertained.  Ibid., 
par.  2113. 

In  view  of  the  prohibition  of  section  3736,  Revised  Statutes,  that  "no  land  shall  be 
purchased  on  account  of  the  United  States,  except  under  a  law  authorizing  the  same, ' ' 
the  Secretary  of  War  can  not  accept  a  grant  by  gift  of  land  or  of  an  easement  in  land 
without  authority  of  special  statute.  [By  act  of  April  24,  1888,  he  is  expressly 
empowered  to  purchase,  sr  accept  donations  of,  land  for  river  and  harbor  improve- 
ments.] And  held  that,  in  the  absence  of  authority  from  Congress,  a  purchase  of  lots 
in  a  city  cemetery,  for  the  burial  purposes  of  a  neighboring  military  post,  would  not 
be  legal  or  operative.  Ibid. ,  par.  2106. 

1  The  State  of  North  Carolina  ceded  to  the  United  States,  by  an  act  of  its  legisla- 
ture of  1794,  the  land  of  the  present  military  reservation  at  Southport,  N.  C.,  the 
site  of  old  Fort  Johnson.  A  condition  of  the  deed  of  cession  was  to  the  effect  that 
a  fortification  should  be  erected  on  the  land  within  three  years  and  be  maintained 
forever  thereafter  for  the  public  service,  or  the  land  should  revert  to  the  State.  The 
time  allowed  was  repeatedly  extended,  the  last  extension  expiring  in  1818,  when  a 
fortification  had  been  constructed  if  not  fully  completed.  The  fort  has  long  since 
ceased  to  be  garrisoned.  In  1889  an  individual  citizen  "  entered  "  the  site  as  State 

a  See  this  opinion  concurred  in  by  an  opinion  of  the  Attorney-General,  in  XVI  Opins  ,  414.  As 
statutes  specially  authorizing  the  acceptance  of  donations  of  land,  note  the  early  acts  of  March  20 
and  May  9, 1794,  and,  later,  the  acts  of  February  18, 1867;  March  3, 1875;  June  23, 1879.  That  authority, 
however,  to  purchase,  and,  a  fortiori  perhaps,  to  accept  a  gift  of ,  the  necessary  land,  may  be  implied 
from  an  appropriation  act  granting  a  sum  of  money  for  a  public  work  requiring  for  its  construction 
the  occupation  and  use  of  certain  land  of  an  individual  or  corporation.  See  opinions  of  the  Attorney- 
General  in  XV  Opins.,  212;  XVI  ibid.,  119, 387.  In  the  opinion  in  XVI  Opins.,  119.  it  was  held  tnat  where 
no  statutory  authority  whatever  existed  for  accepting  a  gift  of  land  a  head  of  a  Department  would 
not  be  justified  in  accepting  the  same  on  the  condition  that  Congress  ratify  the  acceptance  and  in 
anticipation  of  such  ratification. 

6  But  under  the  implied  authority  contained  in  section  1838,  Revised  Statutes,  lands  required  as 


cSee  Kohl  v.  U.  S.,  1  Otto,  367. 
eZXVI  Opin.  Att.  Gen.,  477. 


MILITAEY    LAWS    OF    THE    UNITED    STATES.  607 


1596.  Whenever  any  lands  have  been  or  shall  be  con-  ^^^8.  ob~ 
veyed  to  individuals  or  officers,  for  the  use  or  benefit  o^^^JVftii 
the  United  States,  the  President  is  authorized  to  obtain    sec.  3752,k.s. 
from  such  person  a  release  of  his  interest  to  the  United 

States. 

1597.  In  every  case  in  which  the  Secretary  of  the  Treas-    Acquisitions  of 

J  lands  for  public 

ury  or  any  other  officer  of  the  Government  has  been,  or  usesby  condem- 


hereafter  shall  be,  authorized  to  procure  real  estate  for 

the  erection  of  a  public  building  or  for  other  public  uses  he 

shall  be,  and  hereby  is,  authorized  to  acquire  the  same  for 

the  United  States  by  condemnation,  under  judicial  process, 

whenever  in  his  opinion  it  is  necessary  or  advantageous  to 

the  Government  to  do  so,  and  the  United  States  circuit  or 

district  courts  of  the  district  wherein  such  real  estate  is 

located   shall   have   jurisdiction  of  proceedings  for  such    jurisdiction  to 

condemnation,  and  it  shall  be  the  duty  of  the  Attorney-  courts. 

General  of  the  United  States,  upon  every  application  of  the 

Secretary  of  the  Treasury,  under  this  act,  or  such  other 

officer,  to  cause  proceedings  to  be  commenced  for  condem- 

nation, within  thirty  days  from  the  receipt  of  the  applica- 

tion at  the  Department  of  Justice.1     Act  of  August  1,  1888 

(26  Stat.  L.,35T). 

land.  Held  that  this  act  was  without  legal  authority  or  effect;  that  the  condition 
subsequent  in  the  deed  was  one  of  the  breach  of  which  the  grantor,  the  State,  could 
alone  take  advantage;  and  that,  as  the  State  had  not  proceeded  to  reenter  for  such 
breach,  the  United  States  was  not  ousted  and  could  legally  continue  to  hold  the 
premises,  (a)  Ibid.,  par.  2116. 

^The  power  to  take  private  property  for  public  uses,  generally  termed  the  right  of 
eminent  domain,  belongs  to  every  independent  government.  It  is  an  incident  of 
sovereignty  and  requires  no  constitutional  recognition.  The  provision  found  in  the 
fifth  amendment  to  the  Federal  Constitution,  and  in  the  constitutions  of  the  several 
States,  for  just  compensation  for  property  taken,  is  merely  a  limitation  upon  the  use 
of  the  power.  It  is  no  part  of  the  power  itself,  but  a  condition  upon  which  the  power 
may  be  exercised.  U.  S.  v.  Jones,  109  U.  S.,  513,  518;  Boom  Co.  v.  Patterson,  98  U.  S., 
106;  Kohl  v.  U.  S.,  91  U.  S.,  367;  Cooley  Con.  Lim.,  526;  U.  S.  v.  Oregon  Kailway.  and 
Nay.  Co.,  16  F.  R.,  524.  In  some  instances  the  States,  by  virtue  of  their  own  right  of 
eminent  domain,  have  condemned  lands  for  the  use  of  the  General  Government,  and 
such  condemnations  have  been  sustained  by  their  courts,  without,  however,  denying 
the  right  of  the  United  States  to  act  independently  of  the  States.  Kohl  v.  U.  S.,  91 
U.  S.,  367,  373;  Gilmer  v.  Lime  Point,  18  Cal.,  729;  Burt.  v.  Merchants'  Ins.  Co.,  106 
Mass.,  356;  U.  S.  v.  Jones,  109  U.  S.,  513.  The  estate  acquired  by  such  exercise  of 
the  right  of  eminent  domain  on  the  part  of  the  United  States  may  be  a  fee  simple  or 
may  be  in  the  nature  of  an  easement.  XVI  Op.  Att.  Gen.  ,  387.  The  legislature  is  the 
judge  of  the  necessity  for  exercising  the  right  in  any  case.  Cooley  Const.  Law,  527. 
It  is  now  well  settled  that  whenever,  in  the  execution  of  the  powers  granted  to  the 
United  States  by  the  Constitution,  lands  in  any  State  are  needed  by  the  United  States, 
for  a  fort,  magazine,  dockyard,  light-house,  custom-house,  post-office,  or  any  other 
public  purpose,  and  can  not  be  acquired  by  agreement  with  the  owners,  the  Congress 
of  the  United  States,  exercising  the  right  of  eminent  domain,  and  making  just  com- 
pensation to  the  owners,  may  authorize  such  lands  to  be  taken,  either  by  proceedings 
in  the  courts  of  the  State  with  its  consent,  or  by  proceedings  in  the  courts  of  the 
United  States,  with  or  without  any  consent  or  concurrent  act  of  the  State,  as  Congress 
may  direct  or  permit.  Chappell  v.  U.  S.,  160  U.  S.,  499,  509,  and  510.  Citing  Harris 
v.  Elliott,  10  Pet.,  25;  Kohl  v.  U.  S.,  91  U.  S.,  367;  U.  S.  v.  Jones,  109  U.  S.,  513;  Fort 

a  See  Schulenberg  v.  Harriman,  21  Wall.,  44. 


608  MILITARY    LAWS    OF    THE    UNITED    STATES. 


1  "  1598.  The  practice,  pleadings,  forms,  and  modes  of  pro- 
sec.  2,  -ibid,  ceeding  in  causes  arising  under  the  provisions  of  this  act 
shall  conform,  as  near  as  may  be,  to  the  practice,  pleadings, 
forms,  and  proceedings  existing  at  the  time  in  like  causes 
in  the  courts  of  record  of  the  State  within  which  such  cir- 
cuit or  district  courts  are  held,  any  rule  of  the  court  to  the 
contrary  notwithstanding.  Sec.  #,  ibid. 

ca«on9sforf°rtifl"  1599.  Hereafter  the  Secretary  of  War  may  cause  pro- 
26Ap.g3i6.'1890'v'  ceedings  to  be  instituted,  in  the  name  of  the  United  States, 
in  any  court  having  jurisdiction  of  such  proceedings,  for 
the  acquirement,  by  condemnation,  of  any  land,  or  right 
pertaining  thereto,  needed  for  the  site,  location,  construc- 
tion, or  prosecution  of  works  for  fortifications  and  coast 
defenses,  such  proceedings  to  be  prosecuted  in  accordance 
with  the  laws  relating  to  suits  for  the  condemnation  of 
property  of  the  States  wherein  the  proceedings  ma}^  be  in- 
stituted: Provided,  That  when  the  owner  of  such  land,  or 
rights  pertaining  thereto,  shall  fix  a  price  for  the  same, 
which,  in  the  opinion  of  the  Secretary  of  War,  shall  be 
reasonable,  he  may  purchase  the  same  at  such  price  with- 
out further  delay:  Provided  further,  That  the  Secretary  of 
War  is  hereby  authorized  to  accept  on  behalf  of  the  United 
States  donations  of  lands,  or  rights  pertaining  thereto,  re- 
quired for  the  above-mentioned  purposes  :  And  provided 
further,  That  nothing  herein  contained  shall  be  construed 
to  authorize  an  expenditure,  or  to  involve  the  Government 
in  any  contract  or  contracts  for  the  future  payment  of 
money,  in  excess  of  the  sums  appropriated  therefor.1  Act 
of  August  18,  1890  (26  Stat.  L.,  316). 

Leavenworth  R.  R.  r.  Lowe,  114  U.  S.,  525,  531,  532;  Cherokee  Nation  r.  Kansas  Rwy., 
135  U.  S.,  641,  656;  Monongahela  Navigation  Co.  v.  U.  S.,  148  U.  S.,  312;  Lu^ton  v. 
North  River  Bridge  Co.,  147  U.  S.,  337,  and  153  U.  S.,  525;  Burt  v.  Merchants'  Ins. 
Co.,  106  Mass.,  356;  U.  S.,  petitioners,  96  N.  Y.,  227. 

1  The  manner  in  which  the  power  of  eminent  domain  of  the  United  States  shall  be 
exercised  is  a  matter  of  legislative  discretion,  and  Congress,  by  the  act  of  August  1, 
1888,  25  Stat.  L.,  357,  has  vested  in  the  United  States  circuit  and  district  courts  of  the 
district  in  which  the  land  is  situated  jurisdiction  of  proceedings  authorized  to  be 
instituted  by  any  public  officer  to  condemn  such  land  for  public  purposes.  By  the 
act  of  August  18,  1890  (26  Stat.  L.,  316),  the  Secretary  of  War  is  authorized  to  cause 
proceedings  to  be  instituted  for  the  condemnation  of  land  for  military  purposes  "in 
any  court  having  jurisdiction  of  such  proceedings."  Held,  that  said  acts  are  in  pari 
materia,  and  upon  an  application  by  the  Secretary  of  War  under  the  latter  act  the 
Attorney-General  may,  at  his  election,  cause  proceedings  to  be  instituted  for  the  con- 
demnation of  land  for  military  purposes  in  either  the  State  or  Federal  courts. 
Chappell  v.  U.  S.,  81  Fed.  Rep..  764.  By  the  Constitution  of  the  United  States,  the 
estimate  of  the  just  compensation  for  property  taken  for  the  public  use,  under  the 
right  of  eminent  domain,  is  not  required  to  be  made  by  a  jury,  but  may  be  intrusted 
to  commissioners  appointed  by  a  court  or  by  the  Executive,  or  to  an  inquest  consist- 
ing of  more  or  fewer  men  than  an  ordinary  jury.  Bauman  ?'.  Ross,  167  U.  S.,  548. 
Under  the  authority  conferred  by  this  statute  the  Attorney-General  may,  upon  the 
request  of  the  Secretary  of  War,  cause  proceedings  to  be  instituted  for  the  condem- 
nation of  land  for  military  purposes  in  either  the  State  or  Federal  courts.  Chappell 
v.  U.  S.,  81  Fed.  Rep.,  764. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  609 

JURISDICTION  OVER  RESERVATIONS.1 


1600.  The  Congress  shall  have  Power     *     *     * 
To  exercise  exclusive  Legislation  in  all  Cases  whatsoever 
over  such  district  (not  exceeding  ten  Miles  square)  as  may,  CotrstitutionC"  8> 
by  Cession  of  particular  States,  and  the  Acceptance  of  Con- 

1  Lands  may  be  acquired-by  the  United  States,  within  the  territory  of  a  State,  in 
any  one  of  three  ways:  (1)  By  purchase  without  the  consent  of  the  legislature  of  the 
State  within  which  the  lands  are  situated;  (2)  by  purchase  with  such  consent;  (3)  by 
an  exercise  of  the  right  of  eminent  domain.  Kohl  v.  U.  S.,  91  U.  S.,  367. 

When  the  United  States  acquire  lands  within  the  limits  of  a  State,  with  the  con- 
sent of  the  legislature  of  the  State,  for  the  erection  of  forts,  arsenals,  dockyards, 
and  other  needful  buildings,  the  Constitution  confers  upon  them  exclusive  jurisdic- 
tion of  the  tract  so  acquired;  but  when  they  acquire  such  lands  in  any  other  way 
than  by  purchase  with  the  consent  of  the  legislature  they  will  hold  the^  lands  sub- 
ject to  this  qualification,  that  if  upon  them  forts,  arsenals,  or  other  public  buildings 
are  erected  for  the  uses  of  the  General  Government  such  buildings,  with  their 
appurtenances,  as  instrumentalities  for  the  execution  of  its  powers,  will  be  free  from 
any  such  interference  and  jurisdiction  of  the  State  as  would  destroy  or  impair  their 
effective  use  for  the  purposes  designed.  Such  is  the  law  with  reference  to  all  instru- 
mentalities created  by  the  General  Government.  Their  exemption  from  State  con- 
trol is  essential  to  the  independence  and  sovereign  authority  of  the  United  States 
within  the  sphere  of  their  delegated  powers.  But  when  not  used  as  such  instru- 
mentalities the  legislative  power  of  the  State  will  be  as  full  and  complete  as  over 
any  other  places  within  her  limits.  Fort  Leavenworth  R.  R.  Co.  v.  Lowe,  114  U.  S., 
525,  539.  Where  the  absolute  title  to  property  remains  in  the  United  States,  no 
matter  for  what  purpose  it  is  acquired  or  held,  it  is  not  subject  to  State  or  municipal 
taxation.  Am.  and  Engl.  Ency.  of  Law,  vol.  25,  p.  110,  and  cases  cited. 

The  purchase  of  lands  in  a  State  by  the  General  Government,  with  legislative  con- 
sent, does  not,  ipso  facto,  confer  upon'the  General  Government  exclusive  jurisdiction, 
unless  the  purchase  is  for  a  fort  or  for  some  other  purpose  distinctly  named  in  Article 
I,  section  8,  of  the  Constitution  ;  and  in  order  that  exclusive  jurisdiction  may  be  acquired 
over  land  taken  for  any  other  purpose  the  act  providing  therefor  and  calling  for  the 
consent  must  unequivocally  declare  that  exclusive  jurisdiction  is  intended  and  neces- 
sary, or  such  necessity  must  be  manifest  from  the  purpose  of  the  act.  Accordingly, 
held,  that  the  acts  of  Congress  establishing  the  National  Home  for  Disabled  Volunteer 
Soldiers  and  creating  a  corporation  authorized  to  take  and  hold  lands  for  the  purpose 
of  such  homes,  containing  no  declaration  of  the  necessity  of  exclusive  jurisdiction  in 
the  General  Government  over  such  lands,  do  not  vest  such  exclusive  jurisdiction  in 
the  United  States,  upon  the  consent  of  the  State  being  given  to  the  acquisition  of  such 
lands.  In  re  Kelly,  71  Fed.  Rep.,  545. 

A  cession  to  the  General  Government,  in  the  act  giving  the  consent  of  the  State 
to  the  purchase  of  such  land,  of  "  jurisdiction"  does  not  confer  exclusive  jurisdiction 
the  purpose  of  the  act  not  requiring  it,  but  such  jurisdiction  only,  concurrent  with 
that  of  the  State,  as  Congress  may  find  necessary  for  the  objects  of  the  cession.  Ibid. 

Upon  lands  so  ceded  for  the  purpose  of  a  home  for  disabled  volunteers  the  criminal 
laws  of  the  United  States,  which  apply  only  to  places  within  their  exclusive  juris- 
diction, are  not  operative.  Ibid. 

A  State  may  cede  to  the  United  States  exclusive  jurisdiction  over  a  tract  within  its 
limits  in  a  manner  not  provided  for  in  the  Constitution  of  the  United  States,  and 
may  prescribe  conditions  to  the  cession,  if  they  are  not  inconsistent  with  the  effective 
use  of  the  property  for  the  purpose  intended.  The  reservation  which  has  usually 
accompanied  the  consent  of  the  States,  that  civil  and  criminal  process  of  the  State 
courts  may  be  served  in  the  places  purchased,  is  not  considered  as  interfering  in  any 
respect  with  the  supremacy  of  the  United  States  over  them,  but  is  admitted  to  prevent 
them  from  becoming  an  asylum  for  fugitives  from  justice.  Fort  Leavenworth  R.  R. 
Co.  v.  Lowe,  114  U.  S.,  525,  533.  Such  reservations  provide  only  that  civil  and  criminal 
process  issued  under  the  authority  of  the  State,  which  must,  of  course,  be  for  acts  done 
and  cognizable  by  the  State,  may  be  executed  within  the  ceded  lands,  notwithstanding 
the  cession.  Not  a  word  is  said  from  which  we  can  infer  that  it  was  intended  that 
the  State  should  have  a  right  to  punish  for  acts  done  within  the  ceded  lands.  Ibid., 
534;  United  States  v.  Cornell,  2  Mason,  60;  Commonwealth  v.  Clary,  8  Mass.,  72; 
Mitchell  v.  Tibbetts,  17  Pick.,  298;  People  v.  Godfrey,  17  Johns  (N.  Y.),  225. 

Residents  within  such  ceded  districts  have  none  of  the  duties  and  obligations  and 

22924—08  -  39 


610  MILITARY    LAWS    OF    THE    UNITED    STATES. 

gress,  become  the  Seat  of  the  Government  of  the  United 
States,  and  to  exercise  like  Authority  over  -all  places  pur- 
chased by  the  Consent  of  the  Legislature  of  the  State  in 
which  the  Same  shall  be,  for  the  Erection  of  Forts,  Maga- 
zines, Arsenals,  dock- Yards,  and  other  needful  Buildings. 
Article  I,  section  8,  Constitution  of  the  United  States. 


none  of  the  rights  and  privileges  of  citizens  of  the  States  within  which  such  lands  are 
situated.  They  are  not  subject  to  taxation;  they  can  not  exercise  the  right  of  suffrage. 
VI  Opin.  Att.  Gen.,  577;  X  ibid.,  35;  Sinks  v.  Reese,  19  Ohio,  306.  They  arc  not 
entitled  to  the  benefit  of  the  public  schools.  1  Met.  (Mass. ),  580. 

An  act  of  the  legislature  of  a  State  ceding  to  the  United  States  the  jurisdiction  of 
the  State  over  a  tract  of  land  used  as  a  military  reservation  upon  condition  that  such 
jurisdiction  shall  continue  only  so  long  as  the  United  States  shall  own  and  occupy 
such  reservation;  that  the  State  shall  have  the  right  within  the  reservation  to  serve 
civil  process  and  to  execute  criminal  process  against  persons  charged  with  crime 
committed  within  the  State,  and  that  roads  may  be  opened  and  kept  in  repair  within 
such  reservation,  cedes  to  the  United  States  the  entire  political  jurisdiction  of  the 
State  over  the  place  in  question,  including  judicial  and  legislative  jurisdiction,  except 
as  to  service  of  process  and  opening  roads,  and  the  same  can  not  be  affected  or  further 
limited  without  the  consent  of  the  United  States  by  a  subsequent  act  of  the  State 
legislature  attempting  to  impose  additional  restrictions  on  the  jurisdiction  ceded.  In 
re  Ladd,  74  Fed.  pep.,  31. 

After  such  cession  a  justice  of  the  peace  acting  under  authority  of  the  State  has 
no  jurisdiction  over  the  ceded  territory  in  matters  ot  alleged  criminal  violation  of  the 
laws  of  the  State  committed  on  such  territory.  Ibid. 

It  is  a  general  rule  of  public  law,  recognized  and  acted  upon  by  the  United  States, 
that  whenever  political  jurisdiction  and  legislative  power  over  any  territory  are 
transferred  from  one  nation  or  sovereign  to  another  the  municipal  laws  of  the  coun- 
try— that  is,  laws  which  are  intended  for  the  protection  of  private  rights — continue 
in  force  until  abrogated  or  changed  by  the  new  government  or  sovereign.  By  the 
cession  public  property  passes  from  one  government  to  the  other,  but  private  prop- 
erty remains  as  before,  and  with  it  those  municipal  laws  which  are  designed  to  secure 
its  peaceful  use  and  enjoyment.  As  a  matter  of  course,  all  laws,  ordinances,  and 
regulations  in  conflict  with  the  political  character,  institutions,  and  constitution  of 
the  new  government  are  at  once  displaced.  *  * .  *  But  with  respect  to  other  laws 
affecting  the  possession,  use,  and  transfer  of  property,  and  designed  to  secure  good 
order  and  peace  in  the  community  and  promote  its  health  and  prosperity,  which  are 
of  a  strictly  municipal  character,  the  rule  is  general  that  a  change  of  government  leaves 
them  in  force  until  by  direct  action  of  the  new  government  they  are  altered  or 
repealed.  Chicago  and  Pacific  R.  R.  v.  McGlinn,  114  U.  S.,  542,  547;  American  Insur- 
ance Co.  v.  Cantor,  1  Pet.,  542;  Halleck  Int.  Law,  ch.  34,  sec.  14. 

While  after  such  cession  the  municipal  laws  of  the  State  governing  property  and 
property  rights  continue  in  force  in  the  ceded  territory,  except  so  far  as  in  conflict 
with  the  laws  and  regulations  of  the  United  States  applying  thereto,  the  criminal 
laws  of  the  State  cease  to  be  of  force  within  the  ceded  territory,  and  laws  regulating 
the  sale  of  intoxicating  liquors,  requiring  a  license  therefor,  and  punishing  unlicensed 
sales  cease  to  be  operative,  both  as  in  conflict  with  the  regulations  of  the  United 
States  governing  military  reservations  and  as  penal  in  character.  In  re  Ladd,  74 
Fed.  Rep.,  31. 

Such  cessions  are  ' '  necessarily  temporary,  to  be  exercised  only  so  long  as  the  places 
continue  to  be  used  for  the  public  purposes  for  which  the  property  was  acquired,  or 
reserved  from  sale."  When  they  cease  to  be  so  used,  the  jurisdiction  reverts  to  the 
State.  Fort  Leavenworth  R.  R.  Co.  v.  Lowe,  114  U.  S.,  525,  542. 

A  lease  by  the  United  States  to  a  city  for  market  purposes  of  vacant  land  which 
was  a  part  of  land  ceded  by  the  State  to  the  United  States  for  the  purposes  of  a  navy- 
yard  and  naval  hospital,  with  a  provision  that  the  United  States  may  retain  such 
use  and  jurisdiction  no  longer  than  the  premises  are  used  for  such  purposes,  operates, 
at  least  while  the  lease  is  in  force,  to  suspend  the  exclusive  authority  and  jurisdiction 
of  the  United  States  over  the  leased  land,  and  thereby  makes  it  subject  to  the  juris- 
diction of  State  courts  in  an  action  for  ouster  therefrom.  Palmer  v.  Barrett,  162 
U.  S.,  399.  The  character  and  purposes  of  the  occupation  of  a  reservation  having 
been  officially  and  legally  established  by  that  branch  of  the  Government  which  has 
control  over  such  matters,  it  is  not  open  to  the  courts,  on  a  question  of  jurisdiction, 


MILITARY    LAWS    OF    THE    UNITED    STATES.  611 

JURISDICTION    OVER   OFFENSES   COMMITTED   ON   RESERVATIONS. 

1601.  When  any  ofl'ense  is  committed  in  any  place,  juris- 
diction  over  which  has  been  retained  by  the  United  States 
or  ceded  to  it  by  a  State,  or  which  has  been  purchased  with 


to  inquire  what  may  be  the  actual  uses  to  which  any  portion  of  the  reserve  is  tem- 
porarily put.  Benson  r.  U.  S.,  146  U.  S.,  331. 

Over  lands  reserved  for  military  or  other  governmental  purposes  in  the  Territories 
the  jurisdiction  of  the  United  States  is  necessarily  paramount.  Wh^n  a  Territory 
is  admitted  as  a  State  it  is  within  the  power  of  Congress  to  stipulate  for  the  power 
of  exclusive  jurisdiction  over  such  reservations,  or  to  except  them  from  the  jurisdic- 
tion of  the  State.  Failing  to  do  this,  however,  the  State  can  exercise  such  authority 
and  jurisdiction  over  them  as  over  similar  property  held  by  private  individuals;  and 
the  United  States  can  acquire  exclusive  jurisdiction  only  when  the  same  has  been 
formally  ceded  by  the  legislature  of  the  State  in  which  the  lands  are  situated.  Fort 
Leaven  worth  R.  R.  Co.  r.  Lowe,  114  U.  S.,  525.  Lands  acquired  by  the  United  States 
for  public  uses,  by  purchase  with  the  consent  of  the  States,  or  by  an  exercise  of  the 
right  of  eminent  domain,  are  not  public  lands,  that  term  applying  only  to  "such 
lands  as  are  subject  to  sale  or  other  disposition  under  general  laws.  '  '  Newhall  v.  San- 
ger,  92  U.  S.,  761. 

When  an  act  admitting  a  State  into  the  Union,  or  organizing  a  Territorial  govern- 
ment, provides  that  the  lands  in  possession  of  an  Indian  tribe  shall  not  be  a  part  of 
such  State  or  Territory,  the  new  government  has  no  jurisdiction  over  them.  Lang- 
ford  r.  Monteith,  102  U.  S.,  145.  For  an  example  of  such  a  reservation  on  the  part 
of  Congress  in  the  admission  of  a  State  into  the  Union,  see  the  act  of  July  10,  1890 
(26  Stat.  L.,  222),  admitting  the  State  of  Wyoming. 

SUPERVISION   OF   RESERVATIONS. 

Department  commanders  will  supervise  all  military  reservations  within  the  limits 
of  their  commands,  and  if  necessary  will  use  force  to  remove  trespassers.  No  license 
or  permission  to  any  civilian  to  use  or  occupy  any  part  of  a  reservation  will  be  given, 
except  by  the  Secretary  of  War,  unless  he  be  in  the  employ  of  the  Government,  or 
in  the  family  or  service  of  persons  there  employed,  (a)  Par.  228,  A.  R.,  1901. 

The  general  principle  of  the  authority  to  remove  trespassers,  their  structures,  and 
property  from  the  land  of  the  United  States  embraced  in  a  military  reservation,  held 
specially  applicable  where  the  intrusion  was  for  an  injurious  purpose,  as  where  the 
object  was  to  lay  a  sewer  intended  to  discharge  into  a  main  sewer  constructed  by  the 
United  States  upon  and  for  the  use  of  its  own  premises.  In  this  instance,  as  the 
trespass  was  committed  by  the  authorities  of  a  municipality,  advised  that  reasonable 
notice  be  given  them  to  remove  their  property  before  resorting  to  military  force  for 
the  purpose,  and  meantime  that  precautions  be  taken  to  prevent  a  connection  between 
the  proposed  sewer  and  the  sewers  under  the  control  of  the  United  States.  Dig. 
Opin.  J.  A.  G.,  par.  1717. 

Intruding  settlers  on  the  public  lands  may  be  removed  by  military  force  under  the 
act  of  March  3,  1807  (2  Stat.  L.,  445).  The  United  States  have,  also,  all  the  common 
law  and  chancery  remedies  of  individuals,  under  similar  circumstances,  for  protection 
and  redress.  I  Opin.  Att,  Gen.,  471.  The  President  may  employ  such  military  force 
as  he  may  judge  necessary  and  proper  to  remove  persons  who  may  intrude  upon  any 
lands  ceded  to  the  United  States  by  any  treaty  made  with  a  foreign  nation,  or  by  a 
cession  from  any  individual  State,  and  may  adopt  that  method  with  respect  to  the 
lands  ceded  to  the  United  States  by  the  Creek  treaty  of  March  4,  1832.  II  ibid.,  575; 
I  !  1  ibid.,  255;  VII  ibid.,  534. 

Squatters  and  other  trespassers  and  intruders  may  and  should  be  expelled,  by 
military  force  if  necessary,  from  a  military  reservation.  (6)  But  such  persons,  when 
they  have  been  suffered  to  own  and  occupy  buildings  on  a  reservation,  should  be 
allowed  reasonable  time  to  remove  them.  If  not  removed  after  due  notice,  the  same 
should  be  removed  by  the  military.  Material  abandoned  on  a  reservation  by  a  tres- 
passer, on  vacating,  may  lawfully  be  utilized  by  the  commander  for  completing  roads, 
walks,  etc.  Squatters  on  United  States  reservations  may  be  forced  therefrom  by 
criminal  proceedings  had  under  section  5388,  Revised  Statutes,  or  ejected  by  civil 
action,  (a)  Dig.  Opin.  J.  A.  G.,  par.  1713. 

Where  squatters  have  mac\e  any  considerable  improvements  upon  a  reservation, 

<i  As  to  the  authority  to  remove  trespassers  from  military  reservations,  see  III  Opin.  Att.  Gen.,  268; 
XlX  ibid.,  106,  476;  G.  O.  74,  Hdqrs.  of  Army,  1869.  That  this  authority  is  not  deemed  to  be  affected 
by  the  provision  of  section  15  of  the  act  of  June  18,  1878,  see  chapter  entitled  EMPLOYMENT  OF  MIL- 
ITARY FORCE.  See,  also,  Dig.  J.  A.  G.,  par.  487;  ibid.  165,  par.  9. 

&See,G.  O.  62  of  1869. 


612  MILITARY    LAWS    OF    THE    UNITED    STATES. 

the  consent  of  a  State  for  the  erection  of  a  fort,  magazine, 
arsenal,  dockyard,  or  other  needful  building  or  structure, 
the  punishment  for  which  offense  is  not  provided  for  by 
any  law  of  the  United  States,  the  person  committing  such 
offense  shall,  upon  conviction  in  a  circuit  or  district  court 
of  the  United  States  for  the  district  in  which  the  offense 

and  their  value  has  been  duly  estimated — as  by  a  board  constituted  by  the  depart- 
ment commander  and  presenting  in  its  report  all  the  evidence  on  the  subject — an 
award  by  the  Secretary  of  War,  acquiesced  in  by  the  claimant,  may  be  sued  upon  in 
the  Court  of  Claims,  which  (in  the  absence  of  evidence  of  fraud  or  mistake)  will 
accept  such  award  as  conclusive,  (a)  Ibid.,  par.  1714. 

The  cutting  of  timber  on  a  military  reservation  is  an  offense  against  the  United 
States  made  punishable  by  section  5388,  Revised  Statutes,  as  amended  by  the  acts  of 
June  4,  1888,  and  of  March  3,  1875,  chapter  151.  So,  grass  cut  on  a  reservation  and 
removed  as  hay  would  be  personal  property  of  which  the  asportation  would  be  lar- 
ceny under  the  act  of  March  3,  1875,  chapter  144.  And  persons  coming  upon  a  mili- 
tary reservation  for  the  purpose  of  cutting  wood  or  grass,  or  to  plo'w  up  the  soil,  or 
commit  other  trespass,  may  be  removed  as  intruders,  and  the  post  commander  should 
not  hesitate  to  resort  to  military  force  if  necessary  for  the  purpose.  And  he  may  of 
course  prevent  such  trespassers  from  carrying  off  with  them  any  property  of  the 
United  States.  Ibid.,  par.  1715. 

In  the  absence  or  any  statute  directly  or  by  necessary  implication  extending  the 
powers  of  the  local  government  of  the  District  of  Columbia  over  the  military  reser- 
vation and  post  at  the  Arsenal  in  Washington,  I  eld  (May,  1879)  that  the  health 
officer  appointed  by  the  Commissioners  (constituting  such  government)  would  not 
be  empowered  of  his  own  authority,  and  without  the  consent  of  the  military  com- 
mander, to  enter  upon  such  reservation  and  remove  or  abate  a  nuisance  deemed  by 
him  to  exist  thereon.  The  effect  of  the  legislation  in  regard  to  the  government  of 
the  District  is  to  except  therefrom  the  public  buildings  and  grounds  of  the  United 
States,  which  are  left  to  the  charge  of  certain  specified  officials.  Even  farther  re- 
moved from  such  government  is  the  reservation  at  the  Arsenal,  the  same  being  a 
military  post  commanded  by  the  President  through  a  military  subordinate,  and 
governed  by  military  orders  and  regulations.  Ibid.,  par.  1705. 

Held,  that  an  act  of  Congress  granting  a  railroad  company  a  right  of  way  through 
"the  public  lands"  of  the  United  States  did  not  authorize  it  to  enter  and  construct 
a  track  upon  the  soil  of  a  military  reservation,  the  same  being  no  part  of  "the  pub- 
lic lands,"  (a)  and  that  such  entry  was  therefore  a  trespass.  Ibid.,  par.  1700,  but 
see  par.  1619,  post. 

The  right  of  way  through  several  military  reservations  has  been  granted  to  various 
railroads,  or  other  corporate  bodies,  by  express  legislation  in  each  case. 

TAXATION    ON    KESERVATIONS. 

The  authorities  of  a  State  or  Territory  (or,  of  course,  of  a  county,  town,  etc.)  are 
not  empowered  to  tax  an  officer  or  soldier  of  the  Army  on  account  of  his  pay,  or  for 
any  personal  property  in  his  possession  properly  required  for  the  due  exercise  of  his 
office  or  performance  of  his  military  duties.  Officers  and  soldiers  of  the  Army  are 
instrumentalities  provided  by  law  to  enable  or  assist  the  President  to  exercise  his 
constitutional  function  of  Commander  in  Chief  and  Executive  of  the  nation.  The 
pay  and  emoluments  furnished  them  by  Congress  are  means  to  make  their  services 
possible  and  effective,  and  their  right  to  receive  and  enjoy  the  same  can  not  be  in  any 
degree  impaired  or  infringed  upon  by  the  authorities  of  a  distinct  and  inferior  sov- 
ereignty. And  the  same  principle  of  exemption  properly  applies  to  their  arms, 
equipments,  horses,  and  other  personal  property  required  to  be  possessed  and 
employed  bv  them  in  the  military  service,  (b)  Dig.  Opin.  J.  A.  G.,  par.  2425. 

The  principle  exempting  from  taxation  the  office  or  salary  of  an  officer  of  the 
United  States  applies  to  officers  on  the  retired  list  equally  as  to  those  on  the  active 


a  Maddux  v.  U.  S.,  20  Ct.  Cls.,  198,  199. 

6  In  the  leading  case  applicable  to  this  subject — Dobbins  v.  Commissioners  of  Erie  County,  16  Peters, 
435 — the  Supreme  Court  of  the  United  States,  in  declaring  to  be  unconstitutional  a  State  statute,  so 


MILITARY    LAWS    OF    THE    UNITED    STATES.  618 

was  committed,  be  liable  to  and  receive  the  same  punish- 
ment as  the  laws  of  the  State  in  which  such  place  is  situ- 
ated now  provide  for  the  like  offense  when  committed 
within  the  jurisdiction  of  such  State,  and  the  said  courts 
are  hereby  vested  with  jurisdiction  for  such  purpose;  and 
no  subsequent  repeal  of  any  such  State  law  shall  affect  any 
such  prosecution.1  Act  of  July  7,  1898  (30  Stat.  L.,  717}. 


list  of  the  Army.  Retired  officers,  being  a  part  of  the  Army,  are  a  part  of  the 
machinery  of  the  Government,  though  a  part  not  often  called  into  active  operation. 
But  though  a  retired  officer  can  not  legally  be  taxed  by  State  or  municipal  authorities 
on  account  of  his  Army  pay  as  property  or  income,  he  is  subject  to  be  taxed  for 
other  property  owned  and  'held  at  his  place  of  residence,  like  any  other  citizen. 
Ibid.,  par.  2426. 

An  officer  or  soldier  of  the  Army,  though  not  taxable  officially,  may  be  and  often 
is  taxable  personally.  He  is  not  taxable  by  a  State  for  his  pay,  or  for  the  arms, 
instruments,  uniform  clothing,  or  other  property  pertaining  to  his  military  office  or 
capacity,  but  as  to  household  furniture  and  other  personal  property,  not  military,  he 
is  (except  where  stationed  at  a  place  under  the  exclusive  jurisdiction  of  the  United 
States)  equally  subject  with  other  residents  or  inhabitants  to  taxation  under  the 
local  law.  (a)  Ibid.,  par.  2428. 

1  This  statute  replaces  section  5391  of  the  Revised  Statutes,  which  provided  that 
any  offense  committed  in  any  place  ceded  to  and  under  the  jurisdiction  of  the  United 
States  shall,  where  not  specially  made  punishable  by  any  law  of  the  United  States, 
be  visited  with  the  same  punishment  as  is  provided  for  such  offense  by  the  laws  "now 
in  force"  of  the  State  within  which  such  place  is  situated.  This  provision,  originally 
enacted  March  3,  1825,  was  substantially  reenacted  April  5,  1866.  In  1832  it  was 
ruled  by  the  Supreme  Court  (6)  that  the  provision  of  1825  was  "  limited  to  the  laws  of 
the  several  States  in  force  at  the  time  of  its  enactment."  And  in  recent  cases,  arising 
in  Montana  (c)  and  Colorado  (d)  it  has  been  held  that  the  provision  in  sec.  5391  did  not 
apply  to  the  offense  because  these  States,  with  their  laws,  did  not  come  into  existence 
till  subsequently  to  the  date  of  the  enactment  of  1866.  Thus  the  section  was  oper- 
ative neither  as  to  offenses  committed  in  States  which  entered  the  Union  since  1866 
nor  as  to  those  committed  in  States  where,  at  the  date  of  the  commission,  there 
existed  no  criminal  statute  providing  for  the  punishment  of  the  particular  offense. 
' '  For  the  reasons  above  set  forth  a  remedy  was  applied  by  the  enactment  of  the  act 
of  July  7,  1898." 

far  as  it  authorized  the  taxing  of  the  office  of  a  captain  in  the  U.  S.  revenue  service,  held  as  follows: 
"  The  compensation  of  an  officer  of  the  United  States  is  fixed  by  a  law  made  by  Congress.  It  is  in  its 
exclusive  discretion  to  declare  what  shall  be  given.  It  exercises  the  discretion  and  tixes  the  amount, 
and  confers  upon  the  officer  the  right  to  receive  it  when  it  has  been  earned.  Any  law  of  a  State 
imposing  a  tax  upon  the  office,  diminishing  the  recompense,  is  in  conflict  with  the  law  of  the  United 
States  which  secures  the  allowance  to  the  officer."  Further:  "Taxation  by  a  State  can  not  act  upon 
the  instruments,  emoluments,  and  persons  which  the  United  States  may  use  and  employ  as  neces- 
sary and  proper  means  to  execute  their  sovereign  powers.  *  *  *  The  State  governments  can 
not  lay  a  tax  upon  the  constitutional  means  employed  by  the  Government  of  the  Union  to  exe- 
cute its  constitutional  powers."  In  a  later  case— Society  for  Savings  v.  Coite,  6  Wallace,  605— the 
same  court  declares:  "All  subjects  over  which  the  sovereign  power  of  a  State  extends  are,  as  a  gen- 
eral rule,  proper  subjects  of  taxation,  but  the  power  of  a  State  to  tax  does  not  extend  to  those 
means  which  are  employed  by  Congress  to  carry  into  execution  the  powers  conferred  in  the  Fed- 
eral Constitution.  Unquestionably  the  taxing  power  of  the  States  is  very  comprehensive  and  per- 
vading, but  it  is  not  without  limits.  State  tax  laws  can  not  restrain  the  action  of  the  National  Gov- 
ernment, nor  can  they  abridge  the  operation  of  any  law  which  Congress  may  constitutionally  pass." 
This  general  doctrine  is  applied  by  Attorney-GenerarBlack,  IX  Opins,  477,  as  follows:  "The  authori- 
ties of  a  State  can  not  impose  a  tax  upon  the  salary  of  a  Federal  officer,  orupon  the  compensation  paid 
by  the  United  States  to  any  person  engaged  in  their  service."  And  as  illustrating  the  principle 
involved,  fee  also  McCulloch  v.  Maryland,  4  Wheaton,  316;  Weston  v.  Charlestown,  2  Peters,  449;  Sea- 
right  v.  Stokes,  3  Howard,  151 ;  Bank  of  Commerce  v.  New  York,  2  Black,  620;  Provident  Inst.  v.  Mass., 
6  Wallace,  611 ;  The  Banks r.  The  Mayor,  7  id.,  16:  Bank  v.  Supervisors,  id.,  26;  Railroad  Co.  v.  Peniston, 
18  id.,  5;  Carrol  ?'.  Perry,  4  McLean,  25:  Stetson  r.  Bangor,  56  Maine,  274;  Opinion  of  Justices,  63  N. 
Hamp.,  634;  United  States  r.  Weise,  5  Pa.  L.  .T.  R.,  61;  West.  Un.  Tel.  Co.  v.  Richmond,  26  Grat,,  1; 
State  v.  Garton,  32  Ind..  1:  VII  Opins.  At.  Gen..  578;  XIV  Id.,  199.  In  the  late  case  of  Railroad  Company 
v.  Peniston,  18  Wallace,  30,  it  is  specified  by  Strong,  J.,  that  "  the  States  may  not  levy  taxes  the  direct 
effect  of  which  shall  be  to  hinder  the  exercise  of  any  powers  which  belong  to  the  National  Govern 
ment." 

a  Finley  v.  Philadelphia,  32  Penn    381. 

6U.  S.  v.  Paul,  6  Peters  141. 

cU.  S:  v.  Burnaby,  51  Fed.  Rep.,  20. 

dU.  S.  v.  Curran,  cited  in  Exec.  Doc.  No.  14.,  H.  R..  53d  Cong.,  1st  session. 


614  MILITARY    LAWS    OF    THE    UNITED    STATER. 


PROTECTION    OF    RESERVATIONS. 

Par.  Par. 

1602.  Cutting  or  injuring  timber.  1609.  Employment  of  force. 

1603.  Breaking  fences,  driving  cattle,  etc.      1610,1611.  Institution  of  suits,  restriction. 

1604.  Seizures  of  timber.  1612.  Setting  fires. 

1605.  Unlawful  inclosures.  1613.  The  same;    failure  to   extinguish 

1606.  Complaints.  fires. 

1607.  Settlements  not  obstructed.  1614.  The  same;  disposition  of  fines. . 

1608.  Penal  clause. 

iuSngintrees  on      1602.  If  any  person  or    persons  shall  knowingly  and 

Served* or  ^i  unlawfully   cut,    or  shall   knowingly   aid,    assist,   or   be 

chased  for  public  employed  in  unlawfully  cutting,  or  shall  wantonly  destroy 

i8Mpar483i 18?5>  v>  or  inJure?  or  procure  to  be  wantonly  destroyed  or  injured, 

any  timber  tree  or  any  shade  or  ornamental  tree,  or  smy 

other  kind  of  tree,  standing,  growing,  or  being  upon  an}7 

lands  of  the  United  States,  which,  in  pursuance  of  law, 

have  been  reserved,  or  which  have  been  purchased  by  the 

United  States  for  any  public  use,  every  such  person  or 

persons  so   offending,  on  conviction  thereof  before  any 

circuit  or  district  court  of  the  United  States,  shall,  for 

Punishment,    every  such  offense,  p&y  a  fine  not  exceeding  five  hundred 

dollars,    or  shall   be   imprisoned   not  exceeding    twelve 

months.     Act  of  March  3,  1875  (18  Stat.  Z.,  481). 

etrcea?nncVo?fng     ^  any  Person  or  persons  shall  knowingly  and  unlaw- 

se?veSd°f  or' Spur- ^u^y  break  or  destroy  any  fence,  wall,  hedge,  or  gate 

chased  for  public  mciosjng  anv  jan(js  of  the  United  States,  which  have,  in 

pursuance  of  any  law,  been  reserved  or  purchased  by  the 
United  States  for  any  public  use,  every  such  person  so 
offending,  on  conviction,  shall,  for  every  such  offense, 
PaJ  a  tine   not   exceeding   two   hundred  dollars,    or  be 
imprisoned  not  exceeding  six  months.1     Sec.  2,  ibid. 
e?c?andgdfrfvcinsg      1603.  If  any  person  or  persons  shall  knowingly  and  un- 
fandsofuVs^lawfu^  break,  open,  or  destroy  any  gate,  fence,  hedge, 
served  for  public  or  wa]1  inciosjng  any  iands  of  the  United  States,  reserved 

or  purchased  as  aforesaid,  and  shall  drive  any  cattle, 
horses,  or  hogs  upon  the  lands  aforesaid  for  the  purpose 
of  destroying  the  grass  or  trees  on  the  said  grounds,  or 
where  they  may  destroy  the  said  grass  or  trees,  or  if  any 
tie  ^"to  enter sucn  Person  or  persons  shall  knowingly  permit  his  or  their 

through  in cio-cattle.  horses,  or  hogs  to  enter  through  any  of  said  inclo- 
sures   ofsuch  '  &  e  •/ 

lands.  sures  upon  the  lands  of  the  United  States  aforesaid,  where 

the  said  cattle,  horses,  or  hogs  may  or  can  destroy  the 
grass  or  trees  or  other  property  of  the  United  States  on 

1  For  sections  of  this  statute  conferring  powers  on  the  Secretary  of  the  Interior,  see 
23  Stat.  L.,  p.  103. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  615 

the  said  land,  every  such  person  or  persons  so  offending, 
on  conviction,  shall  pay  a  fine  not  exceeding  five  hundred  Punishment, 
dollars,  or  be  imprisoned  not  exceeding  twelve  months: 
Provided,  That  nothing  in  this  act  shall  be  construed  to 
apply  to  unsurveyed  public  lands  and  to  public  lands  sub- 
ject to  preemption  and  homestead  laws,  or  to  public 
lands  subject  to  an  act  to  promote  the  development  of  the 
mining  resources  of  the  United  States,  approved  May 
tenth,  eighteen  hundred  and  seventy-two.1  Sec.  3,  ibid. 

1604.  If  any  timber  cut  on   the  public  lands  shall  be  besrei^u[e0°nf  e^ 
exported  from  the  Territories  of  the  United  States  it  shall  PU^C  J»«^ )V 
be  liable  to  seizure  by  United  States  authority  wherever 20'  P-  46- 
found.     Act  of  April  30,  1878  (20  Stat,  L.,  46). 

Every  person  who  unlawfully  cuts,  or  aids  or  is  employed  fo?2mberdepre- 
in   unlawfully  cutting,  or  wantonly  destroys  or  procures datlons- 
to  be  wantonly  destroyed,  any  timber  standing  upon  the 
land  of  the  United  States  which,  in  pursuance  of  law,  may 
be  reserved  or  purchased  for  military  or  other  purposes, 
or  upon  any  Indian  reservation,  or  lands  belonging  to  or  indfan^iandl  to 
occupied  b}T  any  tribe  of  Indians  under  authority  of  the    Sec-5388»B-s- 
United  States,  shall  pay  a  fine  of  not  more  than  five  hun- 
dred  dollars   or   be    imprisoned   not   more   than   twelve 
months,  or  both,  in  the  discretion  of  the  court.2     Act  of 
June  4,  1888  (25  Stat.  L.,  166}. 

1605.  All  inclosures  of  any  public  lands  in  any  State  or 
Territory  of  the  United  States,  heretofore  or  to  be  here- 

after  made,  erected,  or  constructed  by  any  person,  party,  23Fpb32i! 1885>  v' 
association,  or  corporation,  to  any  of  which  land  included 
within  the  inclosure  the  person,  party,  association,  or  cor- 
poration making  or  controlling  the  inclosure  had  no  claim 

1  The  Government  of  the  United  States  has,  with  respect  to  its  own  lands  within 
the  limits  of  a  State,  the  rights  of  an  ordinary  proprietor  to  maintain  its  possession, 
and  to  prosecute  trespassers;  and  may  legislate  for  their  protection,  though  such  leg- 
islation may  involve  the  exercise  of  police  power;  and  may  complain  of,  and  take 
steps  to  prevent,  acts  of  individuals  in  fencing  in  its  lands,  even  though  done  for  the 
purpose  of  irrigation  and  pasturing.     Camfield  v.  U.  S.,  167  U.  S.,  518. 

2  Section  5388  of  the  Revised  Statutes,  as  amended  by  the  act  of  June  4, 1888,  which 
forbids  the  cutting  or  wanton  destruction  of  timber  upon  military  or  Indian  reserva- 
tions, does  not  apply  to  one  who  removes  and  uses  for  building  purposes  timber  which 
has  been  cut  on  an  Indian  reservation  by  another  person  without  his  aid  and  encour- 
agement,    U.  S.  v.  Konkapot,  43  Fed.  Rep.,  64.     Persons  cutting  trees  growing  on 
the  lands  of  the  United  States,  without  permiscaon,  are  mere  trespassers,  performing 
an  illegal  act,  and  acquire  no  right,  title,  or  interest  in  the  wood  by  reason  of  the 
severance.     No.  Pac.  R,  R.  Co.  v.  Lewis,  162  U.  S.,  366;  Schulenberg  v.  Harriman, 
21  Wall.,  44. 

The  Land  Department  has  authority  to  make  seizures,  through  its  officers  or  agents, 
of  timber  unlawfully  cut  on  the  public  lands.  Timber  so  unlawfully  cut,  which  has 
been  seized  by  duly  authorized  agents  of  the  Land  Department,  and  is  in  their  cus- 
tody, may  be  disposed  of  by  that  Department,  and  whether  this  be  done  by  private 
sale,  with  or  without  previous  advertisement,  is  a  matter  entirely  discretionary  there- 
with. XVIII  Opin.  Att.  Gen.,  434;  Cotton  v.  U.  S.,  11  How.,  229;  U.  S.  v.  Cook, 
19  Wall.,  594;  Wells  v.  Nickles,  104  U.  S.,  447. 


616  MILITARY    LAWS    OF    THE    UNITED    STATES. 

or  color  of  title  made  or  acquired  in  good  faith,  or  an  as- 
serted right  thereto  by  or  under  claim,  made  in  good  faith 
with  a  view  to  entry  thereof  at  the  proper  land  office  under 
the  general  laws  of  the  United  States  at  the  time  any  such 
inclosure  was  or  shall  be  made,  are  hereby  declared  to  bo 
oMnSosure'for6 unlawful,  and  the  maintenance,  erection,  construction,  or 
bidden.  control  of  any  such  inclosure  is  hereby  forbidden  and  pro- 

ri^htsewithouf  hibited;  and  the  assertion  of  a  right  to  the  exclusive  use 
title  prohibited.  an(j  occupancy  of  any  part  of  the  public  lands  of  the  United 
States  in  any  State  or  any  of  the  Territories  of  the  United 
States,  without  claim,  color  of  title,  or  asserted  right  as 
above  specified  as  to  inclosure,  is  likewise  declared  unlaw- 
ful and  hereby  prohibited.  Aet  of  February  25,  1885 
(23  Stat.  Z.,  381). 

diS?lcetd  aufr-     1606'  That  Jt  sha11  be  the  dutJ  of  the  district  attorney  of 
pfa3ints0madCe0Totne  United  States  for  the  proper  district,  on  affidavit  filed 
suits.1111*6  civil  with  him  by  any  citizen  of  the  United  States  that  section 
sec.  2,  ibid.      one  of  ^his  act  is  being  violated,  showing  a  description  of 
the  land  inclosed  with  reasonable  certainty,  not  necessarily 
by  metes  and  bounds  nor  by  governmental  subdivisions  of 
surveyed  lands,  but  only  so  that  the  inclosure  may  be 
identified,  and  the  persons  guilty  of  the  violation  as  nearly 
as  may  be,  and  by  description,  if  the  name  can  not  on 
reasonable  inquiry  be  ascertained,  to  institute  a  civil  suit 
in  the  proper  United  States  district  or  circuit  court,  or  Ter- 
ritorial district  court,  in  the  name  of  the  United  States, 
and  against  the  parties  named  or  described  who  shall  be  in 
charge  of  or  controlling  the  inclosure  complained  of  as 
defendants;  and  jurisdiction  is  also  hereby  conferred  on 
any  United  States  district  or  circuit  court  or  Territorial 
^Jurisdiction  of  district  court  having  jurisdiction  over  the  locality  where 
the  land  inclosed,  or  any  part  thereof,  shall  be  situated,  to 
hear  and  determine  proceedings  in  equity,  by  writ  of  in- 
junction, to  restrain  violations  of  the  provisions  of  this  act; 
and  it  shall  be  sufficient  to  give  the  court  jurisdiction  if 
service  of  original  process  be  had  in  any  civil  proceeding 
on  any  agent  or  employee  having  charge  or  control  of  the 
inclosure;  and  any  suit  brought  under  the  provisions  of 
have°h  <r?ced^kis  secti°n  shall  have  precedence  for  hearing  and  trial 
ence.  over  other  cases  on  the  civil  docket  of  the  court,  and  shall 

be  tried  and  determined  at  the  earliest  practicable  day. 
In  any  case  if  the  inclosure  shall  be  found  to  be  unlawful, 
the  court  shall  make  the  proper  order,  judgment,  or  decree 
mSentemaryi'udg  ^or  ^e  destruction  of  the  inclosure,  in  a  summary  way, 
unless  the  inclosure  shall  be  removed  by  the  defendant 
within  five  da}^s  after  the  order  of  the  court.  Sec.  2,  ibid. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  til  7 


1607.  That  no  person,  by  force,  threats,  intimidation,  -or 

by  any  fencing  or  inclosing,  or  any  other  unlawful  means,  fannddsTot  Ptobbe 

shall  prevent  or  obstruct,  or  shall  combine  and  confederate  obstructed. 

with  others  to  prevent  or  obstruct,  any  person  from  peace- 

ably entering  upon  or  establishing  a  settlement  or  residence 

on  any  tract  of  public  land  subject  to  settlement  or  entry 

under  the  public  land  laws  of  the  United  States,  or  shall 

prevent  or  obstruct  free  passage  or  transit  over  or  through 

the  public  lands:  Provided,  This  section  shall  not  be  held    Pro™°' 

to  affect  the  right  or  title  of  persons  who  have  gone  upon, 

improved,  or  occupied  said  lands  under  the  land  laws  of  the 

United  States,  claiming  title  thereto,  in  good  faith.     Sec. 

3,  ibid. 

1608.  That  any  person  violating  any  of  the  provisions 
hereof,  whether  as  owner,  part  owner,  agent,  or  who  shall 
aid,  abet,  counsel,  advise,  or  assist  in  any  violation  hereof, 
shall  be  deemed  guilty  of  a  misdemeanor,  and  fined  in  ament- 
sum  not  exceeding  one  thousand  dollars  and  be  imprisoned 
not  exceeding  one  year  for  each  offense.     Sec.  h  ibid. 

1609.  That  the  President  is  hereby  authorized  to  take  thSde?o  tike 
such  measures  as  shall  be  necessary  to  remove  and  destroy  S?ef  toryremove 
any  unlawful  inclosure  of  any  of  said  lands,  and  to  employ  SXjJ15.f111  in~ 
civil  or  military  force  as  may  be  necessary  for  that  purpose. 

Se-c.  5,  ibid. 

1610.  Where  the  alleged  unlawful  inclosure  includes  ^fS^^t 
less  than  one  hundred  and  sixty  acres  of  land,  no  suittlon- 

shall  be  brought  under  the  provisions  of  this  act  without 
authority  of  the  Secretary  of  the  Interior.     Sec.  6,  ibid. 

1611.  Nothing  herein  shall  affect  any  pending  suits  to    Same- 
work  their  discontinuance,  but  as  to  them  hereafter  they 
shall  be  prosecuted  and  determined  under  the  provisions 

of  this  act.  1     Sec.  7,  ibid. 

1612.  Any  person  who  shall  willfully  or  maliciously  setet^etting  fires» 
on  fire,  or  cause  to  be  set  on  fire,  any  timber,  underbrush,  31May165^  1900>  v' 
or  grass  upon  the  public  domain,  or  shall  carelessly  or 
negligently  leave  or  suffer  fire  to  burn  unattended  near 

any  timber  or  other  inflammable  material,  shall  be  deemed 

1  Where  persons  build  a  fence,  partly  on  their  own  land  and  partly  on  lands  belong- 
ing to  the  Government,  whether  the  act  be  technically  a  purpresture  or  simply  a 
public  nuisance,  an  action  may  be  maintained  in  equity  to  compel,  by  mandatory 
injunction,  the  removal  of  the  fence  from  the  Government  land.  U.  S.  v.  Brighton 
Ranch  Co.,  26  Fed.  Rep.,  218.  The  United  States  have  a  right  to  an  injunction  in  a 
court  of  equity  to  prevent  the  inclosing  of  public  lands,  and,  as  long  as  the  legal  title 
remains  in  the  Government,  in  cases  where  the  land  has  been  entered,  it  can  protect 
those  lands  in  the  same  manner,  except  where  the  party  who  has  entered  the  land 
has  given  express  license  to  build  a  fence  on  it.  25  ibid.,  465. 

The  act  of  June  3,  1878  (20  Stat.  L.,  89),  authorized  the  sale  of  certain  timber  in 
the  States  of  California,  Oregon,  Nevada,  and  Washington,  and  imposed  a  penalty 
for  the  unlawful  cutting  of  timber  in  those  States. 


618 


MILITARY    LAWS    OF    THE    UNITED    STATES. 


Failure  to  ex 
tinguish  fires. 
Sec.  2,  ibid. 


Disposition 
fines. 
Sec.  3,  ibid. 


guilty  of  a  misdemeanor,  and,  upon  conviction  thereof  in 
any  district  court  of  the  United  States  having  jurisdiction 
of  the  same,  shall  be  fined  in  a  sum  not  more  than  five 
thousand  dollars  or  be  imprisoned  for  a  term  of  not  more 
than  two  years,  or  both.  Act  of  May  5,  1900  (31  Stat.  L., 
169). 

1613.  Any  person  who  shall  build  a  fire  in  or  near  any 
forest,  timber,  or  other  inflammable  material  upon  the 
public  domain  shall,  before  leaving  said  fire,  totally  extin- 
guish the  same.  An}7  person  failing  to  do  so  shall  be 
deemed  guilty  of  a  misdemeanor,  and,  upon  conviction 
thereof  in  any  district  court  of  the  United  States  having 
jurisdiction  of  the  same,  shall  be  fined  in  a  sum  not  more 
than  five  thousand  dollars,  or  be  imprisoned  for  a  term  of 
not  more  than  two  years,  or  both.  Sec.  #,  ibid. 
01  1614.  In  all  cases  arising  under  this  act  the  fines  col- 
lected shall  be  paid  into  the  public-school  fund  of  the 
county  in  which  the  lands  where  the  offense  was  com- 
mitted are  situate.1  Sec.  3.  ibid. 


DISPOSITION    OF   LANDS. 


Par. 

1615.  Congress  to  regulate. 

1616.  Sale  of  abandoned  military  reser- 
-  vations. 

1617.  The  same,  preference  to  homestead 

settlers. 


Par. 


1618.  Grants  to  municipal  corporations. 

1619.  Rights  of  way  on  the  public  lands. 

1620.  The  same,  on  military  reservations. 


P<FsTierin°fcon-      1615<  The  Congress  shall  have  power  to  dispose  of,  and 

SoenSSArtCivssec  make  all  needful  rules  and  regulations  respecting,  the  terri- 

3,  par.  2.  tory  or  other  property  belonging  to  the  United  States.2 

Constitution  of  the  United  States,  Art.  IV,  sec.  3,  par.  2. 

1This  enactment  replaces  the  act  of  February  24,  1897  (29  Stat.  L.,  594),  in  pari 
mater ia.  See  also  the  title  Forest  Reservations  in  the  chapter,  post,  entitled  NATIONAL 
PARKS. 

2  The  scope  of  this  provision  is  most  comprehensive,  the  authority  conferred  thereby 
upon  the  legislative  branch  of  the  Government  being  held  to  extend  from  the  forma- 
tion of  a  territorial  government  to  the  matter  of  the  sale  of  a  small  amount  of  person- 
alty. That  neither  land  nor  any  interest  in  land  of  the  United  States  can  be  sold 
or  otherwise  disposed  of  by  the  head  of  an  Executive  Department  or  other  executive 
official  or  by  a  military  officer,  without  the  authority  of  Congress,  is  settled  law.  (a) 
Dig.  Opin.  J.  A.  G.,  par.  2087. 

The  Constitution  vests  in  Congress  the  exclusive  power  to  dispose  of  the  property 
of  the  United  States,  real  or  personal.  The  Secretary  of  War,  in  the  absence  of 
authority  from  Congress,  can  not  alienate  land  of  the  United  States.  Ibid. ,  pars.  2087- 
2089. 

There  is  no  way  for  titles  to  land  to  be  divested  out  of  the  United  States  except  in 
strict  pursuance  of  some  law  of  the  United  States;  and,  as  no  statute  of  limitations 
runs  against  the  United  States,  occupancy  and  possession  alone,  even  for  a  great  length 

a  This  fundamental  rule  of  our  public  law  is  expressed  by  Attorney-General  Hoar  (XIII  Opins.,  46) 
as  follows:  "  I  am  clearly  of  opinion  that  the  Secretary  of  War  can  not  convey  to  any  person  any 
interest  in  land  belonging  to  the  United  States,  except  in  pursuance  of  an  act  of  Congress  expressly  or 
impliedly  authorizing  him  to  do  so."  And  see  United  States  v.  Nichols,  1  Paine,  646  (cited post) ;  Sea- 
bury  v.  Field,  Me  \llister,  1;  United  States  r.  Hare,  4  Sawyer,  653,  669. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  619 

1616.  That  whenever,  in  the  opinion  of  the  President  of 
the  United  States,  the  lands,  or  any  portion  of  them,  in- 
eluded  within  the  limits  of  any  military  reservation  here- 
tofore  or  hereafter  declared,  have  become  or  shall  become 
useless  for  military  purposes,  he  shall  cause  the  same,  or  so 
much  thereof  as  he  may  designate,  to  be  placed  under  the 
control  of  the  Secretary  of  the  Interior  for  disposition  as 


of  time,  can  not  ripen  into  title  as  against  the  United  States.  Drew  v.  Valentine,  18 
Fed.  Rep.,  212;  Villey  v.  Jarbeau,  35  Louisiana  Ann.,  542. 

In  the  absence  of  such  authority,  the  lands  of  the  United  States,  whether  held  by 
original  proprietorship,  or  acquired  by  purchase  or  gift,  or  by  conquest,  can  not,  even 
for  a  purely  benevolent  or  religious  purpose,  be  given  away  any  more  than  they  can 
be  transferred  for  a  valuable  consideration.  Nor,  without  such  authority,  can  they 
be  conveyed  temporarily  by  lease,  whether  for  a  short  or  long  period,  (a)  Dig.  Opin. 
J.  A.  G.,  par.  2087.  But  for  authority  to  lease  lands  not  needed  for  the  use  of  the 
War  Department,  see  the  act  of  July  28,  1892  (27  Stat,  L.,  321),  par.  1620,  post. 

Nor,  without  authority  from  Congress,  can  an  Executive  Department  or  officer  convey 
away  any  usufructuary  interest  in  land  of  the  United  States.  Thus  it  has  been  repeat- 
edly held  by  the  Judge-  Advocate-General  that  the  Secretary  of  War,  or  a  military 
commander,  was  not  empowered,  of  his  own  authority,  to  grant  a  right  of  way  over  a 
military  reservation  to  a  railroad  company  or  other  corporation,  and  in  numerous 
statutory  enactments  such  a  right  has  been  expressly  given  by  Congress  as  the  only 
authority  competent  for  the  purpose.  Ibid.,  par.  2088. 

So  held  that  the  Secretary  of  War  would  not  be  authorized  to  transfer  a  lot  belong- 
ing to  the  United  States  in  Washington  to  the  Commissioners  of  the  District  of  Colum- 
bia for  the  erection  of  a  hospital.  So  held  that  neither  the  Secretary  of  War  nor  a 
department  commander  could  grant  to  an  individual  or  individuals  the  exclusive 
right  to  use  for  an  indefinite  period  certain  water  power  belonging  to  the  United 
States,  nor  the  exclusive  right  to  mine  the  soil  of  a  military  reservation  for  a  certain 
term  of  years,  nor  a  similar  right  to  make  and  maintain  for  an  indefinite  period 
ditches  through  a  portion  of  such  a  reservation  for  the  purpose  of  irrigating  the  lands 
of  private  parties,  nor  the  right  annually  to  enter  upon  and  occupy  a  military  reser- 
vation and  cut  and  possess  the  hay  crop  growing  thereon,  (6)  nor  the  right  perma- 
nently or  indefinitely  to  occupy  and  use  a  portion  of  a  reservation  for  a  burying 
ground.  Ibid.,  par.  2088. 

Disposition  of  buildings,  etc.  —  The  provision  of  the  Constitution  in  regard  to  the  dis- 
position of  public  property  applies  to  personalty  equally  as  to  realty.  Thus  no  Execu- 
tive Department  or  officer'  can  be  empowered,  except  by  the  authority  of  Congress,  to 
dispose  of  personal  property  of  the  United  States,  (c)  So  held  that,  in  the  absence  of 
such  authority,  a  military  commander  could  not  legally  dispose  of  temporary  build- 
ings —  not  "fixtures"  —  erected  upon  a  military  reservation.  So  held  that  the  Secre- 
tary of  War  would  not  be  authorized,  in  the  absence  of  enabling  legislation,  to  sell  or 
negotiate  the  bonds  or  promissory  notes  made  to  the  United  States  by  certain  rail- 
road companies,  in  consideration  of  rolling  stock,  etc.,  sold  and  transferred  to  the 
same.  And  similarly  held  as  to  the  authority  of  the  Secretary  to  dispose  of  articles  of 


aSee  Friedman  v.  Goodwin,  1  McAllister,  148,  where  a  lease  made  by  the  post  commander  at  San 
Francisco,  of  a  part  of  a  "government  reserve,"  though  approved  by  the  military  governor  of  the 
then  Territory,  and  also  by  the  Secretary  9f  the  Interior,  was  held  void  because  not  authorized  by 
Congress.  The  court  declares  the  "utter  impotency  of  any  attempt  by  an  officer  of  the  Government 
to  alien  any  land,  the  property  of  the  United  States,  without  the  authority  of  an  act  of  Congress;" 
adding  that '"the  President,  with  the  heads  of  the  Departments  combined,"  could  not  effect  such  an 
object.  AndseelVOpins.  At.  Gen.,  480;  9  id.,  476;  13  id. ,46;  United  States  v.  Hare,  4  Sawyer,  670-671.  In 
the  last  case  the  court  say:  "The  Secretary  of  the  Treasury  can  not  execute  or  approve  of  a  lease  of 
any  property  belonging  to  the  United  States  without  special  authority  of  law." 

b  A  fortiori  in  regard  to  growing  timber.    See  Spencer  v.  United  States,  10  Ct.  Cls.,  255. 

cThe  leading  case  on  this  point  is  United  States  v.  Nichols,  1  Paine,  U.  S.  Circ.  Ct.  R.,  646,  in  which 
it  was  held  that  a  sale  or  loan,  by  the  commandant  of  an  arsenal,  of  a  quantity  of  lead  belonging  to 
the  United  States,  was  illegal  and  invalid.  The  court  say:  "The  Constitution  declares  that  'Con- 
gress shall  have  power  to  dispose  of  and  make  all  needful  rules  and  regulations  respecting  the  terri- 
tory or  other  property  belonging  to  the  United  States.'  No  public  property  can  therefore  be  disposed 
of  without  the  authority  of  law,  either  by  an  express  act  of  Congress  for  that  purpose,  or  by  giving 
the  authority  to  some  Department  or  subordinate  agent.  No  law  has  been  shown  authorizing  the 
sale  of  this  lead ;  nor  is  any  such  authority  to  be  inferred  from  the  general  power  vested  in  any  of  the 
Departments  of  the  Government.  The  power,  if  lodged  anywhere,  would  seem  most  appropriately  to 
belong  to  the  War  Department.  But  there  is  no  such  express  or  implied  power  in  that  Department 
to  sell  the  public  property  put  under  its  management."  And  see  the  same  principle  recognized  in  an 
opinion 'of  the  Attorney-General,  in  XVI  Opins.,  477,  in  which  it  is  held  that  the  Secretary  of  War 
was  not  empowered  to  sell  arms  to  a  State  in  the  absence  of  authority  from  Congress. 


620  MILITARY    LAWS    OF    THE    UNITED    STATES. 

hereinafter  provided,  and  shall  cause  to  be  filed  with  the 
Secretary  of  the  Interior  a  notice  thereof.1  Act  of  July  •>. 
1884(83  Stat.  Z.,  103). 

ho^steldceset°      1617>  That  the  provisions  of  the  act  approved  August 
tleFeb  15  1895  v  twenty-third,  eighteen  hundred  and  ninety-four, 
28,  p.  664.  are  hereby  extended  to  all  abandoned  military  reservations 

which  were  placed  under  the  control  of  the  Secretary  of  the 
Interior  under  any  law  in  force  prior  to  the  act  of  July 
fifth,  eighteen  hundred  and  eighty-four.  That  the  prefer- 
ence right  of  entry  given  to  actual  settlers  by  the  terms  of 
the  act  to  which  this  is  an  amendment  shall,  so  far  as  the 
lands  to  which  the  provisions  of  said  act  are  extended,  take 
effect  and  continue  for  six  months  from  the  date  of  this 
amendatory  act.  Act  of  February  15, 1895  (28  Stat.  L. ,  664. ) 

inferior  value,  not  impliedly  authorized  to  be  sold  by  section  1316,  Revised  Statutes. 
And  held  that  the  fact  that  certain  valuable  public  property  was  perishable  and  liable 
to  waste  was  not  legally  sufficient  to  justify  the  sale  in  the  absence  of  statutory 
authority. (a)  Ibid.,  par.  2090. 

The  principle  that  buildings  erected  on  the  land  of  another  without  his  consent 
become  his  property  does  not  apply  to  buildings  erected  by  the  United  States  on  land 
occupied  jure  belli  by  the  Army  in  an  enemy's  country;  but  that,  on  subsequently 
surrendering  the  land  to  the  owner,  the  military  authorities  might  legally  remove 
and  retain  or  dispose  of  the  buildings.  Ibid.,  par.  2097. 

Temporary  buildings  only  erected  by  military  orders  on  land  of  the  United  States 
at  a  military  post,  to  serve  a  temporary  purpose,  are  in  general  personal  property  of 
the  United  States,  which  may  be  removed  by  the  direction  or  authority  of  the  Sec- 
retary of  War.  (6)  But  if  the  same  be  permanent  structures  and  real  estate,  the 
authority  of  Congress  is  necessary  to  their  removal.  Ibid.,  par.  2098. 

The  United  States  being  tenant  of  land  leased  for  military  purposes  at  Fort  Davis, 
Tex.,  erected  buildings  thereon  for  the  purposes  of  a  military  post.  In  view  of  the 
fact  that  the  relation  was  that  of  landlord  and  tenant,  that  the  buildings  were  erected 
for  a  purpose  analogous  to  that  of  trade,  and  for  a  public  use,  and  that  in  their  erec- 
tion there  could  certainly  have  been  no  intention  to  benefit  the  inheritance  or  add 
to  the  freehold — held  that  such  buildings  were  to  be  regarded  not  as  fixtures  but  as 
personal  property,  and  removable  by  the  tenant  at  any  time  before  the  expiration 
of  his-  lease.  Should  the  Government  sell  the  buildings  standing,  the  purchaser 
would  have  the  same  right  of  disposition  as  the  United  States  and  no  more.  He 
would  therefore  be  obliged  to  remove  them  before  the  termination  of  the  lease,  unless 
otherwise  permitted  by  the  owner  of  the  premises.  And  held  similarly  of  like  build- 
ings erected  at  Fort  Union,  N.  Mex.,  where  the  United  States  was  tenant  at  will, 
the  buildings  not  being  intended  as  improvements,  but  merely  for  the  use  of  the 
troops.  Ibid.,  par.  2099. 

Where  a  post  commander,  without  authority,  took  possession  of  land  of  the  United 
States  for  the  purpose  of  erecting  thereon  a  building  for  his  personal  use,  and  having 
erected  it  assumed  to  hold  and  dispose  of  it  as  his  own  property,  held  that  his  act 
was  unauthorized  and  illegal,  and  that  he  acquired  no  legal  estate  in  the  building. 
And  similarly  held  where,  without  authority,  he  permitted  an  enlisted  man  of  his 
command  to  use  land  of  the  United  States  for  the  erection  thereon  of  a  dwelling  and 
to  hold  and  dispose  of  such  dwelling  as  his  own  property.  Ibid.,  par.  2100. 

Wood  growing  on  a  military  reservation  is  the  property  of  the  United  States. 
So  held  that  a  contractor  who  cut  such  wood  to  fill  a  contract  made  by  him  with  the 
U n ited  States  to  furnish  wood  to  a  military  post  could  not  legally  be  allowed  to 
remove  or  dispose  of  the  same  as  his  own  property,  and  advised  that  he  be  paid 
merely  for  the  cutting.  Ibid.,  par.  2101. 

1  See  note  to  section  1615,  p.  618. 


a  Held  that  the  "Cavalry  Tactics,"  a  work  prepared  under  the  orders  of  the  Secretary  of  War  by  a 
board  of  officers,  was  the  property  of  the  United  States,  and  therefore  could  not,  without  the  authority 
of  Congress,  be  disposed  of  to  a  bookseller  with  a  view  to  its  publication  and  sale  by  him  on  his 
private  account.  Ibid. 

b  But  such  buildings  can  not  be  solfl  without  the  authority  of  Congress.     Lear  r.  U.  S.,  50  Fed.,  65. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  621 

1618.  The  president  is  hereby  authorized  by  proclama- 
tion to  withhold  from  sale  and  grant  for  public  use  to  the 
municipal  corporation  in  which  the  same  is  situated  all  or 
any  portion  of  any  abandoned  military  reservation  not 
exceeding  twenty  acres  in  one  place.     Act  of  March  3, 
1893  (27  Stat.  L.  593}. 

1619.  The   right  of  way  for  the  construction  of  high- 

ways  over  public  lands,  is  hereby  granted.1  8'sec.42477,5K.s. 

1620.  The  Secretary  of  War  shall  have  authority,  in  his  w!f  migrant 
discretion,  to  permit  the  extension  of  State,  county,  and  ^ges;1  Erection 
Territorial  roads  across  military  reservations;  to  permit  tension  ofroS" 
the  landing  of  ferries,  the  erection  of  bridges  thereon;  andetjuiy  5,  1884,  s. 
permit  cattle,  sheep  or  other  stock  animals  to  be  driven  6>  Yt  23'  p'  m 
across  such   reservation,   whenever  in  his  judgment  the 

same  can  be  done  without  injury  to  the  reservation  or  in- 
convenience to  the  military  forces  stationed  thereon.  Sec. 
6,  act  of  July  5,  1884  (23  Stat.  L.,  103}.  • 

LEASES  OF  PUBLIC  PROPERTY  NOT  REQUIRED  FOR  PUBLIC  USE. 


1620.  Authority  is  hereby  given  to  the  Secretary  of  War,  W 
when  in  his  discretion  it  will  be  for  the  public  good,  to 
lease,  for  a  period  not  exceeding  five  years  and  re  vocable  Us^ly281892v 
at  any  time,  such  property  of  the  United  States  under  his  27>  p-  32L 
control  as  may  not  for  the  time  be  required  for  public  use 
and  for  the  leasing  of  which  there  is  no  authority  under 
existing  law,  and  such  leases  shall  be  reported  annually 
to  Congress:  Provided*  That  nothing  in  this  act  contained    Mineral,    etc., 

lands  excepted. 

shall  be  held  to  apply  to  mineral  or  phosphate  lands.2     Act 
of  July  28,  189*2  (27  Stat.  Z.,  321}. 

1  For  other  statutes  authorizing  the  Secretary  of  the  Interior  to  grant  rights  of  way 
over  the  public  lands  of  the  United  States,  not  included  within  military,  Indian,  or 
other  reservations,  see  the  acts  of  March  3,  1875,  18  Stat.  L.,  482;  March  3,  1891,  26 
ibid.,  1101;  January  21,  1895,  28  ibid.,  635;  May  14,  1898,  29  ibid.,  120;   May  11, 
1898,  30  ibid.,  404,  and  February  15,  1901,  31  ibid.,  790.     This  last  enactment  confers 
authority  upon  the  Secretary  of   the  Interior  to  grant  rights  of   way  over  lands 
included  in  certain  national  parks  and  forest  reservations,  but  with  the  condition 
that  such  grants  shall  be  made  through  military  and  Indian  reservations  with  the 
approval  of  the  chief  officer  of  the  department  under  whom  the  supervision  of  the 
reservation  falls,  and  upon  a  finding  by  him  that  the  same  is  not  incompatible  with 
the  public  interest. 

2  A  license  is  an  authority,  revocable  at  pleasure,  to  do  a  particular  act  or  series  of 
acts  upon  the  land  of  another  without  possessing  an  estate  therein.     Morgan  v.  U.  S., 
14  Ct.  Cls.,319. 

The  Constitution  (Art.  IV,  sec.  3,  par.  2)  provides  that  "  The  Congress  shall  have 
power  to  dispose  of,  and  make  all  needful  rules  and  regulations  respecting,  the  ter- 
ritory or  other  property  belonging  to  the  United  States."  The  scope  of  this  provi- 
sion "is  most  comprehensive,  the  authority  conferred  thereby  upon  the  legislative 
branch  of  the  Government  being  held  to  extend  from  the  formation  of  a  Territorial 
government  to  the  matter  of  the  sale  of  a  small  amount  of  personalty.  That  neither 
land  nor  any  interest  in  land  of  the  United  States  can  be  sold  or  otherwise  disposed 


622  MILITARY    LAWS    OF    THE    UNITED    STATES. 


MILITARY   POSTS. 


Par. 

1621.  Permanent  barracks. 

1622.  Title  papers. 

1623.  Contracts  not  to  exceed  appropria- 

tions. 

1624.  Expenditures   for   repairs,    limita- 

tion. 

1625.  Barracks  for  seacoast  artillery,  re- 

striction. 


Par. 

1626.  Post  traders. 

1627.  Post  school*. 

1628.  The  same,  bakeries. 

1629.  Post  exchanges. 

1630.  Sales  of  liquor,  etc. 


barracks an * " t      1621.  Permanent  barracks  or  quarters  and  buildings  and 
Sec.ii36,K.s.  structures  of  a  permanent  nature  shall  not  be  constructed 
unless  detailed  estimates  shall  have  been  previously  sub- 
mitted to  Congress,  and  approved  by  a  special  appropria- 

of  by  the  head  of  an  Executive  Department  or  other  executive  official,  or  by  a  mili- 
tary officer,  without  the  authority  of  Congress  is  settled  law.  (a) 

In  the  absence  of  such  authority,  the  lands  of  the  United  States,  whether  held  by 
original  proprietorship  or  acquired  by  purchase  or  gift,  or  by  conquest,  can  not,  even 
for  a  purely  benevolent  or  religious  purpose,  be  given  away,  any  more  than  they  can 
be  transferred  for  a  valuable  consideration.  Nor  without  such  authority  can  they 
be  conveyed  temporarily  by  lease,  whether  for  a  short  or  long  term,  (b)  Dig.  Opin. 
J.  A.  G.,  par.  2087. 

Nor,  without  authority  from  Congress,  can  an  Executive  Department  or  officer  con- 
vey away  any  usufructuary  interest  in  land  of  the  United  States.  Thus  it  has  been 
repeatedly  held  by  the  Judge- Advocate-General  that  the  Secretary  of  War  (or  a  mili- 
tary commander)  was  not  empowered,  of  his  own  authority,  to  grant  a  right  of  way 
over  a  military  reservation  to  a  railroad  company  or  other  corporation,  and  in  numer- 
ous statutory  enactments  such  a  right  has  been  expressly  given  by  Congress  as  the 
only  authority  competent  for  the  purpose. 

And  such  rights  when  given  can  be  exercised  only  within  the  terms  of  the  grant. 
Thus,  where  by  an  act  of  Congress  there  was  granted  to  a  railroad  company  a  limited 
and  defined  right  of  way  across  a  military  reservation  (occupied  by  a  military  post) , 
held  that  the  company  was  authorized  simply  to  construct  a  track  or  roadway,  and 
was  not  empowered  to  put  up  depots,  stock  yards,  cattle  pens,  or  other  erections 
upon  the  land,  or  to  appropriate  land  otherwise  than  for  the  roadway,  (c) 

So  held  that  the  Secretary  of  War  could  not,  of  his  own  authority,  grant,  in  con- 
sideration of  the  payment  of  toll  to  the  United  States,  a  right  of  way  over  a  bridge 
belonging  to  the  United  States.  So  held  that  the  Secretary  could  not  legally  grant 
to  a  company  or  individul  the  right  to  erect  and  maintain  for  an  indefinite  period  a 
hotel  on  the  military  reservation  at  Sandy  Hook,  (d)  So  held  that  the  Secretary 
would  not  be  authorized  to  transfer  a  lot  belonging  to  the  United  States  at  Wash- 
ington to  the  Commissioners  of  the  District  of  Columbia  for  the  erection  of  a  hospital. 
So  held  that  neither  the  Secretary  of  War  nor  a  department  commander  could  grant 
to  an  individual  or  individuals  the  exclusive  right  to  use  for  an  indefinite  peviod  cer- 


aThis  fundamental  ruleof  our  public  law  is  expressed  by  Attorney-General  Hoar,  XIII  Opins.,  46,  as 
follows:  "I  am  clearly  of  opinion  that  the  Secretary  of  War  can  not  convey  to  any  person  any 
interest  in  land  belonging  to  the  United  States,  except  in  pursuance  of  an  act  of  Congress  expressly 
or  impliedly  authorizing  him  to  do  so."  And  see  United  States  v.  Nichols,  1  Paine,  646  (d  teapot); 
Seabury  v.  Field,  McAllister,  1;  United  States^.  Hare, 4  Sawyer,  653,669. 

bSee  Friedman  V.Goodwin,!  McAllister,  118,  where  a  lease  made  by  the  post  commander  at  San 
Francisco  of  a  part  of  a  "Government  reserve,"  though  approved  by  the  military  governor  of  the  then 
Territory,  and  also  by  the  Secretary  of  the  Interior,  was  held  void  because  not  authorized  by  Con- 
gress. The  court  declares  the  "utter  impotency  of  any  attempt  by  an  officer  of  the  Government  to 
alien  any  land,  the  property  of  the  United  States,  without  the  authority  of  an  act  of  Congress;"  add- 
ing that  "the  President  with  the  heads  of  the  Departments  combined"  could  not  effect  such  an 
object.  And  see  IV  Opins.Att.Gen.,480;  9  ibid. ,476;  13  ibid. ,46;  United  States  v.  Ha  re,  4. Sawyer,  670-671. 
In  the  last  case  the  court  sav:  "The  Secretary  of  the  Treasury  can  not  execute  or  approve  of  a  lease  of 
any  property  belonging  to  the  United  States  without  special  authority  of  law." 

cSee  this  opinion  affirmed  by  the  Attorney-General  in  XIV  Opins.,  135. 

dSee  confirmatory  opinion  of  the  Attorney-General  in  XVI  Opins.,  205.  In  this  case  there  was  tin- 
further  objection  that  the  State  of  New  Jersey,  in  ceding  to  the  United  States  jurisdiction  over  the 
premises,  by  deed  of  March  10,  1846.  had  expressly  declared  tiiat  the  grant  was  ••  for  military  pur- 
poses," adding  "and  the  said  United  States  shall  retain  such  jurisdiction  so  long  as  the  said  tract 
shall  be  applied  to  the  military  or  public  purposes  of  the  said  United  States,  and  no  longer." 


MILITARY    LAWS    OF    THE    UNITED    STATES.  628 

tion  for  the  same,  except  when  constructed  by  the  troops; 
and  no  such  structures,  the  cost  of  which  shall  exceed 
twenty  thousand  dollars,  shall  be  erected  unless  by  special 
authority  of  Congress. 

1622.  It  shall  be  the  duty  of  all  officers  of  the  United    J™\S|j|fg;s. 
States  having  any  of  the  title  papers  (property  purchased, 

tain  water  power  belonging  to  the  United  States,  nor  the  exclusive  right  to  mine  the 
soil  of  a  military  reservation  for  a  certain  term  of  years,  nor  a  similar  right  to  make 
and  maintain  for  an  indefinite  period  ditches  through  a  portion  of  such  a  reservation 
for  the  purpose  of  irrigating  the  lands  of  private  parties,  nor  the  right  annually  to 
enter  upon  and  occupy  a  military  reservation  and  cut  and  possess  the  hay  crop  grow- 
ing thereon,  (a)  nor  the  right  permanently  or  indefinitely  to  occupy  and  use  a  por- 
tion of  a  reservation  for  a  burying  ground.  Ibid.,  2088. 

Held,  however,  that  a  distinction  wras  to  be  observed  between  a  grant  of  a  usu- 
fructuary interest  in  land  and  a  revocable  license  not  involving  a  transfer  of  such 
an  interest.  (6)  Thus  held  that  the  Secretary  of  War  would  be  authorized  to  permit 
a  telegraph  company  to  erect  posts  upon  a  military  reservation  and  attach  to  the  same 
telegraph  wires,  subject  to  their  being  removed 'at  the  will  of  the  Government,  if 
found  to  interfere  with  the  purposes  for  which  the  reservation  was  established.  So 
held  that  a  municipal  corporation  might  legally  be  permitted  by  the  Secretary  of 
War  to  lay  water  pipes  in  the  soil  of  the  arsenal  grounds  at  Springfield,  Mass.,  the 
same  being  equally  for  the  benefit  of  the  military  authorities  and  the  citizens,  and 
subject  to  removal  at  the  will  of  the  Government.  And  held  that  a  post  trader  might 
legally  be  licensed  by  the  Secretary  of  War  to  erect  the  buildings  necessary  for  his 
business  upon  the  land  of  the  post  for  which  he  was  appointed,  (c)  But  held  that 
the  Secretary  of  War  was  not  empowered  to  accede  to  the  application  of  an  individual 
to  establish  a  ferry  across  a  river  within  the  limits  of  a  military  reservation,  where 
what  was  asked  was  not  a  mere  license  revocable  at  the  will  of  the  Secretary,  but  a 
permanent  franchise  and  grant  of  an  exclusive  usufructuary  interest  in  the  premises, 
including  even  the  right  to  charge  tolls  to  the  United  States.  And  similary  held  in 
a  case  of  an  application  to  be  permitted  to  erect  and  maintain  a  permanent  bridge 
across  a  river  forming  a  boundary  of  a  military  reservation,  one  end  of  which  was  to 
be  built  upon  the  soil  of  the  reservation,  the  application  contemplating  not  a  mere 
license  revocable  at  the  will  of  the  Government,  but  a  permanent  right  of  property 
in  the  bridge,  involving  an  easement  in  the  land.  Ibid.,  2089. 

The  act  of  July  28,  1882,  authorizes  the  Secretary  of  War,  in  his  discretion,  to 
' '  lease  for  a  period  not  exceeding  five  years,  and  revocable  at  any  time,  such  prop- 
erty of  the  United  States  under  his  control  as  may  not  for  the  time  be  required  for 
public  use,"  such  leases  to  be  " reported  annually  to  Congress;"  but  does  not  pre- 
scribe as  to  the  disposition  of  the  moneys  received  as  rents.  Sec.  3621,  Revised  Stat- 
utes, provides  for  the  disposition  of  public  moneys  coming  into  the  possession  of  any 
person,  and  par.  698,  Army  Regulations  of  1895,  directs  that  "the  face  of  the  certificate 
or  receipt"  shall  "show  to  what  appropriation"  the  funds  belong.  Advised  that  it 
would  be  sufficient  for  any  post  quartermaster  or  other  disbursing  officer  into  whose 
hands  such  rents  should  come  to  note  the  character  of  the  payment  upon  his  certifi- 
cate, leaving  it  to  the  War  Department  to  report  the  same  in  the  aggregate  to  Con- 
gress at  the  end  of  each  year.  Ibid.,  par.  2084. 

From  the  act  of  July  5, 1884  (23  Stat.  L.,  103),  it  may  be  regarded  as  certain  that  it 
was  the  view  of  Congress  that  an  explicit  authority  was  necessary  for  even  a  tran- 
sient occupation  of  a  military  reservation  for  other  than  its  special  purpose.  The  act 
of  July  28,  1892,  authorizing  the  Secretary  of  War  to  lease  such  property  of  the 
United  States  under  his  control  as  may  not  for  the  time  be  required  for  public  use, 
forbids  an  occupation  which  contemplates  permanency,  or  duration  longer  than  five 
years.  The  Secretary  of  War  has  no  power  to  accept  a  donation  of  property  for  the 
Governnient  for  use  in  perpetuity  by  Roman  Catholics.  A  revocable  license,  with- 
out limitation  as  to  time,  by  the 'Secretary  of  War  to  a  Roman  Catholic  archbishop, 
to  erect  and  maintain  a  chapel  on  the  military  reservation  at  West  Point,  transcends 
the  statute.  XXI  Opin.  Att,  Gen.,  537;  ibid.,  473;  ibid.,  47;  XIX  ibid.,  28. 

a  A  fortiori  in  regard  to  growing  timber.    See  Spencer  v.  United  States,  10  Ct.  Cls.,  255. 

oSee  this  distinction  recognized  in  opinions  of  the  Attorney-General  of  October  1  and  November  22, 
1878  (XVI  Opins.,  152,205),  in  the  former  of  which  it  was  held  that  the  Secretary  of  the  Navy  was  not 
empowered  to  authorize  the  city  of  Chelsea,  Mass.,  to  continue  one  of  its  main  sewers  through  the 
grounds  of  the  United  States  Naval  Hospital 

cSee  XIV  Opin.  Att.  Gen.,  125. 


624  MILITARY    LAWS    OF   THE    UNITED    STATES. 

or  about  to  be  purchased,  for  erection  of  public  buildings) 
in  their  possession,  to  furnish  them  forthwith  to  the 
Attorney-General.1  No  public  money  shall  be  expended 
until  the  written  opinion  of  the  Attorney-General  shall 
be  had.2 

1623.  No  contract  shall  be  entered  into  for  the  erection, 
y  25,  1868,  c.  repair,  or  furnishing  of  any  public  building,  or  for  any 

233,  s.       15,  p.  pubijc  improvement,  which  shall  bind  the  Government  to 
»ec.3733,R.s.  pay  ft   |arger   sum   of   money   than   the   amount   in   the 
Treasury  appropriated  for  the  specific  purpose.3 

1624.  That   hereafter   no   expenditures   exceeding   five 


23Jp1iii-  re?  '27'  hundred  dollars  shall  be  made  upon  any  building  or  mili- 

1893,  v.  27,  p.  484.  tary   post,*    or   grounds    about    the    same,    without    the 

approval  of  the  Secretary  of  War  for  the  same,  upon  de- 

tailed estimates  by  the  Quartermaster's  Department;  and 

1  The  act  of  February  27,  1877  (19  Stat.  L.,  242),  contains  a  requirement  "that  it 
shall  be  the  duty  of  all  officers  of  the  United  States  having  any  of  the  title  papers  (of 
property  purchased,  or  about  to  be  purchased,  for  the  erection  of  public  buildings) 
in  their  possession,  to  furnish  them,  forthwith,  to  the  Attorney-General.     No  public 
money  shall  be  expended  until  the  written  opinion  of  the  Attorney-General  shall 
be  had." 

All  papers  relating  to  the  Washington  Aqueduct  and  public  buildings  and  grounds 
in  the  District  of  Columbia  will  be  filed  in  the  office  of  the  Chief  of  Engineers.  All 
other  deeds  and  papers  pertaining  to  the  title  or  sale  of,  and  any  lease,  grant,  license, 
or  easement  of,  upon,  or  over  any  military  reservation  or  other  lands  under  the 
jurisdiction  of  the  War  Department,  will  be  filed  in  the  office  of  the  Judge-Advocate- 
General.  When  any  such  papers  come  into  the  possession  of  any  bureau  they  shall 
within  five  days  thereafter  be  transferred  to  the  office  of  the  Judge-  Advocate-General. 
Par.  786,  A.  R.,  1901. 

2  See  paragraph  334,  ante. 

3The  custody  of  a  public  building,  in  the  absence  of  a  statute,  an  appropriation,  a 
regulation,  or  the  order  of  the  head  of  an  Executive  Department,  is  vested  in  the 
officer  having  it  in  his  official  possession.  Gray  v.  U.  S.,  23  Ct.  Cls.,  323. 

4  A  military  station  is  merely  synonymous  with  the  term  "military  post,"  and 
means  a  place  where  troops  are  assembled;  where  military  stores,  animate  and  inan- 
imate, are  kept  and  distributed;  where  military  duty  is  performed  or  military  pro- 
tection afforded;  where  something,  in  short,  more  or  less  closely  connected  with 
arms  or  war  is  kept  or  is  to  be  done.  Phistererv.  U.  S.,  12  Ct.  Cls.,  98,  107. 

POSTS. 

Permanent  military  posts  are  established  under  the  direction  of  the  Secretary  of 
War,  by  whom  their  names  will  be  designated.  Par.  216,  A.  R.,  1901. 

Permanent  posts  will  be  styled  "forts,"  and  points  occupied  temporarily  by  troops, 
"camps."  Par.  217,  ibid. 

The  commander  of  a  post  is  responsible  for  its  safety  and  defense,  and  for  the  dis- 
cipline, drill,  and  tactical  instruction  of  his  command,  to  which  ends  all  other  gar- 
rison duties  will  be  made-  subservient.  He  will  be  responsible  for  the  preservation 
and  proper  application  of  public  property,  for  the  strict  enforcement  of  laws  and 
regulations,  and  for  the  proper  condition  of  quarters  and  defenses.  He  wfll  make  an 
inspection  of  his  command  on  the  last  day  of  every  month,  will  satisfy  himself  by 
frequent  personal  examination  that  the  disbursements  of  all  officers  in  charge  of 
funds  are  in  accordance  with  law  and  regulations  and  their  accounts  correctly  stated, 
and  will  make  such  reports  of  these  inspections  and  examinations  as  the  department 
commander  may  direct.  Par.  218,  ibid. 

The  staff  of  a  post  commander  will  consist  of  such  staff  officers  as  are  on  duty  at 
the  post  and  such  line  officers  as  may  be  required  for  staff  duties.  Their  official 
designations  will  be  as  follows:  Adjutant,  quartermaster,  commissary,  surgeon,  assist- 
ant surgeon,  engineer  officer,  ordnance  officer,  and  signal  officer.  Par.  221,  ibid. 


MILITAEY    LAWS    OF    THE    UNITED    STATES.  625 

the  erection,  construction,  and  repair  of  all  buildings  and 
other  public  structures  in  the  Quartermaster's  Department 
shall,  as  far  as  may  be  practicable,  be  made  by  contract, 
after  due  legal  advertisement.1  Act  of  February  27,  1893 
(27  Stat.  Z.,  484). 

1625.  For  the  erection  of   barracks  and   quarters  f  or  co^^£°t?lle°r* 
artillery  in  connection  with  the  project  adopted  for  sea-pojs^e  6  1900  y 
coast  defense,  there  shall  not  hereafter  be  expended  at31'?-624- 

any  one  post  more  than  one  thousand  two  hundred  dollars 
per  man  for  each  man  required  for  one  relief  to  man  the 
guns  at  the  post  up  to  eighty-three  men,  the  present  per- 
manent strength  of  a  battery,  enlisted  and  commissioned, 
and  for  each  man  required  beyond  this  number  six  hun- 
dred dollars  per  man,  from  any  appropriation  made  by 
Congress,  unless  special  authority  of  Congress  be  granted 
for  a  greater  expenditure.  Act  of  June  6,  1900  (31  Stat. 
L.,  624). 

POST   TRADERS. 

1626.  That  where  a  vacancy  now  exists  or  hereafter  tQVacancies  not 
occurs  in  the  position  of  post  trader  at  any  military  post  27Jan;J^  1893>  v- 
it  shall  not  be  filled,  and  the  authority  to  make  such  ap- 
pointment is  hereby  terminated:  Provided,  That  in  the 

event  of  the  death  of  a  post  trader  his  personal  represent- 
ative shall  be  allowed  by  the  Secretary  of  War  a  reason- 
able time  in  which  to  close  the  business.2  Act  of  January 
28,  1893(27  Stat.  L., 


1  For  other  restrictions  in  respect  to  the  construction  and  repair  of  quarters  at 
military  posts,  see  the  title  Barracks  and  Quarters  in  the  chapter  entitled  THE  QUAR- 
TERMASTER'S DEPARTMENT. 

Expenditures  of  labor,  money,  or  material  upon  posts  will  be  strictly  limited  to  the 
amounts  allowed  by  law  and  regulations.  Par.  222,  A.  R.,  1901. 

When  practicable,  temporary  buildings  for  the  use  of  the  Army  will  be  erected  by 
its  enlisted  force,  and  necessary  repairs  of  public  buildings  at  garrisoned  posts  not 
appropriated  for  or  specially  authorized  will  be  made  by  the  troops.  Par.  223,  ibid. 

In  case  of  emergency,  when  reference  to  higher  authority  is  impracticable,  depart- 
ment commanders  may  order  the  purchase  of  material  and  engagement  of  services 
necessary  for  the  preservation  of  public  buildings  or  property,  not  to  exceed  in 
amount  $500  for  any  post,  but  no  greater  sum  will  be  expended  without  the  sanction 
of  the  Secretary  of  War.  Par.  224,  ibid. 

When  a  military  post  located  upon  lands  belonging  to  the  United  States  is  aban- 
doned the  Secretary  of  War  has  no  power,  in  the  absence  of  authority  from  Congress, 
to  order  a  sale  of  the  building,  and  such  a  sale  is  void.  Lear  v.  U.  S.,  50  Fed.  Rep., 
65.  A  sale  by  a  military  officer  if  not  authorized  by  the  usages  of  war,  or  if  of 
property  not  under  a  valid  condemnation,  is  a  trespass  and  passes  no  title.  Bowlew 
v.  Lewis,  48  Mo.,  32. 

2  Section  1113  of  the  Revised  Statutes,  which  authorized  the  Secretary  of  War  to 
"  permit  one  or  more  trading  establishments  to  be  maintained  at  any  military  post 
on  the  frontier  not  in  the  vicinity  of  any  city  or  town,"  was  repealed  and  replaced  by 
section  3  of  the  act  of  July  24,  1876  (19  Stat.  L.,  100),  which  authorized  "one  trader 
at  each  military  post,  to  be  appointed  by  the  Secretary  of  War  upon  the  recommenda- 
tion of  the  council  of  administration."     These  statutes  have  been  replaced  and  ren- 
dered inoperative  by  the  act  of  January  28,  1893  (27  Stat.  L.,  426)  . 

22924—08  -  40 


626  MILITARY    LAWS    OF    THE    UNITED    STATE*. 


POST   SCHOOLS. 

Post  schools.        1627.  Schools  shall  be  established  at  all  posts,  garrisons, 

Sec.  27,  July  28,  ' 

1866,  v.  14,  p. 336.  and  permanent  camps  at  which  troops  are  stationed,  in 
'  which  the  enlisted  men  may  be  instructed  in  the  common 
English  branches  of  education,  and  especially  in  the  his- 
tory of  the  United  States;  and  the  Secretary  of  War  may 
detail  such  officers1  and  enlisted  men  as  may  be  necessary 
to  carry  out  this  provision.  It  shall  be  the  duty  of  the 
post  or  garrison  commander  to  set  apart  a  suitable  room 
or  building  for  school  and  religious  purposes. 

POST   BAKERIES. 

Post  bakeries,      1628.  That  f or  the  current  fiscal  year  and  thereafter  there 

schools,  kitch-  J    . 

ens, gardens,  etc.  mav  be  expended  from  the  appropriation  for  regular  sup- 

June  13, 1890,  v.         J  \ 

26,  p.  152.          plies  the  amounts  required  for  the  necessary  equipments 

of  the  bakehouse  to  carry  on  post  bakeries;  for  the  neces- 
sary furniture,  text-books,  paper,  and  equipments  of  the 
post  schools;  for  the  tableware  and  mess  furniture  for 
kitchens  and  mess  halls;  *  each  and  all  for  use  of 

the  enlisted  men  of  the  Army.2  Act  of  June  SO,  1890  (26 
Stat.  Z.,  152). 

POST   EXCHANGES. 

andstpostaglrs     16^9.  That  hereafter  no  money  appropriated  for  the  sup- 
dejuiy  16  1892  v  Por^  °^  the  Army  shall  be  expended  for  post  gardens  or 

27,  p.  178.  exchanges;  but  this  proviso  shall  not  be  construed  to  pro 

hibit  the  use,  by  post  exchanges,  of  public  buildings  or 
public  transportation  when,  in  the  opinion  of  the  Quarter- 
master-General, not  required  for  other  purposes.  Act  of 
July  16,  1892  (27  Stat.  Z.,  178). 

wine6  etc  bpro-     1630.  The  sale  of  or  dealing  in  beer,  wine,  or  any  intoxi- 
hiFebd2,  1901,  s  catmg  liquors  by  any  person  in  any  post  exchange  or  can- 
38,  v.  si,  P.  758.    teen  or  Army  transport  or  upon  any  premises  used  for 
military  purposes  by  the  United   States  is  hereby  pro- 
hibited.    The  Secretary  of  War  is  hereby  directed  to  carry 
the  provisions  of  this  section  into  full  force  and  effect.3 
Sec.  38,  act  of  February  2,  1901  (31  Stat.  Z.,  758). 

1  Fo-  statutory  duties  of  post  and  regimental  chaplains  in  respect  to  post  schools, 
see  the  chapter  entitled  POST  CHAPLAINS.  For  regulations  in  regard  to  post  schools, 
see  paragraphs  355-362,  Army  Regulations  of  1901.  For  provisions  of  statutes  respect- 
ing text-books,  supplies  of  paper,  etc.,  see  paragraph  1223,  post. 

?For  regulations  in  respect  to  the  management  and  administration  of  post  bakeries, 
see  paragraphs  335-340,  Army  Regulations  of  1901. 

3 This  section  replaces  the  requirements  of  the  act  of  June  13,  1890  (26  Stat.  L., 
154),  and  section  17  of  the  act  of  March  2,  1899  (30  ibid.,  937),  in  pari  materia.  For 
orders  carrying  this  provision  into  effect,  see  paragraph  365,  Army  Regulations  of 
1901. 


CHAJPTER  XXXIV. 


THE  PUBLIC  PROPERTY. 


Par. 


1631-1636.  Acquisition     and     accounta- 
bility. 
1637-1640.  Deficiency  in  and  damage  to 


property. 


Par. 


1641.  Disposition  of  condemned  prop- 
erty. 

1642-1649.  Offenses  against  public  prop- 
erty. 


ACQUISITION1  AND   ACCOUNTABILITY. 


Par 


1631.  Power  to  acquire  property  vested 

in  Congress. 

1632.  Accountability   of   company  com- 

mander. 

1633.  Property  returns. 


Par. 

1634.  Certificates. 

1635.  Methods  of    making  returns    not 

changed. 

1636.  Regulations  by  heads  of  Depart- 

ments. 


1631.  The  Congress  shall  have  power  to  dispose  of  andqu^ewe^°  da£ 
make  all  needful  rules  and  regulations  respecting  the  ter-  j^^  ?n°Pco£ 
ritory  or  other  property  belonging  to  the  United  States.  2grjrst-  IV  sec 
Constitution,  Art,  7F,  sec.  3.  ' 


constitution. 


*See  also  the  chapter  entitled  CONTRACTS  AND  PURCHASES. 

2  See  note  to  paragraph  1615,  ante. 

The  provision  of  the  Constitution  in  regard  to  the  disposition  of  public  property 
applies  to  personalty  equally  as  to  realty.  Thus  no  Executive  Department  or  officer 
can  be  empowered,  except  by  the  authority  of  Congress,  to  dispose  of  personal 
property  of  the  United  States.  (a)  So,  held  that,  in  the  absence  of  such  authority,  a 
military  commander  could  not  legally  dispose  of  temporary  buildings  —  not  "fix- 
tures"— erected  upon  a  military  reservation.  So,  held  that  "the  Secretary  of  War 
would  not  be  authorized,  in  the  absence  of  enabling  legislation,  to  sell  or  negotiate 
the  bonds  or  promissory  notes  made  to  the  United  States  by  certain  railroad  com- 
panies, in  consideration  of  rolling  stock,  etc.,  sold  and  transferred  to  the  same.  And 
similarly  held  as  to  the  authority  of  the  Secretary  to  dispose  of  articles  of  inferior 
value,  not  impliedly  authorized  to  be  sold  by  section  1316,  Revised  Statutes.  And 
held  that  the  fact  that  certain  valuable  public  property  was  perishable  and  liable  to 
waste  was  not  legally  sufficient  to  justify  the  sale  in  the  absence  of  statutory  author- 
ity. Held  that  the  Cavalry  Tactics,  a  work  prepared  under  the  orders  of  the  Secre- 
tary of  War  by  a  board  of  officers,  was  the  property  of  the  United  States,  and  there- 
fore could  not,  without  the  authority  of  Congress,  be  disposed  of  to  a  bookseller  with 

a  The  leading  case  on  this  point  is  United  States  v.  Nichols  (1  Paine,  U.  S.  Circ.  Ct.  R.,  646),  in  which 
it  was  held  that  a  sale  or  loan,  by  the  commandant  of  an  arsenal,  of  a  quantity  of  lead  belonging  to 
the  United  States  was  illegal  and  invalid.  The  court  say:  "The  Constitution  declares  that  '  Congress 
shall  have  power  to  dispose  of  and  make  all  needful  rules  and  regulations  respecting  the  terri- 
tory or  other  property  belonging  to  the  United  States.'  No  public  property  can  therefore  be  disposed 
of  without  the  authority  of  law,  either  by  an  express  act  of  Congress  for  that  purpose  or  by  giving 
the  authority  to  some  Department  or  subordinate  agent.  No  law  has  been  shown  authorizing  the 
sale  of  this  lead,  nor  is  any  such  authority  to  be  inferred  from  the  general  power  vested  in  any  of  the 
Departments  of  the  Government.  The  power,  if  lodged  anywhere,  would  seem  most  appropriately  to 
belong  to  the  War  Department;  but  there  is  no  such  express  or  implied  power  in  that  Department  to 
sell  the  public  property  put  under  its  management."  And  see  the  same  principle  recognized  in  an 
opinion  of  the  Attorney-General  (in  XVI  Opins.,  477),  in  Ayhich  it  is  held  that  the  Secretary  of  War 
was  not  empowered  to  sell  arms  to  a  State  in  the  absence  of  authority  from  Congress. 

627 


628  MILITARY    LAWS    OF    THE    UNITED    STATES. 

of  coSp£nybS     1632>  Every  officer  commanding  a  troop,  battery,  or  com- 

Sothnii?geertcforPany  ig  charged  with  the  arms,  accouterments,  ammuni- 
rt. 


10  Art.  war.  t\on^  clothing,  or  other  military  stores  belonging  to  his 
command,  and  is  accountable  to  his  colonel  in  case  of  their 
being  lost,  spoiled,  or  damaged  otherwise  than  by  unavoid- 
able accident,  or  on  actual  service.1  Tenth  Article  of  War. 

PKOPERTY   ACCOUNTABILITY. 
X 

turns°perty  re~      1633-  That  instead  of  forwarding  to  the  accounting  offi- 

ioCsTtoCbeefor!cers  °^  ^ne  Treasury  Department  returns  of  public  prop- 

urvrd  accouSSng  er^  intrusted  to  the  possession  of  officers  or  agents,  the 

°tiS9,  1894,  v.  Quartermabter'^enera^  the  Commissary-General  of  Sub- 

28,  p.  47.  sistence,  the  Surgeon-General,  the  Chief  of  Engineers,  the 

Chief  of  Ordnance,  the  Chief  Signal  Officer,  the  Paymaster- 

General  of  the  Navy,  the  Commissioner  of  Indian  Affairs, 

or  other  like  chief  officers  in  any  Department,  by,  through, 

or  under  whom  stores,  supplies,  and  other  public  property 

are  received  for  distribution,  or  whose  duty  it  is  to  receive 

or  examine  returns  of  such  property,  shall  certify  to  the 

proper  accounting  officer  of  the  Treasury  Department,  for 

debiting  on  the  proper  account,  any  charge  against  any 

officer  or  agent  intrusted  with  public  property,  arising  from 

any  loss,  accruing  by  his  fault,  to  the  Government  as  to 

the  property  so  intrusted  to  him.2     Sec.  1,  act  of  March 

29,  1894(28  Stat.  Z.,  47). 

a  view  to  its  publication  and  sale  by  him  on  his  private  account.     Dig.  Opin.  J.  A.G., 
par.  2090. 

Temporary  buildings  only  erected  by  military  orders  on  land  of  the  United  States 
at  a  military  post,  to  serve  a  temporary  purpose,  are  in  general  personal  property  of 
the  United  States  which  may  be  removed  by  the  direction  or  authority  of  the  Sec- 
retary of  War.  (a)  But  if  the  same  be  permanent  structures  and  real  estate,  the 
authority  of  Congress  is  necessary  to  their  removal.  Ibid.,  par.  2098. 

1  Under  existing  laws  and  regulations  there  is  no  system  of  fiscal  accountability 
to  regimental  commanders  for  property  belonging  to  the  United  States.     For  statu- 
tory provisions  respecting  such  accountability  see  the  title  Property  Accountability. 

2  The  effect  of  the  above  statute  was  to  divest  the  Auditor  of  the  jurisdiction  there- 
tofore possessed  by  him  over  the  property  accounts  and  transactions  of  officers  of 
the  Navy  (and  War)  Department,  and  to  relieve  him  of  all  responsibility  in  relation 
to  the  disposition  of  property  intrusted  to  said  officers,  except  in  cases  \\h'  re  the 
officer  "  whose  duty  it  is  to  receive  or  examine  returns  of  such  property  shall  certify 
to  the  proper  accounting  officer  of  the  Treasury  Department  (the  Auditor),  for  deb- 
iting on  the  proper  account  any  charge  against  any  officer  or  agent  intrusted  with 
public  property,  arising  from  any  loss,  accruing  by  his  fault,  to  the  Government  as 
to  the  property  so  intrusted  to  him." 

Under  this  act  the  duty  and  responsibility  of  determining  questions  relating  to  the 
correct  disposition  or  loss  of  property  in  the  Marine  Corps  have  been  transferred  to 
and  vested  in  the  proper  officer  of  the  Navy  Department,  and  it  seems  clear  that  the 
Auditor  will  have  no  authority  over  or  in  relation  to  the  property  mentioned  in  the 
cash  voucher  evidencing  the  purchase  of  forage  under  consideration  until  he  has 
been  furnished  with  a  certificate  required  by  section  1  of  said  act. 

Jurisdiction  over  property  accounts  can  not  be  given  to  the  Auditor  by  injecting 


aBut  such  buildings  can  not  be  sold  without  the  authority  of  Congress.    Lear  v.  U.  S.,  50  Fed. 
'ep.,  65. 


MILITARY   LAWS    OF   THE    UNITED    STATES.  629 


1634.  That  said  certificate  shall  set  forth  the  condition  of 

such  officer's  or  agent's  property  returns,  that  it  includes  Sec-  2>  ibid- 
all  charges  made  up  to  its  date  and  not  previously  certified, 
that  he  has  had  a  reasonable  opportunity  to  be  heard  and 
has  not  been  relieved  of  responsibility;  the  effect  of  such 
certificate,  when  received,  shall  be  the  same  as  if  the  facts 
therein  set  forth  had  been  ascertained  by  the  accounting 
officers  of  the  Treasury  Department  in  accounting.  Sec. 
2,  ibid. 

1635.  That  the  manner  of  making  property  returns  to  or    Methods  of 

J  making  returns, 

in  any  administrative  bureau  or  department,  or  of  ascer- 
taming  liability  for  property,  under  existing  laws  and 
regulations,  shall  not  be  affected  by  this  act,  except  as 
provided  in  section  one;  but  in  all  cases  arising  as  to  such 
property  so  intrusted  the  officer  or  agent  shall  have  an 
opportunity  to  relieve  himself  from  liability.  l  Sec.  3,  ibid. 

1636.  The  heads  of  the  several  Departments  are  hereby 
empowered  to  make  and  enforce  regulations  to  carry  outments- 
the  provisions  of  this  act.     All  laws  or  parts  of  laws  incon- 
sistent with  the  provisions  of  this  act  are  hereby  repealed.2 
Sees.  5  and  6",  ibid. 

DEFICIENCY    IN,  AND    DAMAGE    TO,    PUBLIC    PROPERTY. 


Par. 

1639.  Administration  of  oaths. 

1640.  Accounts  of  company  commanders. 


Par. 

1637.  Deficiencies. 

1638.  Damage  to  arms,  etc. 

1637.  In  case  of  deficiency  of  any  article  of  military 
supplies,  on  final  settlements  of  the  accounts  of  any  officer  7|es^ 
chargrd  with  the  issue  of  the  same,  the  value  thereof  shall 

papers  into  cash  accounts  tending  to  show  what  disposition  has  been  made  of  the 
property.  Such  evidence  may  well  be  excluded  from  the  cash  accounts,  and  the 
responsibility  for  determining  questions  relating  to  property  accountability  be  left 
where  it  belongs,  where  the  law  has  placed  it.  II  Compt.  Dec.,  264,  267,  268;  IV 
ibid.,  422. 

In  the  case  of  Isaac  W.  Patrick,  Indian  agent  at  the  Great  Nemaha  Agency,  upon 
a  suit  to  recover  on  his  bond  for  public  property  alleged  to  have  been  unaccounted 
for,  such  failure  to  account  having  been  shown  to  be  due  to  clerical  errors,  it  was 
held  by  the  circuit  court  of  appeals  for  the  Eighth  circuit,  in  March,  1896,  that  "a 
Government  agent  is  not  to  be  held  liable  for  property  still  in  the  possession  of  the 
agency  and  which  has  never  been  lost,  merely  because  a  careless  clerk,  appointed 
by  the  Government  itself  to  keep  the  accounts  of  the  agent,  has  omitted  it  from  the 
return  which  he  is  required  to  make."  U.  S.  v.  Patrick  (73  Fed.  Rep.,  800). 

The  failure  of  an  Indian  agent,  through  clerical  errors,  to  include  in  his  accounts 
property  which,  in  fact,  remains  at  the  agency,  and  which  is  not  lost  to  the  Govern- 
ment, does  not  entitle  the  United  States  to  recover  the  value  thereof  in  a  suit  on  his 
bond;  and  he  may  show  these  facts  in  defense.  The  technical  failure  to  account 
would  authorize  a  recovery  of  no  more  than  nominal  damages.  Ibid. 

Section  12  of  the  act  of  July  31,  1894  (28  Stat.  L.,  208),  requiring  certain  quarterly 
accounts  to  be  rendered  within  twenty  days  after  the  expiration  of  the  quarter  to 
which  they  relate,  has  no  application  to  property  returns,  the  rendition  of  which  is 
regulated  by  the  act  of  March  29,  1894.  Ill  ibid.,  422. 

2  For  regulations  prepared  and  promulgated  by  the  Secretary  of  War  in  execution 
of  the  above  enactment,  see  paragraphs  739-807,  Army  Regulations  of  1901. 


630  MILITARY    LAWS    OF    THE    UNITED    STATE8. 

be  charged  against  the  delinquent  and  deducted  from  his 
monthly  pay,  unless  he  shall  show  to  the  satisfaction  of  the 
Secretary  of  War,  by  one  or  more  depositions  setting  forth 
the  circumstances  of  the  case,  that  said  deficiency  was  not 
occasioned  by  any  fault  on  his  part.  And  in  case  of  damage 
to  any  military  supplies,  the  value  of  such  damage  shall  be 
charged  against  such  officer  and  deducted  from  his  monthly 
pay,  unless  he  shall,  in  like  manner,  show  that  such  damage 
was  not  occasioned  by  any  fault  on  his  part.1 

annsmage    to      1638.  The  cost  of  repairs  or  damages  done  to  arms,  equip- 
ss^'v's1?6^'111611^8'  or  implements  shall  be  deducted  from  the  pay  of 
sec.ises,  B.S.  an  officer  or  soldier  in  whose  care  or  use  the  same  were 
when  such  damages  occurred,  if  said  damages  were  occa- 
sioned by  the  abuse  or  negligence  of  said  officer  or  soldier. 
ofAdo?thsis?ntia°cn      1639'  The  Secretary  of  War  is  authorized  to  detail  one 
COMarinf'i865  c  or  more  °^   the  employees  of  the  War  Department  for 
TJ^S.  25,  V.  is,'  p.  the  purpose  of  administering  the  oaths  required  by  law  in 
sec.  225,  B.  s.  the  settlement  of  officers'  accounts  for  clothing,  camp  and 
garrison  equipage,  quartermaster's  stores,  and  ordnance, 
which  oaths  shall  be  administered  without  expense  to  the 
parties  taking  them. 

compaSy  ncom-  1640>  ^n  settling  the  accounts  of  the  commanding  offi- 
mFeb627  1877  v  cer  °^  a  comPany  f or  clothing  and  other  military  supplies, 
19sec^225  B  s  ^e  affidavit  of  any  such  officer  may  be  received  to  show 
the  loss  of  vouchers  or  company  books,  or  any  matter  or 
circumstance  tending  to  prove  that  any  apparent  deficiency 
was  occasioned  by  unavoidable  accident  or  lost  in  actual 
service,  without  any  fault  on  his  part,  or  that  the  whole  or 
any  part  of  such  clothing  and  supplies  had  been  properly 
and  legally  used  and  appropriated;  and  such  affidavit  may 
be  considered  as  evidence  to  establish  the  facts  set  forth, 
with  or  without  other  evidence,  as  may  seem  to  the  Secre- 
tary of  War  just  and  proper  under  the  circumstances  of 
the  case.2 

1  See  paragraph  697,  Army  Regulations  of  1895. 

2  Causes  of  damage  to,  and  of  loss  and  destruction  of,  military  property  are  classi- 
fied as  follows: 

(1)  Unavoidable  causes,  being  those  over  which  the  responsible  officers  nave  no 
control,  occurring  (a)  in  the  ordinary  course  of  service,  or  (b)  as  incident  to  an  active 
campaign. 

(2)  Avoidable  causes,  being  those  due  to  carelessness,  willfulness,  or  neglect.    Par. 
763,  A.  R.,  1901. 

Officers  responsible  for  property  will  be  charged  for  any  damage  to,  or  loss  or 
destruction  of  the  same,  and  the  money  value  deducted  from  their  monthly  pay, 
unless  they  show,  to  the  satisfaction  of  the  Secretary  of  War,  by  their  own  affidavits 
or  certificates  or  by  one  or  more  depositions,  that  the  damage,  loss,  or  destruction 
was  occasioned  by  unavoidable  causes,  and  without  .fault  or  neglect  on  their  part 
Par.  764,  ibid. 

The  proper  officers  to  administer  oaths  in  the  administration  of  the  affairs  of  the 


MILITAKY    LAWS    OF    THE    UNITED    STATES.  631 


DISPOSITION   OF   DAMAGED   OR   UNSUITABLE   PROPERTY. 


1641.  The  President  may  cause  to  be  sold  any  military 
stores  which,  upon  proper  inspection  or  survey,  appear  to  p3-^-  1(  2>  v-  4> 
be  damaged,  or  unsuitable  for  the  public  service.     Such   sec.  1241,  B.S. 
inspection  or  survey  shall  be  made  by  officers  designated 
by  the  Secretary  of  War,  and  the  sales  shall  be  made  under 
regulations  prescribed  by  him.1 

Army  (except  when  otherwise  specially  provided)  are  judge-advocates  of  depart- 
•ments,  judge-advocates  of  courts-martial,  and  trial  officers  of  summary  courts,  and, 
in  tne  cases  of  boards  of  survey,  the  recorder,  or,  if  there  be  no  recorder,  the  presi- 
dent thereof.  When  none  of  these  aro  within  reach  and  available,  recourse  must  be 
had  to  a  notary  public  or  other  civil  officer  competent  to  administer  oaths  for  general 
purposes.  Par.  765,  ibid. 

If  an  article  of  public  property  be  lost  or  damaged  by  the  neglect  or  fault  of  any 
officer  or  soldier,  he  shall  pay  the  value  thereof,  or  the'  cost  ol  repairs,  at  such  rates 
as  a  board  of  survey  may  determine.  Par.  766,  ibid. 

The  amount  charged  against  an  enlisted  man  on  the  muster  and  pay  rolls  on  account 
of  loss  or  damage  of  or  repairs  to  Government  property  shall  not  exceed  the  value  of 
the  article  or  cost  of  repairs;  and  such  charge  will  only  be  made  on  conclusive  proof  , 
and  never  without  an  inquiry,  if  the  soldier  demand  it.  He  will  be  informed  at  the 
time  of  signing  the  pay  rolls  that  his  signature  will  be  regarded  as  an  acknowledg- 
ment of  the  justice  of  the  charge.  Par.  767,  ibid. 

When  a  deserter  carries  away  public  property,  or  when  such  property  is  lost 
through  his  desertion,  its  value  will  be  determined  by  a  board  of  survey  and  charged 
against  him  on  the  next  muster  and  pay  rolls.  Par.  768,  ibid. 

If  articles  of  public  property  are  embezzled,  or  lost  or  damaged  through  neglect, 
by  a  civilian  employee,  the  value  or  damage  as  ascertained  (and  by  a  board  of  survey 
if  necessary)  shall  be  charged  to  him  and  set  against  any  pay  or  money  due  him. 
Par.  769,  ibid. 

For  provisions  respecting  boards  of  survey,  see  paragraphs  790-807,  ibid. 

xThe  word  "unsuitable,"  as  used  in  sec.  1241,  Rev.  Sts.,  evidently  refers  to  some 
unfitness  for  use  other  than  that  caused  by  being  "damaged."  Uniform  clothing, 
for  instance,  of  sizes  that  could  not  be  used  would  be  unsuitable.  But  held  that  the 
meaning  of  the  word^  could  not  properly  be  restricted  to  things  of  a  quality  inferior 
to  that  which  is  required  for  the  service.  A  thing  may  be  unsuitable  by  reason  of 
its  being  of  such  superior  quality  as  not  to  be  adaptable  for  the  purpose  for  which  it 
was  intended.  And  held  that  military  stores  can  not  properly  be  deemed  unsuitable 
under  this  statute  for  the  sole  reason  that  they  are  in  excess  of  the  quantity  required 
for  use.  Dig.  Opin.  J.  A.  G.,  par.  2279. 

For  other  statutes  authorizing  the  sale  of  obsolete  and  unsuitable  property,  see  the 
chapters  entitled  THE  ORDNANCE  DEPARTMENT  and  THE  PUBLIC  LANDS.  For  provi- 
sions respecting  the  disposition  of  funds  arising  from  the  sale  of  public  property  or 
stores,  see  the  chapters  entitled  THE  PUBLIC  MONEYS,  THE  STAFF  DEPARTMENTS,  and 
THE  ORDNANCE  AND  SUBSISTENCE  DEPARTMENTS. 

Unserviceable  public  property  can  only  be  disposed  of  by  sale  according  to  the 
provisions  of  sections  1241,  3618,  Revised  Statutes.  It  can  not  be  exchanged  for 
other  property  not  belonging  to  the  United  States.  Thus,  held  that  an  old  and  use- 
less printing  press,  the  property  of  the  United  States,  could  not  be  disposed  of  by 
exchanging  it  for  certain  new  property  belonging  to  a  regiment.  Ibid.,  par.  2103. 

Held  that,  in  the  absence  of  specific  authority  from  Congress,  the  Secretary  of  War 
would  not  be  empowered  to  sell  to  a  State,  for  the  use  of  its  militia,  an  amount  of 
clothing  in  excess  of  the  State's  quota  as  already  appropriated.  And  held  that,  with- 
out such  authority,  he  would  not  be  empowered  to  exchange  Government  property 
for  property  owned  or  possessed  by  a  State;  thus,  that  he  could  not  legally  deliver 
to  the  State  of  Pennsylvania  certain  arms,  the  property  of  the  United  States,  in 
exchange  for  arms  formerly  issued  to  the  State  for  the  use  of  its  militia,  and  in  which 
the  State  had  a  qualified  property.  Ibid.,  par.  2104. 

Held  that  under  section  1241,  Revised  Statutes,  unserviceable  tools  and  materials, 
which  had  been  in  use  at  a  national  cemetery,  could  not  legally  be  ordered  to  be 
sold  upon  the  mere  inspection  and  report  of  their  unserviceableness  made  by  the 
superintendent  of  the  cemetery,  but  that,  a?  required  in  the  section,  there  must  be 


632 


MILITARY   LAWS    OF   THE    UNITED   STATES. 


Par. 


OFFENSES   AGAINST   PUBLIC   PROPERTY. 


Par. 


1646.  Sale,  barter,  exchange,  etc. 

1647.  Losing,  spoiling  arms,  etc. 

1648.  Selling  ammunition. 

1649.  Selling,  losing,  horse,  arms,  etc. 


1642.  Embezzlement,  stealing,  etc. 

1643.  Receiving  stolen  property. 

1644.  Wrongful  conversion. 

1645.  Kobbery,  larceny,  etc. 

st?aHnZZlet?'      1642.  Any  person  who  shall  embezzle,  steal,  or  purloin 
statesUdeemedany  money>  property,  record,  voucher,  or  valuable  thing 
felMar;3pi875Uv'  whatever,  of   the   moneys,  goods,   chattels,   records,  or 
is,  p.  479.          property  of  the  United  States,  shall  be  deemed  guilty  of 
felony,  and  on  conviction  thereof  before  the  district  or 
circuit  court  of  the  United  States  in  the  district  wherein 
said  offense  may  have  been  committed,  or  into  which  he 
shall   carry  or   have  in   possession  of   said  property  so 
embezzled,  stolen,  or  purloined,  shall  be  punished  therefor 
by  imprisonment  at  hard  labor  in  the  penitentiary  not 
exceeding  five  years,  or  by  a  fine  not  exceeding  five  thou- 
sand dollars,  or  both,  at  the  discretion  of  the  court  befoie 
which  he  shall  be  convicted.     Act  of  March  3,  1875  (18 
Stat.  Z.,  479}. 

Knowingly  re-     1643.  If  any  person  shall  receive,  conceal,  or  aid  in  con- 
ceiving, conceal-  J  J  .     .        .  .'  . 
ing,  etc.,  stolen,  cealmg,  or  have,  or  retain  in  his  possession  with  intent 

etc.,  property  of  .  . 

the     united  to  convert  to  nis  own  use  or  gain,  any  money,  property, 

States;  penalty.  fe        '  ,,  £     ,? 

sec.  2,  ibid,  record,  voucher,  or  valuable  thing  whatever,  of  the 
moneys,  goods,  chattels,  records,  or  property  of  the  United 
States,  which  has  theretofore  been  embezzled,  stolen,  or 
purloined  from  the  United  States  by  any  other  person, 

first  an  inspection  "by  an  officer  (i.  e.,  commissioned  officer)  designated  by  the 
Secretary  of  War.  "  Ibid.,  par.  2281. 

In  view  of  the  general  authority  vested  in  the  President  and  Secretary  of  War  by 
the  provision,  in  regard  to  the  sale  of  military  stores  damaged  or  unsuitable  for  the 
public  service,  of  the  act  of  March  3,  1825  (now  contained  in  section  1241,  Revised 
Statutes),  held  that  such  stores  might  legally  be  sold  on  credit,  if  such  mode  of  dis- 
position was  deemed  for  the  public  interest.  Ibid.,  par.  2277. 

Held  that  an  officer  of  the  Army,  duly  charged  with  the  duty  of  making  a  sale  of 
damaged,  etc.,  medical  supplies  under  the  authority  of  section  1241,  Revised  Statutes 
(by  which  the  President  is  empowered  to  order  such  sales  in  certain  cases),  could 
not  lawfully  be  required  to  take  out  and  pay  for  a  license  as  a  merchant  under  the 
laws  of  the  State  in  which  the  sale  was  to  be  made.  Such  a  requirement  would  be  a 
restriction  upon  the  regular  and  legal  execution  of  the  powers  of  the  General  Gov- 
ernment, and  therefore  beyond  the  authority  of  a  State.  Ibid. ,  par.  2278. 

Held  that  a  noncommissioned  officer,  who  acted  as  auctioneer  at  a  public  sale  of 
condemned  quartermaster  stores,  could  not  legally  be  paid,  out  of  the  proceeds  of 
the  sale,  a  commission  of  ten  per  cent,  or  any  other  commission  or  compensation,  for 
his  services  as  auctioneer.  The  pay  and  allowances  of  all  enlisted  men  are  fixed  by 
law,  and,  in  the  absence  of  any  authority  in  the  statute  providing  for  such  sales  or 
other  statutory  provision,  such  a  compensation  must  necessarily  be  without  legal 
sanction.  But  held  that  a  civilian  employee  hired  by  the  Quartermaster's  Depart- 
ment, under  the  provision  for  "hire  of  teamsters  and  other  employees"  in  the 
appropriation  for  "transportation  of  the  Army  and  its  supplies,"  whose  pay  is  not 
fixed  by  "law  or  regulations,"  may  legally  be  paid  for  services  as  an  auctioneer  at  a 
public  sale  of  condemned  quartermaster  property.  Ibid.,  par.  2284. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  633 

knowing  the  same  to  have  been  so  embezzled,  stolen,  or 

purloined,   such  person  shall,  on  conviction    before  the 

circuit  or  district  court  of  the  United  States  in  the  district 

wherein  he  may  have  such  property,  be  punished  by  a  fine 

not  exceeding  five  thousand  dollars,  or  imprisonment  at 

hard  labor  in  the  penitentiary  not  exceeding  five  years, 

one  or  both,"  at  the  discretion  of  the  court  before  which 

he  shall  be  convicted;  and  such  receiver  may  be  tried  either  b<May  be  t,ned 

before  or  after  the  conviction  of  the  principal  felon,  but  convict  ion  of 

if  the  party  has  been  convicted,  then  the  judgment  against 

him  shall  be  conclusive  evidence  in  the  prosecution  against 

such   receiver  that  the  property  of   the   United   States 

therein  described  has  been  embezzled,  stolen,  or  purloined. 

Sec.  2,  ibid. 

1644.  And  any  officer  connected  with,  or  employed  in,  ^Embezzlement, 
the  internal-revenue  service  of  the  United  States,  and  any  version.^  ^  ^ 
assistant  of  such  officer,  who  shall  embezzle  or  wrongfully  P.  m 

.  Sec.  54y7,K.». 

convert  to  his  own  use  any  money  or  property  which  may 
have  come  into  his  possession  or  under  his  control  in  the 
execution  of  such  office  or  employment,  or  under  color  or 
claim  of  authority  as  such  officer  or  assistant,  whether 
the  same  shall  be  the  money  or  property  of  the  United 
States  or  of  some  other  person  or  party,  shall,  where  the 
offense  is  not  otherwise  punishable  by  some  statute  of 
the  United  States,  be  punished  by  a  fine  equal  to  the  value 
of  the  money  and  property  thus  embezzled  or  converted, 
or  by  imprisonment  not  less  than  three  months  nor  more 
than  ten  years,  or  by  both  such  fine  and  imprisonment.1 
Act  of  February  3,  1879  (00  8tat.  Z.,  280). 

1645.  Every  person  who  robs  another  of  any  kind  or 
description  of  personal  property  belonging  to  the  United  j^n 
States,  or  feloniously  takes  and  carries  away  the  same, 

shall  be  punished  by  a  fine  of  not  more  than  five  thousand    Sec.5466,R.s. 
dollars,  or  by  imprisonment  at  hard  labor  not  less  than 
one  nor  more  than  ten  years,  or  by  both  such  fine  and 
imprisonment. 

1646.  The  clothes,  arms,  military  outfits,  and  accouter-  e^\t  bci0rthes 
ments  furnished  by  the  United  States  to  any  soldier  shall  arg^.' 374*8  R  s 
not  be  sold,  bartered,  exchanged,  pledged,  loaned,  or  given 

away;  and  no  person,  not  a  soldier  or  duly  authorized  offi- 
cer of  the  United  States,  who  has  possession  of  any  such 
clothes,  arms,  military  outfits,  or  accouterments  so  fur- 

1  For  embezzlement  and  other  offenses  against  the  public  property,  see  the  60th 
Article  of  War  and  the  title  Disbursing  officers  in  the  Chapter  entitled  THE  STAFF 
DEPARTMENTS. 


634  MILITARY    LAWS    OF    THE    UNITED    STATES. 

nished,  and  which  have  been  the  subjects  of  any  such 
barter,  exchange,  pledge,  loan,  or  gift,  shall  have  any 
right,  title,  or  interest  therein,  but  the  same  may  be  seized 
and  taken  wherever  found  by  any  officer  of  the  United 
States,  civil  or  military,  and  shall  thereupon  be  delivered 
to  any  quartermaster  or  other  officer  authorized  to  receive 
the  same.  The  possession  of  any  such  clothes,  arms,  mili- 
tary outfits,  or  accoutorments  by  any  person  not  a  soldier 
or  officer  of  the  United  States  shall  be  presumptive  evi- 
dence of  such  a  sale,  barter,  exchange,  pledge,  loan,  or 
gift.1 

in^°ltegmin?ary      1647>  Al1^  °fficer  wno?  willfully  or  through  neglect,  suf- 

8ti6Art  of  war  ^ers  ^°  ^e  ^os^'  8P°iled,  or  damaged  any  military  stores 
belonging  to  the  United  States,  shall  make  good  the  loss 
or  damage,  and  be  dismissed  from  the  service.  Fifteenth 
Article  of  War. 

nitioning  ammu"  1648.  Any  enlisted  man  who  sells  or  willfully  or  through 
i6Art.of  war.  neglect  wastes  the  ammunition  delivered  out  to  him  shall 
be  punished  as  a  court-martial  may  direct.  Sixteenth 
Article  of  War. 

horse1  arms  etc''  1649.  Any  soldier  who  sells  or  through  neglect  loses  or 
u  Art.  of  war.  spoils  his  horse,  arms,  clothing,  or  accouterments  shall  be 
punished  as  a  court-martial  may  adjudge,  subject  to  such 
limitation  ns  may  be  prescribed  by  the  President  by  virtue 
of  the  power  vested  in  him.  Seventeenth  Article  of  War. 
Act  July  27,  189%  (27  Stat.  L.,  277). 

1  See  also  section  1242,  Revised  Statutes. 

Held,  that  the  provisions  of  section  23  of  the  act  of  March  3,  1863,  prohibiting  the 
sale,  etc.,  of  their  arms,  etc.,  by  soldiers,  and  declaring  that  no  right  of  property  or 
possession  should  be  acquired  thereby,  etc.,  were  not  limited  in  their  operation  to  the 
period  of  the  war,  but  were  still  in  force,  (a)  and  that  an  officer  of  the  Army  would 
therefore  be  authorized  to  seize  arms,  etc.,  disposed  of  contrary  to  such  prohibition, 
whenever  and  wherever  found.  But  inasmuch  as  there  have  been  sundry  author- 
ized sales  of  arms  and  other  ordnance  stores  since  the  end  of  the  war;  Advised,  that 
officers,  before  making  seizures,  should  assure  themselves  that  the  parties  in  posses- 
sion have  not  acquired  title  in  a  legal  manner.  Dig.  Opin.  J.  A.  G.,  par.  2273.  See 
as  to  method  of  recovery,  par.  2275,  ibid. 

A  person  who  illegally  purchases  army  clothing  from  a  soldier  can  not  now  be 
proceeded  against  for  merely  purchasing  or  receiving,  under  the  existing  law  (sees. 
1242  and  3748,  Eev.  Stat.),  but  if,  in  so  purchasing,  he  aids  a  soldier  to  desert,  he  is 
subject  to  trial  and  punishment  under  section  5455,  Eevised  Statutes.  Ibid.  p.  2274. 

a  See  these  provisions  as  now  incorporated  in  the  Revised  Statutes,  in  sections  1242  and  3748.  The 
further  provision  of  the  original  act  making  punishable  with  fine  and  imprisonment  persons  pur- 
chasing from  soldiers  their  arms,  equipments,  clothing,  etc.,  has  not  been  retained  in  the  Revised 

Statutes. 


CHAPTER 


THE    MILITIA— THE    MILITIA   OF   THE    DISTRICT  OF 
COLUMBIA— THE  TERRITORIAL  MILITIA. 


THE    MILITIA. 


Par. 

1650-1655. 

1656-1661. 

1662-1663. 

1664-1668. 

1669-1674. 

1675-1678. 

1679-1680. 


Composition  and  enrollment. 

Organization. 

Instruction  and  discipline. 

Returns. 

Active  service  of  the  militia. 

Field  organization. 

Expenses  of  enrollment. 


Par. 

1681-1684. 

1685-1687. 

1688-1690. 

1691-1706. 

1707-1776. 


Pay,  rations,  etc. 
Half  pay,  pension,  etc. 
Courts-martial,  fines,  etc. 
Armament  and  equipment. 
The  militia  of  the  District  of 

Columbia. 
1777-1781.  The  Territorial  militia. 


COMPOSITION    AND    ENROLLMENT. 


Par. 

1653.  Notice  of  enrollment. 

1654.  Arms  and  accouterments. 

1655.  Exemptions. 


Constl" 


Par. 

1650.  The  militia. 

1651.  Who  liable  to  enrollment. 

1652.  Enrollment  by  captains. 

1650.  A  well  regulated  militia,  being  necessary  to  the 
security  of  a  free  State,  the  right  of  the  people  to  keep 
and  bear  arms  shall  not  be  infringed.1  Constitution  of 
the  United  States.,  second  amendment. 

1  The  right  to  bear  arms  is  not  granted  by  the  Constitution;  neither  is  it  in  any 
manner  dependent  upon  that  instrument  for  its  existence.  The  second  amendment 
means  no  more  than  that  it  shall  not  be  infringed  by  Congress,  and  has  no  other 
effect  than  to  restrict  the  powers  of  the  National  Government.  U.  S.  v.  Cruikshank, 
92  U.  S.,  542. 

The  right  voluntarily  to  associate  together  as  a  military  company  or  organization, 
or  to  drill  or  parade  with  arms,  without  and  independent  of  an  act  of  Congress  or 
law  of  the  State  authorizing  the  same,  is  not  an  attribute  of  national  citizenship. 
Military  organization  and  military  drill  and  parade  under  arms  are  subjects  espe- 
cially under  the  control  of  the  government  of  every  country.  They  can  not  be  claimed 
as  a  right  independent  of  law.  Under  our  political  system  they  are  subject  to  the 
regulation  and  control  of  the  State  and  Federal  governments,  acting  in  due  regard 
to  their  respective  prerogatives  and  powers.  The  Constitution  and  laws  of  the  United 
States  will  be  searched  in  vain  for  any  support  to  the  view  that  these  rights  are 
privileges  and  immunities  of  citizens  of  the  United  States,  independent  of  some  spe- 
cific legislation  on  the  subject.  It  can  not  be  successfully  questioned  that  the  State 
governments,  unless  restrained  by  their  own  constitutions,  have  the  power  to  regu- 
late or  prohibit  associations  and  meetings  of  the  people,  except  in  the  case  of  peace- 
able assemblies  to  perform  the  duties  or  exercise  the  privileges  of  citizens  of  the 
United  States;  and  have  also  the  power  to  control  and  regulate  the  organization, 
drilling,  and  parading  of  military  bodies  and  associations,  except  when  such  bodies 
or  associations  are  authorized  by  the  militia  laws  of  the  United  States.  The  exercise 
of  this  power,  by  the  States,  is  necessary  to  the  public  peace,  safety,  and  good  order. 
To  deny  the  power  would  be  to  deny  the  right  of  the  State  to  disperse  assemblages 
organized  for  sedition  and  treason,  and  the  right  to  suppress  armed  mobs  bent  on 
riot  and  rapine.  Presser  v.  Illinois,  116  U.  S.,  252,  267;  U.  S.  v.  Cruikshank,  92 
U.  S.,  542;  New  York  v.  Miln,  11  Pet.,  102,  139. 

635 


636  MILITARY    LAWS    OF    THE    UNITED    STATES. 


ron?d°  V^the  1651.  Every  able-bodied  male  citizen  of  the  respective 
mMay8,  1792,  c.  States,  resident  therein,  who  is  of  the  age  of  eighteen 
July  V'i86227c;years'  an(^  un(ler  the  age  of  forty  -five  years,  shall  be  en- 
sl^M^/ik'^Ued  in  the  militia. 

c.  145,  s.  6,  v.  14,  p.  423.    Houston  v.  Moore,  5  Wh.,  1.    Sec.  1625,  K.  S. 

whS£?lmentfby     1652<  It;  sna11  be  the  duty  of  every  captain  or  command- 

ss^fv'i1?9!?!'  m£  officer  of  a  company  to  enroll  every  such  citizen  resid- 

sec.  lose,  u.s.  'lng  wjthin  the  hounds  of  his  company,  and  all  those  who 

may,  from  time  to  time,  arrive  at  the  age  of  eighteen  years, 

or  who,  being  of  the  age  of  eighteen  years  and  under  the 

age  of  forty  -five  years,  come  to  reside  within  his  bounds. 

Notice  of  en-     1653.  Each  captain  or  commanding  officer  shall,  without 

rollment. 

Mays,  1792,  c.  delay,  notify  every  such  citizen  of  his  enrollment,  by  a 
Mar.  2,  1803,  C.15J  proper  non-commissioned  officer  of  his  company,  who  may 

s.  2,  v.  2,  p.  207.        r  .  .  T  .    . 

Sec.  1627,  K.S.  prove  the  notice.  And  any  notice  or  warning  to  a  citizen 
enrolled,  to  attend  a  company,  battalion,  or  regimental 
muster,  which  is  according  to  the  laws  of  the  State  in  which 
it  is  given  for  that  purpose,  shall  be  deemed  a  legal  notice 
of  his  enrollment. 

Arms  and  ac-     1654.  Every  citizen  shall,  after  notice  of  his  enrollment, 

couterments.  .  .    ' 

May  s,  1792,  c.  be  constantly  provided  with  a  good  musket  or  firelock  of  a 
Mar.  2,  1803,  c.  is,'  bore  sufficient  for  balls  of  the  eighteenth  part  of  a  pound, 
'seci  I'esis,  B.S.  a  sufficient  bayonet  and  belt,  two  spare  flints,  and  a  knap- 
sack, a  pouch  with  a  box  therein  to  contain  not  less  than 
twenty-four  cartridges,  suited  to  the  bore  of  his  musket  or 
firelock,  each  cartridge  to  contain  a  proper  quantit}7  of 
powder  and  ball;  or  with  a  good  rifle,  knapsack,  shot- 
pouch  and  powder-horn,  twenty  balls  suited  to  the  bore  of 
his  rifle,  and  a  quarter  of  a  pound  of  powder;  and  shall 
appear,  so  armed,  accoutered,  and  provided  when  called 
out  to  exercise,  or  into  service,  except  that  when  called  out 
on  company  days  to  exercise  only  he  may  appear  without 
a  knapsack.  And  all  arms,  ammunition,  and  accouterments 
so  provided  and  required  shall  be  held  exempted  from  all 
suits,  distresses,  executions,  or  sales  for  debt  or  for  the 
payment  of  taxes.  Each  commissioned  officer  shall  be 
armed  with  a  sword  or  hanger  and  spontoon. 

EXEMPTIONS. 

persons  ex-     1655.  The  Vice-President   of    the   United  States;    the 
May  s,  1792,  c.  officers  judicial  and  executive  of  the  Government  of  the 

qo      o      O      v      1      T) 

272;  ka'y  7,  i8oo',  United  States;  the  members  of  both  Houses  of  Congress, 
62;  Apr.  3(T  i8io;  and  their  respective  officers;  all  custom-house  officers  with 

c.  37,  s.  33,  v.  2,    .      ...  IT-      ,1 

P.  603.  their  clerks;  all  postmasters  and  persons  employed  in  the 

Sec.  1629,B.S.  '  'in*  i         j 

transportation  of  the  mail;  all  ferrymen  employed  at  any 


MILITAEY    LAWS    OF    THE    UNITED    STATES.  637 

ferry  on  post-roads;  all  inspectors  of  exports;  all  artifi- 
cers and  workmen  employed  in  the  armories  and  arsenals 
of  the  United  States;  all  pilots;  all  mariners  actually  em- 
ployed in  the  sea-service  of  any  citizen  or  merchant  within 
the  United  States;  and  all  persons  who  now  are  or  may 
hereafter  be  exempted  by  the  laws  of  the  respective  States, 
shall  be  exempted  from  militia  duty,  notwithstanding 
their  being  above  the  age  of  eighteen,  and  under  the  age 
of  forty -five  years. 


Par. 


ORGANIZATION. 


Par. 


1656.  Divisions  and  brigades. 

1657.  How  officered. 

1658.  Rank  of  officers. 


1659.  Artillery  and  cavalry. 

1660.  Regimental  colors. 

1661.  Privileges  of  corps. 


1656.  The  militia  of  each  State  shall  be  arranged  into 
divisions,  brigades,  regiments,  battalions,  and  companies,  brjfjye|;  J      c. 
as  the  legislature  of  the  State  may  direct.     Each  brigade  p^8-  3>  v-  l>  p- 
may  consist  of  four  regiments;  each  regiment  of  two  bat-    Sec.  i630,R.s. 
talions;  each  battalion  of  five  companies;  each  company  of 
sixty-four  privates.     Each  division,  brigade,  and  regiment 

shall  be  numbered  at  the  formation  thereof ;  and  a  record 
of  such  numbers  shall  be  made  in  the  adjutant-general's 
office  of  the  State.  When  in  the  field,  or  in  service  in  the 
State,  each  division,  brigade,  and  regiment  shall  respec- 
tivety  take  rank  according  to  its  number,  reckoning  the 
first  or  lowest  number  highest  in  rank.1 

1657.  The  militia  shall  be  officered  by  the  respectiye ofjg™$'   how 
States  as  follows:  To  the  militia  of  each  State,  one  quarter-  jjfJJ^JM 
master-general;  to  each  division,  one  major-general,  two  ^-2,1803,^15, 
aids-de-camp  with  the  rank  of  major,  one  division  inspector  ^P^  1|  ™^gf 
with   the  rank  of   lieutenant-colonel,    and   one   division  £.i>r.  J°«  1?J6-  c- 

o'i,  v.  o,  p.  /yo. 

quartermaster  with  the  rank  of  major;  to  each  brigade,  sec.  IGSI,  K.S. 
one  brigadier-general,  one  brigade  inspector,  to  serve  also 
as  brigade  major  with  the  rank  of  major,  one  quarter- 
master of  brigade  with  the  rank  of  captain,  and  one  aid- 
de-camp  with  the  rank  of  captain;  to  each  regiment  of  two 
battalions,  one  colonel,  one  lieutenant-colonel,  one  major, 
and  one  chaplain;  to  only  one  battalion,  a  major,  who  shall 
command  the  same;  to  each  company,  one  captain,  one 
lieutenant,  one  ensign,  four  sergeants,  four  corporals,  one 
drummer,  and  one  fifer  or  bugler.  And  there  shall  be  a 
regimental  staff,  to  consist  of  one  adjutant  and  one  quarter- 

1  For  active  service  organization,  see  paragraphs  1675  to  1678,  post. 


638  MILITARY    LAWS   OF  THE   UNITED   STATES. 

master,  to  rank  as  lieutenants,  one  paymaster,  one  surgeon, 
one  surgeon's  mate,  one  sergeant-major,  one  drum  major, 
and  one  fife  major.1 

tak?raenkhowt°     1658-  A11  commissioned  officers  shall  take  rank  accord- 
33?Kv.'i!iJz73'  m£  t°  the  date  of  their  commissions;  and  when  two  of  the 
sec.  1638, R.S.  game  gra(je  bear  an  equal  date,  their  rank  shall  be  deter- 
mined by  lot  to  be  drawn  by  them  before  the  commanding 
officer  of  the  brigade,  regiment,  battalion,  company,  or 
detachment. 

cavairyery  and  1659-  There  sha11  ^  formed  for  each  battalion  at  least 
33M£y4\17i!' £  one  company  of  grenadiers,  light  infantry,  or  riflemen, 
c?2iMa2,'  v.  28°p' an<*  *or  ea°k  division  at  least  one  company  of  artillery 
2°Sec.i632,R.s.  and  one  troop  of  horse.  For  each  company  of  artillery 
there  shall  be  one  captain,  two  lieutenants,  four  sergeants, 
four  corporals,  six  gunners,  six  bombardiers,  one  drum- 
mer, and  one  fifer.  The  officers  shall  be  armed  with  a 
sword  or  hanger,  a  fusee,  bayonet,  and  belt,  with  a  car- 
tridge box  to  contain  twelve  cartridges;  and  each  private 
shall  furnish  himself  with  all  the  equipments  of  a  private 
in  the  infantry,  until  proper  ordnance  and  field  artillery  is 
provided.  For  each  troop  of  horse  there  shall  be  one  cap- 
tain, two  lieutenants,  one  cornet,  four  sergeants,  four  cor- 
porals, one  saddler,  one  farrier,  and  one  trumpeter.  The 
commissioned  officers  shall  furnish  themselves  with  good 
horses  of  at  least  fourteen  hands  and  a  half  high,  and  shall 
be  armed  with  a  sword  and  pair  of  pistols,  the  holsters  to 
be  covered  with  bearskin  caps.  Each  dragoon  shall  fur- 
nish himself  with  a  serviceable  horse,  at  least  fourteen 
hands  and  a  half  high,  a  good  saddle1,  bridle,  mail  pillion, 
and  valise,  holsters,  and  a  breastplate  and  crupper,  a  pair 
of  boots  and  spurs,  a  pair  of  pistols,  a  saber,  and  a  car- 
tridge box,  to  contain  twelve  cartridges  for  pistols.  Each 
company  of  artillery  and  troop  of  horse  shall  be  formed 
of  volunteers  from  the  brigade,  at  the  discretion  of  the 
commander  in  chief  of  the  State,  not  exceeding  one  com- 
pany of  each  to  a  regiment,  nor  more  in  number  than  one- 
eleventh  part  of  the  infantry,  and  shall  be  uniformly 
clothed  in  regimentals,  to  be  furnished  at  their  own 
expense;  the  color  and  fashion  to  be  determined  by  the 
brigadier  commanding  the  brigade  to  which  the}r  belong. 
Regimental coi-  1660.  Each  battalion  and  regiment  shall  be  provided 
33^5  v' i1792273'  W^n  ^ne  State  and  regimental  colors  by  the  field  officers, 
Sec.  less, ii.s.  and  eacn  company  with  a  drum  and  fife,  or  bugle  horn,  by 

1  The  governor  of  the  State  has  no  power  to  depose  an  officer  or  interfere  with  the 
organization  of  the  regiment  to  which  he  belongs  after  such  regiment  is  accepted 
and  mustered  into  the  service  of  the  United  States.  X  Opin.  Att."  Gen.,  279. 


MILITARY    LAWS    OF    THE    UNITED    STATES. 


639 


the  commissioned  officers  of  the  company,  in  such  manner 
as  the  legislature  of  the  respective  States  may  direct. 

1661.  All  corps  of  artillery,  cavalry,  and  infantry,  now  c  Jrmiegesg  of 
existing  in  any  State,  which,  by  any  law,  custom,  or  usage  33Msayn8;  ^;  £ 
thereof,  have  not  been  incorporated  with  the  militia,  or27|ec  1641^R  s 
are  not  governed  by  the  general  regulations  thereof,  shall 
be  allowed  to  retain  their  accustomed  privileges,  subject, 
nevertheless,  to  all  other  duties  required  by  law  in  like 
manner  as  the  other  militia. 


INSTRUCTION   AND   DISCIPLINE. 


Par. 


1662.  System  of  instruction  to  be  pre- 
scribed by  Congress. 


Par. 

1663.  Brigade    inspectors; 
ports. 


1662.  The  system  of  discipline  and  field  exercise  which 
is  ordered  to  be  observed  in  the  different  corps  of  inf  an- 
try,  artillery,  and  riflemen  of  the  Regular  Army  shall  also 
be  observed  in  such  corps,  respectively,  of  the  militia.1 

1663.  It  shall  be  the  duty  of  the  brigade  inspector  t& 
attend  the  regimental  and  battalion  meetings  of  the  mili- 
tia  composing  the  several  brigades  during  the  time  when 
they  are  under  arms,  to  inspect  their  arms,  ammunition, 
and   accouterments,    to   superintend   their   exercise  and 
maneuvers,  and  introduce  throughout  the  brigade  the  sys- 
tem  of   military  discipline   prescribed  by  law  and  such 
orders  as  they  receive  from  the  commander  in  chief  of  the 
State;  and  to  make  returns  to  the  adjutant-general  of  the 
State  at  least  once  in  every  year  of  the  militia  of  the  bri- 
gade to  which  he  belongs,  reporting  therein  the  actual 
condition  of  the  arms,  accouterments,  and  ammunition  of 
the  several  corps  and  every  other  particular  which,  in  his 
judgment,  may  relate  to  their  government  and  the  general 
advancement  of  good  order  and  military  discipline. 

RETURNS. 


duties; 


re- 


of  in" 


Par. 

1664.  Adjutants- general;       returns      of 

strength. 

1665.  The   same;    arms,    accouterments, 

etc. 


Par. 

1666.  Returns  to  the  President. 

1667.  Reports  by  brigade  majors. 

1668.  Abstract  of  returns  for  Congress. 


1664.  There  shall  be  appointed  in  each  State  an  adjutant-    Adjutant-gen- 
eral in  each  state, 
general,  whose  duty  it  shall  be  to  distribute  all  orders  from  his  duty. 

1  There  is  no  existing  statute  of  the  United  States  authorizing  the  President  to  call 
out  the  militia  for  drill  merely.  The  Constitution,  in  empowering  Congress  "  to 
provide  for  organizing,  arming,  and  disciplining  the  militia,"  leaves  their  training 
to  the  States,  and  it  is  at  least  doubtful  whether  an  act  of  Congress  regulating  the 
drill  of  the  militia  would  be  constitutional.  Dig.  Opin.  J.  A.  G.,  par.  1733. 


640  MILITARY    LAWS    OF    THE    UNITED    STATES. 

;  the  commander  in  chief  of  the  State  to  the  several  corps; 
i634,B.s.  to  attend  all  musters  when  the  commander  in  chief  of  the 
State  reviews  the  militia,  or  any  part  thereof;  to  obey  all 
orders  from  him  relative  to  carrying  into  execution  and 
perfecting  the  system  of  military  discipline  established  by 
law;  to  furnish  blank  forms  of  returns  that  may  be  re- 
quired, and  to  explain  the  principles  on  which  they  should 
be  made;  to  receive  from  the  several  officers  of  the  different 
corps  throughout  the  State  returns  of  the  militia  under 
their  command;  and  to  make  proper  abstracts  from  such 
returns  and  lay  the  same  annually  before  the  commander 
in  chief  of  the  State. 

1665.  The  several  officers  of  the  divisions,  brigades,  regi- 
33,s.6  ,  v.fi,p.273.  ments,  and  battalions  shall  report,  in  their  returns  of  the 

Sec.  Ju>»>«  K.S. 

corps  under  their  command,  the  actual  condition  of  their 
arms,  accouterments,  and  ammunition,  their  delinquencies, 
and  every  other  particular  relating  to  the  general  advance- 
ment of  good  order  and  discipline,  and  shall  make  the  same 
in  the  usual  manner. 

1666.  It  shall  be  the  duty  of  the  adjutant-general  in  each 


i5^Tl'21803207'  State  to  make  return  of  the  militia  of  the  State,  with  their 
sec.'  1636,  B.S.  arms,  accouterments,  and  ammunition,  agreeably  to  the 
provisions  of  law,  to  the  President  of  the  United  States, 
annually,  on  or  before  the  first  Monday  in  January;  and 
it  shall  be  the  duty  of  the  Secretary  of  War,  from  time  to 
time,  to  give  such  directions  to  the  adjutants-general  of 
the  militia  as  may,  in  his  opinion,  be  necessary  to  produce 
a  uniformity  in  such  returns. 

s  ectof'sdut  in       1667.  It  shall  be  the  duty  of  the  brigade-inspector  to 

3/saio  v  i179273'  *     *     *     make  returns  to  the  adj  utant-general  of  the  State, 

Sec.  1640,  B.S.  a^  least  once  in  every  year,  of  the  militia  of  the  brigade  to 

which  he  belongs,  reporting  therein  the  actual  condition  of 

the  arms,  accouterments,  and  ammunition  of  the  several 

corps,  and  ever}7  other  particular  which,  in  his  judgment, 

may  relate  to  their  government  and  the  general  advance- 

ment of  good  order  and  military  discipline. 

turabsstrof  t  adju"      1668-  The  Secretary  of  War  shall  lay  before  Congress, 
statesgeneral  °f  on  or  kef  ore  the  first  Monday  in  February  of  each  year, 
i5^ai'v2>218°207'an  abstract  of  the  returns  of  the  adjutants-general  of  the 
sec.  ass,  B.  s.  several  States  of  the  militia  thereof. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  641 


ACTIVE    SERVICE    OF    THE    MILITIA. 


Par.  I     Par. 

1669.  Called  fortn  by  the  President.  I  1672.  Courts-martial,  composition. 

1670.  Apportionment.  1673.  Term  of  service. 

1671.  Subject  to  Articles  of  War.  •     1674.  Disobedience  of  orders,  penalty. 


1669.  Whenever  the  United  States  are  invaded,  or  are  id°$^  °cfafere0Sf 
in  imminent  danger  of  invasion  from  any  foreign  nation  or  in™°£8-  1795  c 
Indian  tribe,  or  of  rebellion  against  the  authority  of  the  fj 
Government  of  the  United  States,  it  shall  be  lawful  f  or 


the  President  to  call  forth  such  number  of  the  militia  of  25^c>  1645^  K  s< 
the  State  or  States,  most  convenient  to  the  place  of  danger, 
or  scene  of  action,  as  he  may  deem  necessary  to  repel  such 
invasion,  or  to  suppress  such  rebellion,  and  to  issue  his 
orders  for  that  purpose  to  such  officers  of  the  militia  as  he 
may  think  proper.  1 

1  The  President  has  no  original  authority  over  the  militia  by  right  of  his  office.  He 
can  only  call  them  out  when  Congress  provides  for  his  doing  so  as  the  agent  of  the 
United  States  for  such  purpose.  When  the  call  is  complied  with,  the  militia  becomes 
national  militia,  and  he  becomes  their  commander  in  chief.  The  law  governing  his 
exercise  of  power  in  calling  out  is  found  in  sections  1642,  5297,  5298,  and  5299,  Revised 
Statutes.  Dig.  Opin.  J.  A.  G.,  par.  1724. 

The  manner  of  the  calling  out  of  the  militia  by  the  President  under  the  act  of  1795 
(sec.  1642,  R.  S.)  ,  is  indicated  by  the  Supreme  Court  in  the  leading  case  of  Houston 
v.  Moore,  (a)  where  it  is  observed  that  "the  President's  orders  -may  be  given  to  the 
chief  executive  magistrate  of  the  State,  or  to  any  militia  officer  he  may  think  proper." 
The  call  would  ordinarily  be  addressed  to  the  governor,  who,  in  most  of  the  States, 
is  made  commander  in  chief  of  the  active  militia  of  the  State.  A  further  form,  indeed, 
of  calling  out  the  militia,  viz,  by  a  conscription,  was  authorized  during  the  late  war, 
by  the  act  of  July  17,  1862.  Ibid.,  par.  1723. 

The  calling  forth  of  the  militia  into  the  United  States  service  is  an  administrative 
function,  a  ministerial  act,  in  which  the  Secretary  of  War  may  issue  the  necessary 
orders  as  the  origin  of  the  Executive,  and  his  act  is  the  act  of  the  President.  Ibid., 
par.  1725. 

The  President,  in  calling  out  a  force  of  militia,  authorized  the  governor  of  a  State 
to  designate  the  particular  militia  of  that  State  to  be  included  in  the  call,  and  the 
governor  thereupon  designated  a  certain  regiment,  and  formally  accepted  its  service. 
Held,  that  in  so  doing  he  acted  as  the  agent  of  the  President  and  that  his  acceptance 
was  in  law  an  acceptance  by  the  President,  and  was  equivalent  to  a  muster  in  of  the 
regiment.  Ibid.,  par.  1727. 

In  1836  an  Indian  agent  in  Indiana  applied  for  assistance,  in  an  emergency,  to  a 
militia  colonel,  who  furnished  three  companies  of  his  regiment,  which  were  employed 
and  rendered  faithful  service  for  seven  days  in  assisting  to  execute  the  laws  of  the 
United  States.  Upon  a  claim  now  (1893)  made  for  compensation  for  such  service, 
held  that  the  same  could  not  legally  be  allowed  by  the  Secretary  of  War,  who  could 
have  no  authority  to  recognize,  as  in  the  United  States  service,  militia  who  had  not 
been  called  out  by  the  President  or  by  his  direction;  and  that  such  claim  could  be 
entertained  by  Congress  alone.  Ibid.,  par.  1728. 

In  the  exercise  of  its  constitutional  power  "to  provide  for  calling  forth  the  militia," 
and  "to  provide  for  organizing"  the  same,  etc.,  Congress  has  made  no  distinction 
between  any  different  portions  of  this  force,  or  recognized  any  such  portion  as  '  '  National 
Guard."  The  law  relating  to  the  subject,  Revised  Statutes,  Title  XVI,  sections  1625, 
1642,  etc.,  contemplates  but  a  single  integral  body  as  constituting  the  militia  and  as 
liable  to  be  called  out.  Under  the  existing  law,  the  "National  Guard"  of  a  State  can 
not  legally  be  called  out  as  such.  Upon  a  call,  the  governor  may  indeed  order  them 
out,  as  being  organized  and  available,  so  far  as  they  will  go  to  make  up  the  number 
of  the  militia  required.  Ibid.,  par.  1729. 

The  United  States  statutes  take  no  notice  of  "National  Guard"  as  such.     If  called 

22924—08  -  41 


642  MILITARY    LAWS    OF    THE    UNITED    STATES. 

ap^Siedhow  1670<  When  the  militia  of  more  than  one  State  is  called 
2oiuJyi17v18i6?'p'  mto  t^le  actual  service  of  the  United  States  by  the  Presi- 
69se<-  1648  K  s  dent,  be  shall  apportion  them  among  such  States  accord- 

ing to  representative  population. 

0  subject  to  rules      ^i.  The  militia,  when  called  into  the  actual  service  of 
3(.Fesb-428>v17i5  '  '  the  United  States  for  the  suppression  of  rebellion  against 
and  resistance  to  the  laws  of  the  United  States,  shall  be 
sukJect  to  tne  same  rules  and  articles  of  war  as  the  regu- 
sec.i644,K.s.iar  troops  of  the  United  States. 

1672-  Courts-martial  for  the  trial  of  militia  shall  be  com- 
'  Posed  of  militia  officers  only.1 

424;  July  29,  1861,  c.  25,  s.  5,  v.  12,  p.  282.    Sec.  1668,  R.S. 

forth  entecrmleodf      1673'  Whenever  the  President  calls  forth  the  militia  of 


specified6  to  be  ^ne  States,  to  be  employed  in  the  service  of  the  United 

201  "sW^'  °'  States,  he  may  specify  in  his  call  the  period  for  which  such 

59Se<-  1648  R  s  seryice  w^  ^e  required,  not  exceeding  nine  months,  and 

the  militia  so  called  shall  be  mustered  in  and  continued  to 

serve  during  the  term  so  specified,  unless  sooner  discharged 

by  command  of  the  President. 

out,  it  is  not  as  '  '  National  Guard,  '  '  but  as  militia;  and  when  so  called  forth  or  included 
in  a  call  it  must  be  governed  by  the  existing  laws  providing  for  the  organization, 
discipline,  etc.,  of  the  militia.  Ibid.,  par.  1730. 

The  "National  Guard,"  so  called,  being  merely  militia,  can  not  (where  not  called 
forth)  be  "  supported"  or  ''maintained"  by  Congress,  which  is  authorized  by  the 
Constitution  to  "support"  and  "maintain"  the  Army  and  Navy  only.  So  officers  of 
the  National  Guard  can  not  be  commissioned  by  the  President  without  a  violation  of 
the  Constitution,  which  "reserves  the  appointment  of  militia  officers  to  the  States, 
respectively."  Ibid.,  par.  1734. 

The  act  of  February  28,  1895  (1  Stat.  L.,  424),  authorizing  the  President  under  cer- 
tain circumstances  to  call  out  the  militia,  is  constitutional,  and  the  President  is  the 
final  judge  of  the  emergency  justifying  such  call.  This  construction  necessarily 
results  from  the  nature  of  the  power  itself  and  from  the  manifest  object  contem- 
plated by  the  act  of  Congress.  The  power  itself  is  to  be  exercised  upon  sudden 
emergencies,  upon  great  occasions  of  state,  and  under  circumstances  which  may  be 
vital  to  the  existence  of  the  Union.  A  prompt  and  unhesitating  obedience  to  orders 
is  indispensable  to  the  complete  attainment  of  the  object.  The  service  is  a  military 
service,  and  the  command  of  a  military  nature;  and  in  such  case  every  delay  and 
every  obstacle  to  an  efficient  and  immediate  compliance  necessarily  tend  to  jeopard 
the  public  interests.  Martin  v.  Mott,  12  Wheat.,  19,  30. 

Where  a  power  is  confided  to  the  President  by  law  the  presumption  is  that  in  the 
exercise  of  that  power  he  has  pursued  the  law.  The  existence  of  an  exigency  justi- 
fying the  calling  out  of  the  milifia  is  not  traversable  and  need  not  be  averred.  It  is 
not  necessary  to  set  forth  the  orders  of  the  President;  it  is  sufficient  to  state  that 
the  call  of  the  governor  for  the  militia  was  in  obedience  to  them.  For  disobedience 
to  a  call  made  by  a  governor  for  the  militia,  in  pursuance  of  the  orders  of  the  Presi- 
dent, a  citizen  is  liable  to  be  tried  by  a  court-martial  organized  under  the  laws  of 
the  United  States.  Ibid.,  33. 

In  the  case  of  Houston  t>.  Moore  (5  Wheat.,  1)  ,  it  was  decided  that  although  a  mili- 
tiaman who  refused  to  obey  the  orders  of  the  President  calling  him  into  the  public 
service  was  not,  in  the  sense  of  the  act  of  1795,  "employed  in  the  service  of  the 
United  States"  so  as  to  be  subject  to  the  Rules  and  Articles  of  War,  yet  that  he  was 
liable  to  be  tried  for  the  offense  under  the  fifth  section  of  the  same  act  by  a  court- 
martial  called  under  the  authority  of  the  United  States, 

1  Section  1658,  Revised  Statutes,  prescribes  that  '  '  courts-martial  for  the  trial  of 
militia  shall  be  composed  of  militia  officers  only."  Held  that  the  enactment  applied 
also  in  principle  to  courts  of  inquiry  convened  in  the  militia,  and  that  officers  of  the 
Army  could  not,  for  purposes  of  instruction  or  assistance,  legally  be  detailed  to  be 
associated  with  militia  officers  as  members  of  such  courts.  Dig.  Opin.  J.  A.  G., 
par.  1736. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  643 


1674.  Every  officer,  noncommissioned  officer,  or  private 
of  the  militia  who  fails  to  obey  the  orders  of  the  Presi-  alg;b  ^  1795  >c 
dent  when  he  calls  out  the  militia  into  the  actual  service  of 
the  United  States  shall  forfeit  of  his  pay  a  sum  not  ex- 
ceeding  one  year's  pay,  and  not  less  than  one  month's  pay, 
to  be  determined  and  adjudged  by  a  court-martial;  and  Moore, 
such  officer  shall  be  liable  to  be  cashiered  by  a  sentence  °f  MeaX  'case/i 
court-martial,  and  be  incapacitated  from  holding  a  com- 
mission  in  the  militia  for  a  term  not  exceeding  twelve 
months;   and  such  noncommissioned  officer   and  private 
shall  be  liable  to  imprisonment,  by  a  like  sentence,  on  fail- 
ure to  pay  the  fines  adjudged  against  him,  for  one  calen- 
dar month  for  every  twenty-five  dollars  of  such  fine. 


Par. 


FIELD    ORGANIZATION. 


Par. 


1677.  Brigades,  divisions,  staff. 

1678.  Rank  of  officers. 


1675.  Organization. 

1676.  Infantry. 

1675.  The  militia  when  called  into  actual  service  shall 

be  organized  as  prescribed  in  the  two  sections  following.  £•  |^  s- 2)  v<  12> 

1676.  They  shall  be  formed  by  the  President  into  regi-    J^ffigJ;  B.  s. 
ments  of  infantry,  with  the  exception  of  such  numbers  for  c  J9uly  222>  ^^ 
cavalry  and  artillery  as  he  may  direct,  not  to  exceed  the  c69musly3%18rl' 
proportion  of  one  company  of  each  of  those  arms  to  every  j^^c!  $1?**\\ 
regiment  of  infantry,  and  to  be  organized  as  in  the  regular  Vec.i6464,'R.  s. 
service. l   Each  regiment  of  infantry  shall  have  one  colonel, 

one  lieutenant-colonel,  one  major,  one  adjutant  (a  lieuten- 
ant), one  quartermaster  (a  lieutenant),  one  surgeon  and 
two  assistant  surgeons,  one  sergeant-major,  one  regimental 
quartermaster-sergeant,  one  regimental  commissary-ser- 
geant, one  hospital  steward,  and  two  principal  musicians, 
and  shall  be  composed  of  ten  companies,  each  company  to 
consist  of  one  captain,  one  first  lieutenant,  one  second 
lieutenant,  one  first  sergeant,  four  sergeants,  eight  cor- 
porals, two  musicians,  one  wagoner,  and  from  sixty-four 
to  eighty -two  privates. 

1677.  They  shall  be  further  organized  into  divisions  of  ,  Brisades.  dm- 

*^  sions,  stftn. 

three  or  more  brigades  each,2  and  each  division  shall  have  c  3fy^  11286^ 
a  major-general,  three  aids-de-camp,  and  one  assistant  ^w^eV^l' 
adjutant-general  with  the  rank  of  major.  Each  brigade  p'Se9c4'1647  B  s 
shall  be  composed  of  four  or  more  regiments  and  shall 

1  For  the  war  organization  of  the  regiment,  battalion,  troop,  battery,  and  company 
of  the  several  arms  of  the  service,  seethe  acts  of  April  22,  1898  (30  Stat.  L.,  361), 
April  26,  1898  (ibid.,  364),  and  March  2,  1899  (ibid.,  977). 

2 For  the  war  organization  of  brigades,  divisions,  etc.,  see  the  acts  of  April  22, 
1898  (30  Stat.  L.,  361),  April  26,  1898  (ibid.,  364),  and  March  2,  1899  (ibid.,  977). 


644  MILITARY    LAWS    OF    THE    UNITED    STATES. 

have  one  brigadier-general,  two  aids-de-camp,  one  assist- 
ant adjutant-general  with  the  rank  of  captain,  one  surgeon, 
one  assistant  quartermaster,  one  commissary  of  subsistence, 
and  sixteen  musicians  as  a  band.1 

take  rank.  OA          1678.  All  commissioned  officers  shall  take  rank  accord  - 

33^say8^v.79i2,'  p.'  ing  to  the  date  of  their  commissions,  and  when  two  of  the 

27|ec.i638,B.s.  same  grade  bear  an  equal  date  their  rank  shall  be  deter- 

mined by  lot  to  be  drawn  by  them  before  the  commanding 

officer  of  the  brigade,  regiment,  battalion,  company,  or 

detachment. 

EXPENSES   OF    ENROLLMENT. 

Par.  I     Par. 

1679.  Travel  allowance.  I  1680.  Expenses  of  march  to  rendezvous. 


al      1679.  The  officers,  noncommissioned  officers,  musicians, 
44^a3,l9'5^67.c'artificers?  and  privates  shall  be  entitled  to  one  day's  pay, 
sec.i652,R.s.  subsistence,  and  allowances  for  every  twenty  miles'  travel 
from  their  places  of  residence  to  the  place  of  general  ren- 
dezvous, and  from  the  place  of  discharge  back  to  their 
residence. 

marcKrendez-     1680.  The  expenses  incurred  by  marching  the  militia  of 

v°Fet>.  28,  1795,  c.  anv  State  or  Territory  to  their  places  of  rendezvous,  in 

AprV2o*'  i8i8?2c.;  pursuance  of  a  requisition  of  the  President,  or  of  a  call 

^slc.i&fji.s.  made  by  the  authority  of   any  State  or  Territory  and 

approved  by  him,  shall  be  adjusted  and  paid  in  like  man- 

ner as  the  expenses  incurred  after  their  arrival  at  such 

places  of  rendezvous,  on  the  requisition  of  the  President; 

but  this  provision  does  not  authorize  any  species  of  ex- 

penditure, previous  to  arriving  at  the  place  of  rendezvous, 

which  is  not  provided  by  existing  laws  to  be  paid  for  after 

their  arrival  at  such  places  of  rendezvous.2 

*For  provisions  respecting  general  staff  officers  of  the  militia  and  volunteer 
forces  in  time  of  war,  see  the  acts  of  April  22,  1898  (30  Stat.  L.,  361);  April  26,  1898 
(ibid.,  364);  May  18,  1898  (ibid.,  417);  June  29,  1898  (ibid.,  417);  joint  resolution 
No.  57,  July  8,  1898  (ibid.,  752),  and  the  act  of  March  2,  1899  (ibid.,  752). 

Where  militia  are  called  out  and  mustered  into  actual  service,  the  staff  officers  of 
their  commanding  general  can  not  be  considered  as  in  any  sense  appointed  by  the 
Secretary  of  War  or  commissioned  by  the  President.  Nor  are  they  given  the  corre- 
sponding rank  of  staff  officers  of  the  Regular  Army,  but  their  rank  remains  the  same 
as  it  was  before  in  the  militia  under  the  State  laws.  Dig.  Opin.  J.  A.  G.,  par.  1736. 

It  is  not  essential  for  a  militia  organization  that  there  should  be  a  formal  muster  in 
to  bring  it  into  the  actual  service  of  the  United  States.  The  provision  of  the  act  of 
1862  relating  to  the  muster  in  of  militia  is  directory  only.  Ibid.,  par.  1726. 

There  is  no  existing  statute  of  the  United  States  authorizing  the  President  to  call 
out  the  militia  for  drill  merely.  The  Constitution,  in  empowering  Congress  "  to  pro- 
vide for  organizing,  arming,  and  disciplining  the  militia,"  leaves  their  training  to 
the  States,  and  it  is  at  least  doubtful  whether  an  act  of  Congress  regulating  the  drill 
of  the  militia  would  be  constitutional.  Ibid.,  par.  1733. 

2  There  are  no  acts  of  Congress  providing  pay,  rations,  and  expenses  to  militia 
called  out  by  State  or  Territorial  authority,  but  disbanded  without  their  having  been 
employed  or  mustered  into  the  service  of  the  United  States  previous  to  their  dis- 
missal; such  cases,  as  they  have  arisen,  having  been,  from  time  to  time,  specially 
provided  for.  Ill  Opin.  Atty.  Gen.,  528. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  645 

PAY,  RATIONS,  EMOLUMENTS. 


Par. 


1681.  Pay,  rations,  etc. 

1682.  Addition  to  ration. 


Par. 


1683.  Commencement  of  pay. 

1684.  Forage  and  use  of  horses. 


1681.  The  militia,  when  called  into  the  actual  service  of  eg 

the  United  States,  shall,  during  their  time  of  service.'  be 441,  y9' 5? p6'?! 
entitled  to  the  same  pay,  rations,  clothing,  and  camp  equi-^1^ ^>  Vf611^  £ 
page  as  may  be  provided  by  law  for  the  Army  of  the  United  28|ec.i65o,  B.S. 
States.1 

1682.  When  the  militia  in  the  military  service  of  the  t>dditioa  to  ra' 
United  States  are  employed  on  the  western  frontiers,  there  9  g^vVp9^' 
shall  be  allowed  two  ounces  of  flour  or  bread,  and  two    s'ec.i655,B.s. 
ounces  of  beef  or  pork,  in  addition  to  each  of  their  rations, 

and  half  a  pint  of  salt,  in  addition  to  every  hundred  of 
their  rations. 

1683.  Whenever  the  militia  is  called  into  the  actual  serv-    when  Pa?  to 

commence. 

ice  of  the  United  States,  their  pay  shall  be  deemed  to    Jan- 2.  1795. c- 

9  s  3  v  1  D  408 

commence  from  the  day  of  their  appearing  at  the  place  of  's'ec.i65i,'R.s. 
battalion,  regimental,  or  brigade  rendezvous. 

1684.  The  officers  of  all  mounted  companies  in  the  militia  0fS!IsandU8e 
called  into  service  of  the  United  States  shall  each  be  enti-  9 ^fg,"  ?! !i,7p5408; 
tied  to  receive  forage,  or  money  in  lieu  thereof,  for  two  jj^jft.0' 
horses  when  they  actually  keep  private  servants,  and  for    kec.i66&,B.s. 
one  horse  when  without  private  servants,  and  forty  cents 

per  day  shall  be  allowed  for  the  use  and  risk  of  each  horse, 
except  horses  killed  in  battle  or  dying  of  wounds  received 
in  battle.  Each  noncommissioned  officer,  musician,  artifi- 
cer, and  private  of  such  mounted  companies  shall  be  enti- 
tled to  receive  forage  in  kind  for  one  horse,  with  forty  cents 
per  day  for  the  use  and  risk  thereof,  except  horses  killed  in 
battle  or  dying  of  wounds  received  in  battle,  and  twenty- 
five  cents  per  day  in  lieu  of  forage  and  subsistence  when 
the  same  is  furnished  by  himself,  or  twelve  and  a  half  cents 
per  day  for  either,  as  the  case  may  be. 


HALF  PAY,    PENSIONS,    ETC. 


Par. 


1685.  Half  pay. 

1686.  Florida  war;  pensions. 


Par. 


1687.  Care  of  wounded. 


1685.  When  any  officer,  noncommissioned  officer,  artifi-  wc 
cer,  or  private  of  the  militia  or  volunteer  corps  dies  in  ^  in 


1  For  statutes  regulating  pay  and  allowances  see  the  chapter  entitled  THE  STAFF 
DEPARTMENTS,  and  the  chapters  relating  to  the  duties  of  the  several  departments  of 
the  staff. 


64f)  MILITARY    LAWS    OF   THE    UNITED    STATES. 


'  c'  service  of  the  United  States,  or  in  returning  to  his  place 
sec.i656,  B.S.  of  residence  after  being  mustered  out  of  service,  or  at  any 
time  in  consequence  of  wounds  received  in  service,  and 
leaves  a  widow,  or  if  no  widow,  a  child  or  children  under 
sixteen  years  of  age,  such  widow,  or  if  no  widow,  such 
child  or  children,  shall  be  entitled  to  receive  half  the 
monthly  pay  to  which  the  deceased  was  entitled  at  the 
time  of  his  death,  during  the  term  of  five  years;  and  in 
case  of  the  death  or  intermarriage  of  such  widow  before 
the  expiration  of  five  years,  the  half  pay  for  the  remainder 
of  the  time  shall  go  to  the  child  or  children  of  the  dece- 
dent. And  the  Secretary  of  the  Interior  shall  adopt  such 
forms  of  evidence  in  applications  under  this  section  as  the 
President  may  prescribe. 

volunteers,  1686.  The  volunteers  or  militia  who  have  been  received 
Indian  depreda-  into  the  service  of  the  United  States  to  suppress  Indian 
benefits  to.  '  depredations  in  Florida  shall  be  entitled  to  all  the  benefits 

Mar.  19,  1836,  c.        *. 

44,&4,v.5,p^.    which  are  conferred  on  persons  wounded  or  otherwise  dis- 

'  abled  in  the  service  of  the  United  States. 

care  of  the      1687.  If  any  person,  whether  officer  or  soldier,  belong- 

May  s,  1792,  c.  ing  to  the  militia  of  any  State,  and  called  out  into  the 

sec.'i639,pR.8.'  service  of  the  United  States,  be  wounded  or  disabled  while 

in  actual  service,  he  shall  be  taken  care  of  and  provided 

for  at  the  public  expense. 

COURTS-MARTIAL,    FINES,    ETC. 


Far. 


1688.  Courts-marshal,  composition. 


far. 


1690.  Fines  paid  into  the  Treasury. 


1  89.  Collection  of  fines. 

1688.  Courts-martial  for  the  trial  of  militia  shall  be  com- 


5Fse^'y8i179^24-Posed  of  militia  officers  only. 

July  29,'  1861,   c.'  25,  s.  5,  v.  12,  p.  282.    Sec.  1658,  R.S. 

ied>  1689.  All  fines  assessed  under  the  provisions  of  law  con- 
cerning the  militia  or  volunteer  corps,  when  called  into 
the  actual  service  of  the  United  States,  shall  be  certified 
>.  12,  p.  282.  ^  the  presiding  officer  of  the  court-martial,  before  whom 
Sec.  1659,  B.S.  £hey  are  assessed,  to  the  marshal  of  the  district  in  which 
the  delinquent  presides,  or  to  one  of  his  deputies,  aud  to 
the  Comptroller  of  the  Treasury,  who  shall  record  the 
certificate  in  a  book  to  be  kept  for  that  purpose.  The 
marshal  or  his  deputy  shall  forthwith  proceed  to  levy  the 
fines  with  costs,  by  distress  and  sale  of  the  goods  and 
chattels  of  the  delinquent,  which  costs  and  the  manner  of 
proceeding,  with  respect  to  the  sale  of  goods  distrained, 
shall  be  agreeable  to  the  laws  of  the  State  in  which  the 


MILITARY    LAWS    OF    THE    UNITED    STATES. 


647 


same  may  be  in  other  cases  of  distress.  And  where  any 
noncommissioned  officer  or  private  is  adjudged  to  .suffer 
imprisonment,  there  being  no  goods  or  chattels  to  be  found 
whereof  to  levy  the  fines,  the  marshal  of  the  district  or  his 
deputy  shall  commit  such  delinquent  to  jail,  during  the 
term  for  which  he  is  so  adjudged  to  imprisonment,  or 
until  the  fine  is  paid,  in  the  same  manner  as  other  persons 
condemned  to  fine  and  imprisonment  at  the  suit  of  the 
United  States  may  be  committed. 

1690.  The  marshal  shall  pay  all  fines  collected  by  him  or 
his  deputy,  under  the  authority  of  the  preceding  section,  |tatees.United 
into  the  Treasury  of  the  United  States,  within  two  months  s/s^v8!™^-, 
after  he  has  received  the  same,  deducting  five  per  centum  ^  v'  ^p6?^ 
for  his  compensation,  and  in  case  of  failure,  it  shall  be  the^1^ .^'y^l  P. 
duty  of  the  Comptroller  of  the  Treasury  to  give  notice  to28|eca660^B>s 
the  district  attorney  of  the  United  States,  who  shall  pro- 
ceed against  the  marshal  in  the  district  court,  by  attach- 
ment, for  the  recovery  of  the  same. 


ARMAMENT   AND    EQUIPMENT. 


Par. 

1691.  Permanent  appropriation. 

1692.  Appropriation  not  to  lapse. 

1693.  Apportionment. 

1694.  Purchases,  etc.,  to  be  under  direc- 

tion of  the  Secretary  of  War. 

1695.  Returns  of  property  issued. 

1696.  Unserviceable  arms,  etc. 

1897.  Purchases  by  States. 

1898.  Credit  of  cost;  appropriation  not  to 


Par. 

1699.  The  same. 

1700.  Issues  of  Springfield   breech-load- 

ing rifles. 

1701.  Replacing  ordnance. 

1702.  Distribution  of  undrawn  quotas. 

1703.  Credits  for  same. 

1704.  Inquiry  as  to  disposition  of  issues 

to  States. 

1705.  Issue  of  heavy  guns  and  mortars. 

1706.  Restriction  on  payment  of  freight. 


1691.  The  sum  of  one  million  dollars  is  hereby  annually 
appropriated,  to  be  paid  out  of  any  money  in  the  Treas- 

ury  not  otherwise  appropriated,  for  the  purpose  of  pro-  Ap^^me49? 
viding  arms,  ordnance  stores,  quartermaster's  stores,  and  *|j:  |^  ^.  S^P. 
camp  equipage  for  issue  to  the  militia.  1  Act  of  June  6,  c^\l^i  \f$' 

1900  (31  Stdt.    L.,  662).  v.24,P.401;  June  6,  1900,  v.  31,  p.  662.      Sec.  166l',R.S.' 

1692.  The  permanent  annual  appropriation  made  by  the  proprS5onntfaopr 
act  of  April  twenty-  third,  eighteen  .hundred  and  eight,  nJui  h?pseilltia 

1  The  appropriation  for  "providing  arms  and  equipments  for  the  whole  body  of 
the  militia,  either  by  purchase  or  manufacture,"  authorizes  the  use  of  the  money  in 
the  manufacture  of  arms  at  the  National  Armories.  IX  Opin.  Att.  Gen.,  16. 

The  cost  of  transporting  arms  and  equipments  to  the  points  designated  by  proper 
authority  for  issue  to  the  militia  of  the  several  States  and  Territories  and  the  Dis- 

ject of   the  appropriation 
February  12,  1887  (24  Stat- 
unless  provision  is  specifi- 
cally made  therefor.     (3  Dig.  2d  Comp.  Dec.,  356.) 


648  MILITARY    LAWS    OF    THE    UNITED    STATES. 

liigSs',  1894  v  designated  as  section  sixteen  hundred  and  sixty -one  of  the 
28,  p.  406.          Revised  Statutes,  and  which  was  increased  to  four  hun- 
dred thousand  dollars  by  the  act   of  February  twelfth, 
eighteen  hundred  and  eighty-seven,  being  for  the  procure- 
ment of  ordnance  and  ordnance  stores  and  quartermaster's 
stores  and  camp  equipage  for  the  use  of  the  militia  of  the 
country,  shall  not  lapse  with  the  end  of  any  fiscal  year  nor 
be  turned  into  the  surplus  fund,  but  shall  remain  a  perma- 
nent appropriation  and  be  available  for  the  several  States 
and  Territories  and  District  of  Columbia  until  expended 
as  provided  in  said  acts  or  otherwise  disposed  of  by  Con- 
gress.1    Act  of  August  18,  1894  (28  Stat.  L.,  406). 
meirtportion       1693.  Said  appropriation  shall  be  apportioned  among 
v.24bp.4oi.  1901>the  several  States  and  Territories,  under  the  direction  of 

sec.i66i,B.s.  fas  Secretary  of  War,  according  to  the  number  of  Sena- 
tors and  Representatives  to  which  each  State  respectively 
is  entitled  in  the  Congress  of  the  United  States,  and  to  the 
Territories  and  District  of  Columbia  in  such  proportion 
and  under  such  regulations  as  the  President  may  prescribe: 

states  having  Provided,  however*  That  no  State  shall  be  entitled  to  the 

uniformed  mili- 
tia on4y,  entitled,  benefits  of  the  appropriation  apportioned  to  it  unless  the 

number  of  its  regularly  enlisted,  organized,  and  uniformed 
active  militia  shall  be  at  least  one  hundred  men  for  each 
Senator  and  Representative  to  which  such  State  is  entitled 
in  the  Congress  of  the  United  States.  And  the  amount  of 
said  appropriation  which  is  thus  determined  not  to  be 
available  shall  be  covered  back  into  the  Treasury.2  Sec. 
2,  Act  of  February  12,  1901  (#4,  Stat.  L.,  401). 

wSaerCtotad^rect     1694.  That  the  purchase  or  manufacture  of  arms,  ord- 

armrs°etcse  ofnance  stores,  quartermaster's  stores,  and  camp  equipage 

sec.  3,  ibid,      f  or  the  militia  under  the  provisions  of  this  act  shall  be  made 

1  The  States  do  not,  by  the  existing  laws,  have  an  absolute  right  of  property  in  such 
arms,  and  they  derive  no  authority  therefrom  to  sell  or  dispose  of  them  at  pleasure. 
XIV  Opin.  Att.  Gen.,  491. 

2  The  arms  transmitted  to  the  States  under  the  laws  which  are  embodied  in  sections 
1661,  1667,  and  1670  of  the  Revised  Statutes  are,  in  contemplation  of  the  provisions 
thereof,  to  be  held  by  the  States  for  a  specific  purpose  only,  which  is  pointed  out 
therein;  hence,  they  become  invested  with  nothing  more  than  a  qualified  property 
in  such  arms;  and  they  can  not,  as  a  matter  of  right,  and  without  interfering  with 
t he  regulations  of  Congress  on  a  subject  over  which  its  authority  is  paramount,  make 
any  disposition  or  use  of  such  arms  which  defeats  the  purpose  referred  to.     XIV 
Opin.  Atty.  Gen.  491.     Yet  those  laws  make  no  provision  for  any  accountability  to 
the  United  States  respecting  the  disposition  of  the  arms  after  they  are  once  delivered 
to  the  State  authorities,  Congress  having  seen  fit  to  leave  it  entirely  to  the  good 
faith  of  the  States,  when  the  delivery  takes  place,  to  carry  out  the  purpose  con- 
templated in  furnishing  the  same.     Ibid.     Congress,  by  the  act  of  February  12,  1887 
(24  Stat.  L.,  401),  has  provided  a  system  of  accountability  for  the  several  States  in 
respect  to  the  arms,  ammunition,  equipage  and  other  public  property  issued  to  the 
States  for  the  use  of  the  militia.     See  paragraphs  1694  and  1700,  post. 

For  provision  of  the  statutes  respecting  certain  special  issues  of  arms  and  ammuni- 
tion to  the  militia  of  the  States  and  Territories,  see  paragraphs  1780  and  1781  post. 


MILITARY    LAWS    OF    THE    UNITED   STATES.  649 

under  the  direction  of  the  Secretary  of  War,  as  such  arms, 
ordnance  and  quartermaster's  stores  and  camp  equipage 
are  now  manufactured  or  otherwise  provided  for  the  use 
of  the  Regular  Army,,  and  they  shall  be  receipted  for  and 
shall  remain  the  property  of  the  United  States,  and  be 
annually  accounted  for  by  the  governors  of  the  States  and 
Territories,  for  which  purpose  the  Secretary  of  War  shall 
prescribe  and  supply  the  necessary  blanks  and  make  such 
regulations  as  he  may  deem  necessary  to  protect  the  inter- 
est of  the  United  States.1  Sec.  3,  ibid. 

1695.  Each  State  and  Territory  shall  hereafter  make  an    Returns. 

„   _ ,r  „      ,  Feb.  24, 1897,  s. 

annual  return  to  the  Secretary  of  War  of  all  the  arms  2,  v.  29,  p.  592. 
issued  to  them  under  this  or  any  former  Act  of  Congress, 
as  provided  for  in  the  act  of  February  (twelfth),  eighteen 
hundred  and  eighty-seven,2  making  a  permanent  annual 
appropriation  for  arming  and  equipping  the  militia.  Sec. 
2,  act  of  February  24,  1897  (29  Stat.  Z.,  590). 

1696.  All  arms,  equipments,  ordnance  stores,  or  tents  ^unserviceable 
which  may  become  unserviceable  or  unsuitable  shall  be  4  ^u|g 18-  Jjgj*. 8- 
examined  by  a  board  of  officers  of  the  militia,  and  its 

report  shall  be  forwarded  by  the  governor  of  the  State  or 
Territory  direct  to  the  Secretary  of  War>  who  shall  direct 
what  disposition,  by  sale  or  otherwise,  shall  be  made  of 
them;  and,  if  sold,  the  proceeds  of  such  sale  shall  be  cov- 
ered into  the  Treasury  of  the  United  States.  Sec.  4,  act  of 
August  18,  1894  (88  Stat.  Z.,  406). 

1697.  Any  State  or  Territory  may,  in  addition  to  the    j^kf?^  s 
stores  and  supplies  issued  under  the  provisions  of  this  act3-  v. 29, P. 592.' 
and  the  act  of  February  (twelfth),  eighteen  hundred  and 
eighty-seven,  purchase  for  the  use  of  its  National  Guard  or 

reserve  militia,  at  regulation  prices  for  cash  at  place  of 
sale,  such  stores  and  supplies  from  any  department  of  the 
Army  as,  in  the  opinion  of  the  Secretary  of  War,  can  be 
spared.3  Sec.  3,  act  of  February  $4, 1897  (29  Stat.  L. ,  592). 

1698.  The  cost  of  all  stores  and  supplies  sold  to  any    credit  of  cost, 
State  or  Territory  under  section  three  of  the  act  approved    Mar.  15,  isgs, 
February  twenty-fourth,  eighteen   hundred  and   ninety- 
seven,  shall  be  credited  to  the  appropriation  from  which 

they  were  procured,  and  remain  available  to  procure  like 
stores  and  supplies  for  the  Army  in  lieu  of  those  sold  as 
aforesaid.  Act  of  March  15,  1898  (30  Stat.  Z.,  326). 

^ee  section  2,  act  of  Feb.  12,  1887  (24  Stat.  L.,  401),  par.  1693,  ante. 

2  Section  1661,  Revised  Statutes,  paragraph  1693,  ante. 

3  The  proceeds  of  such  sales  must  be  covered  into  the  Treasury  as  miscellaneous 
receipts.     Compt.  Dec.,  Aug.  22,  1900  (Circular  30,  A.  G.  O.,  1900);  see,  also,  IV 
Compt.  Dec.,  688;  v.  ibid.,  229,  230. 


650  MILITARY    LAWS    OF    THE    UNITED    STATKS. 

1699'    The    (>()st     to    the    Ordnance     Department    of     all 

'  ol'dnance  and  ordnance  stores  issued  to  tin*  States,  Terri- 
tories, and  District  of  Columbia,  under  (lie  act  of  Feb- 
ruary twelfth,  eighteen  hundred  and  eighty  -seven,  shall  be 
credited  to  the  appropriation  for  k*  manufacture  of  arms 
at  national  armories,"  which  appropriation  for  eighteen 
hundred  and  eighty-nine  and  thereafter  shall  be  available 
until  exhausted.  Act  of  September  88,  1888  (25  Stat.  L., 


sp"?is£|f8ie?df     1700<  ^ke  Secretary  of  War  is  hereby  authorized  to  issue 

rifleeschto°  state?  ^°  governors  of  the  several  States  and  Territories  sueli 

etFeb  25  189?  v  numDer  °f  Springfield  breech-loading  rifles,  caliber  fort  y- 

29,  p.  592.          five  one-hundredths  of  an  inch,  as  are  now  required  for 

arming  all  of  the  regularly  organized  armed  and  equipped 

militia  .(generally  known  as  the  National  Guard)  of  each 

State  and  Territory  that  are  not  already  supplied  with  this 

arm:  Provided,  That  each  Suite  or  Territory  be  required 

on  receipt  of  the  new  arms  to  turn  in  to  the  Ordnance  De- 

partment,  United   States  Army  (without  receiving  any 

money  credit  therefor),  an  equal  number  of  the  arms  now  in 

its  possession,  except  its  Springfield  rifles,  caliber  forty- 

five  one-hundredths  of  an  inch.     Act  of  February  %4>  1897 

(29  Stat.  L.,592). 

nancelau£xiOIin     l^Ol.  ^n  application  of  the  governor  of  any  State  or 
w™  wi.lh  ,Sl«,lin  Territory  the  Secretary  of  War  is  authorized  to  replace 

Mar.  6,  loyy,  v.  •  •  «       i 

so,  p.  1073.  the  ordnance  and  ordnance  stores  which  the  volunteers 
from  said  State  or  Territory  carried  into  service  of  the 
United  States  Army  during  the  recent  war  with  Spain,  and 
which  have  been  retained  by  the  United  States.  Act  of 
March  3,  1899  (30  Stat.  L.,  1073.) 

steteswhicSad     1702-  The  Secretary  of  War  is  authorized  and  directed 
their  quote  from  to  distribute,  to  such  States  as  did  not  receive  the  same, 
18Ma?.  3  JHJTS,  c.  their  properquota  of  arms  and  military  equipments  foreach 
^eiie&BiiLS.  vear>  from  eighteen  hundred  and  sixty-two  to  eighteen 
hundred  and  sixty-nine,  under  the  provisions  of  section 
sixteen  hundred  and  sixty:  Provided,  That  in  the  organiza- 
tion and  equipment  of  military  companies  and  organizations 
with  such  arms  no  discrimination  shall  be  made  between 
companies  and  organizations  on  account  of  race,  color,  or 
former  condition  of  servitude. 
to  e  states     1703.  All  issues  of  arms  and  other  ordnance  stores  which 


betU5?SS?i!were  made  ^  the  War  l^l^i'lment  to  the  States  and  Ter- 

iNi-.'  ami  used  to  ritories  between  the  tirst  day  of  January,  eighteen  hundred 

i!onpress    rebel~and  sixty  -one,  and  the  ninth  day  of  April,  eighteen  hun- 

1808,  c.  55,  v.  2,  dred  and  sixty  -five,  under  the  act  of  April  twenty-third, 


MILITARY    LAWS    OF    THE    UNITED    STATES.  651 

eighteen  hundred  and  eight,  and  charged  to  the  States  and  v/HfrSJffit 
Territories,  having  been  made  for  the  maintenance  and 
preservation  of  the  Union,  and  properly  chargeable  to  the 
United  States,  the  Secretary  of  War  is  hereby  authorized, 
upon  a  proper  showing  by  such  States  of  the  faithful  dis- 
position of  said  arms  and  ordnance  stores  in  the  service 
of  the  United  States  in  the  suppression  of  the  war  of  the 
rebellion,  to  credit  the  several  States  and  Territories  with  e  credit  to  states, 
the  sum  charged  to  them,  respectively,  for  arms  and  other 
ordnance  stores  which  were  issued  to  them  between  the 
aforementioned  dates,  and  charged  against  their  quotas 
under  the  law  for  arming  and  equipping  the  militia.1 
Sec.  3,  act  of  March  3,  1875  (18  Stat.  Z.,  456). 

1704.  It  shall  be  the  duty  of  the  Secretary  of  War, 
before  making  a  credit  to  any  of  said  States  and  Terri- 
tories,  to  investigate  and  ascertain,  so  nearly  as  he  can, 
the  disposition  made  by  each  of  said  States  and  Territories 
of  said  arms  and  ordnance  stores;  and  if  he  shall  find  that 
any  of  said  arms  or  ordnance  stores  have  been  sold  or 
otherwise  misapplied,  to  refuse  a  credit  to  such  State  or 
Territory  for  so  much  of  said  arms  and  ordnance  stores  as 
have  been  sold  or  misapplied;    and  the  amount  thereof 
shall  remain  a  charge  against  said  State  or  Territory,  the 
same  as  if  this  act  had  not  been  passed.2     Ibid. 

1705.  The  Secretary  of  War  is  hereby  authorized,  at  iyj*£«  ^ p^: 
his  discretion,  to  issue,  on  the  requisition  of  the  governor  |jrctillejy  drneiavy 
of  a  State  bordering  on  the  sea  or  Gulf  coast,  and  having  18||^V.  22^0?' 
a  permanent  camping   ground   for  the   encampment   of 

the   militia  not  less  than  six  days  annually,  two   heavy 
guns  and  four  mortars,  with  carriages  and  platforms,  if 

lrThe  act  of  March  3,  1875  (18  Stat.  L.,  455),  authorized  the  Secretary  of  War  to 
credit  the  several  States  and  Territories  with  arms  drawn  by  them  between  January 
1,  1861,  and  April  23,  1868,  and  not  sold  or  otherwise  misapplied,  or  used  for  the  pur- 
chase of  arms  to  be  distributed  to  the  States  in  rebellion.  The  act  of  March  3,  1887 
(24  Stat.  L.,  551),  repealed  so  much  of  the  act  of  March  3,  1875,  as  required  the 
unexpended  balances  of  the  appropriations  for  the  purchase  of  arms  for  distribution 
to  the  States  in  rebellion  to  be  covered  into  the  Treasury.  * 

2  By  several  statutes  special  authority  is  conferred  upon  the  Secretary  of  War  to 
adjust  the  accounts  of  particular  States  and  Territories  for  issues  of  arms  and  muni- 
tions of  war.  For  such  provisions  as  to  the  State  of  Kansas,  see  the  acts  of  August 
15,  1876  (19  Stat.  L.,  206);  July  28,  1886  (24  Stat.  L.,  159);  as  to  the  Territory  of 
Montana,  see  the  act  of  February  15,  1887  (24  Stat.  L.,  404);  as  to  the  Territory  of 
Dakota,  see  the  act  of  February  28,  1887  (24  Stat,  L.,  432) ;  as  to  the  State  of  Wash- 
ington, see  the  act  of  June  10, 1890  (26  Stat.  L.,  130) ;  as  to  the  State  of  Colorado,  see 
the  act  of  August  4,  1886  (24  Stat.  L.,  219).  The  act  of  January  16,  1889  (25  Stat.  L., 
646),  authorized  the  Secretary  of  War  to  issue  additional  arms  and  military  stores  to 
the  Territory  of  Montana;  the  same  statute  authorized  a  similar  issue  to  the  State  of 
Oregon.  The  joint  resolution  of  June  7,  1878  (20  Stat.  L.,  252),  authorized  the  issue 
of  1,000  stand  of  arms,  with  50  cartridges  to  each,  to  each  of  the  Territories,  in  addi- 
tion to  those  already  authorized  by  law.  See  also  the  title  "Arms,  Armories,  and 
Arsenals,"  in  the  chapter  entitled  THE  ORDNANCE  DEPARTMENT. 


652 


MILITARY    LAWS    OF   THE    UNITED   STATES. 


such  can  be  spared,  for  the  proper  instruction  and  practice 
of  the  militia  in  heavy  artillery  drill,  and  for  this  purpose 
a  suitable  battery  for  these  cannon  will  be  constructed; 
and  for  said  construction  and  the  transportation  of  said 
cannon,  and  so  forth,  the  sum  of  five  thousand  dollars  is 
hereby  appropriated  for  supplying  each  State  that  may 
so  apply.  Sec.  2,  act  of  May  19,  1882  (22  Stat.  Z.,  93). 

1706-  No  Part  of  the  appropriations  made  for  the  Ord- 
31^910  1901>  v' nance  Department  shall  be  used  in  payment  of  freight 
charges  on  ordnance  or  ordnance  stores  issued  by  said 
department.     Act  of  March  2,  1901  (31  Stat.  Z.,  910). 


THE  MILITIA  OF  THE  DISTRICT  OF  COLUMBIA. 


Par. 

1707-1711.  The  enrolled  militia. 
1712-1716.  Command. 
1717-1725.  The  active  militia,  organiza- 
tion. 

1726-1731.  Commissioned  officers. 
1732.  Noncommissioned  officers. 
1733-1737.  Enlisted  men. 


Par. 

1738-1750.  Arms,   uniforms,   and   equip- 
ments. 

1751-1760.  Military  duties. 
1761-1765.  Military  tribunals. 
1766-1770.  Expenses  and  allowances. 
1771-1776.  General  provisions. 


THE    ENROLLED    MILITIA. 


Par. 

1707.  Liability  to  enrollment. 

1708.  Exemptions. 

1709.  Assessors  to  enroll  the  militia. 


Par. 

1710.  Duty. 

1711.  Calling  forth  the  militia. 


of  o>  1707.  Every  able-bodied  male  citizen  resident  within  the 
1UMarai  1889  v  District  of  Columbia,  of  the  age  of  eighteen  years  and  under 
25,  p.  772.  tne  age  Of  forty -five  years,  excepting  persons  exempted 

by  section  two,  and  idiots,  lunatics,  common  drunkards, 
vagabonds,  paupers,  and  persons  convicted  of  any  infa- 
to  **  mous  crime,  shall  be  enrolled  in  the  militia.  Persons  so 
convicted  after  enrollment  shall  forthwith  be  disenrolled; 
and  in  all  cases  of  doubt  respecting  the  age  of  a  person 
enrolled,  the  burden  of  proof  shall  be  upon  him.  Act  of 
March  1,  1889  (25  Stat.  L.,  772.) 

1708.  In  addition  to  the  persons  exempted  from  enroll- 
ment in  the  militia  by  the  general  laws  of  the  United 
States,  the  following  persons  shall  also  be  exempted  from 
enrollment  in  the  militia  of  the  District  of  Columbia, 
namely:  Officers  of  the  government  of  the  District  of 
Columbia;  judges  and  officers  of  the  courts  of  the  District 
of  Columbia;  officers  who  have  held  commissions  in  the 
Regular  or  Volunteer  Army  or  Navy  of  the  United  States; 


Exemption. 
Sec.  2,  ibid. 


MILITARY    LAWS    OF   THE    UNITED    STATES.  653 

officers  who  have  served  for  a  period  of  five  years  in  the 
militia  of  the  District  of  Columbia  or  of  any  State  of  the 
United  States;  ministers  of  the  gospel;  practicing  physi- 
cians; conductors  and  engine-drivers  of  railroad  trains; 
members  of  the  paid  police  and  fire  department.  Sec.  2, 
ibid. 

1709.  The  Commissioners  of  the  District  of  Columbia  en^fS8or8  to 
shall  provide  for  the  enrollment  of  the  militia,  and  for  this    Sec- 3>  ***• 
purpose  may  require  the  assessors  of  taxes,  at  the  same 

time  they  are  engaged  in  taking  the  assessment  of  valua- 
tion of  real  and  personal  property,  to  make  a  list  of  per- 
sons liable  to  enrollment;  and  such  record  shall  be  deemed 
a  sufficient  notification  to  all  persons  whose  names  are  thus 
recorded  that  they  have  been  enrolled  in  the  militia. 
Immediately  after  the  completion  of  each  enrollment  they 
shall  furnish  the  commanding  general  of  the  militia  with 
a  copy  of  the  same.  Sec.  3,  ibid. 

1710.  The  enrolled  militia  shall  not  be  subject  to  any    guty.  ^^ 
duty  except  when  called  into  the  service  of  the  United 
States,  or  to  aid  the  civil  authorities  in  the  execution  of 

the  laws  or  suppression  of  riots.     Sec.  4?  ibid. 

1711.  Whenever  it  shall  be  necessary  to  call  out  anJ  sej?vr£|ring  into 
portion   of    the  enrolled  militia  the  commander  in  chief    Sec- 5- Md- 
shall  order  out,  by  draft  or  otherwise,  or  accept  as  volun- 
teers as  many  as  required.     Every  member  of  the  enrolled 

militia  who  volunteers,  or  who  is  ordered  out  or  drafted 
under  the  provisions  of  this  act,  who  does  not  appear  at 
the  time  and  place  designated,  may  be  arrested  by  order 
of  the  commanding  general  and  be  tried  and  punished  by 
a  court-martial.  The  portion  of  the  enrolled  militia 
ordered  out  or  accepted  shall  be  mustered  into  service 
for  such  period  as  may  be  required,  and  the  commanding 
general  may  assign  them  to  existing  organizations  of  the 
active  militia,  or  may  organize  them  as  the  exigencies  of 
the  occasion  may  require.  Sec.  5,  ibid. 

COMMAND. 


Par. 

1712.  Commander  in  chief. 

1713.  Commanding  general. 

1714.  Staff,  noncommissioned  staff . 


Par. 


1715.  Detail   of  army  officer  as  adjutant- 

general. 

1716.  Detail  of  retired  officer. 


1712.  The  President  of  the  United  States  shall  be  the  cg)er?mander  in 
commander  in  chief   of    the    militia  of   the    District  of    sec.6,<wa. 
Columbia.     Sec.  6,  ibid. 


654  MILITARY    LAWS    OF    THE    UNITED    STATES. 

genemrnding  1713-  There  sha11  be  appointed  and  commissioned  by  the 
President  of  the  United  States  a  commanding  general  of 
the  militia  of  the  District  of  Columbia,  with  the  rank  of 
brigadier-general,  who  shall  hold  office  until  his  successor 
is  appointed  and  qualified,  but  may  be  removed  at  any 
time  by  the  President.  Sec.  7,  ibid. 

lef 8?£rs'  1714-  The  stafl<  of  the  militia  of  the  District  of  Columbia 
shall  be  appointed  and  commissioned  by  the  President,  and 
hold  office  until  their  successors  are  appointed  and  quali- 
fied, but  may  be  removed  at  any  time  by  the  President. 
It  shall  consist  of  one  adjutant-general,  with  the  rank  of 
lieutenant-colonel;  one  inspector-general,  one  quartermas- 
ter-general, one  commissary-general,  one  chief  of  ord- 
nance, one  chief  engineer,  one  surgeon-general,  one  judge- 
advocate-general,  and  one  inspector-general  of  rifle  prac- 
tice, each  with  the  rank  of  major;  and  four  aids-de-camp, 

8iraedC8°teffmis  each  wl^  ^e  rank  °f  captain.  The  commanding  general 
may  appoint  a  noncommissioned  staff  of  the  militia  to 
consist  of  one  sergeant-major,  one  quartermaster-sergeant, 
one  commissary-sergeant,  one  ordnance-sergeant,  two  staff 
sergeants,  one  hospital  steward,  one  color-sergeant,  and 
one  sergeant-bugler.  Sec.  8,  ibid. 

jutent-genera?d"      1715>  Tlie  President  may  assign  an  officer  of  the  Army 

sec.  9,  ibid,      to  act  as  adjutant-general  of  the  militia  of  the  District  of 

Columbia,  who,  while  so  assigned,  shall  be  commissioned 

as  such  and  be  subject  to  the  orders  of  the  commanding 

general  and  the  provisions  of  this  act:  Provided,  however, 

That  the  officer  so  assigned  shall  receive  no  other  pay  or 

Pay.  emolument  than  that  to  which  his  rank  in  the  Army  entitles 

him  when  on  detached  service.1     Sec.  9,  ibid. 

tired^ffice0^  re"      1716-  The  President  of  the  United  States  may  detail  as 

8iJpn67i'  19°°'  v<  adjutant-general  of  the  District  of  Columbia  militia  any 
retired  officer  of  the  Army  who  may  be  nominated  to  the 
President  by  the  brigadier-general  commanding  the  Dis- 
trict of  Columbia  militia,  said  retired  officer  wHile  so 
detailed  to  have  the  active-service  pay  and  allowances  of 
his  rank  in  the  Regular  Army.  Act  of  June  6,  1900  (31 
Stat.  Z.,  671}. 

lHeld  that  it  would  not  be  within  the  prohibitions  of  section  1222,  Revised  Stat- 
utes, but  legal,  to  detail  an  officer  of  the  Army  to  act  as  adjutant-general  of  the 
militia  of  the  District  of  Columbia,  there  being  no  such  office  established  by  law; 
that  such  officer,  in  so  acting,  would  be  performing  military  service  and  would  not 
be  holding  a  "civil  office."  Dig.  Opin.  J.  A.  G.,  521,  par.  16. 


MILITARY    LAWS    OF    THE    UNITED    STATES. 


655 


THE    ACTIVE    MILITIA. 


ORGANIZATION. 


The  active   militia;    the   National 

Guard. 

Strength,  peace  basis. 
Infantry  regiments. 
Infantry  battalions. 


Par. 

1722.  Artillery  battery. 

1723.  Signal,    ambulance,    and   engineer 

corps. 

1724.  Band. 

1725.  Disbanding  companies  below  mini- 

mum in  strength. 


Par. 
1717. 

1718. 
1719. 
1720. 
1721.  Infantry  companies. 

1717.  The  active  militia  shall  be  composed  of  volunteers, 

and  shall  be  designated  the  National  Guard  of  the  District  Mar  l  1889  s 
of  Columbia;  and  in  case  the  militia  of  the  District  of  10^.25, p. 772." 
Columbia  are  called  into  the  service  of  the  United  States, 
or  required  for  the  suppression  of  riots,  or  to  aid  civil 
officers  in  the  execution  of  the  laws,  shall  be  the  first  to  be 
ordered  into  service.  Sec.  10,  act  of  March  1,  1889  (25 
Stat.  Z.,770). 

1718.  In  time  of  peace  the  National  Guard  shall  consist  Petceb£lsth  °n 
of  not  more  than  twenty-eight  companies  of   infantry,    Sec-ll>ibid- 
which  shall  be  arranged  by  the  commanding  general  into 

such  regiments,  battalions,  and  unattached  companies  as 
he  may  deem  expedient;  one  battery  of  light  artillery; 
one  signal  corps;  one  ambulance  corps;  one  engineer 
corps;  one  band  of  music,  and  one  corps  of  field  musicians. 
Sec.  11,  ibid. 

1719.  Regiments  of  infantry  shall  consist  of  three  bat- in|eng^ents  of 
talions;  and  to  each  regiment  there  shall  be  one  cclonel 

and  one  lieutenant-colonel,  and  a  staff  to  consist  of  one 
surgeon,  one  adjutant,  one  quartermaster,  one  inspector 
of  rifle  practice,  and  one  chaplain,  each  with  the  rank  of 
captain;  and  a  noncommissioned  staff,  consisting  of  one 
sergeant-major,  one  quartermaster-sergeant,  one  commis- 
sary-sergeant, and  one  hospital  steward.  Sec.  12,  ibid. 

1720.  Battalions  of  infantry  shall  consist  of  four  com-    infantry 
panics;  and  to  each  battalion  there  shall  be  one  major,  and    sec.  is,  ma. 
a  staff  consisting  of  one  surgeon,  one  adjutant,  one  quar- 
termaster, and  one  inspector  of  rifle  practice,  each  with 

the  rank  of  first  lieutenant;  and  a  noncommissioned  staff, 
consisting  of  one  sergeant-major,  one  quartermaster-ser- 
geant, and  one  hospital  steward.  Sec.  13,  ibid. 

1721.  To  each  company  of  infantry  there  shall  be  one    infantry  com- 

,,      ,    ,.  J  panies. 

captain,  one  first  lieutenant,  one  second  lieutenant,  one    sec.  14,  ma. 
first  sergeant,  four  sergeants,  one  corporal  to  each  ten 
privates,  and  not  more  than  eighty -seven  privates;  and  the 
minimum  number  of  enlisted  men  shall  be  forty.     Sec.  14. 
ibid. 


Sec-  12>  md- 


bat- 


656 


MILITARY    LAWS    OF   THE    UNITED    STATES. 


bat- 


sec.  15,  ibid. 


secii,ibid. 


coDmpanndiesgbe- 


sec.  18,  ibid. 


1722.  The  battery  of  light  artillery  shall  have  not  less 
^han  f  our  nor  more  than  six  guns.     To  four  guns  there 
shall  be  one  captain,  two  first  lieutenants,  one  second  lieu- 
tenant, one  first  sergeant,  one  quartermaster-sergeant,  five 
sergeants,  eight  corporals,  two  buglers,  and  not  more  than 
eighty-two  privates;  and  the  minimum  number  of  enlisted 
men  shall  be  fifty-seven.     To  more  than  four  guns  there 
shall  be,  for  each  additional  gun,  one  sergeant,  two  cor- 
porals, and  not  more  than  twenty  nor  less  than  ten  pri- 
vates; for  two  additional  guns  there  shall  be  one  additional 
second  lieutenant.     Sec.  15,  ^bid. 

1723.  To  each  signal  corps,  ambulance  corps,  and  engi- 
neer  corps  there  shall  be  one  first  lieutenant,  two   ser- 
geants, two  corporals,  and  not  more  than  thirty  -two  nor 
less  than  fourteen  privates.     Sec.  16,  ibid. 

1724.  The   band   of  music   shall   consist   of   one   chief 
musician,  two   sergeants,  two  corporals,  and   thirty-two 
privates;  and  the  corps  of  field  music  of  one  principal 
musician,  two  sergeants,   two  corporals,  and  thirty-two 
privates.     The   chief  musician,    principal  musician,  and 
other  noncommissioned  officers  of  the  band  and  field  music 
shall  be  appointed  by  the  commanding  general.     Sec.  17, 
ibid. 

1725.  When  any  company  of  the  National  Guard  shall, 
f°r  a  period  of  not  less  than  ninety  days,  contain  less  than 
fae  minimum  number  of  enlisted  men  prescribed  by  this 
act,  or  upon  a  duly  ordered  inspection  shall  be  found  to 
have  fallen  below  a  proper  standard  of  efficiency,  the  com- 
manding general  may  either  disband  such  company  or 
consolidate  it  with  any  other  company  of  the  National 
Guard,  and  grant  an  honorable  discharge  to  the  supernu- 
merary officers  and  noncommissioned  officers  produced  by 
such  consolidation.     Officers  and  enlisted  men  discharged 
by  reason  of  such  disbanding  or  consolidation  and  at  amT 
time  thereafter  reentering  the  service  shall  have  allowed 
to  them,  as  part  of  their  term  of  service,  the  time  already 
served.     Sec.  18,  ibid. 

COMMISSIONED   OFFICERS. 


Par. 


1726.  Commissioned  by  the  President. 

1727.  Staff  officers. 

1728.  Field  officers;  company  officers. 


Par. 

1729.  Elections. 

1730.  Examinations. 

1731.  Discharges. 


^726.  All  officers  shall  be  commissioned  by  the  Presi- 
dent of  the  United  States.     In  time  of  peace,  or  when  not 


MILITARY    LAWS    OF    THE    UNITED    STATES. 


657 


in  the  service  of  the  United  States,  they  shall  previously 
be  elected  or  nominated  as  herein  provided.  No  person 
commissioned  as  an  officer  shall  assume  such  rank  or 
enter  upon  the  duties  of  the  office  to  which  he  may  be 
commissioned  until  he  has  accepted  such  commission  and  oath. 
taken  such  oath  or  affirmation  as  may  be  prescribed.  Sec. 
19,  ibid. 

1727.  The  staff  officers  of  a  regiment  or  battalion  shall    staff  officers. 


Sec. 


Sec.  20,  ibid. 


Field  officers. 

Company    offi- 
cers. 


Elections. 
Sec.22,iWtf. 


Examinations. 
Sec.  23,  ibid. 


be  nominated  by  the  permanent  commander  thereof. 
20,  ibid. 

1728.  Field  officers  of  regiments  or  battalions  shall  be 
nominated  by  the   commanding  general.     Captains   and 
lieutenants  of  companies  shall  be  elected  by  the  written    sec.2i.iwd, 
votes  of  the  enlisted  men  of  the  respective  companies.1 

Sec.  21,  ibid. 

1729.  Elections   of   officers  shall   be  ordered  and  held 
under  such  regulations  as  may  be  prescribed  by  the  com- 
manding general.     Sec.  22,  ibid. 

1730.  Every  person  accepting  an  election  or  nomination 
as  an  officer  shall  appear  before  an  examining  board,  to  be 
appointed  by  the  commanding  general,  which  board  shall 
examine  said  officer  as  to  his  military  and  other  qualifica- 
tions.    If  any  officer  shall  fail  to  appear  before  the  board 
of  examination  within  thirty  days  after  being  notified,  or 
shall  fail  to  pass  a  satisfactory  examination,  the  fact  shall 
be  certified  by  the  board  to  the  commanding  general,  who 
shall  thereupon  declare  the  election  or  nomination  of  such 
officer  null  and  void.     If,  in  the  opinion  of  the  board,  such 
officer  is  competent  and  otherwise  qualified,  they  shall  cer- 
tify the  fact  to  the  commanding  general,  who  shall  there- 
upon recommend  him  to  the  President  for  commission. 
Sec.  23,  ibid. 

1731.  A  commissioned  officer  may   be   honorabl}T   dis- 
charged— 

Upon  tender  of  resignation; 

Upon  disbandment  of  the  organization  to  which  he 
belongs; 

Upon  report  of  a  board  of  examination,  or  for  failure  to 
appear  before  such  board  when  ordered. 

Section  21  of  the  act  of  March  1, 1889,  reorganizing  the  District  of  Columbia  militia, 
requires  that  captains  and  lieutenants  of  companies  shall  be  elected  by  the  enlisted 
men  of  the  same.  Held,  that  this  enactment  would  prevent  the  assignment  to  a  com- 
pany of  an  officer  not  first  elected  thereby.  So  that  it  would  require  that  such  offi- 
cers be  appointed  as  officers  of  the  particular  companies  by  which  they  had  been 
elected,  and  would  not  permit  of  their  appointment  simply  to  the  arm  of  service,  as 
in  the  Army.  Dig.  Opin.  J.  A.  G.,  22,  par.  17. 

22924—08 42 


Discharges. 
Sec.  24,  ibid. 


658  MILITARY    LAWS    OF    THE    UNITED    STATES. 

He  may  be  dismissed  upon  the  sentence  of  a  court-martial 
or  conviction  in  a  court  of  justice  of  an  infamous  offense. 
Sec.  $4,  ibid. 

NONCOMMISSIONED    OFFICERS. 

.Noncommis-      1732.  Noncommissioned  staff  officers  shall  be  appointed 

sioned  officers. 

Appointment,  by  the  permanent  commander  of  the  organization  to  which 
they  belong;  and  permanent  commanders  of  battalions 
shall  appoint  the  noncommissioned  officers  of  companies, 
upon  the  written  nomination  of  the  respective  captains; 
but  they  may  withhold  such  appointment  if,  in  their  judg- 
ment, there  be  proper  cause;  noncommissioned  officers  of 
unattached  companies  shall  be  appointed  by  their  respec- 
tive captains.  The  permanent  commander  of  any  battalion 
or  unattached  company  may  reduce  to  the  ranks  any  com- 
pany noncommissioned  officers  of  his  command.  Sec.  25, 
ibid. 

ENLISTED    MEN. 


Par. 


1733.  Enlistment;  term;  reenlistment. 

1734.  Oath. 


Par. 


1736.  Dishonorable  discharge. 

1737.  Discharge  certificates. 


1735.  Discharge,  honorable. 

Enlistment.         1733.  Enlistment  in  the  National  Guard  shall  be  for  the 

Term.  term  of  three  years:  Provided,  hoivever,  That  any  soldier 

who  may  have  received  an  honorable  discharge,  by  reason 

of  the  expiration  of  his  term  of  service,  may,  within  thirty 

Reenlistment.  days  thereafter,  reenlist  for  a  term  of  one,  two,  or  three 

Sec.  26,  ibid.  ,  '  ,  .        .  £   ,  . 

years,  to  date  from  the  expiration  ot  his  previous  term. 
All  terms  of  service,  except  in  case  of  reenlistment,  shall 
commence  at  noon  on  the  day  of  enlistment  and  expire  at 
noon  on  the  day  of  discharge.  Sec.  26,  ibid. 

oath,  etc.  1734.  Every  person  enlisting  in  the  National  Guard  shall 

sign  an  enlistment  paper  which  shall  contain  an  oath  of 
allegiance  to  the  United  States.  The  requisites  and  regu- 
lations for  enlistment  and  the  form  of  enlistment  paper 
and  oath  for  enlisting  men  shall  be  prescribed  by  the  com- 
manding general.  Sec.  27,  ibid. 

Discharges:          1735.  No  enlisted  man  shall  be  honorably  discharged 

Honorable.  .  -   ,  .  ,,  .  , 

sec.  28,  aid.  before  the  expiration  of  his  term  of  service,  except  by 
order  of  the  commanding  general,  and  for  the  following 
reasons: 

Upon  his  own  application,  approved  by  the  command- 
ing officer  of  his  company  and  by  superior  commanders; 

Upon  removal  from  the  District; 

Upon  disability,  established  by  certificate  of  medical 
officer; 


MILITARY    LAWS    OF    THE    UNITED    STATES.  659 

To  accept  promotion  by  commission; 

Whenever,  in  the  opinion  of  the  commanding  general, 
the  interest  of  the  service  demand  such  discharge.  Sec. 
28,  ibid. 

1736.  Enlisted  men  shall  be  dishonorably  discharged  by    gJSJ'Sffi* 
order  of  the  commanding  general: 

To  carry  out  the  sentence  of  a  court-martial; 

Upon  conviction  of  felony  in  a  civil  court; 

Upon  expulsion  from  his  company,  in  accordance  with 
its  by-laws  or  regulations; 

Upon  discovery  of  reenlistment  after  previous  dishon- 
orable discharge.  Sec.  £9,  ibid. 

1737.  Every  soldier  discharged  from  the  service  of  the  digceh^ceate  ° f 
District  shall  be  furnished  with  a  certificate  of  such  dis-    Sec- 30>  md- 
charge,  which  shall   state  clearly  the  reasons   therefor. 
Dishonorable  discharges  will  have  the  word  "  dishonor- 
able "  written  or  printed  diagonally  across  their  faces,  in 

large  characters,  with  red  ink,  and  the  reenlistment  clause 
will  be  erased  by  a  line.     Sec.  30,  ibid. 


ARMS,    UNIFORMS,    AND    EQUIPMENTS. 


Par. 


1738.  Arms,  equipments,  etc. 

1739.  Issued  by  Secretary  of  War. 

1740.  Issues  made  from  army  stores. 

1741.  Regulations  for  issue,  care,  etc. 


Par. 


1744.  Accountability  of  officers. 

1745.  Unserviceable  property. 

1746.  Distinctive  uniforms. 

1747.  Private  property  of  organizations. 


1742.  Returns.  1748.  Armories. 

1743.  Selling,   disposing,   pawning,  etc.,     1749.  Deductions  of  pay,  deposit. 

penalty.  1750.  The  same,  expenditure. 

1738.  The  uniforms,  arms,  and  equipments  of  the  Na-  m£nrgs' 
tional  Guard  shall  be  the  same  as  prescribed  and  furnished    Sec- 31> 
to  the  Army  of  the  United  States.     Every  organization  of 

the  National  Guard  shall  be  provided  with  such  ordnance 
and  ordnance  stores,  clothing,  camp  and  garrison  equip- 
age, quartermaster's  stores,  medical  supplies,  and  other 
military  stores,  as  ma}7  be  necessary  for  the  proper  train- 
ing and  instruction  of  the  force  and  for  the  proper  per- 
formance of  the  duties  required  under  this  act.  Sec.  31, 
ibid. 

1739.  Such  property  shall  be  issued  from  the  stores  and 
supplies  appropriated  for  the  use  of  the  Army,  upon  the    The  same- 
approval  and  by  the  direction  of  the  Secretary  of  War,  to 

the  commanding  general,  upon  his  requisitions  for  the 
same.  The  property  so  issued  shall  remain  and  continue 
to  be  the  propert}7  of  the  United  States,  and  shall  be  ac- 
counted for  by  the  commanding  general  at  such  times,  in 


660  MILITARY    LAWS    OF   THE    UNITED   STATES. 

manner,  and  on  such  forms,  as  the  Secretary  of  War  may 
require.1     Sec.  31,  ibid. 

madeferomlr£y      1740.  The    Secretary  of  War  is  hereby  authorized   to 
8tjuiy  23,  1888,  issue  from  the  stores  of  the  Army  such  arms,  ordnance 
v.  25,  p.  627.       stores,  quartermaster's  stores,  and  camp  equipage  to  the 
militia  of  the  District  of  Columbia  as  he  may  deem  neces- 
sary for  their  proper  equipment  and  instruction.      The 
property  so  issued  shall  remain  and  continue  to  be  the 
property  of   the   United    States,  and    shall   be  annually 
accounted  for  in  such  manner  as  the  Secretary  of  War  may 
require.     Act  of  July  23,  1888  (25  Stat.  Z.,  627). 

1741.  The  commanding  general  may  transfer  all  public 
property,  received  by  him  for  the  use  of  the  National 
Guard  under  the  provision  of  this  act,  to  the  several  de- 
partmental offices  of  the  general  staff,  and  may  make  and 
prescribe  regulations  for  its  issue  by  them,  and  for  its  care 
and  preservation  by  the  officers  or  soldiers  to  whom  issued. 
Sec.  32,  act  of  March  1,  1889  (25  Stat.  Z.,  770). 

1742.  Every  officer  receiving  public  property  for  mili- 
tary use  shall  be  accountable  for  the  articles  so  received 
by  him,  and  shall  make  returns  of  such  property  at  such 
times,  in  such  manner,  and  on  such  forms  as  may  be  pre- 
scribed.    He  shall  be  liable  to  trial  by  court-martial  for 
neglect  of  duty,  and  also  make  good  to  the  United  States 
the  value  of  all  such  property  defaced,  injured,  destroyed, 
or  lost,  by  any  neglect  or  default  on  his  part,  to  be  recovered 
in  an  action  of  tort,  or  by  any  other  action  at  law,  to  be 
instituted  by  the  judge-advocate-general  of  the  militia  at 
the  order  of  the  commanding  general.    All  money  received 
on  account  of  loss  or  damages  shall  be  paid  in  the  Treasury 
of  the  United  States,  and  shall  be  accounted  for  by  the  com- 
manding general  in  his  returns  to  the  Secretary  of  War. 
Sec.  33,  ibid. 

for*s3iii£inetct  1743.  Any  officer  or  soldier  who  shall  sell,  dispose  of, 
Pawn  or  pledge,  willfully  destroy  or  injure,  or  retain  after 
proper  demand  made  any  public  property  issued  under 
the  provisions  of  this  act,  shall  be  deemed  guilty  of  a  mis- 
demeanor, and  shall  be  punished  by  imprisonment  for  not 


lHeld  that  the  "military  stores"  required  by  section  31  of  the  act  of  March  1, 1889, 
to  be  furnished  for  the  militia  of  the  District  of  Columbia,  did  not  include  copies  of 
the  Infantry  Drill  Regulations.  Dig.  Opin.  J.  A.  G.,  521,  par.  14. 

Held  that  the  clothing  and  camp  and  garrison  equipage  issued  to  the  District  of 
Columbia  militia,  under  section  31  of  the  act  of  March  1,  1889,  was  properly  to  be 
inspected  by  militia,  not  by  army  officers;  and  that  the  condemned  portion,  if  any, 
was  to  be  reported  by  the  commanding  general  of  the  militia  to  the  Secretary  of  War, 
to  be  disposed  of  as  he  should  direct.  Ibid.,  par.  15.  See  also  act  of  July  23,  1888, 
paragraph  1287,  post. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  661 

exceeding  two  months,  or  by  a  fine  not  exceeding  one  hun- 
dred dollars,  or  by  both;  and  it  is  hereby  made  the  duty 
of  the  judge  of  the  police  court  of  the  District  of  Colum- 
bia, upon  information  filed  or  complaint  made  under  oath, 
to  issue  process  for  the  arrest  of  the  offender,  and  to  cause 
him  to  be  brought  before  the  police  court  to  be  dealt  with 
according  to  the  provisions  of  this  section.  Sec.  31^,  ibid. 

1744.  Until  an  officer  or  his  legal  representative  shall  of^ffiSS^11"7 
have  received  notice  that  the  property  accounts  of  such    ' 

officer  have  been  -examined  and  found  correct,  the  liability 
of  such  officer,  or  of  his  estate,  for  public  property  for 
which  he  is  or  ma}^  have  been  responsible  shall  be  in  no  way 
affected  by  resignation,  discharge,  change  in  official  posi- 
tion, or  death.  Upon  the  death  or  desertion  of  an  officer 
responsible  for  public  property  his  immediate  commander 
shall  at  once  cause  the  property  for  which  such  officer  was 
responsible  to  be  collected,  and  a  correct  inventory  made 
by  actual  count  and  examination;  which  inventory  shall  be 
forwarded  to  the  commanding  general,  in  order  that  any 
deficiency  may  be  made  good  from  the  estate  of  the  de- 
ceased or  deserting  officer;  compensation  for  such  defi- 
ciency maybe  recovered  in  the  manner  provided  in  section 
thirty-four.  Sec.  35,  ibid. 

1745.  Property  issued  or  provided  under  the  provisions  prop|Jt™ceable 
of  this  act  which  becomes  unfit  for  use  and  is  condemned    Sec-  36>  md- 
as  unserviceable  shall  be  reported  by  the  commanding  gen- 

eral to  the  Secretary  of  War,  and  shall  be  disposed  of  as 
may  be  directed  by  him.  Sec.  36,  ibid. 

1746.  Any  organization  of  the  active  militia  mav,  with    Distinctive 

J  '  uniforms. 

the  approval  of  the  commanding  general  and  at  its  own    sec.  37,  ma. 
expense,  adopt  any  other  uniform  than  that  issued  to  it; 
but  such  uniform  shall  not  be  worn  when  such  organization 
is  on  duty  under  the  orders  of  the  commanding  general 
except  by  his  permission.     Sec.  37,  ibid. 


1747.  Organizations  of  the  National  Guard  shall  have  p^f^i  to  T°™n_ 
the  right  to  own  and  keep  personal  property,  which  shall  erg^  38  ilyid 
belong  to  and  be  under  the  control  of  the  active  members 
thereof;  and  the  commanding  officer  of  any  organization 
may  recover  for  its  use  any  debts  or  effects  belonging  to 
it,  or  damages  for  injury  to  such  property;  action  for  such  .uAns  forin- 
recovery  to  be  brought,  in  the  name  of  such  commanding 
officer,  before  any  justice  of  the  peace,  with  the  right  of 
appeal  to  the  supreme  court  of  the  District  of  Columbia, 
or  before  the  supreme  court  of  the  District  of  Columbia; 
and  no  suit  or  complaint  pending  in  his  name  shall  be 


662  MILITARY    LAWS    OF    THE    UNITED    STATES. 

abated  by  his  ceasing  to  be  commanding  officer  of*  the 
organization;  but,  upon  the  motion  of  the  commander  suc- 
ceeding him,  such  commander  shall  be  admitted  to  prose- 
cute the  suit  or  complaint  in  like  manner  and  with  like 
effect  as  if  it  had  been  originally  commenced  by  him.  Sec. 
38,  ibid. 

provided69  tobe  1748.  The  quartermaster-general  of  the  militia  shall 
sec.  39,  ibid.  provi^e?  by  rental  or  otherwise,  such  armories  for  the  Na- 
tional Guard  as  may  be  allowed  and  directed  by  the  com- 
manding general.  He  shall  also  provide  each  organization 
with  such  lockers,  closets,  gunracks,  and  cases  or  desks, 
as  may  be  necessary  for  the  care,  preservation,  and  safe- 
keeping of  the  arms,  equipments,  uniforms,  records,  and 
other  military  property  in  their  possession.  He  shall  also 
provide  suitable  rooms  for  the  offices  of  the  commanding 
general  and  staff,  for  the  keeping  of  books,  the  transaction 
of  business,  and  the  instruction  of  officers,  and  also  suit- 
able places  for  the 'storage  and  safe-keeping  of  public 
property.  Sec.  39,  ibid. 

fro^m^ay^bl  1749.  All  money s  collected  on  account  of  deductions 
d1B2r.ti?i9oi,  v.  made  f  rom  the  p&y  of  any  officer  or  enlisted  man  of  the 
National  Guard  of  the  District  of  Columbia,  on  account  of 
Government  property  lost  or  destroyed  by  such  individ- 
ual, shall  be  repaid  into  the  United  States  Treasury  to  the 
credit  of  the  officer  of  the  militia  of  the  District  of  Colum- 
bia, who  is  accountable  to  the  United  States  Government 
for  such  property  lost  or  destroyed.  Act  of  March  1, 1901 
(31  Stat.  _£.,  845). 

fund?eno^ufne°df  1750t  A11  moneys  collected  on  account  of  deductions 
bya?aerd"cti9oi  v  ma(^e  from  the  pay  of  any  officer  or  enlisted  man  of  the 
si,  P.  845.  National  Guard  of  the  District  of  Columbia  for  or  on  ac- 

count of  any  violation  of  the  regulations  governing  said 
National  Guard  shall  be  held  by  the  commanding  general 
of  the  militia  of  the  District  of  Columbia,  wto  is  author- 
ized to  expend  such  moneys  so  collected  for  general  inci- 
dental expenses  of  the  service;  and  for  all  moneys  so  col- 
lected and  expended  the  commanding  general  shall  make 
an  accounting  in  like  manner  as  for  the  appropriation  dis- 
bursed for  pay  of  troops.  Act  of  March  1,  1901  (31  Stat. 
Z.,  845). 


MILITARY    LAWS    OF    THE    UNITED    STATES.  663 


MILITARY    DUTIES. 


Par.  Par. 

1751.  Drill,  a  military  duty.  1756.  Suppression  of  riots. 

1752.  Commanding  general  to  prescribe  !  1757.  Excuses  from  duty. 

drills,  etc.  1758.  Parades,  right  of  way. 


1753.  Annual  inspection. 

1754.  Encampments. 

1755.  Use    of    grounds    at    Washington 

Barracks. 


1759.  Parades    and  encampments,  rules 

for. 

1760.  Government  employees. 


1751.  Any-  drill,  parade,  encampment,  or  duty  that  isbe°f  JJ 
required,  ordered,  or  authorized  to  be  performed  under  ^c. 
the  provisions  of  this  act  shall  be  deemed  to  be  a  military 
duty,  and  while  on  such  duty  every  officer  and  enlisted 
man  of  the  National  Guard  shall  be  subject  to  the  lawful 
orders  of  his  superior  officers,  and  for  any  military  offense 
may  be  put  and  kept  under  arrest  or  under  guard  for  a 
time  not  extending  beyond  the  term  of  service  for  which 

he  is  then  ordered.     Sec.  Jfl,  ibid. 

1752.  The   commanding  general    shall   prescribe    such    Prescribing 

drills,  etc. 

stated  drills  and  parades  as  he  may  deem  necessary  lor  the  sec.  41,  ibid. 
instruction  of  the  National  Guard,  and  may  order  out  any 
portion  of  the  National  Guard  for  such  drills,  inspections, 
parades,  escort,  or  other  duties,  as  he  may  deem  proper.1 
The  commanding  officer  of  any  regiment,  battalion,  or 
company  may  also  assemble  his  command,  or  any  part 
thereof,  in  the  evening  for  drill,  instruction,  or  other 
business,  as  he  may  deem  expedient;  but  no  parade  shall 
be  performed  by  any  regiment,  battalion,  company,  or 
part  thereof  without  the  permission  of  the  commanding 
general.  Sec.  1+1,  ibid. 

1753.  An  annual  inspection  and  muster  of  each  organ- t.  Annual  inspec- 
ization  of  the  National  Guard,  and  an  inspection  of  their    sec.42,tWd. 
armories  and  of  public  property  in  their  possession,  shall 

be  made  at  such  times  and  places  as  the  commanding  gen- 
eral may  order  and  direct.  Sec.  1$,  ibid. 

1754.  The  National  Guard  shall  perform  not  less  than    Encampments. 

.  ,       Sec.  43,  ibid. 

six  consecutive  days  of  camp  duty  in  each  year,  at  such 
time  as  ma}^  be  ordered  by  the  commanding  general;  and 
the  quartermaster-general  of  the  militia,  subject  to  the 
approval  of  the  commanding  general,  shall  provide,  by 
rental  or  otherwise,  a  suitable  camp  ground  for  the  annual 

1  It  was  held  by  the  Attorney-General,  in  an  opinion  rendered  at  the  request  of  the 
Secretary  of  the  Treasury,  in  May,  1896,  that  leaves  of  absence  to  employees  of  the 
Government  in  Washington  granted  for  the  purpose  of  enabling  them  to  discharge 
their  military  duties,  were  not  to  be  charged  to  the  thirty  days  allowed  them  annu- 
ally for  rest  and  recreation.  XXI  Opin.  Att.  Gen.,  353;  but  see  VI  Compt.  Dec.,  856. 


664  MILITARY    LAWS    OF    THE    UNITED    STATES. 

encampment  of  the  militia,  make  the  necessary  provisions 
thereon  for  the  encampment,  and  provide  necessary  trans- 
portation to  and  from  the  same  for  baggage  and  "supplies. 
Sec.  4^,  ibid. 
Use  of  wash-      1755.  National  Guard  shall  have  the  use  of  the  drill 

infecn4^aS.  s  grounds  and  rifle-range  at  the  Washington  Barracks,  sub- 
ject to  the  approval  of  the  Secretary  of  War,  and  the 
commanding  general  of  the  militia  shall  provide  such  addi- 
tional targets  and  accessories  as  may  be  necessary  for  the 
use  of  the  militia.  Sec.  44,  ibid. 
suppression  of  1756.  When  there  is  in  the  District  of  Columbia  a  tumult, 

nsec.e45,'t&M.  riot,  mob,  or  a  body  of  men  acting  together  by  force  with 
attempt  to  commit  a  felony;  or  to  offer  violence  to  persons 
or  property,  or  by  force  and  violence  to  break  and  resist 
the  laws,  or  when  such  tumult,  riot,  or  mob  is  threatened, 
it  shall  be  lawful  for  the  Commissioners  of  the  District  of 
Columbia,  or  for  the  United  States  marshal  for  the  Dis- 
trict of  Columbia,  to  call  on  the  commander  in  chief  to  aid 
them  in  suppressing  such  violence  and  enforcing  the  laws; 
the  commander  in  chief  shall  thereupon  order  out  so  much 
and  such  portion  of  the  militia  as  he  may  deem  necessary 
to  suppress  the  same,  and  no  member  thereof  who  shall 
be  thus  ordered  out  by  proper  authority  for  any  such  duty 
shall  be  liable  to  civil  or  criminal  prosecution  for  any  act 
done  in  the  discharge  of  his  military  duty.  Sec.  45->  ibid. 

d  Excuse  from  1757  NQ  officer  Qr  soldier  of  the  Rational  Guard,  when 
sec.46,»id.  ordered  on  duty  to  aid  the  civil  authorities,  or  when 
ordered  into  the  service  of  the  United  States  in  obedience 
to  the  call  or  order  of  the  President,  shall  be  excused  from 
such  duty  except  upon  the  certificate  of  the  surgeon  of  his 
command  of  physical  disability,  such  certificate  to  be  pre- 
sented to  the  commanding  general  in  case  of  an  officer,  or 
to  his  company  commander  in  case  of  a  soldier.  If  such 
officer  or  soldier  fail  to  furnish  such  excuse  he  shall  be 
tried  and  punished  by  a  court-martial.  For  absence  from 
any  other  military  duty  required  or  ordered  under  the  pro- 
visions of  this  act  the  penalty  shall  be  such  as  may  be  pre- 
scribed by  the  commanding  general  or  the  by-laws  of  the 
organization  to  which  the  officer  or  soldier  belongs.  Sec. 
46,  ibid. 

ha^aeradrei'ghttc"o(f     1758'  The  United  States  forces  or  troops,  or  any  portion 

wsec  47  ibid  °^  the  militia,  parading,  or  performing  any  duty  accord- 
ing to  law,  shall  have  the  right  of  way  in  any  street  or 
highway  through  which  they  may  pass:  Provided,  That 

partmentfirltcde"  ^e  cal™ge  of  the  United  States  mails,  the  legitimate 
functions  of  the  police,  and  the  progress  and  operations  of 


MILITARY    LAWS    OF    THE    UNITED    STATES. 


665 


fire-engines  and  fire  departments  shall  not  be  interfered 
with  thereby.  Sec.  Ifl  ,  ibid. 

1759.  Every  commanding  officer,  when  on  duty,   may  rjj£slesaijdr  en- 
ascertain  and  fix  necessary  bounds  and  limits  to  his  parad 

or  encampment.  Whoever  intrudes  within  the  limits  of 
the  parade  or  encampment  after  being  forbidden,  or  who- 
ever shall  interrupt,  molest,  or  obstruct  any  officer  or  sol- 
dier while  on  duty,  may  be  put  and  kept  under  guard 
until  the  parade,  encampment,  or  duty  be  concluded;  and 
the  commanding  officer  may  turn  over  such  person  to  any 
police  officer,  and  said  police  officer  is  required  to  detain 
him  in  custody  for  examination  or  trial  before  the  police 
court,  and  the  judge  thereof  may  punish  such  offense  by 
a  fine  not  exceeding  twenty-five  dollars.  Sec.  Ji$,  ibid. 

1760.  All  officers  and  employees  of  the  United  States 
and  of  the  District  of  Columbia  who  are  members  of  the 
National  Guard  shall  be  entitled  to  leave  of  absence  from 
their  respective  duties,  without  loss  of  pay  or  time,  on  all 
days  of  any  parade  or  encampment  ordered  or  authorized 
under  the  provisions  of  this  act.1     Sec.  4-9,  ibid. 


Sec>  49)  ibtd- 


MILITARY    TRIBUNALS. 


Par. 

1761.  Courts  of  inquiry. 

1762.  Courts-martial. 

1763.  Trials  of  enlisted  men. 


Par. 

1764.  Procedure. 

1765.  Procedure   to   conform   to  that  in 

Army. 


1761.  Courts  of  inquiry,  to  consist  of  not  more  thanquc.™rts  of  iu' 
three  officers,  may  be  ordered  by  the  commanding  general,    Sec-  5°i  ibid- 
for  the  purpose  of  investigating  the  conduct  of  any  officer, 

either  at  his  own  request  or  on  a  complaint  or  charge  of 
conduct  unbecoming  an  officer.  Such  court  of  inquiry 
shall  report  the  evidence  adduced,  a  statement  of  facts, 
and  an  opinion  thereon,  when  required,  to  the  command- 
ing general,  who  may,  in  his  discretion,  thereupon  order 
a  court-martial  for  the  trial  of  the  officer  whose  conduct 
has  been  inquired  into.  Sec.  oO,  ibid. 

1762.  General  courts-martial  for  the  trial  of  commis- 
sioned  officers  or  enlisted  men  shall  be  ordered  by  the 
commanding  general  at  such  times  as  the  interests  of  the 
service  may  require,  and  shall  consist  of  not  less  than  five 
nor  more  than  thirteen  officers  and  a  judge-advocate,  none 
of  whom  shall  be  of  less  rank  than  the  accused,  when  it 
can  be  avoided.     Sec.  51,  ibid. 


1  Rifle  practice  is  not  a  parade  within  the  meaning  of  the  act  of  March  1,  1889 
(25  Stat.  L.,  772).     XX  Opin.  Att.  Gen.,  669. 


666 


MILITARY    LAWS    OF    THE    UNITED    STATES. 


iisterdamenf  1763-  For  the  trial  of  enlisted  men  for  all  minor  offenses 

sec.  62,  ibid.  ^ne  commanding  officer  of  each  battalion  and  unattached 
company  shall,  at  such  times  as  ma}r  be  necessary,  appoint 
courts-martial.  Such  battalion  and  company  courts- 
martial  shall  consist,  for  a  battalion,  of  one  officer  whose 
rank  is  not  below  that  of  captain;  and  for  a  company,  of 
a  lieutenant.  Such  courts  shall  have  power,  subject  to  the 
approval  of  the  officer  ordering  the  court,  to  sentence  to 
be  reprimanded  by  said  officer  in  battalion  or  company 
orders;  or,  in  case  of  a  company,  noncommissioned  officers 
to  be  reduced  to  the  ranks  or  to  pay  such  fines  as  may  be 
imposed  and  allowed  by  the  regulations  or  by-laws  of  the 
organization  to  which  the  accused  belongs;  and  such  court 
may,  with  the  approval  of  the  commanding  general,  sen- 
tence to  be  reprimanded  in  general  orders  or  to  be  dis- 
honorably discharged.  Sec.  52,  ibid. 

tn^,risceedingsiu      1764.  The  president  of  a  general  court-martial  or  court 
sec.'  53,  ibid,     of  inquiry,  and  the  officer  constituting  a  battalion  or  com- 
pany court-martial,  shall  have  power  to  administer  the 
usual  oath  to  witnesses,  and  may  issue  summonses  for  all 
witnesses  whose  attendance  at  such  court  may,  in  his  opin- 
ion, be  necessary,  and  any  officer  or  soldier  failing  to  serve 
such  summons,  and  any  witness  failing  to  appear  and  tes- 
tify when  so  summoned,  shall  be  liable  to  trial  by  court- 
martial.     Sec.  53,  ibid. 
TO  conform  to      1765.  In  all  courts-martial  and  courts  of  inquiry  the  ar- 

Army  trials.  .  "        J 

sec.  54,  ibid,  raignment  of  the  accused,  the  proceedings,  trial,  and  rec- 
ord shall  in  all  respects  conform  as  nearly  as  practicable 
to  the  regulations  for  the  same  in  the  Army  of  the  United 
States.  Sec.  5^  ibid. 


EXPENSES    AND   ALLOWANCES. 


Par. 

1766.  General  expenses. 

1767.  Bands. 

1768.  Subsistence  while  on  dutv. 


Par. 

1769.  Estimates;  disbursements. 

1770.  Leases,  contracts,  etc. 


General    ex- 
penses. 
Sec.  55  ibid. 


1766.  There  shall  be  allowed  for  the  general  expenses  of 
the  militia  such  sums  as  may  be  necessary  for  the  rental 
and  furnishing  of  offices  for  headquarters,  stationery,  post- 
age, printing  and  issuing  orders,  advertising  orders,  pro- 
viding necessary  blanks  for  the  use  of  the  militia,  the  cost 
of  storing,  caring  for,  and  issuing  all  public  property, 
and  such  other  contingent  expenses,  not  herein  specially 
provided  for,  as  may  be  estimated  and  appropriated  for; 
the  accounts  for  which  shall  be  certified  to  by  the  officer 


MILITARY    LAWS    OF    THE    UNITED    STATES.  667 

receiving  the  service  or  property  charged  for,  approved 
by  the  commanding  general,  and  paid  in  the  manner  pro- 
vided in  section  sixty.  Sec.  55 ',  ibid. 

1767.  During  the  annual   encampment,  and  on  every  ba^yScent  to 
duty  or  parade  ordered  by  the  commanding  general,  there    Sec-  66« ibid- 
shall  be  allowed  and  paid  for  each  day  of  service:  To  each 

member  of  the  regularly  enlisted  band,  four  dollars;  to 
each  member  of  the  regularly  enlisted  corps  of  field  music, 
two  dollars;  to  the  chief  musician,  eight  dollars,  and  to  the 
principal  musician,  six  dollars.  In  event  there  is  no 
enlisted  band  or  field  music,  or  not  a  sufficient  number  of 
either,  the  commanding  general  may  authorize  the  employ- 
ment of  such  as  he  may  deem  necessary  for  the  occasion. 
The  payments  for  bands  of  music  and  drum  corps  shall  be 
made  in  the  manner  provided  in  section  sixty.  Sec.  56,  ibid. 

1768.  During  the  annual  encampment,  or  when  ordered 

on  duty  to  aid  the  civilian  authorities,  the  National  Guard  Sec-  57> 
shall  be  furnished  with  subsistence  stores  of  the  kind, 
quality,  and  amount  allowed  and  prescribed  by  the  Army. 
Such  stores  shall  be  issued  from  the  stores  and  supplies 
apportioned  for  the  use  of  the  Army,  upon  the  approval 
and  by  the  direction  of  the  Secretary  of  War,  to  the  com- 
manding general  upon  his  requisitions  for  the  same.  Sec. 
57,  ibid. 

1769.  The  commanding  general  shall  annually  transmit 

to  the  Commissioners  of  the  District  of  Columbia  an  esti-  Disbursements. 
mate  of  the  amount  of  money  required  for  the  next  ensu- 
ing fiscal  year  to  pay  the  expenses  authorized  by  this  act, 
and  the  said  Commissioners  shall  include  the  same  in  their 
annual  estimates  of  appropriations  for  the  District;  and 
all  money  apportioned  to  pay  the  expenses  authorized  by 
this  act  shall  be  disbursed  by  the  Commissioners  of  the 
District  of  Columbia,  upon  vouchers  duly  certified  and 
approved  by  the  commanding  general,  and  accounted  for 
by  them  in  the  same  manner  as  all  other  moneys  appro- 
priated for  the  expenses  of  the  District.  Sec.  58,  ibid. 

1770.  Hereafter,  all  leases  and  contracts  involving  ex-  be 
penditures  on  account  of  the  militia  shall  be  made  by  the  co 

r  J  ot  the  District  of 

Commissioners  of  the  District  of  Columbia;  and  the  appro-  c<j£JJ,bi£  1896 

priations  for  the  militia  shall   be  disbursed  only  upon v- 2Q.  P- 412- 

vouchers  duly  authorized  by  the  Commissioners,  ipr  which 

they  shall  be  held  strictly  accountable.     And  no  contract 

shall  be  made  or  liability  incurred  under  appropriations 

for  the  militia  of  the  District  of   Columbia  beyond  the 

sums  herein  appropriated.     Act  of  June  11, 1896  (29  Stat. 

L., 


668  MILITARY    LAWS    OF   THE    UNITED   STATES. 


GENERAL    PROVISIONS. 


Par. 


1771.  By-laws,  etc.,  restrictions. 

1772.  Duties  of  officers. 

1773.  Discipline,  instruction,  etc. 


Par. 


1774.  Regulations. 

1775.  Status  of  members. 

1776.  Repealing  clause. 

1771.  Companies,  battalions,  or  regiments  may  adopt 
^ko't^t^'b^re-  constitutional  articles  of  agreement  or  by-laws,  subject  to 
pugnant  to  law,  f^e  approval  of  the  commander  in  chief,  for  the  govern- 
ment of  matters  relating  to  the  civic  affairs  of  their 
respective  organizations,  the  regulation  of  fines  for  non- 
performance  of  duty,  and  the  determination  of  causes  upon 
which  excuses  from  fines  may  be  based:  Provided,  however, 
That  such  articles  or  rules  shall  not  be  repugnant  to  law 
or  the  regulations  for  the  government  of  the  militia:  And 
provided  further,  That  the  articles  or  rules  adopted  by  any 
company  or  battalion  shall  not  be  repugnant  to  the  articles 
or  rules  adopted  for  the  general  government  of  the  regi- 
ment or  battalion  to  which  it  belongs.  Certified  copies  of 
such  articles  or  rules,  with  like  copies  of  all  alterations,  as 
finally  approved  by  the  commanding  general,  shall  be 
deposited  in  the  office  of  the  Adj  utant-General.  Sec.  59,  act 
of  March  1,  1889  (25  Stat.  X.,  772). 

Duties  of  offi-      1772t  The  departmental   and  military  duties  of  the  offi- 
sec.  60,  ibid.     cers  provided  for  in  this  act  shall  be  correlative  with  those 
discharged  by  similarly  designated  officers  in  the  Army  of 
the  United  States.     Sec.  60,  ibid. 

Discipline.  1773.  The  system  of  discipline  and  field  exercise  ordered 

to  be  observed  by  the  Army  of  the  United  States,  or  such 
other  system  as  may  hereafter  be  directed  for  the  militia 
by  laws  of  the  United  States,  shall  be  observed  by  the 
National  Guard.  Sec.  61,  ibid. 

1774.  The  commanding  general,  subject  to  the  approval 
of  the  Commander  in  Chief,  is  authorized  to  make  and  pub- 
lish regulations  for  the  government  of  the  militia  in  all 
matters  not  specifically  provided  for  b}r  law,  conforming 
the  same  to  the  practice  and  regulations  of  the  Army  so 
far  as  they  may  be  applicable.  Sec.  62,  ibid. 

status  of  mem-  1775.  Members  of  the  National  Guard  of  the  District  of 
Columbia  who  receive  compensation  for  their  services  as 
such  sliall  not  be  held  or  construed  to  be  officers  of  the 
United  States,  or  persons  holding  any  place  of  trust  or 
profit,  or  discharging  an}^  official  function  under  or  in 
connection  with  any  Executive  Department  of  the  Gov- 
ernment of  the  United  States  within  the  provision  of  sec- 


cers. 


MILITARY    LAWS    OF    THE    UNITED    STATES. 


669 


tion  fifty-four  hundred  and  ninety-eight  of  the  Revised 
Statutes"  of  the  United  States.     Act  of  March  1,  1901. 

1776.  The  act  umore  effectually  to  provide  for  the  or- 
ganization  of  the  militia  of  the  District  of  Columbia,  "  37Rpsi;  °M  ch 
approved  March  third,  eighteen  hundred   and  three,  is    Sec-63.**d- 
hereby  repealed.     Sec.  63,  act  of  March  1,  1889  (26  Stat. 
Z.,770). 


p 


THE    TERRITORIAL   MILITIA  -  ISSUES    OF    ARMS    TO    TERRITORIES. 


Par. 

1777.  Governor  to  command  militia. 

1778.  Election  of  general  officers. 

1779.  Appointment  of  commissioned  offi- 

cers. 


Par. 

1780.  Issues  of  arms  to  Territories. 

1781.  The  same. 


Territorial 


Sr 


1777.  The  executive  power  of  each  Territory  shall  be  Jj4 
vested  in  a  governor,  who  shall  hold  his  office  for  f  our  2l 
years,  and  until  his  successor  is  appointed  and  qualified,  9 
unless  sooner  removed  by  the  President.     He  shall  reside 

in  the  Territory  for  which  he  is  appointed,  and  shall  be 
commander  in  chief  of  the  militia  thereof.     He  may  grant  J^6^ 
pardons  and  reprieves,  and  remit  fines  and  forfeitures,  for|^  f 
offenses  against  the  laws  of  the  Territory  for  which  he  is  272i86?a 
appointed,  and  respites  for  offenses  against  the  laws  of  the^-  12^ 
United  States,  till  the  decision  of  the  President  can  ' 

made  known  thereon.     He  shall  commission  all  officers 
who  are  appointed  under  the  laws  of  such  Territory, 
shall  take  care  that  the  laws  thereof  be  faithfully  executed, 

235,  s.  2,  v.  15,  p.  178.    American  Ins.  Co.  t'/356 
Bales  of  Cotton,  1  Pet.,  511.    Sec.  1841,  R.  S. 

1778.  Justices  of  the  peace  and  all  general  officers  of  the  tices6of  the  peace 
militia  in  the  several  Territories  shall  be  elected  by  the  ££.  mi 
people  in  such  manner  as  the  respective  legislatures  may 

.-,      ,        T 

provide  by  law. 

1779.  All  township,  district,  and  county  officers,  except 
justices  of  the  peace  and  general  officers  of  the  militia, 
shall  be  appointed  or  elected  in  such  manner  as  may 
provided  by  the  governor  and  legislative  assembly  of  each 
Territory  ;  and  all  other  officers  not  herein  otherwise  pro- 
vided  for  the  governor  shall  nominate,  and  by  and  with 
the  advice  and  consent  of  the  legislative  council  of  each 
Territory  shall  appoint;  but,  in  the  first  instance,  where  a 
new  Territory  is  hereafter  created  by  Congress,  the  gov-  JJ»  P 

ernor  alone  may  appoint  all  the  officers  referred  to  in  this  iJJ,  s.  7,  y.  12  p. 

~       •*•  *•  oil;  Mont.,  May 

and  the  preceding  section  and  assign  them  to  their  respec-  v6'^864'^.9^7' 
tive  townships,  districts,  and  counties;  and  the  officers  soJgJ^jjfSi  £ 
appointed  shall  hold  their  offices  until  the  end  of  the  first  1|>jc  1867  B<  g> 
session  of  the  legislative  assembly. 


. 

Sec,  1866,  R.  S. 


1850,^49^8, 


c- 


670  MILITARY    LAWS    OF   THE    UNITED    STATES. 

178°-  That  the  Secretary  of  War  is  hereby  authorized  to 


statesnd  border  cause  to  be  issued  to  the  Territories,  and  the  States  border- 
i3J°jui  R|8'i876'  *n£  thereon,  such  arms  as  he  may  deem  necessary  for  their 
v.  19,  p.  214-  joint  protection,  not  to  exceed  one  thousand  to  said  States  and 

Res.  No.  7,  Mar.  *L         .         .     ' 

3,  1877,  v.  19,  p.  lerritories  each,  and  ammunition  for  the  same,  not  to 
v.  20,  p.  6i.'  'exceed  fifty  ball  cartridges  for  each  arm:  Provided,  That 
such  issues  shall  be  only  from  arms  owned  by  the  Govern- 
ment which  have  been  superseded  and  no  longer  issued  to 
the  Army:  Provided,  however,  That  said  arms  shall  be  issued 
only  in  the  following  manner,  and  upon  the  following  con- 
ditions, namely,  upon  the  requisition  of  the  governors  of 
said  States  or  Territories  showing  the  absolute  necessity 
of  arms  for  the  protection  of  the  citizens  and  their  property 
against  Indian  raids  into  said  States  or  Territories,  also 
that  militia  companies  are  regularly  organized  and  under 
control  of  the  governors  of  said  States  or  Territories  to 
whom  said  arms  are  to  be  issued,  and  that  said  governor  or 
governors  shall  give  a  good  and  sufficient  bond  for  the 
return  of  said  arms  or  payment  for  the  same  at  such  time 
as  the  Secretary  of  War  may  designate:  Provided,  That 
the  quota  to  the  States  now  authorized  by  law  shall  not 
hereby  be  diminished.1  Joint  Res.  No.  13,  July  3,  1876 
(19  Stat.  L.,  214). 
Additional  1781.  That  the  Secretary  of  War  is  hereby  authorized 

arms,    etc.,    for  ,  ,     .  ,         .,    .,        ,-,        .,       .  ,,    ,, 

Territories.        to  cause  to  be  issued  to  each  of  the  Territories  of  the 


'i878i  United  States  (in  addition  to  arms  and  ammunition  the 
issue  of  which  has  been  heretofore  provided  for),  such 
arms  not  to  exceed  one  thousand  in  number  as  he  may  deem 
necessary,  and  ammunition  for  the  same  not  to  exceed  fifty 
ball  cartridges  for  each  arm:  Provided,  That  such  issue 
shall  be  only  from  arms  owned  by  the  Government  of  the 
United  States,  which  have  been  superseded  and  no  longer 
issued  to  the  Army:  And  provided  further,  That  said  arms 
shall  be  issued  only  in  the  following  manner,  and  upon  the 
following  conditions,  namely,  upon  the  requisition  of  the 
governors  of  said  Territories  showing  the  absolute  necessity 
for  arms  for  the  protection  of  citizens  and  their  property 
against  hostile  Indians  within  or  of  Indian  raids  into  such 
Territories:  And  provided  further,  That  the  said  governor 
or  governors  of  said  Territories  to  whom  the  said  arms 
may  be  issued  shall  give  good  and  sufficient  bond  or  bonds 
for  the  return  of  said  arms,  or  payment  therefor,  at  such 
time  as  the  Secretary  of  War  may  designate,  as  now  pro- 
vided for  by  law.  "  Joint  Res.  No.  26,  June  7,  1878  (W 
Stat.  L., 


1  Superseded  as  to  the  Territories  by  joint  resolution  No.  26,  June  7,  1878  (20  Stat, 
L.,  252),  paragraph  1781,  post.     See  also  paragraphs  1693  and  1694,  ante. 


CHAPTER 


MILITARY  TRIBUNALS. 


COURTS-MARTIAL.  MILITARY   COMMISSIONS,  COURTS    OF   INQUIRY. 


Par. 

1782-1788.  Arrest       and       confinement; 
charges  and  specifications. 
1789-1794.  General  courts-martial. 
1795-1797.  Jurisdiction. 
1798-1800.  Judge-advocates;  counsel. 

1801.  Reporters  and  interpreters. 

1802.  Challenges.  * 

1803.  Continuances. 
1804,1805.  Oaths. 

1806.  Behavior  of  members. 

1807.  Contempts  of  court. 

1808.  The  arraignment. 
1809-1813.  Witnesses. 


Par. 

1814-1827.  Evidence. 

1828.  Depositions. 

1829.  The  finding. 

1830.  Closed  sessions. 
1831-1837.  Sentences. 
1838.  Limits  of  punishment. 
1839-1841.  The  record. 
1842.  Revision;  proceedings. 
1843-1850.  The  reviewing  authority. 
1851-1861.  The  inferior  courts-martial. 
1862.  Military  commissions. 
1863-1869.  Courts  of  inquiry. 


ARREST    AND   CONFINEMENT!    CHARGES    AND    SPECIFICATIONS. 


Par. 

1782.  Arrest  of  officers. 

1783.  Confinement  of  enlisted  men. 
1784, 1785.  Limitation  on  arrest  or  con- 
finement. 


Par. 

1786.  Written  statement  of  offense. 

1787.  Reports  of  prisoners. 

1788.  Release  without  authoritv 

etc. 


of  offi' 
65Art-War- 


1782.  Officers  charged  with  crime  shall  be  arrested  and 
confined  in  their  barracks,  quarters,  or  tents,  and  de- 
prived  of  their  swords  by  the  commanding  officer.1  And 
any  officer  who  leaves  his  confinement  before  he  is  set  at 
liberty  by  his  commanding  officer  shall  be  dismissed  from 
the  service.2  Sixty-fifth  Article  of  War. 

1  Arrests,  hoiv  executed.  —  The  manner  in  which  the  arrest,  or  personal  attachment 
of  the  alleged,  offender,  if  an  officer,  shall  be  executed,  is  not  described  in  the  article 
any  further  than  it  shall  be  done  by  the  hand  or  authority  of  the  commanding  officer; 
neither  is  it  explained  by  the  article  what  the  degree  of  the  personal  restraint  shall 
be  imposed  by  such  arrest.     Both  of  these  must  rest  on  the  usages  and  customs  of 
war  obtaining  in  the  several  cases.     Samuels,  Military  Law,  640. 

2  An  officer  may  be  put  in  arrest  by  a  verbal  or  written  order  or  communication 
from  an  authorized  superior,  advising  him  that  he  is  placed  in  arrest  or  will  consider 
himself  in  arrest  or  in  terms  to  that  effect.     The  reason  for  the  arrest  need  not  be 
specified.     At  ^he  same  time  he  is  usually  required  to  surrender  his  sword,  though 
this  formality  may  be  dispensed  with.     But  an  arrest,  though  an  almost  invariable, 
is  not  an  essential  preliminary  to  a  military  trial.     To  give  the  court  jurisdiction  it 

671 


672  MILITARY    LAWS    OF    THE    UNITED    STATES. 

[Footnote  - — Continued.] 

is  not  necessary  that  the  accused  should  have  been  arrested ;  it  is  sufficient  if  lie  vol- 
untarily, or  in  obedience  to  an  order  directing  him  to  do  so,  appears  and  submits 
himself  to  trial.  So  neither  the  fact  that  an  accused  has  not  been  formally  arrested 
or  arrested  at  all,  nor  the  fact  that  having  been  once  arrested  and  released  from 
arrest  he  has  not  been  rearrested  before  trial,  can  be  pleaded  in  bar  of  trjgl  or  con- 
stitute any  ground  of  exception  to  the  validity  of  the  proceedings  or  sentence.  An 
officer  is  in  no  case  entitled  to  demand  to  be  arrested.  Dig.  Opin.  J.  A.  G.,  par.  502. 
See,  also,  MANUAL  FOR  COURTS-MARTIAL,  pp.  4-8. 

The  term  "crime"  is  here  employed  in  a  general  sense,  referring  to  offenses  of  a 
military  character,  as  well  as  to  those  of  a  civil  character  which  are  cognizable  by 
court-martial.  An  offense  in  violation  of  this  article  is  only  committed  when  an 
officer,  confined  in  "close  arrest"  to  his  quarters,  leaves  the  same  without  authority. 
A  breach  of  a  mere  formal  arrest,  or  of  any  arrest  not  accompanied  by  confinement 
to  quarters,  would  be  an  offense,  not  within  this  article,  but  under  article  62.  Ibid., 
par.  170. 

Except  in  the  class  of  cases  indicated  in  article 24,  only  "commanding  officers"  can 
place  commissioned  officers  in  arrest.  The  commanding  officer  thus  authorized  is 
the  commander  of  the  regiment,  company,  detachment,  post,  department,  etc.,  in 
which  the  officer  is  serving.  Where  a  company  is  included  in  a  post  command,  the 
commander  of  the  post  rather  than  the  company  commander  is  the  proper  officer  to 
make  the  arrest  of  a  subaltern  of  the  company.  Ibid.,  par.  503. 

An  officer  is  not  privileged  from  arrest  by  virtue  of  being  at  the  time  a  member  of 
a  general  court-martial.  But  an  arrest  of  an  officer  while  actually  engaged  upon 
court-martial  duty  should,  if  possible,  be  avoided.  Dig.  Opin.  J.  A.  G.,  par.  507. 

Status  of  arrest. — Although  the  martial  law  makes  no  mention  of  any  difference  in 
the  nature  of  arrests  in  order  to  trial,  a  difference  is  established  by  the  custom  of  the 
Army,  according  to  the  degree  or  measure  of  the  crime.  An  officer  accused  of  a  capital 
crime,  or  any  offense  of  which  the  penalty  is  so  severe  as  to  afford  a  natural  tempta- 
tion to  escape  from  justice,  ought  to  be  detained  in  a  state  of  confinement  as  secure 
as  the  closest  civil  imprisonment.  If  the  offense  is  of  a  lighter  nature  the  presump- 
tion is  that  the  officer,  whose  character  is  thus  impeached  must  be  solicitous  to  obtain 
a  judicial  investigation  of  his  conduct;  and  he  is  therefore  generally  allowed  to  be  in 
arrest  at  large — that  is,  to  walk  about,  within  certain  limits,  without  his  sword,  on  his 
word  of  honor  to  await  the  issue  of  his  trial,  or  his  enlargement  by  the  proper 
authority.  The  degree  and  measure  of  the  arrest  must,  however,  be  entirely  at  the 
discretion  of  tlie  commanding  officer,  who  will  in  all  cases  regulate  his  conduct  by 
the  particular  circumstances  and  by  the  dictates  of  propriety  and  humanity.  Tytler, 
p.  202.  Besides  the  presumption  mentioned  by  this  writer  in  favor  of  an  officer  being 
allowed  to  remain  under  a  liberal  restraint,  is  the  positive  security  of  his  commission. 
This  confers  upon  him  a  beneficial  office,  and  would  be  subject  to  forfeiture  on  his 
withdrawing  himself  from  the  reach  of  military  j  ustice.  This  affords  one  great  reason 
for  the  distinction  taken  between  a  commissioned  officer  and  soldier  in  the  circum- 
stances of  the  arrest.  Samuels,  Military  Law,  641. 

The  status  of  being  in  arrest  is  inconsistent  with  the  performing  of  military  duty. 
Placing  an  arrested  officer  or  soldier  on  duty  terminates  his  arrest.  Releasing  a  sol- 
dier from  arrest  and  requiring  him  to  perform  military  duty  after  his  trial  and  while 
he  is  awaiting  the  promulgation  of  his  sentence,  can  be  justified  only  by  an  extraor- 
dinary exigency  of  the  service.  Dig.  Opin.  J.  A.  G.,  par.  505. 

It  is  clearly  to  be  inferred  from  paragraphs  998-999  of  the  Army  Regulations,  1901, 
that  unless  other  limits  are  specially  assigned  him,  an  officer  in  arrest  must  confine 
himself  to  his  quarters.  It  is  generally  understood,  indeed,  that  he  can  go  to  the 
mess  house  or  other  place  of  necessary  resort.  It  is  not  unusual,  however,  for  the 
commander,  in  the  order  of  arrest,  to  state  certain  limits  within  which  the  officer  is 
to  be  restricted,  and  except  in  aggravated  cases  these  are  ordinarily  the  limits  of 
the  post  where  he  is  stationed  or  held.  An  officer  or  soldier,  though  detained  in 
close  arrest,  should  be  permitted  to  receive  such  visits  from  his  counsel,-  witnesses, 
etc.-,  as  may  be  necessary  to  enable  him  to  prepare  his  defense.  Ibid.,  par.  504. 

An  officer  under  arrest  is  not  disqualified  to  prefer  charges.     Ibid.,  par.  508. 

The  imposition  of  an  arrest  affects  in  no  manner  the  right  of  an  officer  or  soldier 
to  receive  the  pay  and  allowances  of  his  rank.  Except  in  a  case  of  a  deserter  (see 
par.  140,  Army  Regulations,  1901)  no  legal  inhibition  exists  to  paying  a  soldier 
while  in  arrest — either  before  trial  or  while  awaiting  sentence — his  regular  pay  and 
emoluments.  Ibid.,  par.  509. 

An  arrest  imposed  by  the  Secretary  of  the  Navy  upon  a  chief  of  bureai»in  the  Navy 
Department  in  the  following  terms,  "You  are  pUced  under  arrest,  and  you  will  con- 
fine yourself  to  the  limits  of  the  city  of  Washington,"  held  not  to  constitute  a  restraint 


MILITARY    LAWS    OF   THE    UNITED    STATES.  673 


1783.  Soldiers  charged  with  crimes  l  shall  be  confined 
tried  by  court-martial  or  released  by  proper  authority.2  66Art-  of  war. 
/Sixty  -sixth  Article  of  War. 

upon  liberty  sufficient  to  justify  the  use  of  the  writ  of  habeas  corpus."  Wales  v* 
Whitney,  114  U.  S.,  564. 

2  Breach  of  arrest.  —  An  offense  in  violation  of  this  article  is  only  committed  when 
an  officer  confined  in  "close  arrest"  to  his  quarters  leaves  the  same  ^vithout  author- 
ity. A  breach  of  a  mere  formal  arrest,  or  of  any  arrest  not  accompanied  by  confine- 
ment to  quarters,  would  be  an  offense  not  within  this  article,  but  under  article  62.  (a) 
Dig.  Opin.  J.  A.  G.,  par.  170. 

Simply  disobeying  an  order  to  proceed  and  report  in  arrest  to  a  certain  commander, 
held  not  an  offense  chargeable  under  this  article.  Ibid.,  par.  171. 

Where  an  officer  in  close  arrest  was  permitted  by  his  commanding  officer  to  leave 
temporarily  his  confinement,  held  that  his  delaying  his  return  for  a  brief  period 
beyond  the  time  fixed  therefor  did  not  properly  constitute  an  offense  under  this 
article.  Ibid.,  par.  172. 

Though  any  unauthorized  leaving  of  his  confinement  by  an  officer  in  close  arrest 
is  strictly  a  violation  of  the  article,  it  would  seem,  in  view  of  the  severe  mandatory 
punishment  prescribed,  that  an  officer  should  not  in  general  be  brought  to  trial  under 
the  same  unless  his  act  was  of  a  reckless  or  deliberately  insubordinate  character. 
Ibid.,  par.  173. 

It  is  no  clefense  to  a  charge  of  breach  of  arrest  in  violation  of  this  article  that  the 
accused  is  innocent  of  the  offense  for  which  he  was  arrested.  (6)  It  is  a  defense,  how- 
ever, that  subsequently  to  the  original  confinement  the  accused  has  been  put  on  duty, 
or  allowed  to  go  on  duty,  provided  that  before  the  breach  assigned  he  has  not  been 
duly  rearrested  and  reconfined.(c) 

The  requirement  of  this  article,  that  an  offender  "shall  be  dismissed,"  is  held  to 
be  exclusive  of  any  other  punishment.  A  sentence  of  dismissal,  with  forfeiture  of 
pay,  is  unauthorized  and  inoperative  as  to  the  forieiture,  and  as  to  this  should  be  dis- 
approved. Ibid.,  par.  174. 

xThe  wrord  "crimes,"  as  used  in  this  article,  is  construed  to  mean  serious  mili- 
tary offenses.  So  that  a  soldier  will  not  properly  be  "confined"  where  not  charged 
with  one  of  the  more  serious  of  the  military  offenses  —  in  other  words,  where  charged 
only  with  an  offense  of  a  minor  character.  Dig.  Opin.  J.  A.  G.,  par.  176. 

2  Soldiers  held  in  military  arrest,  while  they  may  be  subjected  to  such  restraint 
as  may  be  necessary  to  prevent  their  escaping  or  committing  violence,  can  not  legally 
be  subjected  to  any  punishment.  The  imposition  of  punishment  upon  soldiers  while 
thus  detained  has  been  on  several  occasions  emphatically  denounced  by  department 
commanders,  (d)  Ibid.,  par.  175. 

A  soldier  while  confined  in  arrest  should  not  be  fettered  or  ironed  except  where 
such  extreme  means  are  necessary  to  restrain  him  from  violence,  or  there  is  good 
reason  to  believe  that  he  will  attempt  an  escape  and  he  can  not  otherwise  be  securely 
held.  Ibid.,  511.  See,  also,  par.  1010,  A.  R.,  1901. 

Under  the  regulations  (par.  1004,  A.  R,.,  1901)  soldiers  in  confinement  awaiting 
action  on  the  proceedings  of  their  trials  are  assimilated  to  those  awaiting  trial,  and 
both  classes  may,  at  the  discretion  of  the  commanding  officer,  be  employed,  sep- 
arately from  prisoners  undergoing  sentence,  upon  such  labor  as  is  habitually  required 
of  soldiers.  More  severe  or  other  labor  would  not  be  legal,  nor  would  labor  with  a 
police  party  consisting  in  whole  or  in  part  of  men  under  sentence,  however  slight 
their  sentence  might  be.  (e]  A  soldier  in  arrest  in  quarters  may  be  required  to  do 
cleaning  or  police  "work  about  his  quarters  which  otherwise  other  soldiers  would 
have  to  do  for  him.  See,  also,  MANUAL  FOR  COURTS-MARTIAL,  pp.  4-8. 

The  fact  that  a  soldier  has  been  held  in  arrest  for  an  unreasonably  protracted 
period  before  trial,  or  while  awaiting  the  promulgation  of  his  sentence,  is  a  good 
ground  for  a  mitigation  of  his  punishment.  Dig.  Opin.  J.  A.  G.,  par.  506. 

alnall  cases  of  "constructive"  breach  of  arrest,  such  as  exercising  military  authority,  wearing 
sword,  etc.,  the  accused  can  not  be  charged  under  the  sixty-fifth  article,  as  the  punishment  is  man- 
datory and  authorizes  the  sentence  of  dismissal  only  in  case  of  "leaving  his  confinement."  Ives, 
Mil.  Law,  66. 

b  Hough,  Practice,  494. 

r  Hough,  Precedents,  19. 

rf.-k-e,  for  example,  the  remarks  of  such  commanders  in  G.  0.  23,  Department  of  the  East,  1863;  G.  O. 
26,  Department  of  California,  186(5;  G.  O.  23,  Department  of  the  Lakes,  1870;  G.  O.  106,  Department  of 
Dakota,  1871.  And  compare  remarks  of  Justice  Story  in  Steere  v.  Filed,  2  Mason,  516. 

eSee  G.  O.  44,  Division  of  the  Atlantic,  1889. 

22924—08- 


674  MILITARY    LAWS    OF    THE    UNITED    STATES. 

confinement  °u      1784>  No   officer  or  soldier  put  in  arrest  shall  be  con- 
70  Art.  of  war.  tinned  in  confinement  more  than  eight  days,  or  until  such 
time   as   a  court-martial   can  be  assembled. l     Seventieth 
Article  of  W<tr. 

jlirC^fwsr.  1^5  •  When  an  officer  is  put  under  arrest  for  the  purpose 
of  trial,  except  at  remote  military  posts  or  stations,  the 
officer  by  whose  order  he  is  arrested  shall  see  that  a  copy 
of  the  charges2  on  which  he  is  to  be  tried  is  served  upon 

1One  might  be  inclined  to  think,  in  reading  the  concluding  branch  of  the  article, 
that  the  words  "until  such  time  as  a  court-martial  can  be  conveniently  assembled," 
intended  some  time  within  the  eight  days  mentioned  in  the  preceding  member  of  the 
sentence.  But  military  usage  is  against  such  supposition.  Samuels,  642.  Referring 
to  this  passage,  Tytler  observes  that  "the  latter  part  of  the  clause  evidently  allows  a 
latitude  which  is  capable  of  being  abused;  but  as  in  a  free  country  there  in  no  wrong 
without  a  remedy,  the  military  law  prescribes  a  mode  of  redress  for  all  officers  or  sol- 
diers who  conceive  themselves  injured  by  the  commanding  officer,  which  must  always 
be  sufficient  for  the  restraint  of  every  act  of  material  injustice  or  oppression. ' '  Tytler, 
p.  204. 

Detaining  soldiers  in  arrest  for  long  and  unreasonable  periods,  when  it  id  practicable 
to  bring  them  to  trial,  is  arbitrary  and  oppressive,  and  in  contravention  both  of  the 
letter  and  spirit  of  this  article.  Whether  the  delay  in  any  case  is  to  be  regarded  as 
so  far  unreasonable  as  properly  to  subject  the  commander  responsible  therefor  to 
military  charges  or  a  civil  action  must  depend  upon  the  circumstances  of  the  situation 
and  the  exigencies  of  the  service  at  the  time,  (a)  Dig.  Opin.  J.  A.  G.,  par.  177. 

To  give  a  court-martial  jurisdiction  of  the  person  of  an  officer  or  soldier  charged 
with  a  military  offense,  it  is  not  necessary  that  he  shall  have  been  subjected  to  any 
particular  form  of  arrest,  or  that  he  shall  have  been  arrested  at  all,  or  even  ordered 
to  attend  the  court.  Here,  as  before  a  civil  tribunal,  his  voluntary  appearance  and 
submission  for  trial  is  all  that  is  essential.  Ibid.,  par.  1035. 

2  CHARGES    AND    SPECIFICATIONS. 

Charges  and  specifications. — In  our  practice,  unlike  that  of  the  English  courts- 
martial,  a  military  charge  properly  consists  of  two  parts — the  technical  "charge" 
and  the  "specification."'  The  former  designates  by  its  name,  particular  or  general, 
the  alleged  offense;  the  latter  sets  forth  the  facts  supposed  to  constitute  such  offense. 
An  accusation  Against  an  officer  or  soldier  not  thus  separated  in  form  would  be 
irregular  and  exceptional  in  our  practice,  and,  till  amended,  would  not  be  accepted 
as  a  proper  basis  for  proceedings  under  the  code.  Dig.  Opin.  J.  A.  G.,  par.  694, 
See  also  MANUAL  FOR  COURTS-MARTIAL,  pp.  15-20. 

Framing  of  charges. — The  same  particularity  is  not  called  for  in  military  charges 
which  is  required  in  indictments.  (/>)  The  essentials  of  a  charge  are:  (1)  That  it 
shall  be  laid  under  the  proper  article  of  war  or  other  statute;  (2)  that  it  shall  set 
forth  (in  the  specification)  facts  sufficient  substantially  to  constitute  the  particular 
offense.  These  essentials  being  observed,  the  simpler  and  less  encumbered  with 
verbiage  and  technical  terms  the  charge  is,  the  better,  provided  it  be  expressed  in 
clear  and  intelligible  English.  However  inartificial  a  pleading  may  be,  it  will  prop- 
erly be  held  sufficient  as  a  legal  basis  for  a  trial  and  sentence,  provided  that  the 
charge  and  specification,  taken  together,  amount  to  a  statement  of  a  military  offense 
either  under  a  specific  article  or  under  the  general  article,  No.  62.  Ibid.,  par.  61)5. 

There  can  be  no  legal  objection  to  charging  an  offense  as  a  "  violation  of "  a  par- 
ticular article  of  war,  although,  in  general,  it  will  be  preferable,  to  charge  it  by  its 

aCompare  Blake's  case,  2  Maule  and  Selden,  428;  Bailey  v.  Warden,  4  ibid.,  400. 

b  In  regard  to  the  proper  form  for  a  military  charge,  Attorney-General  Cashing  (  VII  Opins.,  603 )  says: 
"  There  is  no  one  of  exclusive  rigor  and  necessity  in  which  to  state  military  accusations."  H  (adds 
further:  "Trials  by  court-martial  are  governed  by  the  nature  of  the  service,  which  demands  intelli- 
gible precision  of  language,  but  regards  the  substance  of  things  rather  than  their  forms.  *  *  * 
The  most  bald  statement  of  the  facts  alleged  as  constituting  the  olfense,  provided  the  legal  offense 
itself  be  distinctively  and  accurately  described  in  such  terms  of  precision  as  the  rules  of  military 
jurisprudence  require,  will  be  te  able  in  court-martial  proceedings,  and  will  be  adequate  ground- 
work of  conviction  and  sentence."  So  it  is  observed  by  Attorney-General  Wirt  (I  Opins.,  286)  that 
"all  that  is  necessary  "  in  a  military  charge  is  that  it  be  "sufficiently  clear  to  inform  the  accused  of 
the  military  offense  for  which  he  is  to  be  tried,  and  to  enable  him  to  prepare  his  defense."  And  see 
Tytler,  209;  Kennedy,  69.  It  is-  ably  remarked  by  Gould  (Pleading,  p.  4)  that  "all  pleading  is  essen- 
tially a  logical  process;"  and  that, 'in  analyzing  a  correct  pleading,  "if  we  take  into  view,  with  what 
is  expressed,  what  is  necessarily  supposed  or  implied,  we  shall  find  in  it  the  elements  of  a  good  syl- 
logism." But  it  can  hardly  be  expected  that  military  charges  in  general  will  stand  this  test. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  675 

[Footnote- — Continued.] 

familiar  and  received  name — as  "drunkenness  on  duty,"  " misbehavior  before  the 
enemy,"  "desertion,"  etc.  Ibid.,  225,  par.  3. 

Where  an  offense  is  clearly  defined  in  a  specific  article,  it  is  irregular  and  improper 
to  charge  it  under  another  specific  article.  So,  where  the  article  in  which  the  offense 
is  defined  makes  it  punishable  with  a  specific  punishment  to  the  exclusion  of  any 
other,  it  is  error  to  charge  it  under  an  article,  such  as  the  sixty-second,  which  leaves 
the  punishment  to  the  discretion  of  the  court.  On  the  other  hand,  it  is  equally 
erroneous  to  charge  under  a  specific  article,  making  mandatory  a  particular  punish- 
ment, an  offense  properly  charged  only  under  article  62.  Ibid.,  par.  697. 

Where  a  specific  offense  is  charged  (i.  e.,  an  offense  made  punishable  by  an  article 
other  than  the  general — sixty-second — article)  and  the  specification  does  not  state 
facts  constituting  such  specific  offense,  the  pleading  will  be  insufficient  as  a  pleading 
of  that  offense.  Legal  effect  may,  however,  be  given  to  a  pleading  if  the  charge  and 
specification,  taken  together,  amount  to  an  allegation  of  an  offense  cognizable  by  a 
court-martial  under  article  62.  And  in  all  cases — whatever  be  the  form,  of  the  charge 
or  specification — if  the  two  are  not  inconsistent,  and,  taken  together,  make  out  an 
averment  of  a  neglect  or  disorder  punishable  under  this  general  article,  the  pleading 
will  be  sufficient  in  law  and  will  constitute  a  legal  basis  for  a  conviction  and  sentence. 
Ibid.,  par.  699. 

It  is  illogical  and  faulty  pleading  to  charge  a  secondary  offense  in  lieu  of  the  actual 
or  principal  offense,  of  which  that  charged  was  merely  a  consequence  or  incident. 
But  where  the  act  committed  involves  several  distinct  offenses  the  party  may 
properly  be  arraigned  upon  the  same  number  of  separate  charges.  And  all  the 
offenses  with  which  an  officer  or  soldier  may  be  at  one  time  chargeable  should,  if 
practicable  (and  if  the  same  are  sufficiently  grave),  be  charged  and  brought  to  trial 
together.  Undue  multiplication,  however,  of  charges,  or  forms  of  charge,  is  to  be 
avoided;  thus  charges  should  not  in  general  be  added  for  minor  offenses  which  were 
simply  acts  included  in  and  going  to  make  up  graver  offenses  duly  charged.  9  It  may, 
indeed,  sometimes  be  expedient,  where  the  offenses  are  slight  in  themselves*  and  it  is 
deemed  desirable  to  exhibit  a  continued  course  of  conduct,  to  wait  before  preferring 
charges  till  a  series  of  similar  acts  have  been  committed,  provided  the  period  be  not 
unreasonably  prolonged;  but  in  general  charges  should  1  e  preferred  and  brought  to 
trial  immediately  or  presently  upon  the  commission  of  the  offenses.  Anything  like 
an  accumulation  or  saving  up  of  charges  through  a  hostile  animus  on  the'part  of  the 
accuser  is  discountenanced  by  the  sentiment  of  the  service,  (a)  Ibid.,  pars.  7CO  and 
701. 

The  prosecution  is  at  liberty  to  charge  an  act  under  two  or  more  forms  where  it  is 


V\  here  there  are  two  sets  of  charges  against  an  accused  they  should,  if  practicable, 
be  consolidated  and  one  trial  be  had  upon  the  whole,  instead  of  two  trials,  one  upon 
each  set.  But  after  the  accused  has  been  arraigned  upon  certain  charges,  and  has 
pleaded  thereto,  and  the  trial  on  tjie  same  has  been  entered  upon,  new  and  addi- 
tional charges,  which  the  accused  has  had  no  notice  to  defend,  can  not  be  introduced 
or  the  accused  required  to  plead  thereto.  Such  charges  should  be  made  the  subject 
of  a  separate  trial,  upon  which  the  accused  may  be  enabled  properly  to  exercise  the 
right  of  challenge  to  the  court  and  effectively  to  plead  and  defend.  Ibid.,  par.  703. 

Such  loose  and  indefinite  forms  of  charge  as  "fraud,"  " worthlessness,"  "inef- 
ficiency," "habitual  drunkenness,"  and  the  like  will  be  avoided  by  good  pleaders. 
Such  charges,  indeed,  in  connection  with  specifications  setting  forth  actual  military 
neglects  or  disorders  (not  properly  chargeable  under  specific  articles),  may  be  sus- 
tained as  equivalent  to  charges  of  "conduct  to  the  prejudice  of  good  order  and  mili- 
tary discipline."  But  a  charge  of  "worthlessness,"  with  specifications  setting  forth 
repeated  instances  of  arrests,  confinements  in  the  guardhouse,  or  trials  and  convic- 
tions for  slight  offenses  of  the  accused,  hdd  an  insufficient  pleading;  such  instances 
not  constituting  military  offenses,  but  merely  the  punishments  or  penal  conse- 
quences of  such  offenses.  (What  is  really  called  for  in  such  a  case  is  a  discharge 
of  the  soldier  under  the  fourth  article  of  war.)  A  specification  averring  a  general 
incapacity  induced  by  habitual  intoxication  does  not  set  forth  a  military  offense. 
The  accused  in  such  a  case  should  be  charged  with  the  acts  of  drunkenness  com- 
mitted as  separate  and  distinct  instances  of  offense,  (c)  Ibid.,  par.  704. 

A  charge  expressed  in  too  general  terms  is  faulty  and  imperfect;  the  accused  is 
entitled  to  know  for  what  particular  act  he  is  called  to  account.  Thus  a  specifica- 

nSee  G.C.  M.  O.  71,  Headquarters  of  the  Army,  1879. 

b *•  For  the  purpose  of  meeting  the  evidence  as  it  mav  transpire."     State  v.  Bell,  27  Md..  675. 

rSee  G.  O.  11,  War  Department,  1873. 


676  MILITARY    LAWS    OF    THE   UNITED   STATES. 

[Footnote  2 — Continued.] 

tion  under  article  62,  in  a  case  of  an  officer,  which  set  forth,  not  a  specific  act  of 
offense,  but  an  habitual  course  of  conduct  as  incapacitating  the  accused  for  service 
or  for  the  performance  of  his  proper  duty,  held  seriously  defective  and  subject  to 
be  stricken  out  on  motion.  For  such  conduct,  indeed,  the  remedy  is  not  by  charge 
and  trial,  but  by  retirement  under  section.  1252,  Revised  Statutes.  Ibid.,  par.  726. 

A  charge  expressed  in  the  alternative — either  under  article  17  or  article  60 — is 
irregular  and  defective,  and,  upon  motion,  may  be  stricken  out  or  required  to  be 
amended.  Ibid.,  par.  727. 

The  specification  should  be  appropriate  to  the  charge.  A  charge  ^of  "conduct  to 
the  prejudice  of  good  order  and  military  discipline,"  with  a  specification  setting 
forth  a  violation  of  a  specific  article,  is  an  irregular  and  defective  pleading,  and  so  of 
course  is  a  charge  of  a  specific  offense  with  a  specification  describing  not  that  but  a 
different  specific  offense,  or  a  simple  disorder  or  neglect  of  duty.  Ibid.,  par.  705. 

Where  a  specification  to  a  charge  preferred  by  a  superior  against  an  inferior  officer, 
instead  of  referring  to  the  former  in  the  third  person,  alleged  that  the  accused 
addressed  abusive  language  to  "me"  and  committed  an  assault  upon  "me,"  without 
naming  or  otherwise  indicating  the  subject  of  the  abuse  or  assault,  Held  that  such  a 
form,  though  supported  by  some  of  the  English  precedents,  was  not  sanctioned  by 
our  practice,  and  that,  on  objection  being  made  to  the  same  by  the  accused,  the  court 
would  properly  either  require  that  the  specification  be  amended,  or  that,  in  incorpo- 
rating the  charge  in  the  record,  the  name  of  the  preferring  officer  be  added.  Ibid., 
par.  707. 

A  specification,  in  alleging  the  violation  of  an  order  which  has  been  given  in  writing, 
or  of  any  written  obligation — as  an  oath  of  allegiance,  parole,  etc. — should  preferably 
set  forth  the  writing  verbatim,  or  at  least  state  fully  its  substance,  and  then  clearly 
detail  the  act  or  acts  which  constituted  its  supposed  violation.  Ibid.,  par.  709. 

Allegations  of  time  and  place. — The  time  and  place  of  the  commission  of  the  offense 
charged  ^hould  properly  be  averred  in  the  specification  in  order  that  it  may  appear 
that  the  offense  was  committed  within  the  period  of  limitation  fixed  by  the  one  hun- 
dred and  third  article,  and  in  order  to  enable  the  accused  to  understand  what  par- 
ticular act  or  omission  he  is  called  upon  to  defend,  (a)  A  reasonably  exact  allegation 
of  the  time  is  also  important  in  some  cases — especially  those  of  desertion  and  absence 
without  leave — in  order  that  the  accused,  if  subsequently  brought  to  trial  for  the 
same  offense,  or,  what  is  the  same  thing  in  law,  for  an  offense  included  in  the  origi- 
nal offense,  may  be  enabled  (by  an  exhibition  of  the  record)  properly  to  plead  a 
former  acquittal  or  conviction  of  that  offense.  Ibid.,  par.  710. 

Where  the  exact  time  or  place  of  the  commission  of  the  offense  is  not  known  it  is 
frequently  preferable  to  allege  it  as  having  occurred  "on  or  about"  a  certain  date  or 
time,  or  "at  or  near"  a  certain  locality,  rather  than  to  aver  it  as  committed  on  a 
particular  day  or  between  two  specified  days,  or  at  a  particular  place.  There  is  no 
defined  construction  to  be  placed  upon  the  words  "on  or  about"  as  used  in  the  alle- 
gation of  time  in  a  specification.  The  phrase  can  not  be  said  to  cover  any  precise 
number  of  days  or  latitude  in  time.  It  is  ordinarily  used  in  military  pleading  for 
the  purpose  of  indicating  some  period,  as  nearly  as  can  be  ascertained  and  set  forth, 
at  or  during  wrhich  the  offenses  charged  are  believed  to  have  been  committed,  in 
cases  where  the  exact  day  can  not  well  be  named.  And  the  same  is  to  be  said  as  to 
use  of  the  words  "at  or  near"  in  connection  with  the  averment  of  place.  These 
terms  "on  or  about"  and  "at  or  near"  are,  however,  not  infrequently  (though 
unnecessarily)  employed  in  practice  where  the  exact  time  or  place  is  known  and  can 
readily  be  alleged.  Ibid.,  par.  711. 

The  allegation  of  time  in  a  specification  should  be  as  nearly  defined  as  the  facts 
will  permit;  but  where  the  act  or  acts  charged  extended  over  a  considerable  space 
of  time  it  may  be  necessary  to  cover  such  period  in  the  allegation.  Thus,  allegations 
of  "from  March  to  September,  1887,"  and  "from  May  to  October,  1888,"  have  been 
countenanced  in  a  case  in  which  the  accused  was  charged  with  the  neglect  of  a  duty 
the  performance  of  which  was  thus  continuous.  See  G.  C.  M.  O.  21,  of  1889.  Ibid., 
par.  729. 

The  same  exactness  in  the  averment  of  time  is  in  general  scarcely  required  where 
the  offense  charged  is  one  of  omission  as  where  it  is  one  of  the  commission  of  a 
specific  act.  It  is  sufficient  in  the  former  case  to  allege  that  the  offense  occurred 
between  certain  named  dates  not  unreasonably  separated.  So,  an  offense  of  com- 
mission, which  probably  \\ad  not  completed,  or  may  not  have  b^en  completed  on 
any  particular  day,  may  "be  similarly  charged.  Thus  held  that  the  allegations  of  time 

a  \s  to  the  latitude  allowable  in  the  allegation  of  time  in  military  pleadings,  compare  I  Opin.  Att. 
Gen  °95  °96  In  the  civil  practice,  "nothing  is  better  settled  than  that  proof  of  guilt  is  not  confined 
to  the  day  mentioned  in  the  indictment.  It  may  extend  back  to  any  period  previous  to  the  finding 
of  the  bill  and  within  the  statutory  limit  for  prosecuting  the  offense."  McBryde  v.  State,  34  Ga.,  203. 


MILITAKY    LAWS    OF    THE    UNITED    STATES.  677 

[Footnote  - — Continued.] 

and  place  were  sufficient  in  a  specification  in  which  it  was  set  forth  that  the  offense 
charged  (which  consisted  of  an  improper  disposition  of  public  property)  was  com- 
mitted by  the  accused  "while  en  route  between  Austin,  Tex.,  and  Waco,  Tex., 
between  the  5th  and  25th  days  of  May,  1867."  Ibid.,  par.  712. 

But  where  it  was  alleged  in  a  specification  that  the  accused  was  drunk  on  duty  at 
some  time  or  times  during  a  period  of  seventy  days,  held  that  the  specification  did 
not  give  sufficient  notice  to  the  accused  of  the  specific  offense  which  he  was  required 
to  defend,  and  was  therefore  uncertain, and  insufficient. (a)  Ibid. 

Where  a  specification  alleged  that  the  accused  was  absent  without  leave  at  various 
times  between  two  dates,  twenty  days  apart,  held  that  the  same  was  defective  and 
subject  to  exception  as  being  double,  each  such  absence  being  a  snbstantive  and  dis- 
tinct offense,  (b)  X,  471.  But  where  the  specification  to  a  charge  of  violation  of  the 
sixtieth  article  alleged  the  presentation  by  the  accused  of  a  fraudulent  claim  for 
rations  furnished  for  recruits  and  also  for  lodgings  furnished  for  the  same  recruits 
at  the  same  time,  held  that  the  specification  related  to  one  transaction  and  was  not 
therefore  to  be  necessarily  regarded  as  double  or  defective,  in  view  of  the  liberal  rules 
of  pleading  applicable  to  military  charges.  Ibid.,  par.  708. 

Where  time  or  place  is  omitted  to  be  averred,  or  is  averred  without  sufficient 
definiteness,  and  the  defect  is  excepted  to  by  theaccused  on  being  called  upon  to  plead, 
the  court  will  probably  direct  that  an  amendment  be  made.  But  where  in  either 
such  case  no  objection  is  interposed  by  the  accused,  the  proceedings  will  be  sufficient 
in  law  provided  the  time  and  place  of  the  offense  can  be  made  out  with  reasonable 
certainty  from  the  testimony  in  connection  with  the  specifications.  If  otherwise, 
the  proceedings  will,  where  practicable,  properly  be  returned  to  the  court  for  cor- 
rection, or  where  this  can  not  be  done,  will,  in  general,  probably  be  disapproved. 
And  where  the  offense  is  alleged  to  have  been  committed  on  a  particular  day,  and 
the  evidence  shows  that  it  was  committed  on  quite  a  different  day,  in  such  case, 
provided  time  is  not  of  the  essence  of  the  offense,  and  the  specific  act  charged  is  suffi- 
ciently identified  by  the  other  testimony,  the  variance  between  the  allegation  and 
the  proof  will  not  constitute  a  fatal  defect,  and  need  not  induce  a  disapproval  of  the 
sentence  where  there  has  been  a  conviction.  A  return,  however,  of  the  record  to  the 
court  for  correction,  if  practicable,  would  well  be  resorted  to  by  the  reviewing  officer 
before  taking  final  action.  Ibid.,  par.  713. 

Matter  of  eridence  in  pleading. — While  it  is  in  general  irregular  to  plead  matter  of 
evidence, 'there  is  no  objection  to  noting  in  brief  in  the  specification  the  immediate 
result  or  effect  of  the  act  charged,  as  a  circumstance  of  description  illustrating  the 
character  and  extent  of  the  offense  committed.  Thus,  while  a  homicide,  if  amount- 
ing to  murder,  and  capital  under  section  5339,  Revised  Statutes,  or  by  the  law  of  the 
State,  etc.,  can  not  as  such  be  made  the  subject  of  a  military  charge  in  time  of  peace 
(see  sixty-second  article),  yet  a  capital  homicide,  where  it  has  been  committed  in 
connection  with  or  as  a  consequence  of  a  specific  military  offense  charged  against  the 
accused,  as,  for  example,  "mutiny,"  or  ".offering  violence  to  a  superior  officer," 
may  properly  be  stated  in  the  conclusion  of  the  specification  as  matter  of  aggrava- 
tion and  as  indicating  the  animus  of  the  accused  or  the  amount  of  force  employed. 
Ibid.,  par.  714. 

Joint  charge*. — Properly  to  warrant  the  joining  of  several  persons  in  the  same 
charge  and  the  bringing  them  to  trial  together  thereon,  the  offense  must  be  such  as 
requires  for  its  commission  a  combination  of  action  and  must  have  been  committed 
by  the  accused  in  concert  or  in  pursuance  of  a  common  intent.  The  mere  fact  of 
their  committing  the  same  offense  together  and  at  the  same  time,  although  material 
as  going  to  show  concert,  does  not  necessarily  establish  it.  Thus  the  fact  that  sev- 
eral soldiers  have  absented  themselves  together  without  leave  will  not,  in  the  absence 
of  evidence  indicating  a  conspiracy  or  concert  of  action,  justify  their  being  arraigned 
together  on  a  common  charge,  for  they  may  merely  have  been  availing  themselves 
of  the  same  convenient  opportunity  for  leaving  their  station.  Ibid.,  par.  715. 

By  whom  preferred. — Military  charges,  though  commonly  originating  with  military 
persons,  may  be  initiated  by  civilians;  indeed,  it  is  but  performing  a  public  duty  for 
a  civilian,  who  becomes  cognizant  of  a  serious  offense  committed  by  an  officer  or  sol- 
dier, to  bring  it  to  the  attention  of  the  proper  commander.  So  a  charge  may  origi- 
nate with  an  enlisted  man.  But,  by  the  usage  of  the  service,  all  military  charges 
should  be  formally  preferred  by,  i.  e.,  authenticated  by  the  signature  of,  a  com- 
missioned officer.  Charges  proceeding  from  a  person  outside  the  Army,  and  based 

a  Compare  cases  in  G.  0.  193,  Army  of  the  Potomac,  1862;  G.  O.  98,  Department  of  New  Mexico,  1862. 

bin  the  military,  as  in  the  civil,  practice,  double  pleading — i.  e.,  specifications  setting  forth  two  (or 

more)  distinct  offenses  (especially  when  chargeable  under  different  articles  of  war)  are  properly  con- 


demned, and  in  sundry  cases  the  conviction  and  sentence  have  been  disapproved  on  account  of  the 
duplicity  in  law  of  the  pleadings.    See  G.  C.  M.  O.  80,  War  Department,  1875;  G.  0. 
of  the  Missouri,  1863;  id.  49,  Department  of  the  Ohio,  1864. 


678  MILITARY    LAWS    OF    THE    UNITED   STATES. 

[Footnote  - — Continued.] 

upon  testimony  not  in  the  possession  or  knowledge  of  the  military  authorities,  should, 
in  general,  be  required  to  be  sustained  by  affidavits  or  other  reliable  evidence,  as  a 
condition  to  their  being  adopted.  Ibid.,  par.  71H. 

Any  officer  may  prefer  charges;  an  officer  is  not  disqualified  from  preferring  charges 
by  the  fact  that  he  is  himself  under  charges  or  in  arrest.  Charges  should  be  pre- 
ferred to  the  authority  empowered  to  convene  the  court  for  their  trial.  The  signing 
of  charges,  like  orders,  with  the  name  of  an  officer,  adding  "by  the  order  of"  his 
commander,  is  unusual  and  objectionable.  Charges,  where  not  signed  voluntarily 
by  the  officer  by  whom  they  are  preferred,  are,  in  practice,  usually  subscribed  In 
the  judge-advocate  of  the  court.  Ibid.,  par.  717. 

In  cases  where  c*harges  preferred  against  an  officer  are  apparently  susceptible  of  a 
reasonable  explanation,  it  is  not  unusual,  especially  where  the  charges  are  preferred 
by  an  inferior  against  a  superior,  to  afford  the  officer  charged  an  opportunity  to 
make  explanation  before  it  be  determined  whether  to  bring  him  to  trial.  Ibid., 
par.  718. 

It  is  a  reprehensible  practice  to  allow  charges  to  lie  long  dormant  before"  being  pre- 
ferred. Charges  should  not  be  delayed,  but  should  be  brought  to  trial  as  soon  as 
practicable  and  while  the  evidence  is  fresh.  A  delay  of  five  months  remarked  upon 
as  prejudicial  to  the  administration  of  justice  and  unfair  to  the  accused.  Ibid., 
par.  722. 

Commanding  officers  are  not  required  to  bring  every  dereliction  of  duty  before  a 
court  for  trial,  but  will  endeavor  to  prevent  their  recurrence  by  admonitions,  with- 
holding of  privileges,  and  taking  such  steps  as  may  be  necessary  to  enforce  their 
orders.  Par.  1027,  A.  R.,  1901. 

Charges,  though  preferred  in  the  office  of  the  Judge- Advocate-General,  are  not  to 
be  signed  by  him.  If  not  signed  by  the  officer  actually  preferring  them,  they  will 
properly  be  authenticated  by  the  signature  of  the  acting  judge-advocate  of  the  depart- 
ment, or,  preferably,  by  the  judge-advocate  of  the  court.  Dig.  Opin.  J.  A.  G.,  par. 
723. 

An  objection  that  a  charge  is  not  signed  should  be  taken  at  the  arraignment,  when 
the  omission  may  be  supplied  by  the  judge-advocate  affixing  his  signature.  By 
pleading  the  general  issue  the  accused  waives  the  objection.  Ibid.,  par.  724. 

But  to  be  taken  cognizance  of  by  the  court,  it  is  not  essential  that  a  charge  should 
be  signed  by  any  officer.  If,  though  not  so  signed,  it  be  duly  officially  transmitted 

the  court, 
action  of  the 
purposes  of 

trial,  and  trial  upon  it  may  be  proceeded  with  by  arraignment  thereon  of  the  accused. 
Ibid.,  par.  725. 

Reference  for  trial. — In  general,  charges  can  regularly  and  properly  be  ordered  to  be 
tried,  or  transmitted  for  trial  to  the  court,  only  by  the  authority  of  the  officer  con- 
vening the  court  or  that  of  his  superior.  An  inferior  to  the  convening  officer  can  not 
properly  refer  charges  to  the  court  for  trial  except  under  some  specific  OK  general 
authority  received  from  that  officer,  (a)  The  mere  fact,  however,  that  a  court  has 
proceeded  to  the  trial  of  charges,  referred  to  it  without  due  authority  by  a  commander 
inferior  to  the. one  who  convened  the  court,  can  not  affect  the  legality  of  the  finding 
or  sentence  in  the  case.  Ibid.,  par.  719. 

Withdrmval  of  charge*. — A  withdrawal  of  charges  constitutes  no  legal  bar  to  their 
being  subsequently  revived  and  repreferred.  Charges,  however,  once  formally  with- 
drawn will  not  iii  general  properly  be  revived  except  upon  new  material  evidence 
being  obtained.  Charges  once  {;<•<  epted  as  a  sufficient  basis  for  action,  by  the  com- 
mander competent  to  convene  a  court  for  their  trial,  can  not  properly  be  withdrawn 
except  by  his  authority.  Ibid.,  par.  720. 

Amendment  of  charges. — How  far  charges  may  be  amended  by  the  judge-advocate 
before  the  organization  of  the  court  depends  mainly  upon  his  authority,  general  or 
special,  to  make  amendments.  After  the  arraignment,  amendments  of  form  may 
always  be  made,  with  the  assent  of  the  accused  or  by  the  direction  of  the  court;  and 
so  may  slight  amendments  of  substance  not  so  modifying  the  pleading  as  to  make 
it  a  charge  of  a  new  and  distinct  offense.  An  amendment  so  substantial  as  mate- 
rially to  modify  the  "matter"  before  the  court,  will  not  in  general  be  authorized 
(see  eighty-fourth  article),  and  any  amendment  whatever  of  substance  should  be 
allowed  by  the  court  with  caution  and  subject  to  the  right  of  the  accused  to  apply 
for  a  continuance  (see  ninety-third  article).  Ibid.,  par.  720,  note  1. 

The  judge-advocate  is  not   unfrequently  directed  to  prepare  or  refnune  charges; 


oe  signed  oy  any  omcer.     ir,  tnougn  not  so  signed,  it  oe  auiy  ornciaiiy  tr 
by  the  convening  commander,  or  other  competent  superior  authority,  to 
either  directly  or  through  the  judge-advocate  "for  trial,"  or  "for  the  act 
court,"  or  in  terms  to  such  effect,  it  is  sufficiently  authenticated  for  the  p 


a  This  rule,  though  not  always  insisted  upon  in  practice,  has  been  repeatedly  enjoined  in  express 
terms  by  department  commanders.  See,  for  example,  G.0. 67,  Department  of  Arkansas,  18(54;  G.O.88, 
Department  of  Dakota,  1869;  G.  0. 8,  Department  of  Texas,  1874. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  679 

him  within  eight  days  after  his  arrest,  and  that  he  is 
brought  to  trial  within  ten  days  thereafter,  unless  the 
necessities  of  the  service  prevent  such  trial;  and  then  he 
shall  be  brought  to  trial  within  thirty  days  after  the  ex- 
piration of  said  ten  days.1  If  a  copy  of  the  charges  be 
not  served,  or  the  arrested  officer  be  not  brought  to  trial, 
as  herein  required,  the  arrest  &hall  cease.2  But  officers 
released  from  arrest,  under  the  provisions  of  this  article. 


but  where -charges,  already  formally  preferred,  are  transmitted  to  him  for  prosec*u- 
tion,  he  should  not  assume  to  modify  them  in  material  particulars  in  the  absence  of 
authority  from  the  convening  officer.  While  he  may  ordinarily  correct  obvious  mis- 
takes of  form  or  patent  or  slight  errors  in  names,  dates,  amounts,  etc.,  he  can  not 
without  such  authority  make  substantial  amendments  in  the  allegations,  o*r — least  of 
all — reject  or  withdraw  a  charge  of  specification,  or  enter  a  nolle  prosequi  as  to  the 
same,  or  substitute  a  new  and  distinct  charge  for  one  transmitted  to  him  for  trial  by 
the  proper  superior,  (a)  Ibid.,  par.  1532. 

A  list  of  the  proposed  witnesses  is  no  part  of  the  military  charge,  though  such  a 
list  may  properly  be  and  is  not  unfrequently  appended  to  a  charge.  In  serving  upon 
the  accused  a  copy  of  the  charges,  it  is  not  essential,  though  the  better  practice,  to 
add  a  copy  of  the  list  of  witnesses  where  one  is  appended  to  the  original  charges. 
Appending  such  a  list  does  not  preclude  the  prosecution  from  calling  witnesses  not 
named  therein.  Ibid.,  par.  721. 

A  middle  name  or  initial  is  no  part  of  a  person's  name  in  law,  and  except  where  it 
is  necessary  to  identify  the  individual,  may  be  omitted  from  the  charge  without 
affecting  the  validity  of  the  finding  or  execution  of  the  sentence.  So  a  misnomer  in 
a  charge,  consisting  of  an  erroneous  middle  name  or  initial,  may  be  disregarded  in  a 
charge  unless  the  accused  moves  to  strike  out  or  interpose  an  objection,  in  the  nature 
of  a  plea  in  abatement,  when  he  must  also  state  his  true  name.  The  ch'arge  may 
then  be  amended  accordingly  in  court,  without  delaying  the  proceedings.  Ibid., 
par.  730. 

A  material  amendment  of  a  charge  should  properly  be  made  before  the  actual  trial. 
Where  a  court-martial,  after  the  trial  was  concluded,  directed  a  specification  to  be 
amended  so  as  to  render  it  more  definite  as  to  time  and  place,  and  then  caused  the 
accused  to  be  arraigned  and  to  plead  over  again,  mine  pro  tune,  held,  that  its  action 
was  without  sanction  of  law  or  precedent.  Ibid.,  par.  731. 

A  failure  at  the  arraignment  to  take  notice  of  a  variance  between  the  form  of  a 
specification  to  which  the  accused  is  called  upon  to  plead  and  such  specification  as  it 
appeared  in  the  copy  of  the  charges  served  at  his  arrest,  is  a  waiver  of  the  objection, 
and  the  same  can  not  be  taken  advantage  of  at  a  subsequent  stage  of  the  proceedings. 
Ibid.,  par.  732. 

Statement  of  enlistments. — The  statement  as  to  enlistments,  discharges,  etc.,  required 
by  paragraph  927,  Army  Regulations  1895,  to  be  furnished  with  the  original  charge 
to  the  convening  authority,  is  not  intended  to  be  accompanied  by  a  declaration  on 
the  part  of  the  commanding  officer  of  the  accused  as  to  his  present  character.  The 
regulation  does  not  call  for  the  officer's  opinion  on  the  subject,  or  contemplate  that 
the  character  of  the  accused  will  betaken  into  consideration  at  this  time.  Ibid., 
par.  733. 

lThough  an  officer  in  whose  case  the  provisions  of  this  article  in  regard  to  service 
of  charges  and  trial  have  not  been  complied  with  is  entitled  to  be  released  from  arrest, 
heis  not  authorized  to  release  himself  therefrom.  If  he  be  not  released  in  accordance 
with  the  article,  he  should  apply  for  his  discharge  from  arrest,  through  the  proper 
channels,  to  the  authority  by  whose  order  the  arrest  was  imposed  or  other  proper 
superior.  Dig.  Opin.  J.  A.  G.,  par.  178. 

The  term  "within  ten  days  thereafter,"  held,  to  mean  after  his  arrest.    Ibid.,  par  179. 

*Hdd,  a  sufficient  compliance  with  the  requirement  as  to  the  service  of  charges,  to 
have  served  a  true  copy  of  the  existing  charges  and  specifications,  though  the  list  of 
witnesses  appended  to  the  original  charges  was  omitted,  and  though  the  charges 
themselves  were  not  in  sufficient  legal  form,  and  were  intended  to  be  amended  and 
redrawn.  Ibid.,  par.  180. 

aSee  G.  O.  64,  Department  of  the  Cumberland,  1867;  ibid.  y.s.  ibid.,  1868;  ibid.  85,  Department  of  the 
South,  1874.  G.  C.  M.  O.  36,  42,  Department  of  the  Platte,  1877;  ibid.  13,  ibid.,  1878;  ibid.  48,  Military 
Division  of  Pacific  and  Department  of  California,  1880. 


680  MILITARY    LAWS    OF    THE    UNITED    STATES. 

may  be  tried,  whenever  the  exigencies  of  the  service 
shall  permit,  within  twelve  months  after  such  release 
from  arrest.1  Seventy -first  Article  of  War. 

men?^noffe£se;      1786-  ^°  provost-marshal,  or  officer  commanding  a  guard. 

voS-marshaiprt°o  sna^  Defuse  to  receive  or  keep  any  prisoner  committed  to 

"eflrt.  war.  n^s  charge  by  an  officer  belonging  to  the  forces  of  the  United 
States;  provided  the  officer  committing  shall,  at  the  same 
time,  deliver  an  account  in  writing,  signed  by  himself,  of 
the  crime  charged  against  the  prisoner.  Sixty-seventh 
Article  of  War.2 

Report  of  pri.s-  1787.  Every  officer  to  whose  charge  a  prisoner  is  com- 
es Art.  war.  mited  shall,  within  twenty-four  hours  after  such  commit- 
ment, or  as  soon  as  he  is  relieved  from  his  guard,  report 
in  writing,  to  the  commanding  officer,  the  name  of  such 
prisoner,  the  crime  charged  against  him,  and  the  name  of 
the  officer  committing  him,3  and,  if  he  fails  to  make  such 
report,  he  shall  be  punished  as  a  court-martial  may  direct. 
Sixty-eighth  Article  of  War. 

oiSr!epennitting  1788.  Any  officer  who  presumes,  without  proper  author- 
^y?  ^°  release  any  prisoner  committed  to  his  charge,  or 
suffers  any  prisoner  so  committed  to  escape,  shall  be  pun- 
ished as  a  court-martial  may  direct.4  Sixty-ninth  Ar1i<:le 
of  War. 

GENERAL    COURTS-MARTIAL. 


Par. 

1789.  Constitution. 

1790.  The  same,  time  of  war. 


Pur. 


1791, 1792, 1793.  Composition. 
1794.  The  same,  officers  of  marines. 


CONSTITUTION    AND    COMPOSITION'. 

1789.  Any  general  officer  commanding  an  army,  a  ter- 
division,  or  a  department,. or  colonel  commanding 

fact  that  cases  of  officers  put  in  arrest  "at  remote  military  posts  or  stations" 
arc  excepted  from  the  application  of  the  article  does  not  authorize  an  abuse  of  the 
power  of  arrest  in  these  cases.  And  where  in  such  a  case  an  arrest,  considering  the 
facilities  of  communication  with  the  department  headquarters  and  other  circum- 
stances, was  in  fact  unreasonably  protracted  without  trial,  held,  that  the  officer  was 
entitled  to  be  released  from  arrest  upon  a  proper  application  submitted  for  the  pur- 
pose. Ibid.,  par.  181. 

2See  in  this  connection  the  English  case  of  Wolton  r.  Gavin,  16  Q.  B.,  70,  cited  in 
Ives's  Mil.  Law,  p.  74. 

3The  report  required  in  this  article  is  that  habitually  submitted  to  the  post  or  other 
commander  by  the  old  officer  of  the  day  at  the  completion  of  his  tour  of  duty.  See 
in  this  connection  the  requirements  of  the  official  Manual  of  Guard  Duty  in  respect 
to  the  duties  of  the  officer  of  the  day  and  the  officer  or  noncommissioned  officer 
commanding  the  guard. 

4 The  Executive  order  of  March  30,  1898  (G.  O.  16,  A.  G.  O.,  1898),  fixing  the 
limits  of  punishment,  appoints  different  limits  of  punishment  for  willfully  and  for 
negligently  allowing  an  escape,  as  separate  offenses.  A  charge  of  suffering  an  escape, 
under  this  article,  should  therefore  indicate  in  the  specification  whether  the  act  is 
alleged  to  be  willful  or  negligent  only.  Dig.  Opin.  J.  A.  G.,  p.  79. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  681 

a  separate  department,  may  appoint  general  courts-martial   7- Art-  War- 
whenever  necessary.1     But  when  any  such  commander  is 


1  This  article  specifies  by  what  military  officer  a  general  court-martial  may  be  cons- 
tituted. The  President  of  the  United  States  has  the  power  to  order  such  a  court,  as 
the  con-  stitutional  Commander  in  Chief  of  the  Army,  irrespective  of  this  article  or 
other  statute.  Dig.  Opin.  J.  A.  G.,  par.  182. 

It  is  within  the  power  of  the  President,  as  Commander  in  Chief,  to  convene  a  gen- 
eral court-martial,  even  when  the  commander  of  the  accused  officer  to  be  tried  is  not 
the  accuser.  Swaini  r.  U.  S.,  165  U.  S.,  553.  The  President,  as  Commander  in 
Chief,  has  a  right,  virtute  offitio,  to  appoint  a  general  court-martial.  Rurikle  r.  U.  S., 
19  Ct.  Cls.,  396.  A  power  to  appoint  courts-martial  devolved,  by  statute,  011  any 
other  officer  is  shared  by  the  President,  though  be  be  not  named  therein.  Since  the 
earliest  legislation  of  our  Government  it  has  been  understood  and  intended  that  pow- 
ers granted  to  general  officers  in  regard  to  courts-martial  are  thereby  granted  to  the 
President.  His  name  is  to  be  understood  as  written  in  every  statute  which  confers 
upon  a  military  officer  military  authority.  Swaini  v.  U.  S.,  28  Ct.  Cls.,  173.  The 
President  is  empowered  to  convene  general  courts-martial  not  merely  in  the  class  of 
cases  specified  in  the  seventy -second  article  of  war  (viz,  where  a  military  officer 
thereby  authorized  to  convene  such  a  court  is  the  "accuser  or  prosecutor "  of  an 
officer  in  his  command  whom  it  is  desired  to  bring  to  trial),  but,  generally  and  in 
any  case,  by  virtue  of  his  authority  as  Commander  in  Chief  of  the  Army.  As  such 
he  is  authorized  to -give  orders  to'  his  subordinates,  and  the  convening  of  a  court- 
martial  is  simply  the  giving  of  an  order  to  certain  officers  to  assemble  as  a  court  and 
exercise  certain  "powers  conferred  upon  them,  when  so  assembled,  by  the  Articles  of 
War.  This  general  power  has  been  exercised  in  repeated  instances  by  the  President 
since  the  formation  of  the  Government.  Indeed,  if  the  same  could  not  be  exercised, 
it  would  be  impracticable,  in  the  absence  of  an  assignment  of  a  general  officer  to  com- 
mand the  Army,  to  administer  military  justice  in  a.  considerable  class  of  cases  of  offi- 
cers and  soldiers  not  under  the  command  of  any  department,  etc.,  commander,  as  a 
large  proportion  of  the  officers  of  the  general  staff,  for  example,  (a)  Dig.  Opin.  J.  A. 
G.,' par.  2038. 

A  convening  of  a  general  court-martial  nominally  by  the  Secretary  of  War  is  in  law 
a  convening  by  the  President,  and  therefore  as  legal  as  if  the  President  himself  had 
signed  the  order.  Ibid.,  par.  2039. 

This  article,  in  empowering  certain  commanders  to  constitute  the  superior  courts- 
martial,  makes  them  the  judges  in  general  of  the  expediency  of  ordering  such  courts 
in  particular  instances.  Except  where  specially  authorized  to  do  so  by  law  or  reg- 
ulation, an  officer  or  soldier  can  not  demand  a  court-martial  in  his  own  case.  Ibid., 
par.  183. 

Where  a  commander  empowered  by  this  article  to  convene  a  general  court-martial 
declines,  in  the  exercise  of  his  discretion,  to  approve  charges  submitted  to  him  by  an 
inferior  and  to  order  a  court  thereon,  his  decision  should  in  general  be  regarded  as 
final.  Ibid.,  par.  184. 

The  authority  to  order  a  court  under  this  article  is  an  attribute  of  command.  Thus 
a  department  commander,  detached  and  absent  from  his  command  for  any  consider- 
able period  by  reason  of  having  received  a  leave  of  absence  (whether  of  a  formal  or 
informal  character),  or  having  been  placed  upon  a  distinct  and  sepaiate  duty  (as  that 
of  a  member  of  a  court  or  board  convened  outside  his  department,  for  example),  is 
held  to  be  incompetent  during  such  absence  to  order  a  general  court-martial  as  depart- 
ment commander,  even  though  no  other  officer  has  been  assigned  or  has  succeeded 
to  the  command  of  the  department.  Ibid.,  par.  185. 

Nor  can  a  department  commander,  thus  absent,  exercise  such  authority  through  a 
staff  officer  or  other  subordinate,  or  delegate  the  same  to  a  subordinate  to  be  exer- 
cised by  him.  Nor,  where  a  general  court-martial  duly  convened  by  a  department 
commander  has,  at  a  time  when  the  commander  is  thus  absent  from  his  command, 
been  reduced,  by  an  incident  of  the  service,  below  five  members,  can  another  member 
legally  be  detailed  upon  the  court,  by  the  assistant  adjutant-general,  or  other  subor- 
dinate officer  remaining  in  charge  of  the  headquarters,  since  such  a  detail  would  f>e 
an  exercise  of  a  portion  of  the  authority  vested  by  this  article  in  the  commander,  and 
which  can  in  no  part  be  delegated.  Ibid. 

aThe  authority  of  the  President  as  Commander  in  Chief  to  institute  general  courts-martial  has  been 
in  fact  exercised  from  time  to  time  from  an  early  period,  in  a  series  of  cases,  commencing'  Avith  those 
of  Brigadier-General  Hull,  Major-General  Wilkinson,  and  Major-General  Gaines,  tried  in  18)3-1816,  and 
including  that  of  Brevet  Major-General  Twiuus.  tried  in  1858.  His  authority  in  this  particular  has 
been  in  substance  affirmed  by  the  Judiciary  Committee  of  the  Senate,  in  Report  No.  868,  dated  March 
3, 1879,  Forty-fifth  Congress,  third  session.  (A  single  member  of  the  committee  apparently  dissented, 
in  a  subsequent  report  of  April  7,  1879,  Mis.  Doc.  JSo.  21,  Forty-sixth  Congress,  first  session.) 


682  MILITARY    LAWS    OF    THE    UNITED    STATES. 

the  accuser  or  prosecutor  x  of  any  officer  under  his  com- 
mand the  court  shall  be  appointed  by  the  President;  and 
its  proceedings  and  sentence  shall  be  sent  directly  to  the 
Secretary  of  War,  by  whom  they  shall  be  laid  before  the 
President  for  his  approval  or  orders  in  the  case.  Seventy- 
second  Article  of  War;  act  of  July  5,  188  1+  (23  Stat.  L.  , 


me°of      179a  In  time  of  war  the  commander  of  a  division,  or  of 
w*8Art.war.     a  seParate  brigade2  of  troops,  shall  be  competent  to  ap- 
3,  vei2,2p.  S1.'  C'  Pomt  a  general  court-martial.     But  when  such  commander 
is  the  accuser  or  prosecute'  r8  of  airy  person  under  his  corri- 
1  mand,  the  court  shall   be  appointed  by  the  next  higher 
commander.2    Seventy-third  Article  of  War. 

1  See  note  3  to  par.  1790,  post. 

2  According  to  the  definition  given  in  the  act  of  March  3,  1799  (1  Stat.  L.,  752,  sec. 
1114,  Rev.  Stat,),  a  division  is  an  organized  command  consisting  of  at  least  two 
brigades,  and  a  brigade  is  an  organized  command  consisting  of  at'least  two  regiments 
of  infantry  or  cavalry.     By  section  9  of  the  act  of  April  22,  1898  (30  Stat.  L.,  362),  a 
division,  in  time  of  war,  is  required  to  be  composed  of  three  brigades,  and  each 
brigade  of  three  or  more  regiments.     Dig.  Opin.  J.  A.  G.,  par.  192. 

8  A  brigade,  to  be  a  separate  brigade  in  the  sense  of  this  article,  must  not  exist  as  a 
component  part  of  a  division;  to  authorize  its  commander  to  convene  a  general  court- 
martial  it  must  be  detached  from,  or  disconnected  with,  any  division,  and  be  operat- 
ing as  a  distinct  command.  Dig.  Opin.  J.  A.  G.,  8*5,  par.  1.  So,  where  a  command, 
not  attached  to  a  division,  but  occupying  a  separate  post  or  district,  or  operating  sep- 
arately in  the  field,  was  made  up  of  regiments  or  parts  <of  regiments,  sufficient  to 
compose  a  brigade,  and  such  as  were  commonly,  or  might  properly  be,  organized 
into  a  brigade  command,  the  same  might  in  general  be  viewed  as  constituting  a  sep- 
arate brigade  in  the  sense  of  this  article,  i.  e.,  so  far  as  to  empower  its  commander  to 
convene  a  general  court-martial.  Ibid.  •  See  also  ibid.,  par.  194-198. 

CONVENING    OFFICER    AS   ACCUSER   OR    PROSECUTOR. 

It  is  not  essential  that  the  commander  who  convenes  the  court-martial  for  the  trial 
of  an  officer  should  sign  the  charges  to  make  him  the  "accuser  or  prosecutor"  within 
the  meaning  of  this  article.  Nor  is  the  fact  that  they  have  been  signed  by  another 
conclusive  on  the  question  whether  the  convening  commander  is  the  actual  accuser 
or  prosecutor.  The  objection  that  such  commander  is  such  calls  in  question  the  legal 
constitution  of  the  court,  and  while  such  objection,  if  known  or  believed  to  exist, 
should  regularly  be  interposed  at  or  before  the  arraignment,  it  may  be  taken  during 
the  trial  at  any  stage  of  the  proceedings,  (a)  If  not  admitted  by  the  prosecution  to 
exist  the  accused  is  entitled  to  prove  it  like  any  other  issue.  Dig.  Opin.  J.  A.  G.  ,  par. 
186. 

Whether  the  commander  who  convened  the  court  is  to  be  regarded  as  the  "accuser 
or  prosecutor"  in  the  sense  of  the  article  in  question,  where  he  has  had  to  do  with 
the  preparing  and  preferring  of  the  charges,  is  mainly  to  be  determined  by  his 
animus  in  the  matter.  He'may  like  any  other  officer  initiate  an  investigation  of  an 
officer's  conduct  and  formally  prefer,  as  his  individual  act,  charges  against  such 
officer;  or  by  reason  of  a  personal  interest  adverse  to  the  accused  he  may  adopt  prac- 
tically as  his  own  charges  initiated  by  another;  in  which  cases  he  i's  clearly  the 
accuser  or  prosecutor  within  the  article.  On  the  other  hand,  it  is  his  duty  to  deter- 
mine, when  the  facts  are  brought  to  his  knowledge,  whether  an  officer  within  his 
command  charged  with  a  military  offence  shall,  in  the  interest  of  discipline  and  for 
the  good  of  the  service,  be  brought  to  trial.  To  this  end  he  may  formally  refer  or 
revise  or  cause  to  be  revised  and  then  formally  referred  charges  preferred  against 
such  officer  by  another;  or,  when  the  facts  of  an  alleged  offence  are  communicated 
to  him,  he  may  direct  a  suitable  officer,  as  a  member  of  his  staff,  or  the  proper  com- 
mander of  the  accused,  to  investigate  the  matter,  formulate  and  prefer  such  charges 
as  the  facts  may  warrant,  and  having  been  submitted  to  him  he  may  revise  and  refer 

a  See  XVI  Opin.  Art.  Gen..  109. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  683 

1791.  General  courts-martial  may  consist  of  any  number 
of  officers1  from  five  to  thirteen,  inclusive;  but  they  shall 
not  consist  of  less  than  thirteen  when  that  number  can  be 
convened  without  manifest  injury  to  the  service.2    Seventy- 
fifth  Article  of  War. 

1792.  When  the  requisite  number  of  officers  to  form  a 
general  court-martial  is  not  present  in  any  post  or  detach- 
ment,  the  commanding  officer  shall,  in  cases  which  require 
the  cognizance  of  such  a  court,  report  to  the  commanding 
officer  of  the  department,  who  shall,  thereupon,  order  a 
court  to  be  assembled  at  the  nearest  post  or  department  at 
which  there  may  be  such  a  requisite  number  of  officers,  and 
shall  order  the  party  accused,  with  necessary  witnesses,  to 
be  transported  to  the  place  where  the  said  court  shall  be 
assembled.      Seventy -xi.dJi  Article  of  War. 

them  for  trial  as  in  other  cases;  all  this  he  may  do  in  the  proper  performance  of  his 
official  duty  without  becoming  the  accuser  or  prosecutor  in  the  case,  (a)  Of  course  he 
can  not  be  deemed  such  accuser  or  prosecutor  where  he  causes  charges  to  be  preferred 
and  proceeds  to  convene  the  court  by  direction  of  the  Secretary  of  War  or  a  compe- 
tent military  superior.  See  also  par.  188,  ibid.,  and  nol:  to  par.  187. 

The  provision  of  this  article  (and  of  Art.  73)  that,  when  the  convening  commander 
is  "accuser  or  prosecutor,"  the  court  shall  be  convened  by  the  President  or  "  next 
higher  commander,"  being  expressly  restricted  to  general  courts,  has  of  course  no 
application  to  regimental  or  garrison  courts.  [But see  SUMMARY  COURT.]  The  same 
principle,  however,  will  properly  be  applied  to  proceedings  before  these  courts,  if  it 
can  be  done  without  serious  embarrassment  to  the  service.  Ibid.,  par.  189. 

1  Under  this  article  all  officers  of  the  active  list  of  the  Army  are  eligible  to  be 
detailed  as  members  of  general  courts-martial.  Chaplains,  however,  are  not  so 
detailed  in  practice.  -Retired  officers,  in  view  of  sections  1259, 1260,  Revised  Statutes, 
can  not  legally  be  assigned  to  court-martial  duty.  Dig.  Opin.  J.  A.  G.,  par.  199. 

But  only  officers  can  be  so  detailed.  Courts-martial  composed  in  whole  or  in  part 
of  enlisted  men  are  unknown  to  our  law.  So  an  "acting  assistant  surgeon,"  being  a 
civilian,  is  not  qualified  to  sit  on  a  court-martial.  Though  any  officer  may  legally 
be  detailed,  it  is  desirable  that  no  officer  should  be  selected  wlio,  from  having  pre- 
ferred the  charges  or  other  known  reason,  may  be  presumed  to  be  biased  or  inter- 
ested in  the  case.  Ibid.,  par.  200. 

2 This  section  is  merely  directory  to  the  officer  appointing  the  court,  and  his  deci- 
sion as  to  the  number  which  can  be  convened  without  manifest  injury  to  the  service, 
being  a  matter  submitted  to  his  sound  discretion,  must  be  conclusive.  Martin  v. 
Mott,  12  Wheat,  19,  35;  Mullan  v.  U.  S.,  140  U.  S.,  240.  The  limitation  with  ref- 
erence both  to  the  numbers  and  rank  of  the  members  of  a  general  court-martial  is 
discretionary  with  the  appointing  power.  Mullan  v.  U.  S.,  23  Ct.  Cls.,  34.  Dynes 
v.  Hoover,  20  How.,  81. 

It  is  not  essential  to  the  validity  of  the  proceedings  that  the  order  convening  a 
general  court-martial  of  less  than  thirteen  members  should  state  that  "no  other  offi- 
cers" or  "no  greater  number"  "than  those  named  can  be  assembled  without  mani- 
fest injury  to  the  service."  Attorney-General  Wirt  (I  Opins.,  296)  did  hold  such 
a  statement  to  be  essential,  but  simply  expressed  the  opinion  that  the  President, 
before  confirming  a  certain  death  sentence,  adjudged  by  a  court  of  less  than  thirteen 
members,  would  properly  satisfy  himself  that  a  court  of  the  full  number  could  not 
have  been  convened  without  prejudice  to  the  service.  It  was  held  at  an  early  period 
by  the  United  States  Supreme  Court  that  it  was  for  the  convening  authority  to 
determine  as  to  what  number  of  officers  could  be  detailed  without  manifest  injury  to 
to  service,  and  that  his  decision  on  the  subject  would  be  conclusive,  (b) 

a  Compare  late  opinion,  to  a  somewhat  similar  effect,  of  the  Attorney-General  of  August  1, 1878  (XVI 
Opms.,  106),  in  which  it  is  also  held  that  where  the  record  of  the  trial  fails  to  indicate  that  the  con- 
vening officer  was  the  "  accuser  or  prosecutor  "  of  the  accused,  the  latter  in  applying  to  the  Secretary 
oi  War  to,  have  the  proceedings  pronounced  invalid  on  this  ground,  may  establish  the  facts  by  the 
production  of  affidavits  setting  forth  the  circumstances  of  the  case  and  the  action  of  the  commander. 

6  Martin  v.  Mott,  12  Wheaton,  34-37  (1827). 


684  MILITARY    LAWS    OF    THE    UJSITED    STATES. 

Regular  offi-      1793.   Officers  of  the  Regular  Army  shall  not  be  compe- 

cers  not  to  sit  on  .  . 

courts  to  *ry  offi-  tent  to  sit  on  courts-martial  to  try  the  officers  or  soldiers 

cers  or  soldiers  of  . 

other  forces.       of  other  forces,  except  as  provided  in  Article  <  8.  1    Seven  fu- 

11  Art.  of  War.  .  _". 

seventh  Article  of  war. 

officers  of  ma-      1794.  Officers  of  the  Marine  Corps,  detached  for  service 
"la?  Amy  Say  with  the  Army  by  order  of  the  President,  may  be  asso- 
00'       °n  elated  with  officers  of  the  Regular  Army  on  courts-martial 


c.  132°  s.  2,  v.  ±,  for  the  trial  of  offenders  belonging  to  the  Regular  Army, 

P781irt.  of  war.  or  to  forces  of  the  Marine  Corps  so  detached;  and  in  such 

cases  the  orders  of  the  senior  officer  of  either  corps,  who 

may   be  present  and  duly  authorized,   shall   be  obeyed. 

Seventy  -eighth  Article  of  War. 


JURISDICTION. 


Par. 


1795.  Officers  triable   by  general  courts 


onlv. 


Par. 


1796.  Retainers  to  camp. 

1797.  Militia  on  active  service. 


1795.  Officers  shall    be   tried   only  by  general   courts-b 
martial;2  and  no  officer  shall,  when  it  can  be  avoided, 


JThe  volunteer  force  during  the  late  war  with  Spain  was  not  a  part  of  the  militia, 
but  of  the  Army  of  the  United  States.  Though  assimilated  to  the  militia  in  some 
respects,  as,  for  example,  in  the  mode  of  original  appointment  of  regimental  and 
company  officers,  it  was  as  distinct  in  law  from  the  militia  as  was  the  so-called 
"regular"  contingent  of  the  Army.  (a)  Volunteer  officers  once  mustered  into  the 
service  of  the  United  States  and  while  they  remained  in  that  service  did  not  differ 
substantially  from  regular  officers  in  their  status,  rights,  or  otherwise.  Their  tenure 
of  office  was  indeed  briefer;  this,  however,  was  not  a  material  legal  distinction,  since 
the  term  of  regular  officers  was  also  in  some  cases  limited  by  a  statute  to  a  definite 
period,  as  the  duration  of  the  existing  war.  See  Dig.  Opin.  J.  A.  G.,  par.  208  and 
2444,  par.  1. 

As  the  act  "to  provide  for  temporarily  increasing  the  military  establishment  of  the 
United  States  in  time  of  war,"  approved  April  22,  1898,  declares  that  the  Army  of 
the  United  States  in  time  of  war  shall  consist  of  both  the  .Regular  Army  and  the  Vol- 
unteer Army,  it  can  not  be  held  that  the  Volunteer  Army  is,  with  reference  to  the 
Regular  Army,  "other  forces,"  within  the  meaning  of  the  77th  Article  of  War,  but 
regular  officers  may  now  sit  on  courts-martial  for  the  trial  of  volunteer  officers  or 
soldiers.  Ibid.,  par.  209. 

2  Courts-martial  (though,  within  their  scope  and  province,  authoritative  and  inde- 
pendent tribunals)  are  bodies  of  exceptional  and  restricted  powers  and  jurisdiction, 
their  cognizance  being  confined  to  the  distinctive  classes  of  offenses  recognized  by  the 
military  code,  (b]  Their  jurisdiction  is  criminal,  their  functions  being  to  assign  (in 
proper  cases)  punishment;  they  have  no  authority  to  adjudge  damages  for  personal 
injuries  or  private  wrongs.  (c).  Dig.  Opin.  J.  A.  G.,  par.  1024. 

The  court-martial  having  jurisdiction  of  the  person  of  the  accused  and  of  the  offense 
charged,  and  having  acted  within  the  scope  of  its  lawful  power,  its  decision  and 
sentence  can  not  be  reviewed  or  set  aside  by  the  civil  courts  by  writ  of  habeas  corpus 

a  As  illustrating  the  distinction  made  in  section  8,  Article  I,  of  the  Constitution,  between  the  Army 
and  militia,  and  indicating  the  status  of  the  volunteers  during  the  late  war  as  a  part  of  the  former, 
see  K  err  v.  Jones,  19  Ind.,  351;  Wantlanv.  White,  ibid.,  171.  In  the  matter  of  Kiinball,  9  Law  Rep., 
503:  Burroughs  v.  Peyton,  16  Grat.,  483,  485. 

6  Ex  parte  Wilkins,  3  Peters,  193;  Barrett  r.  Crane,  16  Verm.,  246:  Brooks  v.  Adams,  11  Pick,  441; 
Brooks  v.  Davis,  17  ibid..  148;  Brooks  v.  Daniels,  22  ibid.,  498;  Washburn  v.  Phillip,  2  Met.,  296;  Smith 
r.  Shaw,  12  Johns,  257;  Mills  r.  Martin,  19  ibid.,  7;  In  matter  of  Wright,  34  How.  Pr.,  221:  Duffield  v. 
Smith,  3  Sergt.  &  Rawle,  590;  Bell  v.  Tooley,  12  Iredell,  605:  State  v.  Stevens,  2  McCord,  32;  Miller  r. 
Scare,  2  W.  Black.,  1141;  VI  Opin.  Att.  Gen.  ,'425.  "A  court-martial  is  a  court  of  limited  and  special 
jurisdiction.  It  is  called  into  existence  by  force  of  express  statute  law,  for  a  special  purpose,  and  to 
perform  a  particular  duty;  and  when  the  object  of  its  creation  is  accomplished  it  ceases  to  exist. 
*  *  *  If,  in  its  proceedings  or  sentence,  it  transcends  the  limit  of  its  jurisdiction,  the  members  of 
the  court  and  the  officer  who  executes  its  sentence  are  trespassers,  and  as  such  are  answerable  to  the 
party  injured,  in  damages,  in  the  courts."  3  Greenl.  Ev.,  sec.  470. 

cSee  2  Greeul.  Ev.,  sec.  471,  476;  United  States  v.  Clark,  6  Otto,  40;  Warden  r.  Bailey,  4  Taunt.,  78. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  685 

tried  by  officers  inferior  to  him  in  rank.1     Seventy-ninth 
Article  of  War. 

1796.  All  retainers  to  the  camp,  and  all  persons  serving    Retainers    to 
with  the  armies  of  the  United  States  in  the  field,  though  63  Art,  of  war. 
not  enlisted  soldiers,  are  to  be  subject  to  orders,  accord- 
ing to  the  rules  and  discipline  of  war.2     Sixty-third  Arti- 
cle of  War. 

1797.  The  officers  and  soldiers  of  any  troops,  whether  i/^c?wsh^e. 
militia  or  others,  mustered  and  in  pay  of  the  United  States,  ^rcuo  Articles  of 
shall,  at  all  times  and  in  all  places,  be  governed  by  the    64  Art.  of  war. 
Articles  of  War.  and  shall  be  subject  to  be  tried  by  courts- 
martial.3     Sixty -fourth  Article  of  War. 

or  otherwise.  Johnson  r  Say  re,  158  U.  S.,  109, 118;  Dynes  v.  Hoover,  20  How.,  65, 82; 
Ex  parte  Reed,  100  U.  S.,  13;  Ex  parte  Mason,  105  U.  S.,  696;  Smith  v.  Whitney,  116 
U.  S.,  167,  177-179. 

Whenever  the  law  permits  the  civil  courts  of  the  United  States  to  review  the  pro- 
ceedings of  courts-martial,  such  review  must  be  confined  to  the  question  of  jurisdic- 
tion alone.  If  the  court-martial  is  found  to  have  acted  with  jurisdiction,  the  civil 
court  can  not  and  will  not  go  into  the  case  further.  Wales  v.  Whitney,  114  U.  S. ,  564; 
Dynes  v.  Hoover,  20  How.,  82. 

In  order  to  become  amenable  to  the  military  jurisdiction,  an  officer  or  soldier  must 
have  been  legally  and  fully  admitted  into  the  military  service  of  the  United  States. 
ThiiH  held  that  an  officer  of  the  State  volunteers  appointed  by  a  governor  of  a  State, 
but  not  yet  mustered  into  the  United  States  service,  was  not  amenable  to  the  jurisdic- 
tion of  a  court-martial  of  the  United  States  for  an  offense  committed  while  engaged 
in  recruiting  service  under  the  authority  of  the  governor.  So  held  that  the  making 
of  fraudulent  representations  in  the  course  of  the  preliminaries  to  an  enlistment — as 
in  the  "declaration  of  the  recruit" — and  before  the  enlistment  was  legally  complete 
and  the  soldier  thus  fully  in  the  United  States  service,  did  not  constitute  an  offense 
within  the  cognizance  of  a  court-martial.  Dig.  Opin.  J.  A.  G.,  par.  1026. 

As  regards  offenses,  general  courts-martial  have  exclusive  jurisdiction  over  all 
offenses  punishable  capitally,  and  over  those  defined  in  the  fifty-eighth  article,  when 
committed  in  time  of  war. "  Over  other  offenses  they  have  concurrent  jurisdiction 
with  the  inferior  courts;  but  all  offenses  for  which  the  limit  of  punishment  is  in  excess 
of  the  limits  of  punishing  power  of  an  inferior  court,  as  wTell  as  all  serious  noncapital 
offences  for  which  limits  of  punishment  have  not  been  prescribed,  will,  when  prac- 
ticable, be  tried  by  general  court-martial.  MANUAL  FOR  COURTS-MARTIAL. 

:  Whether  the  trial  of  an  officer  by  officers  of  an  inferior  rank  can  be  avoided  or  not 
is  a  question,  not  lor  the  accused  or  the  court,  but  for  the  officer  con  veiling  the  court; 
and  his  decision  (as  indicated  by  the  detail  itself  as  made  in  the  convening  order) 
upon  this  point,  as  upon  that  of  the  number  of  members,  is  conclusive.  An  officer, 
therefore,  can  not  successfully  challenge  a  member  because,  merely,  of  being  of  a 
rank  inferior  to  his  own.  Dig.  Opin.  J.  A.  G.,  par.  210. 

The  statement  added  in  orders  convening  courts-martial  to  the  effect  that  "no 
officers  other  than  those  named  can  be  assembled  withoutmanifest  injury  to  the  serv- 
ice" is  as  superfluous  and  unnecessary,  for  the  purpose  of  excusing  the  detail  ot 
officers  junior  to  the  accused,  as  it  is  for  accounting  for  the  fact  that  less  than  the 
maximum  number  have  been  selected  for  the  court. 

2  A  "retainer"  is  defined  to  be  an  attendant,  or  servant,  and  the  term  is  applied  to 
one  who  attends  upon  a  superior,  as  upon  an  officer  or  other  person,  and  accompanies 
the  Army  in  such  dependent  capacity;  the  other  class  mentioned  in  the  article  and 
designated  as  "  persons  serving  with  the  Armies  of  the  United  States  in  the  field," 
consists  in  and  is  composed  of   the  authorized  civilian  employes  of  an  army  in  the 
field,  or  of  its  several  staff  departments.     In  both  cases  the  persons  designated  in  the 
article,  by  accompanying  the  Army  of  their  own  free  will,  may  be  said,  by  such  act, 
to  have  voluntarily  subjected  themselves  to  military  jurisdiction  during  the  period  of 
their  sojourn  in  the  theater  of  active  military  operations. 

3  The  following  classes  of  persons  are,  by  statute,  made  subject  to  military  law,  and 
are  therefore  amenable  to  trial  by  general  court-martial : 

(1)  Members  of  the  military  establishment.     Section  1094,  Revised  Statutes. 

(2)  Persons  admitted  to  the  Soldiers'  Home  at  Washington,  D.  C.     Section  4824, 
Revised  Statutes. 


686  MILITARY    LAWS    OF    THE    UNITED    STATES. 

[Footnote  3— Continued.] 

(3)  Inmates  of  the  National  Home  for  Disabled  Volunteers.     Section  4835,  Revised 
Statutes. 

(4)  Persons  guilty  of  contempt  of  court.     Eighty-sixth  Article  of  War. 

(5)  Post  traders  (in  time  of  war  only).     Section  3,  act  of  July  26,  1876  (19  Stat.  L., 
100) . 

(6)  The  Marine  Corps,  when  serving  with  the  Army.      Section   1621,   Revised 
Statutes. 

(7)  The  Militia,   when  called  into  active  service.     Sections  1642-1644,   Revised 
Statutes.     Sixty-fourth  Article  of  War. 

8)  Persons  relieving  or  harboring  the  enemy.     Forty-fifth  Article  of  War. 

9)  Persons  giving  intelligence  to  the  enemy.     Forty-sixth  Article  of  War. 

10)  Retainers  to  the  camp,  and  all  persons  serving  with  armies  in  the  field.     Sixty- 
third  Article  of  War. 

(11)  Spies.     Section  1343,  Revised  Statutes.     See,  also,  in  connection  with  the  sub- 
ject of  jurisdiction,  Manual  for  Courts-Martial,  pp.  11-14. 

(12)  Soldiers  sentenced  by  courts-martial  to  dishonorable  discharge  and  confine- 
ment.    Section  5,  act  of  June  18,  1898. 

While  it  will  in  general  be  more  for  the  interest  and  convenience  of  the  service  to 
bring  an  accused  officer  or  soldier  to  trial  near  the  locality  of  his  offense,  he  may 
with  equal  legality  be  tried  by  a  court  convened  in  any  other  part  of  the  United 
States.  Dig.  Opin.  J.  A.  G.,  322,  par.  2. 

The  jurisdiction  over  persons  in  the  military  service  covers  all  military  offenses 
committed  by  them,  whether  within  or  beyond  the  territorial  jurisdiction  of  the 
United  States.  Military  offenses  are  not  territorial.  ( Manual  for  Courts-Martial,  p.  14. ) 

The  jurisdiction  of  courts-martial  is  nonterritorial.  In  a  case  of  an  officer  who 
exhibited  himself  in  a  drunken  condition  at  a  public  ball  in  Mexico,  held  that  his 
offense  was  cognizable  by  a  court-martial  of  the  United  States,  subsequently  con- 
vened in  Texas  by  the  department  commander.  This  for  the  reason  that  the  mili- 
tary jurisdiction  does  not  recognize  territoriality  as  an  essential  element  of  military 
offenses,  but  extends  to  the  same  wherever  committed,  a  principle  which  is  amply 
confirmed  by  the  comprehensive  provision  of  the  sixty-fourth  Article  of  War.  See 
Dig.  Opin.  J.  A.  G.,  par.  169. 

An  officer  or  soldier  (except  as  otherwise  provided  in  the  sixtieth  article)  ceases 
to  be  amenable  to  the  military  jurisdiction  for  offenses  committed  while  in  the  mili- 
tary service  after  .he  has  been  separated  therefrom  by  resignation,  dismissal,  being 
dropped  for  desertion,  muster  out,  discharge,  etc.,  and  has  thus  become  a  civilian. 
The  old  English  precedent  of  Sackville's  case  (a)  (which  appears,  indeed,  to  stand 
alone  even  in  England)  has  not  been  followed  in  this  country  or  recognized  in  our 
laws.  Ibid.,  par.  1027. 

A  discharge  of  a  soldier,  when  subject  to  trial  and  punishment  for  a  military  offense, 
is  a  formal  waiver  and  abandonment  by  the  United  States  of  jurisdiction  over  him. 
Nor  does  a  soldier,  after  having  been  once  discharged,  as  where  he  has  been  dishpn-. 
orably  discharged  by  sentence,  remain  liable  to  the  military  jurisdiction  for  desertion 
or  any  other  military  offense  committed  before  discharge  by  reason  of  being  still  held 
in  military  custody  as  a  prisoner  in  confinement  under  the  same  sentence;  for  he  is 
then  held,  not  as  a  soldier,  but  as  a  civilian  convict. 

Nor  can  a  person  who,  by  reason  of  acceptance  of  resignation,  dismissal,  discharge, 
etc.,  has  become  wholly  detached  from  the  military  service,  be  made  liable  to  trial 
by  court-martial,  for  offenses  committed  while  in  the  service,  on  the  ground  that  such 
offenses  were  not  discovered  till  after  he  had  left  the  Army. 

The  returning  by  a  dismissed,  etc.,  officer,  to  the  service  under  a  new  commission 
does  not  revive  a  jurisdiction  for  offenses  committed  while  he  was  in  the  service 
which  had  lapsed  upon  his  being  separated  from  it. 

It  is  to  be  understood  that  the  general  rule  of  the  npnamenability  to  military  trial 
of  officers  and  soldiers,  after  discharge,  dismissal,  etc.,  is  subject  to  a'specific  statutory 
exception,  viz,  that  provided  for  in  the  concluding  provision  of  the  sixtieth  article. 
Dig.  Opin.  J.  A.  G.,  par.  1028. 

Where  a  soldier  in  the  Army  of  the  United  States  was  arrested  for  a  crime,  and  his 
term  of  enlistment  expired  before  his  trial  and  conviction  by  court-martial,  held  that 
the  jurisdiction  of  the  court-martial  having  once  attached  by  arrest,  it  retained  juris- 
diction for  all  the  purposes  of  trial,  judgment,  and  execution.  Barret?'.  Hopkins, 
7  Fed.  Rep.,  312.  Now,  by  section  5  of  the  act  of  June  18,  1898  (30  Stat.  L.,  484), 
enlisted  men  sentenced  to  dishonorable  discharge,  and  to  periods  of  confinement  in 


a  Note  the  counter  dictum  of  Lord  Mansfield,  in  Parker  r.  dive,  4  Burrow,  2419  (dated  in  1779),  that 
officers  of  the  Army,  "after  resigning  their  commission,  cease  to  be  objects  of  military  jurisdiction." 


MILITARY    LAWS    OF    THE    UNITED   STATES.  687 

[Footnote  3— Continued.] 

addition  thereto,  are  made  liable  to  trial  for  offenses  committed  by  them  during  such 
period  of  confinement. 

A  soldier,  however,  provided  he  has  not  been  in  fact  discharged,  may  be  brought 
to  trial  by  court-martial  after  the  term  of  service  for  which  he  enlisted  has  expired, 
provided,  before  such  expiration,  proceedings  with  a  view  to  trial  have  been  duly 
commenced  against  him  by  arrest  or  service  of  formal  charges,  (a)  By  such  arrest  or 
service  the  military  jurisdiction  attaches,  and,  once  attached,  trial  by  court-martial 
and  punishment  upon  conviction  may  legally  ensue,  though  the  soldier's  term  of 
enlistment  may  in  fact  expire  before  the  trial  be  entered  upon.  In  the  leading  case 
on  this  point,  of  a  seaman  in  the  Navy  (In  re  Walker,  3  American  Jurist,.  281)  (6), 
the  supreme  court  of  Massachusetts  held  (January  25,  1830)  as  follows:  "In  this 
case  the  petitioner  was  arrested,  or  put  in  confinement,  and  charges  were  preferred 
against  him  to  the  Secretary  of  the  Navy  before  the  expiration  of  the  time  of  his 
enlistment;  and  this  was  clearly  a  sufficient  commencement  of  the  prosecution  to 
authorize  a  court-martial  to  proceed  to  trial  and  sentence,  notwithstanding  the  time 
of  service  had  expired  before  the  court-martial  had  convened."  So  held,  in  a  case 
of.  a  soldier  in  the  Regular  Army,  arrested  on  the  day  before  the  expiration  of  his 
term  of  enlistment,  with  a  view  to  a  trial  for  a  military  offense  by  court-martial,  that 
the  jurisdiction  of  the  court  had  duly  attached,  and  that  his  trial  might  "egally  be 
proceeded  with.  And  similarly  held  in  repeated  cases  of  soldiers  and  officers  of  "reg- 
ular and  volunteer  regiments.  Dig.  Opin.  J.  A.  G.,  par.  1029. 

Where  the  amenability  of  a  soldier  for  a  military  offense  had  been  finally  severed 
by  his  due  discharge  from  the  service,  held  that  it  did  not  revive  upon  his  reentering 
the  service  within  the  period  of  limitation.  Ibid.,  331,  par.  18. 

By  the  sixth  amendment  of  the  Constitution,  civilians  are  guaranteed  the  right  of 
trial  by  jury  "in  all  criminal  prosecutions."  Thus,  in  time  of  peace,  a  court-martial 
can  not  assume  jurisdiction  of  an  offense  committed  by  a  civilian  without  a  violation 
of  the  Constitution.  It  is  only  under  the  exceptional  circumstances  of  a  time  of  war 
that  civilians  may,  in  certain  situations,  become  amenable  to  trial  by  court-martial, 
(c)  Ibid.,  par.  1031. 

A  civilian  brought  to  trial  before  a  court-martial  can  not,  by  a  plea  of  guilty  or 
other  form  of  legal  assent,  confer  jurisdiction  upon  the  court,  wrhere  no  jurisdiction 
exists  in  law.(d) 

Any  statute  by  which  any  class  of  civilians  is  attempted  to  be  made  amenable  to 
trial  by  court-martial  for  offenses  committed  while  civilians  and  in  time  of  peace  is 
necessarily  unconstitutional.  Ibid.,  par.  1032. 

It  can  not  affect  the  authority  of  a  court-martial  to  take  cognizance  of  the  military 
offense  involved  in  an  injury  committed  by  a  soldier  against  an  officer  that  before 
the  trial  the  latter  has  resigned  or  been  otherwise  separated  from  the  Army.  Ibid., 
par.  1037. 

Whether  a  soldier  ma>  legally  be  held  amenable  to  trial  by  court-martial  for  an 
offense  committed  by  him  while  on  furlough  will  depend  upon  the  nature  of  the 
offense  and  the  circumstances  of  his  situation.  In  general,  indeed,  where  he  is  thus 
absent  at  his  home  or  at  such  a  distance  from  his  station  and  from  troops  that  his 
offenses  will  not  directly  prejudice  military  discipline,  he  will  not  render  himself 
amenable  to  the  military  jurisdiction  unless,  indeed,  he  commits  a  desertion.  See 
MANUAL  FOR  COURTS-MARTIAL,  p.  16,  par.  7. 

The  discharge  of  a  soldier  not  taking  effect  till  notice  thereof,  actual  or  construct- 
ive, held  that  a  soldier  w-ho  committed  a  military  offense  on  the  day  on  which  he 
was  to  be  dishonorably  discharged  under  sentence  but  before  the  discharge  was 
delivered  to  him  (or  to  the  officer  in  charge  of  the  prison  at  which  he  was  also  to  be 
confined  under  the  same  sentence)  was  amenable  to  the  military  jurisdiction  for  the 
trial  and  punishment  of  such  offense  as  being  still  in  the  military  service.  Ibid., 
par.  1039. 

Courts-martial  are  no  part  of  the  judiciary  of  the  United  States,  but  simply  instru- 
mentalities of  the  Executive  power.  They  are  creatures  of  orders,  the  povVer  to 
convene  them,  as  well  as  the  power  to  act  upon  their  proceedings,  being  an  attribute 
of  command.  But,  though  transient  and  summary,  their  judgments,  when  rendered 
upon  subjects  within  their  limited  jurisdiction,  are  as  legal  and  valid  as  those  of  any 

aSee  G.  C.  M.  0. 16,  War  Department,  1871. 

b  And  see  Judge  Story's  charge  to  the  jury  in  U.  S.  v.  Travers,  2  Wheeler  Cr.  C.,  509;  In  the  matter 
of  Dew,  25  L.  R.,  540,  In  re  Bird,  2  Sawyer,  33. 

cSee,  in  support  of  this  view.  Ex  par'te  Milligan,  4  Wallace,  121-123;  Jones  v.  Seward,  40  Barb.,  563; 
In  matter  of  Martin,  45  ibid.,  145:  Smith  v.  Shaw,  12  Johns.,  257,  265;  In  matter  of  Stacy,  10  ibid.,  332; 
Mills  v.  Martin.  19  ibid.,  22.  Johnson  v.  Jones,  44  Ills.,  142,  155;  Griffin  v.  Wilcox,  21  Ind.,  386;  In  re 
Kemp,  16  Wis.,  359.  Ex  parte  McRoberts,  16  Iowa,  605;  Antrim  s  case,  5  Philad.,  288;  III  Opin.  Att.  Gen., 
690;  XIII  ibid  ,  63. 

d  Compare  People  v.  Campbell,  4  Parker,  386;  Shoemaker  v.  Nesbit,  2  Rawle,  201;  Moore  r.  Houston, 
3  Sergt.  &  Rawle,  190;  Duffield  v.  Smith,  ibid.,  599;  also  One  hundred  and  third  article. 


688  MILITARY    LAWS    OF    THE    UNITED    STATES. 


Par. 


JUDGE-ADVOCATES. 


Par. 


1798.  Appointment. 

1799.  Duties. 


1800.  Counsel  for  accused,  enlisted  men. 


c  Jt£,dge-advo"      1798.  Officers  who  may  appoint  a  court-martial  shall  be 
74  Art.  of  War.  competent   to   appoint   a   judge-advocate  for  the  same.1 
Seventy-fourth  Article  of  War. 

other  tribunals,  nor  are  the  same  subject  to  be  appealed  from,  set  aside,  or  reviewed 
by  the  courts  of  the  United  States  or  ot  any  State,  (a)  Dig.  Opin.  J.  A.  G.,  par.  992. 
Their  jurisdiction  is  criminal,  their  function  being  to  assign  (in  proper  cases)  pun- 
ishment; they  have  no  authority  to  adjudge  damages  for  personal  injuries  or  private 
wrongs.  ( b ) 

It  is  no  objection  to  the  assuming  by  a  court-martial  of  jurisdiction  of  a  military 
offense  committed  by  an  officer  or  soldier  that  he  may  be  amenable  to  trial  or  may 
actually  have  been  tried  and  convicted  by  a  criminal  court  of  the  State,  etc.,  for  a 
criminal  offense  involved  in  his  act.(c)  And  the  reverse  is  also  law,  viz,  that  the 
civil  court  may  legally  take  cognizance  of  the  criminal  offense  involved  without 
regard  to  the  fact  that  the  party  has  been  subjected  to  a  trial  and  conviction  by  court- 
martial  for  his  breach  of  military  law  or  discipline.  In  such  instances  the  act  com- 
mitted is  an  offense  against  the  two  jurisdictions  and  may  legally  subject  the  offender 
to  be  tried  and  punished  under  both.  Ibid.,  par.  1036. 

*Any  commissioned  officer  may  legally  be  appointed  judge-advocate  of  a  court- 
martial.  Thus  a  surgeon,  assistant  surgeon,  or  even  a  chaplain,  is  legally  eligible  to 
be  so  detailed.  Dig.  Opin.  J  A.  G.,  par.  1521. 

A  separate  judge-advocate  should  be  appointed  for  each  general  court-martial  con- 
vened by  a  department  or  other  competent  commander.  The  same  officer  may, 
indeed,  be  selected  to  perform  the  duties  of  judge- advocate  as  often  as  may  be  deemed 
desirable  by  the  commander,  but  he  should  be  detailed  anew  for  every  court-martial 
on  which  he  acts.  To  appoint  in  a  general  order  a  particular  officer  to  act  as  judge- 
advocate  for  all  the  courts  to  be  held  in  the  same  command  would  be  quite  irregular 
and  without  the  sanction  of  precedent.  Ibid.,  par.  1522. 

It  is  competent  for  the  commander  who  has  convened  a  court-martial  to  relieve  the 
judge-advocate  originally  detailed  for  it  and  substitute  another  in  his  place,  and  the 
second  may  in  the  same  manner  be  relieved  by  a  third,  etc.  The  relieving,  however, 
of  a  judge-advocate,  pending  a  trial,  must  in  general  embarrass  the  prosecution  of  a 
case,  and  should  not  be  resorted  to  if  it  can  well  be  avoided.  Ibid.,  par.  1523. 

Where  there  have  been  two  or  more  judge-advocates  successively  detailed  in  the 
course  of  a  trial,  the  one  who  is  acting  at  the  close  is  the  one  (and  the  only  one) 
required  to  authenticate  the  proceedings  by  his  signature.  Ibid.,  par.  1524. 

An  officer  serving  as  judge-advocate  on  the  staff  ot  a  department  or  army  com- 
mander has  as  such  no  authority  to  act  as  judge-advocate  of  a  court-martial  convened 
by  such  commander.  If  it  is  desired  that  he  shoulfl  act  as  judge-advocate  of  such  a 
court,  he  should  be  specially  detailed  for  the  purpose.  Ibid.,  par.  1527. 

While  a  civilian  may  legally  be  appointed,  or  rather  employed,  as  judge-advocate 


<?See  Dynes  r.  Hoover,  20  Howard,  79;  Ex  parte  Vallandigham,  1  Wallace,  243;  Wales  r.  Whitney, 
114  U.  S.,  564;  Fugitive  Slave  Law  Cases,  1  Blatch.,  635;  In  re  Bogart.  2  Sawyer,  402,  409;  Moore  v. 
Houston,  3  S.  &  R.,  197;  Ex  parte  Dunbar,  14  Mass..  392;  Brown  v.  Wads  worth,  15  Verm.,  170;  People  v. 
Van  Allen,  55  N.  York,  31;  Perault  v.  Rand,  10  Hun,  222;  Ex  parte  Bright,  1  Utah,  148,  154;  Moore  r. 
Bastard,  4  Taunt.,  67:  VI  Opins.  At.  Gen.,  415,  425.  "No  actsof  military  officersor  tribunals,  within  the 
scope  of  their  jurisdiction,  can  be  revised,  set  aside,  or  punished,  civilly  or  criminally,  by  a  court  of 
common  law."  Tyler  v.  Pomeroy,  8  Allen,  484.  Where  a  court-martial  has  jurisdiction,  "its  proceed- 
ings can  not  be  collaterally  impeached  for  any  mere  error  or  irregularity  committed  within  the  sphere 
of  its  authority.  Its  judgments,  when  approved  as  required,  rest  on  the  same  basis  and  are  sur- 
rounded by  the  same  considerations  which  give  conclusiveness  to  the  judgments  of  other  legal  tri- 
bunals, including  as  well  the  lowest  as  the  highest,  under  like  circumstances."  Ex  parte  Reed,  10 
Otto,  13. 

b  In  case  property  or  monev  stolen  be  brought  into  court  and  identified,  the  owner  may  claim  it,  and 
the  court  will  order  it  to  be  restored  to  him  But,  still,  trial  by  court-martial  is  a  criminal  proceeding, 
not  an  action  to  recover  oebt,  or  sounding  in  damage  for  injury,  and  in  this  regard  *  *  *  the  law 
makes  no  distinction  in  favor  of  soldiers  over  other  persons  who  have  suffered  loss  or  injury.  G.  O. 
18,  A.  G.  O.,  1859.  See  also  G.  O.  No.  2,  A.  G.  O.  of  1857. 

cThus  a  soldier  may  be  tried  for  a  violation  of  Art.  21,  in  striking  or  doing  other  violence  to  a 
superior  officer,  after'having  been  convicted  by  a  civil  tribunal  for  the  criminal  assault  and  battery. 
So,  an  officer  or  soldier  may  be  brought  to  trial  under  a  charge  of  "  Conduct  to  the  prejudice  of  good 
order  and  military  discipline  "  for  the  military  offense  (if  any)  involved— in  a  homicide  or  a  larceny, 
of  which,  as  a  civil  offense,  he  has  been  acquitted  or  convicted  by  a  criminal  court. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  689 

1799.  The  judge-advocate,  or  some  person  deputed  by 
him.  or  by  the  general  or  officer  commanding  the  Army, 
detachment,  or  garrison,  shall  prosecute  1  in  the  name  of 

of  a  court-martial,  such  an  employment  has,  for  the  past  fifty  years,  been  of  the 
rarest  occurrence  in  the  military  service.  Civil  judge-advocates  have  been  much 
more  frequently  employed  for  naval  than  for  military  courts-martial,  (a)  Ibid.,  par. 
1528. 

A  direction  in  an  order  convening  a  general  court-martial,  that  if  the  judge-advo- 
cate be  prevented  from  attending  the  junior  member  of  the  court  will  act  in  his 
stead,  held  irregular  and  improper;  the  function  of  a  judge-ad vocate  as  prosecuting 
officer,  not  being  properly  compatible  with  that  of  a  member  of  a  court-martial. 
And — the  member  having  acted  as  judge-advocate  in  this  case — adi'ised  that  the  pro- 
ceedings (though  the  court  had  still  retained  five  members)  be  disapproved  by  the 
reviewing  authority.  A  court-martial  has  of  course  no  authority  to  direct  or  empower 
its  junior  member  or  any  other  officer  to  act  as  its  judge-advocate.  Ibid.,  pa/.  1526. 

( 'hallenge  of  judge-advocate. — While  a  judge-advocate  is  not  subject  to  challenge, 
and  it  can  not  affect  the  legal  validity  of  the  proceedings  of  a  court-martial  that  the 
judge-advocate  was  personally  objectionable  or  hostile  to  the  accused,  it  is  yet  desir- 
able to  detail  as  judge-advocate,  if  practicable,  an  officer  who  has  no  considerable 
Kejudice  against  the  party  to  be  tried,  or  any  decided  personal  interest  in  his  case.  (6) 
id.,  par.  1529. 

An  officer  can  not  in  general  fitly  or  becomingly  act  as  judge-advocate  in  a  case  in 
which  he  is  personally  interested  as  accuser  or  prosecutor.  Where  the  judge-advo- 
cate had  prepared  the  charges  and  was  the  accuser  in  the  case,  and  moreover  enter- 
tained a  strong  personal  prejudice  or  hostility  against  the  accused,  Jield  that  he  was 
ill-chosen  to  act  as  judge-advocate  especially  in  the  capacities  of  prosecuting  official 
and  adviser  to  the  court.  A  personal  animus  against  the  accused  is  particularly 
unbefitting  a  judge-advocate  in  a  case  where  the  accused  is  not  represented  by  coun- 
sel. One  who,  without  personal  prejudice  against  the  accused,  or  interest  in  his  con- 
viction, has  signed  the  charges  as  company  commander,  may  not  improperly  act  as 
judge-advocate  in  the  case.  Ibid.,  par.  1530. 

In  the  case  of  an  officer  tried  by  general  court-martial  in  1871  and  sentenced  to  be 
dismissed,  the  judge-advocate  was  not  only  a  material  witness  for  the  prosecution, 
but,  as  the  senior  first-liutenant  in  the  same  regiment  with  the  accused,  was  the 
expectant  of  promotion  to  the  next  vacancy  in  the  grade  of  captain.  In  his  review 
of  the  case,  it  was  remarked  by  the  Secretary  of  War  that,  "  while  there  is  no  ground 
for  doubting  that  the  officer  charged  with  this  duty  performed  it  with  honest  and 
pure  intentions,  yet  certainly  his  selection  for  it  was  unsuitable,  inasmuch  as  by 
military  law  and  usage  it  has' always  been  held-  that  the  judge-advocate,  should  be 
free  from  bias  or  interest  in  the  result  of  the  proceedings  in  which  he  officiates."  G. 
('.  M.  O.  5,  War  Dept.,  1871.  See  also  G.  C.  M.  O.  No.  41,  War  Dept.,  1875. 

1  A  judge-advocate  is  not  authorized  to  entertain  charges  in  the  first  instance;  he 
can  properly  act  upon  charges — i.  e.,  make  service  of  the  same,  prepare  the  case  for 
trial,  etc. — only  when  the  charges  are  transmitted  to  him  for  the  purpose  by  the 
officer  who  has  convened  the  court  or  detailed  him  as  judge-advocate.  Dig.  Opin. 
J.  A.  G.,  par.  1531. 

.  The  judge-advocate  is  not  unfrequently  directed  to  prepare  or  reframe  charges; 
but  where  charges  already  formally  preferred  are  transmitted  to  him  for  prosecu- 
tion, he  should  not  assume  to  modify  them  in  material  particulars  in  the  absence  of 
authority  from  the  convening  officer.  While  he  may  ordinarily  correct  obvious 
mistakes  of  form  or  patent  or  slight  errors  in  names,  dates,  amounts,  etc.,  he  can  not 
without  such  authority  make  snlixtant'uil  amendments  in  the  allegations,  or — least  of 
all — reject  or  withdraw  a  charge  or  specification,  or  enter  a  nolle  prosequi  as  to  the 
same,  or  substitute  a  new  and  distinct  charge  for  one  transmitted  to  him  for  trial  by 
the  proper  superior.  Ibid.,  par.  1532. 

A  judge-advocate  of  a  court-martial  has  no  authority  to  place  in  arrest  an  officer 
or  soldier  about  to  be  tried  by  the  court  or  to  compel  the  attendance  of  the  accused 

a  The  last  occasions  of  such  employment  are  believed  to  have  been  those  of  the  trial  of  the  persons 
charged  with  complicity  in  the  assassination  of  President  Lincoln,  and  the  trial  of  Major  Haddock, 
Prov.  Mar.  Dept,  (see  G.  C.  M.  O.,  356  and  565,  War  Dept,,  1865),  upon  which  Hon.  J.  A.  Bingham  and 
Hon.  Roscoe  Conkling  were,  respectively,  employed  as  judge-advocates.  For  an  early  case  in  which 
a  civilian,  who  was  afterwards  a  President  of  the  United  States,  was  employed  as  judge-advocate,  see 
the  reply  dated  March  7,  1814,  of  the  Secretary  of  War,  Hon.  John  Armstrong,  to  the  communication 
of  the  "acting  special  judge-advocate,"  Hen.  Martin  Van  Buren,  submitting  questions  for  the  court. 
Fo.bes'  Trial  of  Hull. 

6 See  Gen.  Court-Martial  Orders  No.  5,  War  Dept.,  1871;  do.  -11,  1875. 

22924—08 44 


690  MILITARY    LAWS    OF    THE    UNITED    STATES. 

the  United  Stafes,  but,  when  the  prisoner  has  made  his 
accused.8 el  forp^ea?  he  shall  so  far  consider  himself  counsel  for  the  pris- 
oner as  to  object  to  any  leading  question  to  any  of  the 
witnesses,  and  to  any  question  the  answer  to  which  might 
tend  to  criminate  himself.1  Ninetieth,  Article  of  War. 


before  the  court  by  requiring  a  noncommissioned  officer  to  bring  him  or  otherwise! 
these  are  duties  which  devolve  upon  the  convening  authority  or  upon  the  post  com 
inander  or  other  proper  officer  in  whose  custody  or  command  the  accused  is  at  the 
time.     Ibid.,  par.  1535. 

Prosecutor. — Other  than  the  judge-advocate,  who  by  the  90th  Article  of  War,  is 
"required  to  prosecute  in  the  name  of  the  United  States,"  our  military  law  and 
practice  recognize  no  official  prosecutor.  The  party  who  is  in  fact  the  accuser  or  the 
prosecuting  witness  is,  in  important  cases,  not  (infrequently  permitted  by  the  court 
to  remain  in  the  court  room  and  advise  with  the  judge-advocate  during  the  trial  if 
the  latter  requests  it;  and  in  some  cases  he  has  been  allowed  to  be  accompanied  by 
his  own  counsel.  If  such  a  party  is  to  testify,  he  should  ordinarily  be  the  firs:  wit- 
ness examined;  this  course,  however,  is  not  Invariable.  Ibid.,  par.  2078. 

Duty  of  judge-advocate  at  the  trial.— A.  competent  judge-advocate  will,  properly  be 
left  by  the  court  to  introduce  the  testimony  in  the  form  and  order  deemed  by  "him 
to  be  the  most  advantageous  and  generally  to  bring  on  cases  for  trial  and  conduct 
their  prosecution  according  to  his  own  judgment. 

The  general  presumption  of  law,  made  in  favor  of  all  public  officers,  in  the  absence 
of  affirmative  evidence  to  the  contrary,  that  they  duly  fulfill  their  functions,  applits 
to  the  judge-advocate.  Dig.  Opin.  J.  A.  G.,  par.  1546. 

An  absence  of  the  judge-advocate  from  the  court  during  the  trial  does  not  per  se 
affect  the  validity  of  the  proceedings,  but  is,  of  course,  to  be  avoided  if  possible. 
When  the  judge-advocate  is  obliged  to  temporarily  absent  himself,  the  court  should 
in  general  suspend  the  proceedings  for  the  time;  or,  if  his  absence  is  to  be  prolonged, 
should  adjourn  for  a  certain  period.  Ibid.,  par.  1539. 

Should  the  judge-advocate  be  required  to  give  evidence  as  a  witness,  the  clerk  or 
reporter  of  the  court  may  go  on  to  record  his  testimony  while  on  the  stand;  or,  if 
there  be  no  clerk  or  reporter,  he  may  record  his  own  testimony  as  that  of  any  other 
witness.  Ibid.,  par.  1540. 

The  judge-advocate  in  our  practice  is  entitled  to  the  closing  argument  or  address 
to  the  court,  and  he  may  present  an  address  although  the  accused  waives  his  right 
to  present  any,  the  function  of  the  judge-advocate  at  this  stage  of  the  proceedings 
not  being  confined  merely  to  a  replying  to  the  accused.  The  judge-advocate,  in 
his  address,  is  not  authorized  to  read  to  the  court  evidence  or  written  statements 
not  introduced  upon  the  trial  and  which  the  accused  has  had  no  opportunity  to  con- 
trovert or  comment  upon.  Ibid.,  par.  1539. 

The  judge-advocate  is  entitled  by  usage  to  sum  up  the  case  and  present  an  argu- 
ment at  the  conclusion  of  the  trial,  even  though  the  accused  declines  to  make  argu- 
ment or  statement.  The  court  is  not  authorized  to  deny  to  the  judge-advocate  this 
right  to  be  heard.  Ibid.,  par.  1542. 

For  the  court  or  the  president  of  the  court  to  place  or  order  the  judge-advocate  in 
arrest  would  be  an  unauthorized  proceeding.  Thecourt,  indeed,  in  a  proper  case  under 
Art.  86,  might  proceed  against  its  judge-advocate  as  for  a  contempt.  But  an  arrest 
could  not  be  imposed  nor  a  punishment  executed  in  the  case  of  such  officer,  except 
through  the  convening  authority  or  other  competent  commander.  Ibid.,  par.  1544. 

lDuty  of  judge-advocate  <is  counsel  for  accused. — The  duty  of  the  judge-advocate 
toward  the  accused  should  not  be  regarded  as  confined  to  the  limited  province  of 
"counsel  for  the  prisoner"  an  the  sa.ne"  is  defined  in  the  90th  Article  of  War.  Where 
the  accused  is  ignorant  and  inexperienced  and  without  counsel — especially  where  he 
is  an  enlisted  man — the  judge-advocate  should  take  care  that  he  does  not  surfer  upon 
the  trial  from  any  ignorance  or  misconception  of  his  legal  rights  and  has  full  oppor- 
tunity to  interpose  such  plea  and  make  such  defense  as  may  best  bring  out  the  facts, 
the  merits,  or  the  extenuating  circumstances  of  his  case.  Ibid.,  par.  1533. 

For  the  judge-advocate  to  counsel  the  accused,  when  a  soldier  or  inferior  in  rank, 
to  plead  guilty,  must  in  general  be  unbefitting  and  inadvisable.  But  where  such 
plea  is  voluntarily  and  intelligently  made,  the  judge-advocate  should  properly  advise 
the  accused  of  his"  right  to  offer  evidence  in  explanation  or  extenuation  of1  his  offense, 
and,  if  any  such  evidence  exists,  should  assist  him  in  securing  it.  And  w: here  no 
such  evidence  is  attainable  in  the  case,  the  judge-advocate  should  still  see  that  the 


MILITARY    LAWS    OF    THE    UNITED    STATES.  691 


1800.  The  commanding  officer  of  a  post  where  a  general 
court-martial  is  convened  will,  at  the  request  of  any  pris-  1>ar<  °20'  A<  R- 
oner  who  is  to  be  arraigned,  detail  as  counsel  for  his 
defense  a  suitable  officer,  one  not  directly  responsible  for 
the  discipline  of  an  organization  serving  thereat  nor  acting 
as  a  summary  court.  If  there  be  no  such  officer  available, 
the  fact  will  be  reported  to  the  appointing  authority  for 
action.  An  officer  so  detailed  should  perform  such  duties 
as  usually  devolve  upon  counsel  for  defendant  before  civil 
courts  in  criminal  cases.  As  such  counsel  he  should  guard 
the  interests  of  the  prisoner  by  all  honorable  and  legiti- 
mate means  known  to  the  law,  so  far  as  they  are  not 
inconsistent  with  military  relations.1  Par.  686,  A.  R. 

accused  has  an  opportunity  to  present  a  "statement,"  written  or  verbal,  to  the  court 
if  he  has  any  desire  to  do  so.  Ibid.,  par.  1534. 

Opinion.  —  It  is  strictly  the  proper  practice  for  a  judge-advocate  not  to  give  his 
opinion  upon  a  point  of  law  arising  upon  a  military  trial,  unless  the  game  may  be 
required  by  the  court.  This  practice,  however,  is  of  ten  departed  from  ;  and  the  opinions 
of  judge-advocates,  suitably  tendered,  are  in  geneial  received  and  entertained  by  the 
court  without  objection,  whether  or  not  formally  called  for.  But  where  the  court 
(Joes  object  to  the  giving  of  an  opinion  by  the  judge-advocate,  he  is  not  authorized  to 
attempt  to  give  it,  and,  of  course,  not  authorized  to  enter  it  upon  the  record.  Whether 
the  fad  —  that  the  opinion  was  offered  and  objected  to  by  the  court  —  shall  be  entered 
upon  the  record,  is  a  matter  for  the  court  alone  to  decide.  It  is,  however,  certainly 
the  better  practice  that  all  the  proceedings,  even  those  that  are  irregular,  which 
transpire  in  connection  with  the  trial  should  be  set  out  in  the  record  for  the  inspec- 
tion of  the  reviewing  authority.  Ibid.,  par.  1536. 

At  the  trial  of  Major  Porter  in  1857  the  court  refused  to  admit  an  argument  of  the 
judge-advocate  in  support  of  an  objection  to  an  application  by  the  defense  for  delay. 
This  action  was  disapproved  by  the  Secretary  of  War,  whose  decision  was  that  "it 
was  the  duty  of  the  judge-advocate  to  make  the  objection,  and  the  argument  by 
which  he  sustained  it  was  very  proper.  It  was  a  part  of  the  proceedings  which 
ought  to  have  been  entered  upon  their  record.  G.  O.,  No.  5,  A.  G.  O.,  1857. 

1  Counsel  for  accused.  —  An  officer  or  soldier  put  upon  trial  befoio  a  court-martial  is 
not  entitled  as  of  right  to  have  counsel  present  with  him  to  assist  him  in  his  defense, 
but  the  privilege  is  one  which  is  almost  in  variably  conceded;  (a)  and  where  it  is  unrea- 
sonably refused,  such  refusal  may  constitute  ground  for  the  disapproval  of  the  pro- 
ceedings. A  court-martial,  however,  is  not  required  to  delay  an  unreasonable  time 
to  enable  an  accused  to  provide  himself  with  counsel.  Dig.  Opin.  J.  A.  G.,  par.  984. 

While  reasonable  facilities  for  procuring  such  counsel  as  he  may  desire  should  be 
afforded  an  accused,  his  claim  must  be  regarded  as  subordinate  to  the  interests  of  the 
service.  Thus  where  an  accused  officer  applied  to  the  department  commander  who 
had  convened  the  court  to  authorize  a  particular  officer  whom  he  desired  as  counsel 
to  act  in  that  capacity,  and  this  officer  could  not  at  the  time  be  spared  from  his  regu- 
lar duties  without  material  prejudice  to  the  public  interests,  held  that  the  commander 
was  justified  in  denying  the  application,  and  further  that  the  validity  of  the  subse- 
quent proceedings  and  sentence  in  the  case  was  not  affected  by  such  denial,  (b)  Ibid., 
par.  985. 

A  military  court  has  no  authority,  analogous  to  that  sometimes  exercised  by  civil 

a  Compare,  on  this  subject,  People  r.  Daniell,  6  Lansing,  44;  People  r.  Van  Allen,  55  N  Y.,  31. 

b  Held,  thatpar.  1037,  A.  K.  1901,  providing  for  the  detail  by  the  commander  o£  a  post  at  which  a  general 
court-martial  is  ordered  to  sit  of  a  suitable  officer  of  his  command  to  act  as  counsel  for  prisoners  to 
be  arraigned,  if  requested  by  them,  was  not  to  be  construed  as  sanctioning  the  detail  or  voluntary 
appearance  of  a  post  commander  himself  in  such  capacity  at  hisown  post.  Dig.  Opin.  J.  A.  G.,  par.  985. 
See,  also,  for  duties  of  counsel  so  detailed,  par.  1037  A.  R.,  1901;  circulars  5  and  8,  H.  Q.  A.,  1894;  and 
Bavis's  Military  Law,  pp.  36,  37. 

The  rule  that  an  accused  person  is  not  entitled  to  counsel  as  of  right  grows  out  of  the  fact  that 
courts-martial  are  without  the  authority  possessed  by  civil  courts  having  criminal  jurisdiction  of 
awarding  a  fee  to  counsel  by  way  of  compensation  for  his  services,  nor  can  a  military  tribunal  of 
any  sort  assign  counsel  to  the  defense  of  a  particular  accused  person.  This  for  the  reason  that  courts- 
martial  are  quite  with«ut  the  authority  to  require  the  services  of  civilian  attorneys. 


692  MILITARY    LAWS    OF    THE    UNITED    STATES. 

EMPLOYMENT    OF    REPORTERS;    INTERPRETERS. 

Sl?°r3tei863  c       1801t  Tne  judge-advocate  of  a  military  court  shall  have 

ras- Junels1!^  Power  *°  appoint  a  reporter,  who  shall  record  the  proceed- 

o^J58' s<  2>  v>  18' p'  ings  of,  and  testimony  taken  before,  such  court,  and  may 

see.  1203, K.S.  set  down  the  same,  in  the  first  instance,  in  short  hand. 

The  reporter  shall,  before  entering  upon  his  duty,  be  sworn, 

or  affirmed,  faithfully  to  perform  the  same.1 

THE    TRIAL. 

CITALI.EXGES. 

88t1iArtgonYar  1802.  Members  of  a  court-martial  may  be  challenged  by 
a  prisoner,  but  only  for  cause  stated  to  the  court.  The 
court  shall  determine  the  relevancy  and  validity  thereof, 
and  shall  not  receive  a  challenge  to  more  than  one  member 
at  a  time.2  Eighty-eighth  Article  of  War. 

courts  in  criminal  cases,  to  assign  counsel  to  an  accused  unprovided  with  counsel. 
Nor  can  such  a  court  excuse  one  of  its  members  to  enable  him  to  act  as  counsel  for 
an  accused.  Ibid.,  par.  987.  See,  for  a  case  in  which  this  was  attempted,  General 
Court-Martial  Orders,  No.  62,  War  Dept,  1874. 

An  application  by  an  accused  officer  to  be  furnished,  at  the  expense  of  the  United 
States,  with  civil-counsel  to  defend  him  on  his  trial  by  court-martial  remarked  upon 
as  unprecedented  and  not  to  be  entertained.  Par.  1072,  A.  R.,  1901,  relates  to  no  such 
a  case.  No  authority  exists  for  the  payment,  by  the  United  States,  of  civil  counsel 
employed  by  an  officer  to  defend  him  on  his  trial  by  court-martial.  Ibid.,  par.  991. 

lfThe  power  to  appoint  the  reporter  is  vested  exclusively  in  the  "judge-advocate" 
and  can  not  be  exercised  by  the  court.  The  employment,  however,  of  a  stenographic 
reporter  should  be  resorted  to  only  in  an  important  case.  Dig.  Opin.  J.  A.  G.,  par.  2168. 

The  description,  "the  judge-advocate  of  a  military  court,"  does  not  strictly 
include  the  recorder  of  a  court  of  inquiry,  especially  as  a  court  of  inquiry  is  not  prop- 
erly a  court  at  all.  The  same  reason,  however,  often  exists  for  appointing  a  reporter 
for  a  court  of  inquiry  as  for  a  general  court-martial,  and  it  is  understood  that  the 
Pay  Department  recognizes  and  pays  the  accounts  of  reporters  appointed  by  reporters 
of  courts  of  inquiry.  Ibid.,  659,  par.  2. 

The  employment  of  a  stenographic  reporter,  under  section  1203  Revised  Statutes, 
is  authorized  for  general  courts  only,  and  in  cases  where  the  convening  authority 
considers  it  necessary.  The  convening  authority  may  also,  when  necessary,  authorize 
the  detail  of  an  enlisted  man  to  assist  the  judge-advocate  of  a  general  court  in  pre- 
paring the  record.  Par.  1062,  A.  R.,  1901. 

There  is  no  authority  for  the  employment  of  a  civilian  clerk  for  a  court-martial,  other 
than  the  "reporter"  authorized  by  Sec.  1203,  Rev.  Sts.,  and  referred  to  in  pars.  958 
and  1062,  Army  Regulations.  An  enlisted  man  may  be  detailed  as  such  clerk  under 
par.  1063.  A  court-martial,  member  of  court,  or  judge-advocate  can  not  of  course 
lawfully  communicate  to  a  reporter  or  clerk,  by  allowing  him  to  record  the  same  or 
otherwise,  the  finding  or  sentence  of  the  court.  Before  proceeding  to  deliberate 
upon  its  finding,  the  court  should  require  the  reporter  or  clerk,  if  it  has  one,  to  with- 
draw. But  the  fact  that  the  finding  or  sentence,  or  both,  may  have  been  made 
known  to  the  reporter  or  clerk  of  a  court-martial  can  not  affect  the  legal  validity  of 
its  proceedings  or  sentence. 

The  statute  does  not  indicate  by  whom  the  reporter  shall  be  sworn.  In  practice 
he  is  sworn  by  the  judge-advocate,  a  form  of  oath  being  prescribed  in  the  MANUAL 
FOR  COURTS-MARTIAL.  If  the  same  party  is  employed  as  a  reporter  for  more  than  one 
case,  he  should,  properly,  be  sworn  anew  in  each  case.  The  reporter  should  be 
excluded  from  the  court  during  its  deliberations  and  not  permitted  to  record  the 
findings  or  sentence.  Ibid.,  par.  2169. 

2This  article  authorizes  the  exercise  of  the  right  of  challenge  before  all  courts  except 
field  officers'  courts  and  summary  courts.  These  courts  are  not  subject  to  be  chal- 


MILITARY    LAWS    OF    THE    UNITED    STATES.  693 


CONTINUANCES. 


1803,  A  court-martial  shall,  for  reasonable  cause,  grant 
a  continuance  to  either  party,  for  such  time,  and  as  often, 
as  may  appear  to  be  just:  Provided,  That  if  the  prisoner 
be  in  close  confinement,  the  trial  shall  not  be  delayed  for- 
a  period  longer  than  sixty  days.1     Ninety -third  Article  of 
War. 


lenged,  because,  being  composed  of  but  one  member,  there  is  no  authority  provided 
which  is  competent  to  pass  upon  the  validity  of  the  challenge.  Dig.  Opin.  J.  A.  G., 
par.  234. 

The  article  imposes  no  limitation  upon  the  exercise  of  the  right  of  challenge  other, 
than  that  "  more  than  one  member  shall  not  be  challenged  at  a  time."'  Thus  while 
the  panel,  or  the  court  as  a  whole,  is  not  subject  to  challenge,  yet  all  the  members 
may  be  challenged  provided  they  are  challenged  separately.  The  article  contains  no 
authority  for  challenging  the  judge- ad vocate.  Ibid.,  par.  248. 

Courts'  should  be  liberal  in  passing  upon  challenges,  but  should  not  entertain  an 
objection  which  is  not  specific,  or  allow  one  upon  its  mere  assertion  by  the  accused, 
without  proof  and  in  the  absence  of  any  admission  on  the  part  of  the  member.  A 
positive  declaration  by  the  challenged  member  to  the  effect  that  he  has  no  prejudice 
or  interest  in  the  case  will,  in  general,  in  the  absence  of  material  evidence  in  support 
of  the  objection,  justify  the  court  in  overruling  it.  Ibid.,  par.  245. 

It  is  not  necessary,  though  usual  and  proper,  for  a  member  to  withdraw  from  the 
court  room  on  being  challenged  and  pending  the  deliberation  on  the  objection.  Ibid., 
par.  244. 

An  accused  challenged  the  entire  court  on  the  ground  that  the  convening  officer 
was  ' '  accuser. ' '  Held  properly  overruled ;  the  array  can  not  be  challenged  at  military 
law.  The  article  declares  that  "  the  court  *  *  '•  shall  not  receive  a  challenge  to 
more  than  one  member  at  a  time."  Ibid.,  par.  250. 

Where,  before  arraignment,  the  accused,  an  officer,  without  having  personal  knowl- 
edge of  the  existence  of  ground  of  challenge  to  a  member,  had  credible  hearsay  infor- 
mation of  its  existence,  held  that  he  should  properly  have  raised  the  objection  before 
the  members  were  .sworn,  and  that  the  court  was  not  in  error  in  refusing  to  allow 
him  to  take  it  at  a  subsequent  stage  of  the  trial.  Ibid.,  par.  246. 

The  fact  that  a  sufficient  cause  of  challenge  exists  against  a  member,  but,  through 
ignorance  of  his  rights,  is  not  taken  advantage  of  by  the  accused,  or  if  asserted  is 
improperly  overruled  by  the  court,  can  affect  in  no  manner  the  validity  in  law  of  the 
proceedings  or  sentence,  though  it  may  sometimes  properly  furnish  occasion  for  a  dis- 
approval of  the  proceedings,  etc.,  or  a  remission  in  whole  or  in  part  of  the  sentence,  (a) 
Ibid.,  par.  247. 

A  court-martial  can  not  relieve  or  " excuse"  a  member  except  upon  a  challenge 
duly  interposed  and  sustained  under  this  article.  The  fact  that  a  member  has  been 
absent  from  the  court  for  several  days  and  has  not  heard  the  testimony  meanwhile 
taken  constitutes  no  legal  ground  for  excusing  him  by  the  court.  Ibid.,  par.  251. 

1  In  making  an  application  for  a  continuance  or  postponement  under  this  article, 
on  account  of  the  absence  of  a  witness,  such  application  should  be  supported  by  a 
duly  executed  affidavit.  (6)  It  should,  however,  in  all  cases  require  that  the  desired 
evidence  appear  or  be  shown  to  be  material,  and  not  merely  cumulative  (c),  and 
that  to  await  its  production  will  not  delay  the  trial  for  an  unreasonable  period.  It 
should  also,  in  general,  before  granting  the  continuance,  be  assured  that  the  absence 


aSoe  opinion  of  the  Attorney-General  of  January  19,  1878  (XV  Opins.,  432),  in  \yhich  the  opinion, 

xpressed  by  the  Judge-Advocate-General  in  the  most  recent  of  the  cases  upon  which  this  paragraph 

is  bused — that  the  fact  that  one  of  the  charges  upon  which  the  accused  was  convicted  was  preferred 


by  a  member  of  the  court  who  also  testified  as  a  witness  on  the  trial  (but  who,  though  clearly  subject, 
to  objection,  was  not  challenged  by  the  accused)  could  not  affect  the  validity  of  the  sentence  of  dis- 
missal after  the  same  had  been  duly  confirmed— is  concurred  in  by  the  Attorney-General.  And  to  a 
similar  effect  see  Keyes  v.  U.  S.,  15  Ct.  Cls.,  532;  ibid.,  137  U.  S.,  224. 

In  G.  C.  M.  0. 88,  Department  of  Dakota,  1878,  the  point  is  noticed  that  where  a  challenge  interposed 
by  the  accused  has  been  improperly  disallowed  a  subsequent  plea  of  guilty  is  not  to  be  treated  as  a 
waiver  of  the  advantage  to  which  he  may  be  entitled  by  reason  of  the  improper  ruling. 

6  It  is  not  the  practice  of  courts-martial  to  admit  counter  affidavits  from  the  opposite  party  as  to 
what  the  absent  witness  would  testify.  And  as  to  the  civil  practice,  see  Williams  v.  State,  6  Nebraska, 
334. 

c  Compare  PeooU;  r.  Thompson,  4  Cal.,  238;  Parker  v.  State,  55  Miss.,  414. 


694  MILITARY    LAWS    OF   THE    UNITED    STATES. 


1804-  The  judge-advocate  shall  administer  to  each  mem- 
ber of  the  court,  before  the}T  proceed  upon  any  trial,  the 
following  oath,1  which  shall  also  be  taken  by  all  members 
of  regimental  and  garrison  courts-martial:  You,  A  B,  do 
swear  that  you  'will  well  and  truly  try  and  determine, 
according  to  evidence,  the  matter  nvw  before  you,  between 
the  United  States  of  America  and  the  prisoner  to  be  tried, 
and  that  you  will  duly  administer  justice,  without  par- 
tiality, favor,  or  affection,  according  to  the  provisions  of 
the  rules  and  articles  for  the  government  of  the  armies 
of  the  United  States,  and,  if  any  doubts  should  arise,  not 
explained  by  said  articles,  then  according  to  your  conscience, 
the  best  of  your  understanding,  and  the  custom  of  war  in 
like  cases;  and  you  do  further  swear  that  you  will  not 
divulge  the  sentence  of  the  court  until  it  shall  be  published 
by  the  proper  authority,  except  to  the  judge-advocate;  neither 
will  you  disclose  01*  discover  the  vote  or  ojjinion  of  any  par- 

i>f  the  witness  is  not  owing  to  any  neglect  on  the  part  of  the  applicant.  This  feature, 
however,  will  not  be  so  much  insisted  upon  in  military  as  in  civil  cases  (a) . 

Where  "reasonable  cause"  is,  in  the  judgment  of  the  court,  exhibited,  the  party 
is  entitled  to  some  continuance  under  the  article  (6).  A  refusal,  indeed,  by  the  court 
to  grant  such  continuance  will  not  invalidate  the  proceedings,  but,  if  the  accused  has 
thus  been  prejudiced  in  his  defense,  may  properly  constitute  good  ground  lor  disap- 
proving the  sentence,  or  for  mitigating  or  partially  remitting  the  punishments.  Dig. 
Opin.  J.  A.  G.,  par.  276. 

Where  an  accused  soldier,  by  reason  of  his  regiment  having  been  moved  a  long 
distance  since  his  arrest,  was  separated  at  his  trial  from  certain  witnesses  material 
to  his  defense,  held  that  he  was  entitled  to  a  reasonable  continuance  for  the  purpose 
of  procuring  their  attendance  or  their  depositions.  Ibid.,  par.  277. 

That  the  charges  and  specifications  upon  which  an  accused  is  arraigned  differ  in  a 
material  particular  from  those  contained  in  the  copy  served  upon  him  before  arraign- 
ment may  well  constitute  a  sufficient  ground  for  granting  him  additional  time  for  the 
preparation  of  his  defense.  Ibid.,  par.  278. 

Where,  after  arraignment,  a  material  and  substantial  amendment  is  allowed  by  the 
court  to  be  made  by  the  judge-advocate  in  a  specification,  the  effect  of  which  amend- 
ment is  to  necessitate  or  make  desirable  a  further  preparation  for  his  defense  on  the 
part  of  the  accused,  a  reasonable  postponement  for  this  purpose  will,  in  general,  prop- 
erly be  granted  by  the  court.  Ibid.,  par.  279. 

It  is,  in  general,  good  ground  for  a  reasonable  continuance  that  the  accused  needs 
time  to  procure  the  assistance  of  counsel,  if  it  is  made  to  appear  that  such  counsel 
can  probably  be  obtained  within  the  time  asked,  and  that  the  accused  is  not  charge- 
able with  remissness  in  not  having  already  provided  himself  with  counsel.  Ibid., 
par.  280. 

1  This  article  makes  the  administering  to  the  court  of  the  form  of  oath  thereby 
prescribed  an  essential  "preliminary  to  its  entering  upon  a  trial.  Until  the  oath  is 
taken  as  specified,  the  court  is  nonqualified  "to  try  and  determine."  The  arraign- 
ment of  a  prisoner  and  reception  of  his  plea — which  is  the  commencement  of  the 
trial — before  the  court  is  sworn,  is  without  legal  effect.  The  article  requires  that 

a  A  military  accused  can  not  be  charged  with  laches  in  not  procuring  the  attendance  at  his  trial  of 
a  witness  who  is  prevented  from  being  present  by  superior  military  authority.  Thus  in  a  case  in 
G.  O.  63,  Department  of  Dakota,  1872,  an  accused  soldier  was  held  entitled  to  a  continuance  till  the 
return  of  material  witnesses  then  absent  on  an  Indian  expedition. 

6  It  would  properly  be  so  held  upon  common-law  principles,  even  independently  of  the  positive 
terms  of  the  article.  In  Rex  v.  D'Eon,  1  W.  Black.,  514,  it  was  declared  by  Lord  Mansfield  that  "  No 
crime  is  so  great,  uo  proceeding  so  instantaneous,  but  that,  upon  sufficient  grounds,  the  trial  may  be 
put  off." 


MILITARY    LAWS    OF    THE    UNITED    STATES.  695 

ticular  member  of  the  court-martial,  unless  required  to  give 
evidence  1 7iereof,  as  a  witness,  hy  a  court  of  justice,  in  a  due 
course  of  law.     So  kelp  you  God.     Eighty-fourth  Article    84  Art.  of  war. 
of  War. 

1805.  When  the  oath  has  been  administered  to  the  mem- .  °,atlVf  the 

judge-advocate. 

bers  of  a  court-martial,  the  president  of  the  court  shall 
administer  to  the  judge-advocate,  or  person  officiating  as 
such,  an  oath  in  the  following  form:  You,  A  B,  do  swear 
that  you  will  not  disclose  or  discover  the  vote  or  opinion  of 
any  particular  member  of  the  court-martial,  unless  required 
to  give  evidence  thereof,  as  a  witness,  by  a  court  of  justice, 
in  due  course  of  law.;  nor  divulge  the  sentence  of  the  court 
to  any  hut  the  proper  autJiority,  until  it  shall  he  duly  dis- 
closed by  the  same.  So  help  you  God.  Eighty -fifth  Article  85  Art- of  War- 
of 


BEHAVIOR    OF    MEMBERS. 


1806.  All  members  of  a  court-martial  are  to  behave  with  m^5b5^io*  of 
decency  and  calmness.1     Eighty-seventh  Article  of  War.        8?  Art,  of  war. 


the  oath  shall  be  taken  not  by  the  court  as  a  whole,  but  by  "each  member."  Where, 
therefore,  all  the  members  are  sworn  at  the  same  time,  the  judge-advocate  will  pref- 
erably address  each  member  by  name,  thus,  ''you,  A.  B.,  WD'.,  E.  F.,  etc.,  do  sev- 
erally swear,"  etc.  A  member  added  to  the  court,  after  the  members  originally 
detailed  have  been  duly  sworn,  should  be  separately  sworn  by  the  judge-advocate  in 
the  full  form  prescribed  by  the  article;  otherwise  he  is  not  qualified  to  act  as  a  mem- 
ber of  the  court.  A  member  who  prefers  it  may  be  affirmed  instead  of  sworn.  Dig. 
Opin.  J.  A.  G.,  par.  225. 

The  members  are  sworn  to  try  and  determine  the  matter  before  them  at  the  time  of 
the  administering  of  the  oath.  In  a  case  therefore,  where,  after  the  court  had  been 
sworn  and  the  accused  had  been  arraigned  and  had.  pleaded,  an  additional  charge, 
setting  forth  a  new  and  distinct  offense,  was  introduced  into  the  case,  and  the  accused 
was  tried  and  convicted  upon  the  same;  held  that,  as  to  this  charge,  the  proceedings 
were  fatally  defective,  the  court  not  having  been  sworn  to  try  and  determine  such 
charge.  (a)  Ibid.,  par.  226. 

It  is  a  departure  from  the  engagement  expressed  in  the  body  of  the  oath  —  to  try 
and  determine  according  to  evidence,  and  administer  justice  according  to  the  Articles 
of  War,  etc.,  —  for  a  court  martial  to  determine  a  case  either  upon  personal  knowl- 
edge of  the  facts  possessed  by  the  members  and  not  put  in  evidence,  or  according  to 
the  private  views  of  justice  of  the  members  independently  of  the  provisions  of  the 
code. 

The  words  "a  court  of  justice"  are  deemed  to  mean  a  civil  or  criminal  court  of 
the  United  States,  or  of  a  State,  etc.,  and  not  to  include  a  court-martial.  A  case  can 
hardly  be  supposed  in  which  it  would  become  proper  or  desirable  for  a  court-martial 
to  inquire  into  the  votes  or  opinions  given  in  closed  court  by  the  members  of  another 
similar  tribunal.  (b) 

lPresiding  officer.  —  No  special  rank  or  qualifications  are  required  for  the  position  of 
president  of  a  military  court,  (c)  In  our  practice  the  president  is  not  appointed  as 

ft  See  General  Court-Martini  Orders  No.  39,  War  Dept.,  1867;  G.  O.  No.  13,  Northern  Department, 

J  <S(i  1  . 

b  The  only  case  which  has  been  met  with  in  which  the  members  of  a  court-martial  have  been 
required  to  disclo.se  their  votes  by  the  process  of  a  civil  court,  is  that  of  in  re  Mackenzie,  1  Pa.  Law 
J.  R.,  356,  in  which  the  members  of  a  naval  court-martial  were  compelled,  ngauist  their  objections, 
to  state  their  votes  as  given  upon  the  findings  at  a  particular  trial. 

In  the  present  corresponding  British  article,  the  words  "or  a  court-martial"  are  added  after  the 
words  "a  court  of  justice." 

cln  the  British  service  certain  important  powers  are  vested  by  law  and  regulations  in  the  president 

of  a  court-martial  who  is  appointed  in  the  order  convening  the  court.    In  our  service  the  presiding 

officer  becomes  .such  solely  by  reason  of  his  .seniority  in  point  of  rank,  and  he  may  exercise  as  such 

iding  officer  only  such  powers  as  are  usually  exercised  by  the  presiding  officers  of  deliberative 


696  MILITARY   LAWS    OF   THE    UNITED   STATES. 

such;  he  is  simply  the  senior  in  rank  of  the  members  present  and  he  presides  by 
virtue  of  his  seniority  alone.  If  the  senior  of  the  officers  detailed  in  the  convening 
order  is  not  presentVith  the  court  at  the  original  organization,  the  next  senior 
present  becomes  president;  so,  if  the  officer  who  presided  at  the  beginning  of  a  trial 
is  at  a  subsequent  stage  of  the  proceedings  relieved  or  compelled  to  be  absent  by 
sickness,  etc.,  the  next  ranking  officer  present  presides  as  a  matter  of  course,  and  the 
senior  officer  present  with  the  court  at  the  termination  of  the  trial  authenticates  the 
proceedings  as  president.  Dig.  Opin.  J.  A.  G.,  par.  2043. 

While  a  special  authority — that  of  swearing  the  judge-advocate — is  devolved  upon 
the  president  of  a  military  court  by  statute  (the  85th  Article  of  War  (a) ),  such  officer 
has  in  other  respects,  as  in  performing  the  usual  duties  of  a  presiding  officer,  in 
authenticating  the  proceedings  with  his  signature  and  in  communicating  with  the 
convening  officer  or  other  commander,  no  original  authority  but  acts  simply  as  the 
representative  and  "organ"  of  the  court.  (6)  Ibid.,  par.  204-4. 

In  deliberations  on  questions  raised  upon  a  trial,  as  well  as  in  the  finding  and  the 
adjudging  of  the  sentence,  the  presiding  member  is  on  a  perfect  equality  with  the 
other  members.  [See  paragraphs  1020  and  1021,  Army  Regulations  of  1895].  He 
has  no  casting  vote,  nor,  if  the  vote  is  even,  does  his  vote  have  any  greater  or  other 
weight  or  effect  than  that  of  any  other  member. 

The  president  of  a  military  court  has  no  command  as  such.  As  president  he  can 
not  give  an  order  to  any  other  member.  As  the  organ  of  the  court  he  gives  of  course 
the  directions  necessary  to  the  regular  and  proper  conduct  of  the  proceedings;  but  a 
failure  to  comply  witrTa  direction  given  by  him  while  it  may  constitute  "conduct  to 
the  prejudice  of  good  order  and  military  discipline,"  can  not  properly  be  charged 
as  a  "disobedience  of  a  lawful  command  of  a  superior  officer"  in  violation  of 
Article  21. (c)  Ibid.,  par.  2045. 

Absent  members. — A  member  of  a  court-martial,  though,  strictly,  answerable  only  to 
the  convening  authority  for  a  neglect  to  be  present  at  a  session  of  the  court,  will 
properly,  when  prevented  from  attending,  communicate  the  cause  of  his  absence  to 
the  president  or  judge-advocate,  so  that  the  same  may  be  entered  in  the  proceedings. 
Where  a  member,  on  reappearing  after  an  absence  from  a  session,  fails  to  offer  any 
explanation  of  such  absence,  it  will  be  proper  for  the  president  of  the  court  to  ask  of 
him  such  statement  as  to  the  cause  of  his  absence  as  he  may  think  proper  to  make. 
It  need  scarcely  be  added  that  the  absence  of  a  member  does  not  affect  the  legality 
of  the  proceedings,  provided  a  quorum  of  members  remain,  (d}  Dig.  Opin.  J.  A.  G., 
par.  1662. 

A  court-martial  can  not  relieve  or  "excuse"  a  member  except  upon  a  challenge 
duly  interposed  and  sustained  under  this  article.  The  fact  that  a  member  has  been 
absent  from  the  court  for  several  days,  and  has  not  heard  the  testimony  meanwhile 
taken,  constitutes  no  legal  ground  for  excusing  him  by  the  court.  '  bid",  par.  251. 

Performance  of  other  duties. — Officers  detailed  and  serving  as  members  of  courts- 
martial  are  not  in  general  properly  ordered  to  perform  other  duties  while  the  court 
remains  in  session  or  not  adjourned,  (e)  And  they  are  not  to  be  considered  as  any  more 
subject  to  such  orders  now  that  they  are  no  longer  allowed  a  special  compensation  for 
their  services  than  they  were  formerly.  (/)  In  an  emergency  indeed  arising  out  of  a 
state  of  war,  or  other  public  exigency,  additional  service  may  be  imposed  upon  such 
officers;  in  a  case  of  this  kind,  however,  their  service  on  the  court  would,  preferably, 
be  temporarily  suspended.  Members  of  inferior  courts-martial  are  not  unfrequently 
required  to  perform  additional  duty  because  of  the  limited  number  of  officers  at  the 
post, 

Protests. — Where  the  majority  of  the  members  of  a  court-martial  have  come  to  a 
decision  upon  any  question  raised  in  the  course  of  the  proceedings,  or  upon  the  find- 
ing or  sentence,  no  individual  of  the  minority,  whether  the  president  or  other  mem- 
ber, is  entitled  to  have  a  protest  made  by  himself  against  such  decision  entered  upon 
the  record.  The  conclusions  of  the  court  (except  in  cases  of  death  sentences,  where 
a  concurrence  of  two-thirds  is  required)  are  to  be  determined  invariably  bv  the 
vote  of  the  majority  of  its  members,  and  it  is  much  less  important  that  individual 
members  should  have  an  opportunity  of  publishing  their  personal  convictions  than 

aThe  further  function  devolved  upon  him  by  Article  52  is  not  known  to  have  ever  been  exercised 
in  our  service;  the  article  itself  is  ;i  dead  letter,  as  is  also  Article  53  in  pan  materia. 

6The  language  of  paragraph  looo,  Army  Regulations  of  l&sy.  was  taken  from  the  order  of  Secretary 
Crawford  in  his  review  of  the  case  of  Brevet  Lieutenant-Colonel  Backenstos,  in  G.  O.  14,  War  Dept., 
1850. 

cFor  the  president  of  a  court-martial  to  assume  to  adjourn  the  court  against  the  vote  of  the  majority 
of  the  members  would  be  an  unauthorized  act  and  a  grave  irregularity,  properly  subjecting  him  to  a 
charge  under  the  C2d  Article.  Dig.  Opin.  J.  A.  G.,  par.  204G. 

dVII,  Opin.  Att.  Gen.,  101. 

eSee  paragraph  1019  A.  R.,  1901. 

/XIII  Opin.  Att.  Gen.,  526;  sees.  1137,  113S,  A.  R.  1803;  sec.  2-1.  act  of  July  15,  1870. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  697 


CONTEMPT    OF    COURT. 

1807.  The  court-martial  may  punish  at  discretion  any  co^"tempts   of 
person  who  uses  any  menacing  words,  signs,  or  gestures    86  Art- of War- 
in  its   presence,  or  who  disturbs  its  proceedings  by  any 
riot  or  disorder.1     Eighty-mxth  Article  of  War. 

that  the  action  of  the  court  should  appear  upon  the  formal  record  as  that  of  the  aggre- 
gate body,  and  should  carry  weight  and  have  effect  as  such.(«)  Nor  can  a  protest 
(against  the  rinding  or  otherwise)  by  a  minority  of  the  members  be  appended  to  the 
record,  on  a  separate  paper.  Ibid.,  par.  2079. 

1  The  power  of  a  court-martial  to  punish  under  this  article  being  confined  prac- 
tically to  acts  done  in  its  immediate  presence,  such  a  court  can  have  no  authority  to 
punish,  as  for  a  contempt,  a  neglect  by  an  officer  or  soldier  to  attend  as  a  witness  in 
compliance  with  a  summons,  (b)  Dig.  Opin.  J.  A.  G.,  par.  230. 

A  court-martial  has  none  of  the  common-law  power  to  punish  for  contempt  vested 
in  the  ordinary  courts  of  justice,  but  only  such  authority  as  is  given  it  by  this  arti- 
cle. Thus  held  that  a  court-martial  wras  not  authorized  to  punish,  as  for  a  contempt, 
under  this  article  (or  otherwise),  a  civilian  witness  duly  summoned  and  appearing 
before  it,  but,  when  put  on.  the  stand,  declining  (without  disorder)  to  testify.  Ibid., 
par.  231. 

The  authority  of  a  court-martial  to  punish  as  for  a  contempt  being  confined  by 
the  code  (article  86)  to  cases  of  acts  of  menace  or  disorder  committed  in  its  presence, 
such  a  court  would  not  be  empowered  to  punish,  as  being  in  contempt,  a  witness 
appearing  before  it  whose  attendance  it  had  been  necessary  to  compel  by  process  of 
attachment.  (Ibid.,  par.  232. 

Where  a  contempt  within  the  description  of  this  article  has  been  committed,  and 
the  court  deems  it  proper  that  the  offender  shall  be  punished,  the  proper  course  is 
to  suspend  the  regular  business,  and  after  giving  the  party  an  opportunity  to  be 
heard,  explain,  etc.,  (c)  to  proceed — if  the  explanation  is  insufficient — to  impose  a 
punishment,  resuming  thereupon  the  original  proceedings.  The  action  taken  is 
properly  summary,  a  formal  trial  not  being  called  for.  Close  confinement  in  quar- 
ters or  in  the  guardhouse  during  the  trial  of  the  pending  case,  or  forfeiture  of  a 
reasonable  amount  of  pay,  has  been  the  more  usual  punishment.  Instead  of  pro- 
ceeding against  a  military  person  for  a  contempt  in  the  mode  contemplated  by  this 
article,  the  alternative  course  may  be  pursued  of  bringing  him  to  trial  before  a  new 
court  on  a  charge  for  a  disorder  under  article  62.  (d}  Ibid.,  par.  233. 

Where  a  civilian  witness  is  brought  before  a  court-martial,  but  refuses  to  testify, 
the  court  is  not  invested  with  any  inherent  power  to  punish  the  witness  in  such 
case,  either  summarily  or  otherwise,  as  for  a  contempt,  but  must  proceed  in  accord- 
ance with  the  method  prescribed  in  the  act  of  March  2,  1901.  Such  power  can  only 
be  exercised  by  it  when  given  by  the  positive  terms  of  some  statute.  Section  1202 
of  the  Revised  Statutes  arms  the  court  with  authority  to  compel  the  witness  to 
appear  and  testify  as  far  as  this  can  be  done  \)y  process;  but  in  securing  his  testimony 
the  court  is  restricted  to  the  means  which  it  is  authorized  to  employ.  It  can  not 
inflict  any  punishment  where  the  power  to  impose  it  is  .not  clearly  conferred  by 
Congress.  XVIII  Opin.  Att.  Gen.,  278.  Power  to  compel  the  giving  of  testimony  has 
upon  several  occasions  been  conferred  upon  military  tribunals.  Article  5,  section 
14,  of  the  articles  adopted  by  resolution  of  Congress  of  September  20,  1776,  contained 
the  requirement  that  "all  persons  called  to  give  evidence  in  any  cause  before  a 
court-martial,  who  shall  refuse  to  give  evidence,  shall  be  punished  for  such  refusal  at" 
the  discretion  of  such  court-martial."  The  terms  of  this  article  were  broad  enough 
to  include  civilian  witnesses,  and  it  was  doubtless  meant  to  apply  to  them.  It  was 
repealed,  however,  by  the  resolution  of  Congress  of  May  31,  1786.  Section  4  of  the 
act  of  April  8,  1814  (3  Stat.  L.,  135),  conferred  similar  authority  upon  courts-martial 
for  the  trial  of  members  of  the  militia  forces;  but  thin  statute  was  limited  by  its 
terms  to  the  period  of  the  then  existing  war.  Prior  to  the  year  1800  no  power 
existed  in  the  British  service  to  secure  the  attendance  of  witnesses- or  to  compel  them 

a  Simmons,  see.  469;  Hough,  Precedents,  p.  473.  note  4. 

b  As  to  the  power  of  courts  of  inquiry  to  punish  for  contempt  see  par.  1864,  pout,  note  2. 

cSee  G.  C.  M.  O.  37,  Fourth  Military' District,  1868. 

d  Com  pare  Samuel,  634;  Simmons,  sec.  434.  The  latter  course  has  not  unfrrqueiitly  been  adopted  in 
our  practice. 

For  a  case  in  which  the  accused,  being  a  commissioned  officer,  was  summarily  proceeded  against 
for  the  offense  of  contempt  of  court  see  G.  C.  M.  O.  No.  36,  War  Dept.,  1870. 


698  MILITARY    LAWS    OF    THE    UNITED    STATES. 

TH  E    A  RR A IG  X  M  E  NT. 

ingrmute.rstand"      1808-  When    a   prisoner,    arraigned    before   a   general 

89  Art.  of  w»r.  court-martial,  from  obstinacy  and  deliberate  design,  stands 

mute,  or  answers  foreign  to  the  purpose,  the  court  may 

proceed   to  trial  and  judgment,   as  if  the  prisoner  had 

pleaded  not  guilty.1     Eighty -ninth  Article  of  War. 


to  testify  in  the  event  of  their  voluntary  appearance.  Power  to  issue  compulsory 
process  was  conferred  by  statute  in  the  mutiny  act  for  the  year  1800,  and  in  1830  trm 
power  to  compel  civilian  witnesses  to  testify  was  conferred  by  a  similar  statute,  author- 
izing such  witness  to  be  attached  in  the  court  of  the  King's  Bench  for  such  ia'lmv  to 
testify.  Clode,  Military  Law,  125. 

1  The  provisions  of  this  article  in  respect  to  an  accused  person  standing  mute,  con- 
template a  formal  arraignment  of  the  prisoner  in  accordance  with  the  rules  of  pro- 
cedure prescribed  for  the  courts  of  the  United  States  having  criminal  jurisdiction. 
An  accused  may,  therefore,  follow  one  of  four  courses  in  reply  to  the  charges  read 
by  the  judge-advocate  as  a  part  of  his  arraignment,  and  may*:  (a)  stand  mute,  in 
which  event  the  provisions  of  the  Eighty-ninth  Article  of  War  become  operative, (b) 
confess  in  open  court;  (c)  submit  one  of  the  special  pleas,  presently  to  be  described; 
or  (d)  plead  to  the  general  issue  ("guilty"  or  "not  guilty"),  (a) 

It  is  a  general  rule  of  criminal  law  that  where  the  accused  pleads  guilty,  no  testi- 
mony on  the  merits  is  to  be  introduced.  But,  on  military  trials  the  court,  even 
against  the  objection  of  the  accused,  may,  in  its  discretion,  call  upon  the  judge- 
advocate  to  offer  evidence,  or  approve  of  his  doing  so,  in  a  case  where  such  evidence 
is  deemed  to  be  essential  to  the  due  administration  of  military  justice,  (b)  An  accused 
can  not  be  allowed,  by  pleading  guilty,  to  shut  out  testimony  where  the  interests  of 
the  service  require  its  introduction.  But  in  all  cases  where  evidence  is  introduced 
by  the  prosecution  after  a  plea  of  guilty,  the  accused  should  of  course  be  afforded  an 
opportunity  to  offer  rebutting  evidence,  or  evidence  as  to  character,  should  he  desire 
to  do  so.  Dig.  Opin.  J.  A.  G.,  par.  1988.  See  also  ibid,  par.  1999. 

Wherever,  in  connection  with  the  plea  of  guilty,  a  statement  or  confession,  whether 
verbal  or  written,  is  interposed  by  the  accused,  both  plea  and  statement  should  be 
considered  together  by  the  court;  and  if  it  is  to  be  gathered  from  the  statement  that 
evidence  exists  in  regard  to  the  alleged  offense  which  will  constitute  a  defense  to  the 
charge,  or  relieve  the  accused  from  a  measure  of  culpability,  the  court  will  properly 
call  upon  the  judge-advocate  to  obtain  and  introduce  such  evidence,  if  practicable. 
Ibid,  par.  1991.  See  also  ibid.,  par.  1992. 

By  a  plea  of  "guilty"  the  accused,  if  a  military  person,  submits  himself  to  the 
jurisdiction  of  the  court,  admitting  that  it  has  jurisdiction  over  both  person  and 

a  If  a  man,  being  put  on  his  trial,  .says  nothing  at  all  in  cases  of  felony,  the  court,  says  Lord  Chief 
Justice  Hale,  ought,  ex  officio,  to  empanel  a  jury  and  swear  it,  as  an  inquest  of  othce,  to  inquire 
whether  he  stands  mute, 'a-  visitatione  Dei  (of  the  act  of  God),  or  of  malice.  Adye,  131;  Hale  Hist. 
PI.  Cor., 317.  Where  an  accused  stands  mute  ex  visitatione  Dei,*  a  court-martial  would  be  authorized 
to  resort  to  a  similar  course  cf  procedure;  or,  the  trial  could  be  desisted  from  until  the  facts  had  bet-n 
represented  to  the  reviewing  authority  for  such  action  as  he  might  deem  proper  in  view  of  the  pecu- 
liar circumstances  of  the  case.  Where  the  accused  stands  mute  through  malice,  or  answers  foreign 
to  the  purpose,  the  terms  of  the  article  become  operative  and  the  trial  proceeds  as  if  a  plea  of  not 
guilty  had  been  formally  entered. f 

\Vhere  an  accused  declined  to  plead  on  the  ground  that  he  was  so  much  under  the  influence  of 
liquor  at  the  time  of  the  acts  charged  that  he  could  riot  remember  what  occurred,  held  that  the  court 
-properly  directed  a  plea  of  "not  guilty"  to  be  entered.  Dig.  Opin.  J.  A.  G.,  par.  1999. 

For  the  method  of  executing  the  judgment  of  pe ine  forte  ct  dure,  see  Adye,  p.  134,  Hale  Hist,  PI.  Cor., 
219.  By  33  Henry  VIII,  those  who  stood  mute,  who  vere  notorious  felons,  were  to  have  "strong  and 
hard  imprisonment;"  by  12  George  III,  ch.20,  standing  mute  through  malice  was  made  equivalent  to  a 
conviction  upon  evidence  or  confession.  At  present  an  accused  who  "refuses  to  plead,  or  does  not 
plead  intelligibly,"  is  regarded  as  having  pleaded"  not  guilty."  Army  act  of  1884,  p.  (>03. 

b  The  principle  that,  in  cases  in  which  the  plea  is  guilty,  the  court  should  take  testimony,  where 
necessary  to  the  comprehending  of  the  facts  and  thedoing  of  justice,  though  apparently  in  a  measure 
lost  sight  of  at  a  later  period,  was  clearly  enunciated  in  early  General  Orders  of  the  War  Department. 
Thus,  in  G.  0. 23  of  1830,  Major-General  Macomb  (commanding  the  Army)  expresses  himself  as  fol- 
lows: "In  every  case  in  which  a  prisoner  pleads  guilty,  it  is  the  duty  of  the  court-martial,  notwith- 
standing, to  receiveand  to  report  iri  its  proceedings  such  evidence  HS  may  afford  a  full  knowledge  of  the 
circumstances,  it  being  essential  that  the  facts  and  particulars  should  be  known  to  those  whose  duty 
it  is  to  report  on  the  case,  or  who  have  discretion  in  carrying  the  sentence  into  effect."  And  see  G. 
O.21  of  1833  to  a  similar  effect. 

*  For  a  case  of  standing  mute,  ex  rixitalionc  Dei,  see  Adye,  p.  132. 

fFora  casein  which  an  accused  person  declined  to  plead,  thus  bringing  this  article  in  to  operation, 
see  General  Court-Martial  Orders  No.  91,  War  Department,  1874. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  699 

offense.     In  re  Davidson,  21  Fed.  Rep.,  618:  in  re  Zimmerman,  30  ibid.,  176;   Van- 
derheyden  v.  Young,  11  Johns,  160. 

Withdrawal  of  plea. — A  court-martial  is  authorized,  in  any  case,  in  its  discretion,  to 
permit  an  accused  to  withdraw  a  plea  of  not  guilty,  and  substitute  one  of  guilty,  and 
vice  versa,  or  to  withdraw  either  of  these  general  pleas  and  substitute  a  special  plea. 
And  wherever  the  accused  applies  to  be  allowed  to  change  or  modify  his  plea,  the 
court  should  in  general  consent,  provided  the  application  is  made  in  good  faith  and 
not  for  the  purpose  of  delay,  and  to  grant  it  will  not  result  in  unreasonably  protracting 
the  investigation.  Dig.  Opin.  J.  A.  G.,  par.  1994. 

Pleas  to  t7ie  jurisdiction. — An  objection  to  the  jurisdiction  of  the  court — that  is,  of  its 
power  to  try  a  particular  case,  as  where,  for  example,  the  convening  officer  is  the 
accuser  or  prosecutor,  or  is  otherwise  without  power  to  constitute  the  court,  or  where 
the  accused  is  not  amenable  to  military  jurisdiction — will  properly  be  met  by  a 
formal  plea  to  the  jurisdiction,  which  must  be  decided  by  the  court  on  the  evidence 
submitted  by  both  parties  in  the  trial  of  the  issue  set  forth  in  the  defendant's  plea,  (a) 

Pleas  in  abatement. — Objections  to  the  charges  or  specifications  in  matters  of  form 
should  be  taken  advantage  of  by  special  pleas  in  the  nature  of  pleas  in  abatement,  or, 
better,  by  motion  to  strike  out.  Such  are  objections  to  the  specifications  as  inartificial, 
indefinite,  or  redundant;  or  as  misnaming  the  accused  (or  other  person  required  to  be 
specified)  or  misdescribing  him  as  to  his  rank  or  office;  or  as  containing  insufficient 
allegations  of  time  or  place,  etc.  In  such  cases  the  objection  should  be  raised  by  a 
special  plea  in  abatement,  or  by  motion,  in  order  that  errors  capable  of  amendment 
may  be  amended  (6)  on  the  spot  by  the  judge-advocate,  and — the  plea  of  not  guilty 
(or  guilty)  being  then  made— the  trial  may  proceed  in  the  usual  manner.  Objec- 
tions of  this  class,  not  thus  taken,  will  properly  be  considered  as  waived  by  the  plea 
of  guilty  or  not  guilty,  and  their  existence  will  not  then  affect  the  validity  of  the 
proceedings  or  sentence.  Dig.  Opin.  J.  A.  G.,  par.  1995. 

Where  without  preliminary  objection  the  accused  pleads  guilty  or  not  guilty  to 
a  specification,  in  which  he  is  incorrectly  named  or  described,  such  plea  will  be 
regarded  as  an  admission  by  the  accused  of  his  identity  with  the  person  thus  desig- 
nated, and  he  can  not  thereafter  object  to  the  pleadings  on  account  of  misnomer  or 
misdescription.  Ibid. 

A  misnaming  or  misdescription  of  the  rank  of  the  accused  in  the  specification 
should  be  taken  advantage  of  by  exception  in  the  nature  of  a  plea  in  abatement. 
Where  not  objected  to,  the  error  is  immaterial  after  sentence,  provided  the  accused 
is  sufficiently  identified  by  the  plea,  testimony,  etc.  It  is  not  essential  to  state  in  a 
specification  the  full  Christian  name  of  the  accused,  or  other  party  required  to  be 
indicated.  Only  such  name  or  initial  need  be  given  as  will  be  sufficient  unmistakably 
to  identify  the  party.  Ibid.,  par.  706. 

A  failure,  at  the  arraignment,  to  take  notice  of  a  variance  between  the  form  of  a 

specification  to  which  the  accused  is  called  upon  to  plead  and  such  specification  as  it 

,  appeared  in  the  copy  of  the  charges  served  at  his  arrest  is  a  waiver  of  the  objection, 

and  the  same  can  not  be  taken  advantage  of  at  a  subsequent  stage  of  the  proceedings. 

Ibid.,  par.  732. 

Pardons. — The  President  is  empowered,  by  Art.  II,  sec.  2,  §  1,  of  the  Constitution 
"to  grant  pardons  for  off  ences  against  the  United  States" ;  and  a  pardon,  like  a  deed, 
must,  in  order  to  take  effect,  be  delivered  to  and  accepted  by  the  party  to  whom  it 
is  granted  (c).  Dig.  Opin.  J.  A.  G.,  par.  1866. 

Pleading. — For  a  pardon  to  be  operative  as  a  bar  to  prosecution,  it  must  be  formally 
pleaded — that  is,  the  original  instrument  must  be  produced  and  submitted  to  the 
inspection  of  the  court;  this  to  enable  the  court  to  determine  whether  the  offense 
with  which  the  accused  is  charged  and  that  named  in  the  pardon  are  the  same.  If 
the  pardon  be  by  proclamation,  the  burden  rests  upon  the  accused  of  showing  that 
his  case  falls  within  the  terms  of  the  amnesty  set  forth  in  the  proclamation  (U.  S.  v. 
Wilson,  7  Peters,  150).  Where  a  conditional  pardon  is  pleaded,  the  burden  rests 
upon  the  accused  of  showing  that  all  the  conditions  named  therein  have  been  ful- 


a Objections  to  the  charges  and  specifications  on  account  of  matters  of  substance— as  that  they 
do  not  contain  the  necessary  allegations,  or  otherwise  do  not  set  forth  facts  constituting  military 
offenses— should  properly  be  made  at  the  outset  of  the  proceedings  by  a  special  plea  in  the  nature  of 
a  demurrer,  or  they  will  in  general  be  regarded  as  waived. 

So,  objections  going  to  the  legal  constitution  or  composition  of  the  court,  or  to  its  jurisdiction,  should 
also  properly  be  specially  presented  when  the  accused  is  first  called  upon  to  plead;  valid  objections 
of  this  radical  character,  however,  are  not  ivaived  if  the  accused,  instead  of  submitting  a  special  plea, 
pleads  over  to  the  merits,  since  consent  can  not  make  Irg-al  that  which  js  illegal,  or,  in  a  criminal  case, 
confer  jurisdiction  where  none  exists  in  law. 

b  Courts-martial  have  no  authority  to  arraign  a  prisoner  upon  charges  other  than  those  upon  which 
he  has  been  ordered  for  trial,  except  what  is  manifestly  a  mere  clerical  error,  unless  such  altered 
charges  receive  the  sanction  of  the  convening  authority.  Simmons,  ir,,s. 

cU.  S.  v.  Wilson,  7  Peters,  150;  In  reDu  Puy,  3  Benedict,  307-  VI  Opin.  Att.  Gen.,  40& 


700  MILITARY    LAWS    OF    THE    UNITED    STATES. 

filled  or  otherwise  complied  with.  Haym  r.  U.  S.,  7  Ct.  Cls.,  443;  Waring  v.  U.  S., 
ibid.,  501;  Scott  v.  U.  S.,  8  ibid.,  457;  Dig.  Opin.  J.  A.  G.,  par.  1997, 1998.  .  See,  also, 
the  title  "The  Pardoning  Power"  in  the  chapter  entitled  THE  EXECUTIVE. 

Constructive  pardons. — While  to  restore  to  or  place  upon  duty  an  officer  or  soldier, 
when  under  arrest  or  charges  on  account  of  an  alleged  offense,  would  not  probably 
in  this  country,  to  the  same. extent  as  in  England  (a),  be  regarded  as  operating  as  a 
condonation  of  the  offense,  the  promotion  of  an  officer  Avhile  under  arrest  on  charges, 
has  been  viewed  as  a  constructive  pardon  of  the  offense  or  offenses  on  account  of 
which  he  has  been  arrested  (b).  But  held  that  such  a  promotion  could  not  operate 
as  a  pardon  of  other  offenses  committed  by  him,  of  the  commission  of  which  no 
knowledge  was  had  by  the  Executive  at  the  date  of  the  promotion.  Dig.  Opin.  J.  A. 
G.,  par.  1873. 

While  ordering  or  authorizing  an  officer  or  soldier,  when  under  sentence,  to  exercise 
a  command  or  perform  any  other  duty  inconsistent  with  the  continued  execution  of 
his  sentence,  has  been  viewed  as  a  constructive  pardon,  (c)  held  that  to  allow  an  officer, 
while  under  a  sentence  of  suspension  from  rank,  to  perform  certain  slight  duties  in 
closing  his  accounts  with  the  United  States  could  not  be  regarded  as  having  any 
such  effect.  Ibid. 

An  officer  charged  with  certain  offenses  in  violation  of  specific  articles  of  war, 
pleaded  as  to  two  specifications  that  he  had  been  pardoned  by  his  post  commander. 
The  pleas  in  bar,  thus  submitted  by  the  accused,  were  sustained  by  the  court,  but 
were  disapproved  by  the  reviewing  authority  (the  Secretary  of  War),  upon  the 
ground  that  the  post  commander  was  without  authority  to  grant  pardons  in  cases  in 
which  commissioned  officers  were  the  offenders.  G.  "C.  M.  O.,  No.  13,  War  Dept., 
1871. 

Conditional  pardons. — It  is  settled  that  a  pardon  may  be  conditional — may  be  granted 
upon  a  condition  precedent  or  subsequent,  (d)  Thus,  where  the  President,  by  his 
proclamation  of  March  11,  1865,  granted  a  pardon  to  all  deserters  "on  condition 
that"  they  duly  returned  (within  a  certain  time  stated)  to  their  regiments,  etc..  and 
served  the  remainder  of  their  original  terms  and,  in  addition,  a  period  equal  to  the 
time  lost  by  desertion — held  that  a  soldier  who  duly  returned  under  this  proclamation, 
but  after  remaining  with  his  regiment  a  portion  of  the  period  indicated,  abandoned 
the  service  and  went  to  his  home,  was  liable  (the  legal  period  of  limitation  fixed  by 
the  one  hundred  and  third  article  of  war  not  having  expired)  to  be  brought  to  trial 
for  his  original  desertion;  the  condition  subsequent  upon  which  his  pardon  for  the 
same  had  been  extended  not  having  been  performed. 

Statutes  which  operate  to  trespass  upon  or  diminish  the  constitutional  power  of  the 
President  to  pardon  offenses  against  the  United  States  are  strictly  construed  in  their 
application.  Acts  of  mercy,  therefore,  which  may  be  appropriate  when  proceeding 
from  the  President,  in  whom  the  pardoning  power  is  vested  by  the  Constitution, 
are  otherwise  regarded  when  they  originate  with  a  military  officer  whose  power  in 
respect  to  pardons  is  measured  by  the  express  terms  of  the  statutes  which  confer  it. 

Judgments  on  special  pleas. — Where  a  special  plea  is  set  up  in  behalf  of  the  defendant 
as  a  plea  to  the  jurisdiction,  or  in  bar  of  trial,  or  in  abatement,  or  a  special  plea  in 
the  nature  of  a  demurrer,  and  the  court,  after  a  trial  of  the  issue  outlined  in  the  plea, 
decides  that  it  has  not  been  sustained,  the  judgment  of  the  court  is  required  to  be 
that  the  accused  answer  over — that  is,  that  he  plead  the  "general  issue"  of  guilty 
or  not  guilty. 

Statutes  of  limitation. — A  limitation  in  point  of  time  in  military  offenses  is  properly 
matter  of  defense  to  be  specially  pleaded  and  proved.  By  pleading  guilty  the  accused 
is  assumed  to  waive  the  right  to  plead  the  limitation  by  a  special  plea  in  bar.  But 
under  a  plea  of  not  guilty  the  limitation  may  be  taken  advantage  of  by  evidence 
showing  that  it  has  taken  effect.  Dig.  Opin.  J.  A.  G.,  par.  320;  in  re  Bogart,  2  Saw- 
yer, 397;  in  re  White,  17  Fed.  Rep.,  723;  in  re  Davison,  21  ibid.,  18;  in  re  Zinimer- 
inan,  30  ibid.,  17;  and  compare  U.  S.  v.  Cooke,  17  Wallace,  168. 

Facts  and  circumstances  which  are  properly  matters  of  evidence  are  not  properly 
legitimate  subjects  of  pleas;  as,  for  example,  circumstances  going  to  extenuate  the 
offense.  Thus  held,  that  good  conduct  of  the  accused  in  battle  subsequent  to  the  com- 
mission of  the  offense  charged  could  not  properly  be  presented  in  the  form  of  a  plea. 
So  held  that  the  fact  that  the  charge  was  preferred  through  personal  hostility  to  the 
accused  was  not  a  matter  for  plea,  but,  if  desired  to  be  taken  advantage  of,  should  be 
offered  in  evidence.  Dig.  Opin.  J.  A.  G.,  par.  1996. 

Defense  at  trial. — In  order  that  he  may  not  be  embarrassed  in  making  his  defense, 

a  See  Clode,  Mil.  Forces  of  the  Crown,  vol.  1,  p.  173;  Prendergast,  244-n,  in  connection  with  the 
cases  cited  of  Sir  Walter  Raleigh,  Lord  Lucan,  Captain  Ac-bison,  etc. 
6  See  VIII  Opins.  of  Attys.  Gen.,  237. 
cVI  Opin.  Att.  Gen.,  714. 
dEx  parte  Wells,  18  Howard,  307;  Common  weal  th  r.  Haggarty,  4  Brewst.,  326;  VI  Opins.  Attys.  Gen., 


MILITARY    LAWS    OF    THE    UNITED    STATES.  701 

the  accused  party  on  trial  before  a  court-martial  should  be  subjected  to  no  restraint 
other  than  such'  as  may  be  necessary  to  enforce  his  presence  or  prevent  disorderly 
conduct  on  his  part.  Except,  therefore,  in  an  extreme  case,  as  where,  the  accused 
being  charged  with  an  aggravated  and  heinous  offense,  there  is  reasonable  ground  to 
believe  that  he  will  attempt  to  escape  or  to  commit  acts  of  violence,  the  keeping  or 
placing  of  irons  upon  him  while  before  the  court  will  not  be  justified.  («)  Even  in 
such  a  case  it  will  be  preferable  to  place  ana  dequate  guard  over  him.  (b)  Dig.  Opin. 
J.  A.  G.,  par.  1047. 

The  fact  that  the  accused  is  an  officer  of  high  rank  should  not  be  regarded  as  con- 
stituting a  ground  for  allowing  him  any  special  right  or  privilege  in  his  defense  before  a 
court-martial.  The  administration  of  justice  by  a  military,  as  by  a  civil  court,  must 
be  strictly  impartial,  or  it  ceases  to  be  pure.  All  persons  on  trial  by  the  one  species 
of  tribunal,  as  by  the  other,  are  deemed  to  be  equal  before  the  law.  "  Ibid.,  par.  1049. 

The  judge-advocate  should  advise  the  accused,  especially  when. ignorant  and  unas- 
sisted by  counsel,  of  his  rights  in  defense — particularly  as"  to  his  right,  if  it  exists  in 
the  case,  to  plead  the  statute  of  limitations,  and  of  his  right  to  testify  in  his  own 
behalf.  A  failure  to  do  so,  however,  will  not  affect  the  legal  validity  of  the  proceed- 
ings; though  if  it  appear  that  the  accused  was  actually  ignorant  of  these  rights,  the 
omission  may  be  ground  for  a  mitigation  of  sentence.  Ibid.,  par.  1533. 

It  is  the  duty  of  the  court  to  see  that  injustice  is  not  done  the  accused  by  the 
admission  on  the  trial  of  improper  testimony  prejudicing  his  defense,  or  unfairly 
tending  to  aggravate  the  misconduct  charged.  In  the  interests  of  justice,  therefore, 
the  court  may  exclude  such  testimony,  although  its  admission  may  not  be  objected  to 
on  the  part  of  the  accused.  On  a  similar  ground  or  for  the  purpose  of  fully  informing 
itself  of  the  facts,  the  court  may,  in  its  discretion,  allow  the  introduction,  by  either 
side,  of  material  testimony  after  the  case  has  been  formally  closed,  (c)  Such  a  pro- 
ceeding, however,  must  be  of  course  exceptional,  and  a  party  should  not  be  permitted 
to  offer  testimony  at  this  stage  unless  he  exhibits  good  reason  for  not  having  produced 
it  at  the  usual  and  proper  time. 

An  accused,  prior  to  arraignment,  even  if  in  close  arrest,  should  be  allowed  to  have 
interviews  with  such  counsel,  military  or  civil,  as  he  may  have  selected.  So,  his 
counsel  should  be  permitted  to  have  interviews  with  any  accessible  military  person 
whom  it  may  be  proposed  to  use  as  a  material  witness,  or  whose  knowledge  of  facts 
may  be  us.  liil  to  the  accused  in  preparing  for  trial.  Ibid.,  par.  986. 

ARGUMENTS    AND    STATEMENTS. 

Defense. — In  any  case  tried  by  court-martial  the  accused  may,  if  he  thinks  proper 
(and  whether  or  not  he  has  taken  the  stand  as  a  witness) ,  (d)  present  to  the  court  a 
statement  or  address,  either  verbal  or  in  writing.  Such  statement  is  not  evidence;  (e) 
as  a  personal  defense  or  argument,  however,  it  may  and  properly  should  be  taken 
into  consideration  by  the  court.  Dig.  Opin.  J.  A.  G.,  par.  2352. 

While  the  statement  is  not  evidence,  and  the  accused  is  not  in  general  to  be  held 
bound  by  the  argumentative  declarations  contained  in  the  sam'e,  yet,  if  he  clearly 
and  unequivocally  admits  therein/(/c-/.s  material  to  the  prosecution,  such  may  prop- 
erly be  viewed  by  the  court  and  reviewing  officer  as  practically  facts  in  the  case.(/) 
So,  where  the  accused,  in  his  statement,  fully  admits  that  certain  facts  existed  sub- 
stantially as  proved,  he  may  be  regarded  as  waiving  objection  to  any  irregularity  in 
the  form  of  the  proof  of  the  same.  Ibid.,  par.  2353. 

A  large  freedom  of  expression  in  his  statement  to  the  court  is  allowable  to  an 
accused,  especially  in  his  comments  upon  the  evidence.  So,  an  accused  may  be  per- 
mitted to  reflect  within  reasonable  limits  upon  the  apparent  aninms  of  his  accuser  or 


aCompare  G.  C.  M.  O.  62,  Dept.  of  the  Missouri,  1877;  do.  55,  id.,  1879;  and— as  to  the  civil  practice- 
Lee  r.  State,  51  Miss.,  566;  People  ».-.  Harrington,  42  Cal.,  175. 

b  Arraignment  means  the  calling  the  offender  to  the  bar  of  the  court  to  answer  the  matter  he  is 
charged  with,  and  in  doing  which  the  law  directs  (and,  indeed,  common  compassion  points  out  to  us) 
that  every  person  ought  to  be  used  with  all  the  humanity  and  gentleness  which  is  consistent  with  the 
nature  of  the  thing,  and  under  no  terror  or  uneasiness  than  what  proceeds  from  a  sense  of  his_guilt 
and  the  misfortune  of  his  present  circumstances,  and,  therefore,  ought  not  to  be  brought  to  the  bar  in 
a  contumelious  manner,  though  charged  with  the  highest  crimes,  as  with  his  hands  tied  together,  or 
any  mark  of  ignominy  and  reproach,  nor  even  with  fetters  on  his  feet,  unless  there  be  some  danger 
of  an  escape  or  rescue.  Adye,  129,  130. 

c  Com  pare  Eberhardt  v.  State,  47  Ga.,  598;  and  see  the  Trial,  by  court-martial,  of  B.  G.  Harris  (Ex.  Doc. 
No.  14,  Ho.  of  Reps.,  39th  Cong.,  1st  sess.,  p.  25),  where,  on  the  day  on  which  the  accused  was  to  present 
his  final  argument  to  the  coart,  and  which  was  two  days  after  the  formal  closing  of  the  case,  the  defense 
was  allowed  to  introduce  new  testimony  on  the  merits. 

(ZSee  G.  C.  M.  O.  3,  Dept.  of  the  Missouri,  1880. 

c  That  a  sworn  statement  can  not  be  made  to  serve  as  the  testimony  of  the  accused  as  a  witness  under 
the  act  of  March  16,  1878.  See  Dig.  Opin.  J.  A.  G.,  749,  par.  2. 

.  /Similarly  as  a  fact  clearly  admitted  or  assumed  in  the  course  of  a  trial  may  be  considered  as  much 
in  the  case  as  if  it  had  been  expressly  proved.    See  Paige  v.  Fazackerly,  36  Barb.,  392. 


702 


MILITARY    LAWS    OF    THE    UNITED    STATES 


WITNESSES. l 


Par. 

1809.  Oath. 

1810.  Process  of  attachment. 

181 1 .  Refusal  of  civilian  witness  to  testify. 

1812.  Fees;    civilian  in  Government  em- 

ploy. 


°f 


Par. 


1813.  The  same;  not  in  Government  em- 

ploy. 

1814.  Return  journeys. 


wit"  1809-  A1]  Per80ns  who  give  evidence  before  a  court- 
92  Art.  of  war.  martial  shall  be  examined  on  oath,  or  affirmation,  in  the 
following  form:  "  You  swear  (or  affirm)  that  the  evidence 
you  shall  give,  in  the  case  now  in,  hear  ing,  shall  l)e  the  trt/f/t, 
the  whole  truth,  and  nothing  but  the  truth.  So  helj>  you 
God," 

prosecutor,  though  a  superior  officer  and  of  high  rank.  But  an  attack  upon  such  a 
superior,  of  a  personal  character  and  not  apposite  to  the  facts  of  the  case,  is  not  legiti- 
mate; nor  is  language  of  marked  disrespect  employed  toward  the  court.  Matter  of 
this  description  may  indeed  be  required  by  the  court  to  be  omitted  by  the  accused 
as  a  condition  to  his  continuing  his  address  or  filing  it  with  the  record.  Ibid.,  par. 
2354. 

Judge-advocate.  —  It  is  settled  in  our  military  procedure  that  the  closing  statement 
or  argument,  where  addresses  are  presented  on  both  sides,  shall  be  made  on  the  part 
of  the  prosecution.  The  judge-advocate,  however,  may,  and,  in  practice,  not  rarely 
does,  waive  the  right  of  offering  any  argument  or  remarks  in  reply  to  the  address  of 
the  accused.  On  the  other  hand,  the  accused  may  waive  the  right,  and  the  judge- 
'advocate  alone  present  a  "statement.  "(a)  Ibid.,  par.  2355. 

In  the  trial  of  a  commissioned  officer  in  1872  the  judge-advocate  proposed  to  pre- 
sent an  argument  in  behalf  of  the  prosecution,  but  his  request  was  denied  by  the 
court  on  the  ground  that  no  statement  or  address  had  been  submitted  by  the  accused. 
In  reviewing  the  case  the  Secretary  of  War  disapproved  the  action  of  the  court  in 
this  respect  on  the  ground  that  "the  judge-advocate  has  an  undoubted  right  at  the  c!<  >>e 
of  tho  trial  to  address  the  court  for  the  purpose  of  commenting  on  the  whole  evidence 
and  the  law  applicable  to  it;  and  this  right  is  in  no  degree  abridged  by  a  waiver  of 
the  accused  of  his  like  privilege."  G/C.  M.  0.  No.  Ill',  War  Dept,,  1872, 

In  the  case  of  a  commissioned  officer  tried  in  1872  and  sentenced  to  dismissal,  the 
court  refused  to  permit  certain  witnesses  to  be  summoned  at  the  request  of  the 
accused.  In  disapproving  the  action  of  the  court  in  this  respect  the  court  was 
reminded  by  the  reviewing  authority  that  "the  least  denial  to  an  accused  person  of 
any  proper  facility  or  opportunity  for  defense  can  serve  only  to  defeat  the  ends  of 
justice  and  may  often  lend  impunity  to  guilt."  G.  C.  M.  O.  No.  21,  War  Dept.,  1872. 
In  the  case  published  in  G.  C.  M.  O/No.  24,  War  Dept.,  1872,  the  exclusion  of  a  single 
question  caused  the  original  reviewing,  authority  (the  department  commander)  to 
disapprove  the  finding  upon  an  important  specification.  "Courts-martial  had  much 
better  err  on  the  side  of  liberality  toward  a  prisoner  than,  by  endeavoring  to  solve 
nice  and  technical  refinements  of  "the  laws  of  evidence,  assume  the  risk  of  injuriously 
denying  him  a  proper  latitude  for  defense."  G.  C.  M.  O.  No.  32,  War  Dept.,  1872; 
G.  C.  M.  0.  No.  7,  War  Depf,,  1873;  G.  C.  M.  O.  No.  25,  ibid.,  1875. 

1  Military  witnesses.  —  The  attendance  of  military  witnesses  is  obtained  by  the  issue 
of  orders  or  instructions  by  the  post,  department,  or  other  proper  military  com- 
mander, upon  the  request  of  the  judge-advocate  made  in  pursuance  of  paragraphs 
1023  and  1024,  Army  Regulations  of  1901. 

An  officer  or  enlisted  man  who  receives  a  summons  to  attend  as  a  witness  before 
any  military  court,  board,  civil  court,  or  other  tribunal  competent  to  issue  subpoenas, 
which  is  sitting  beyond  the  limits  of  the  department  where  he  is  serving,  will,  before 
starting  to  obey  the  summons,  forward  it  through  the  proper-  channel  to  his  depart- 

a  The  judge-advocate  in  our  practice  is  entitled  to  the  closing  argument  or  address  to  the  court,  and 
he  may  present  an  address  although  the  accused  waives  his  right  to  present  any;  the  function  of  the 
judge-advocate,  at  this  stage  of  the  proceedings,  riot  being  confined  merely  to  a  replying  to  the  accused. 
The  judge-advocate  in  his  address  is  not  authorized  to  read  to  the  court  evidence  or  written  state- 
ments not  introduced  upon  the  trial  and  which  the  accused  has  had  no  opportunity  to  controvert  or 
comment  upon.  Dig.  Opiii.  J.  A.  G.,  par.  1542. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  703 

ment  commander,  that  necessary  orders,  or  authority  to  obey  a  civil  process,  may  be 

fiven.  In  urgent  cases,  or  when  the  public  interest  would  be  liable  to  suffer  by 
elay,  a  post  commander  may  authorize  immediate  departure,  reporting  his  action 
and  reasons  therefor  to  the  department  commander.  Par.  1025,  Army  Regulations 
of  1901. 

Civilian  witnesses. — The  ordinary  process  for  obtaining  the  attendance  of  a  civilian 
witness  is  the  writ  of  subpoena.  '  This  is  a  judicial  writ  commanding  the  witness  to 
appear  in  court,  on  a  day  therein  mentioned,  to  testify  in  the  particular  case  named 
in  the  writ.  In  the  practice  of  the  Federal  courts  and  that  of  courts-martial,  the 
command  of  the  writ  runs  in  the  name  of  the  President  (see  the  form  of  sub- 
poena on  page  128,  Manual  for  Courts-Martial) ,  and  the  writ  is  addressed,  not  to  the 
officer  who  serves  it,  but  to  the  witness  himself.  For  this  reason  the  writ  may  be 
served  by  any  person  of  competent  age  and  discretion.  As  there  is  no  appropriation, 
however,  which  is  available  for  the  payment  of  officers  of  court,  or  for  the  compen- 
sation of  civilians  for  the  service  of  subpoenas,  they  should  be  served  by  military 
persons. 

A  summons  may  legally  be  served  either  by  a  military  or  a  civil  person,  (a)  but,  for 
the  reason  above  stated,  will  in  general  preferably  be  served  by  an  officer  or  non- 
commissioned officer  of  the  Army.  A  judge-advocate  or  a  commanding  or  other 
officer  to  whom  a  summons  is  sent  for  service  will  not  be  authorized,  by  employing 
for  the  purpose  a  U.  8.  marshal  or  deputy  marshal,  or  other  civil  official,  to  commit 
the  United  States  to  the  payment  of  fees  to  such  official.  The  action*,  however,  of  a 
judge-advocate  in  employing  a  deputy  marshal  to  serve  a  summons,  where  appar- 
ently the  service  could  not  otherwise  be  so  effectually  or  economically  made,  has  in 
a  few  cases  been  so  far  ratified  by  the  Secretary  of  War  as  to  allow,  out  of  the  appro- 
priation for  army  contingencies,  the  payment  of  a  small  and  reasonable  account  of 
charges  rendered  by  such  official.  Dig.  Opin.  J.  A.  G.,  par.  2470. 

Service,  to  be  legal  or  sufficient,  must  be  personal;  to  constitute  such  seryice  the 
original  writ  of  subpoena  must  be  delivered  or  read  to  the  witness  by  the  person 
deputed  to  serve  it.  Return  of  service  is  made  by  indorsing  the  fact  of  service  on 
the  back  of  the  duplicate  subpoena  (for  form  of  such  affidavit  of  service,  see  p.  129, 
Manual  for  Courts-Martial ) .  Service,  to  be  sufficient  as  the  basis  for  a  writ  of  attach- 
ment, must  be  personal  and  must  be  made  in  the  manner  above  described;  to  war- 
rant the  mere  payment  of  fees,  however,  service  by  telegraph  or  in  any  other  form 
will  ordinarily  suffice.  See  MANUAL  FOR  COURTS-MARTIAL. 

Except  where  their  testimony  will  be  merely  cumulative,  and  will  clearly  add 
nothing  whatever  to  the  strength  of  the  defense,  the  accused  is  in  general  entitled 
to  have  any  and  all  material  witnesses  summoned  to  testify  in  his  behalf.  (6)  A  prompt 
obedience  to  a  summons  is  incumbent  upon  all  witnesses,  nor  is  a  commanding  or 
superior  officer  in  general  authorized  to  place  any  obstacles  in  the  way  of  the  prompt 
attendance,  as  a  witness,  of  an  inferior  duly  summoned  or  ordered  to  attend  as  such. 
Where  the  judge-advocate  has  declined  to  summon  a  witness  for  the  accused,  for 
the  reason  that  he  is  not  "satisfied"  (in  the  words  of  par.  922  of  the  Army  Regula- 
tions) that  his  testimony  is  "material  and  necessary  to  the  ends  of  justice,"  the 
court  may,  in  its  discretion,  direct  him  to  be  summoned.  The  court,  however,  will 
not  in  general  properly  sanction  the  summoning  of  a  witness  where  it  is  not  prob- 
able that  his  attendance  can  be  secured  within  a  reasonable  time  and  his  deposition 
legally  be  taken  pursuant  to  the  91st  Article  of  War.  Dig.  Opin.  J.  A.  G.,  par.  2467. 

In  military  law  an  accused  party  can  not  be  deemed  to  be  entitled  to  have  a  wit- 
ness summoned  from  a  distance  whose  military  or  administrative  duties  are  of  such 
a  character  that  they  can  not  be  left  without  serious  prejudice  to  the  public  interests. 
Article  VI  of  the  amendments  to  the  Constitution,  declaring  that  the  accused  shall 
be  entitled  "to  be  confronted  with  the  witnesses  against  him,"  applies  only  to  cases 
before  the  United  States  courts,  (c)  Thus,  where  the  offense  charged  is  not  capital, 
and  a  deposition  may  therefore  legally  be  taken  under  the  91st  Article  of  War,  the 
Secretary  of  War  will  not  in  general  "authorize  the  personal  attendance  at  the  place 
of  trial  of  a  witness  whose  office  or  duty  makes  it  necessary  or  most  important  that 
he  should  remain  elsewhere.  Ibid.,  par.  2468. 

The  subpoena  duces  tecum. — In  addition  to  the  ordinary  writ  of  subpoena  (ad  testi- 
ficandum)  for  obtaining  the  attendance  of  a  civilian  witness,  the  judge-advocate  is 
empowered,  in  a  proper  case,  to  issue  writs  of  subpoena  daces  tecum.  It  is  the  pur- 
pose of  this  writ  to  secure  the  production  of  documents  or  writings  which  are  in 
possession  of  a  witness  and  are  deemed,  by  either  party,  to  be  material  to  his  case. 
This  form  of  subpoena  is  issued  in  the  same  manner  and  under  the  same  conditions 

a  See  General  Orders,  No.  93,  War  Department,  1868. 
.      5See  Dig.  Opin.  J.  A.  G., par,  2313,  note  1. 

cSee  G.  C.  M.  O.,  21  and  24,  War  Department,  1872.     Ibid.,  No.  128,  1876. 


704  MILITARY    LAWS    OF    THE    UNITED    STATES. 

pened S5S3:  1810'  Every  judge-advocate  of  a  court-martial  shall  have 
?9?i?  25? V^ff,'  p!  Power  to  issue  the  like  process  to  compel  witnesses  to 
l^us.2^'. is™!  aPPear  an(i  testify  which  courts  of  criminal  jurisdiction 
within  the  State,  Territory,  or  District  where  such  mili- 


244. 


Sec.  1202.  K.8, 


tary  courts  shall  he  ordered  to  sit  may  lawfully  issue. 


as  the  subpoena  ad  testificandum,  and  contains  a  clause  of  requisition  in  which  the 
writing  or  document  which  is  desired  to  be  produced  shall  be  particularly  described. 
The  operation  of  this  writ  does  not  extend  to  the  production  of  any  objects  or  things 
save  documents  or  written  instruments. 

A  subpoena  duces  tecum  can  only  be  used  to  compel  the  production  of  documentary 
evidence,  books,  papers,  accounts,  and  the  like.  In  re  Shephard,  3  Fed.  Rej>..  12; 
3  Starkie  on  Evidence,  172;  Arny  v.  Long,  9  East,  473. 

Telegraphic  messages  in  the  hands  of  telegraph  companies  are  not  privileged  c«  >m- 
munications,  so  far  as  the  companies  are  concerned,  and  their  production  will  be 
compelled  by  subpoena  duces  tecum  in  aid  of  an  investigation  by  a  grand  jury  of 
supposed  criminal  acts  of  the  senders  and  receivers  of  the  messages,  with  which 
such  companies  and  their  officers  are  in  no  way  connected.  In  re  Storrow,  :>  Fed. 
Rep.,  564;  Southern  Law  Review,  vol.  v  (n.  s.),  473;  ex  parte  Brown,  72  .Mo.,  s;;; 
U.  S.  v.  Babcock,  3  Dill.,  566;  U.  S.  v.  Hunter,  15  Fed.  Rep.,  712;  State  r.  Litch- 
field,  58  Maine,  267. 

In  view  of  the  embarrassment  which  must  generally  attend  the  proof,  before  a 
court-martial,  of  the  sending  or  receipt  of  telegraphic  messages  by  means  of  a  resort, 
by  'subpoena  duces  tecum,  to  the  originals  in  possession  of  the  telegraph  company,  («) 
advised  that  the  written  or  printed  copy  furnished  by  the  company  and  received  by 
the  person  to  whom  it  is  addressed  should  in  general  be  admitted  in  evidence  1  •  y  a 
court-martial  in  the  absence  of  circumstances  casting  a  reasonable  doubt  upon' its 
genuineness  or  correctness.  But  where  it  is  necessary  to  prove  that  a  telegram 
which  was  not  received,  or  the  receipt  of  which  is  denied  and  not  proven,  was 
actually  duly  sent,  the  operator  or  proper  official  of  the  company,  or  other  person 
cognizant  of  the  fact  of  sending,  should  be  summoned  as  a  witness.  I  >ig.  Opin.  J.  A .  <  i. , 
par.  1295. 

A  court-martial  (by  subpoena  duces  tecum,  through  the  judge-advocate)  may  sum- 
mon a  telegraph  operator  to  appear  before  it,  bringing  with  him  a  certain  telegraphic 
dispatch.  But  it  is  beyond  the  power  of  such  court  to  require  such  witness  against 
his  will  to  surrender  the  dispatch,  or  a  copy,  to  be  used  in  evidence.  Ibid.,  par. 
1296. 

'The  authority  to  issue  process  to  compel  civilian  witnesses  to  appear  and  testify  is 
vested,  by  section  1202,  Revised  Statutes,  in  "every  judge-advocate  of  a  court-mar- 
tial." The  present  statute,  however  (unlike  the  original  form),  does  not  extend 
the  authority  to  recorders  of  courts  of  inquiry.  Further,  the  authority,  being  voted 
exclusively  and  independently  in  the  judge-advocate,  can  not  be  exercised  by  the 
court.  The  attachment  is  thus  not  a  writ  or  process  of  the  court,  but  simply  a  com- 
pulsory instrumentality  placed  at  the  disposition  of  the  judge-advocate  as  the  prose- 
cuting official  representing  the  United  States.  Dig.  Opin.  J.  A.  G.,  par.  247s. 

Section  1202,  Revised  Statutes,  authorizes  only  judge-advocates  of  courts-martial  to 
issue  process  to  compel  the  attendance  of  witnesses.  The  court  itself,  general  or 
inferior,  has  no  such  power.  Ibid.,  par.  1551. 

To  authorize  a  resort  to  an  attachment,  there  must  have  been  a  formal  summons, 
duly  issued  and  served  upon  the  witness,  and  not  complied  with.  Ibid. .  2479. 

A  judge-advocate  can  not  properly  direct  an  attachment  to  a  United  States  marshal 
or  deputy  marshal  or  other  civil  official.  Some  military  officer  or  person  should  he 
designated  by  him,  or  detailed  for  the  purpose  by  superior  authority.  In  executing 
the  attachment,  the  needful  force  may  be  employed,  but  no  more.  "ibid.,  par.  24S1. 

The  judge-advocate  is  authorized  only  to  initiate  the  process  of  attachment.  The 
statute  does  not  specify  by  whom  it  shall  be  executed,  and  the  judge-advocate  is  not 
authorized  to  command  any  officer  or  person  to  serve  it,  nor  has  the  court  any  such 
power.  Ibid.-,  par.  1551. 

Judge-advocates  of  military  posts,  in  issuing  process  under  section  1202  of  the 
Revised  Statutes,  to  compel  the  attendance  of  witnesses,  will  formally  direct  the 

n  The  subject  of  the  extent  of  the  authority  of  the  courts  to  compel  telegraph  companies  to  pro- 
duce original  private  telegrams  for  use  in  evidence  is  most  fully  treated  in  an  essay  by  Henry  Hitch- 
cock, esq.,  on  the  "Inviolability  of  telegrams,"  published  in  the  Southern  Law  Review  for  October, 
1879. 


MILITARY    LAWS    OF    THE    UNITED   STATES.  705 

1811.  Every  person  not  belonging  to  the  Army  of  the  peaf0UrStestifyap* 
United  States  who,  being  duly  subpoenaed  to  appear  as  a  31Mpar9|; 1901>  v* 
witness  before  a  general  court-martial  of  the  Army,  will- 
fully neglects  or  refuses  to  appear,  or  refuses  to  qualify 
as  a  witness  or  to  testify  or  produce  documentary  evidence 
which  such  person  may  have  been  legally  subpoenaed  to 
produce,  shall  be  deemed  guilty  of  a  misdemeanor,  for 
which  such  person  shall  be  punished  on  information  in  the 
district  court  of  the  United  States;  and  it  shall  be  the 
duty  of  the  United  States  district  attorney,  on  the  certi- 
fication of  the  facts  to  him  by  the  general  court-martial, 
to  file  an  information  against  and  prosecute  the  person  so 
offending,  and  the  punishment  of  such  person,  on  convic- 
tion, shall  be  a  fine  of  not  more  than  five  hundred  dollars  ? 
or  imprisonment  not  to  exceed  six  months,  or  both,  at  the  , 
discretion  of  the  court:  Provided,  That  this  shall  not  apply  I 
to  persons  residing  beyond  the  State,  Territory,  or  Dis- 
trict  in  which  such  general  court-martial  is  held,  and  that 
the  fees  of  such  witness,  and  his  mileage  at  the  rates  pro- 
vided for  witnesses  in  the  United  States  district  court  for 
said  State,  Territory,  or  District  shall  be  duly  paid  or  ten- 
dered said  witness,  such  amounts  to  be  paid  by  the  Pay 
Department  of  the  Army  out  of  the  appropriation  for 
compensation  of  witnesses:  Provided,  That  no  witness 
shall  be  compelled  to  incriminate  himself  or  to  answer  any 
question  which  may  tend  to  incriminate  or  degrade  him.1 
Act  of  March  0,  1901  (31  Stat.  Z.,  950). 

same  to  an  officer  designated  by  the  department  commander  to  execute  it.  The 
nearest  military  commander  will  furnish  the  necessary  military  force  for  the  execu 
tion  of  the  process,  if  force  be  required.  A  subpoana  may  be  served  by  any  person. 
Par.  1026.  Army  Regulations  of  1901.  See  also  MANUAL  FOR  COURTS-MARTIAL,  pp. 
31-34,  130. 

A  judge-advocate,  having  attached  a  civilian  witness  and  had  him  brought  to  the 
place  of  the  court,  detained  him  one  hour  in  the  guardhouse  before  bringing  him 
before  the  court.  For  this  he  was  indicted  for  false  imprisonment  in  a  United  States 
district  court  in  Texas.  Held,  that  his  action  was  warranted  under  section  1202, 
Revised  Statutes,  and  advised  that  the  Attorney-General  be  requested  to  cause  the 
prosecution  to  be  discontinued.  Dig.  Opin.  J.  A.  G.,  par.  ]552. 

The/orra  of  the  process  of  attachment  should,  under  the  statute  conferring  author- 
ity to  issue  it,  be  ' '  like ' '  that  employed  in  the  procedure  of  the  criminal  courts,  or  a 
criminal  court,  of  the  State,  Territory,  or  District  (of  Columbia)  in  which  the  court- 
martial  is  ordered  to  sit.  Where  there  is  no  special  form  of  process  for  the  attach- 
ment of  witnesses  in  criminal  cases  in  use  in  the  State,  the  statute  will  be  sufficiently 
complied  with  if  the  general  form  of  attachment  of  a  witness  for  contempt  for  not 
obeying  a  summons  be  substantially  followed.  For  form  of  attachment,  see  MANUAL 
FOR  COURTS-MARTIAL,  p.  161. 

1  For  procedure  in  the  case  of  a  civilian  witness  under  the  foregoing  enactment  see 
paragraph  1067,  Army  Regulations  of  1901. 

22924—08 45 


706  MILITAEY    LAWS    OF    THE    UNITED    STATES. 

FEES   OF   WITNESSES.1 


t  Civilians  in  the  employ  of  the  Government  when 
A  R  traveling  upon  summons  as  witnesses  before  military  courts 
1901.  are  entitled  to  transportation  in  kind  from  their  place  of 

residence  to  the  place  where  the  court  is  in  session  and 
return.  If  no  transportation  be  furnished  they  are  enti- 
tled to  reimbursement  of  the  cost  of  travel  actually  per- 
formed by  the  shortest  usually  traveled  r<3ute,  including 
transfers  to  and  from  railway  stations,  at  rates  not  exceed- 
ing fifty  cents  for  each  transfer,  and  the  cost  of  a  double 
berth  in  a  sleeping  car  or  steamer  when  an  extra  charge  is 
made  therefor.  They  are  also  entitled  to  reimbursement 
of  the  actual  cost  of  meals  and  rooms  at  a  rate  not  exceed- 
ing three  dollars  per  day  for  each  day  actually  and  una- 
voidably consumed  in  travel  or  in  attendance  upon  the 
court  under  the  order  or  summons.  No  allowance  will  be 
made  to  them  when  attendance  upon  court  does  not  require 
them  to  leave  their  stations.  Par.  1066,  A.  fi.  1901. 
in€iGovae^iment  1813-  ^  civilian  not  in  Government  employ  duly  sum- 
eipar?i667  A  B  mone(l  t°  appear  as  a  witness  before  a  military  court  will 
1901'  receive  one  dollar  and  fifty  cents  for  each  day  actually  and 

unavoidably  consumed  in  travel  or  in  attendance  upon  the 
court  under  the  summons,  and  five  cents  a  mile  for  going 
from  his  place  of  residence  to  the  place  of  trial  or  hearing 
and  five  cents  a  mile  for  returning.  Civilian  witnesses 
will  be  paid  by  the  Pay  Department.2  Par.  1067,  ibid. 

1  In  view  of  the  provision  of  section  1248,  Revised  Statutes,  investing  retiring  boards 
with  such  powers  of  courts-martial  as  may  be  necessary  to  enable  them  to  inquire 
into  and  determine  the  facts  touching  the  disability  of  officers  whose  cases  are  referred 
to  them,  held  that  a  retiring  board  might  legally  cause  material  witnesses  to  be  sum- 
moned to  attend  its  sessions,  and  that  witnesses  so  summoned  would  probably  be  en- 
titled to  the  fees  of  witnesses  before  courts-martial.     Dig.  Opin.  J.  A.  G.,  756,  par.  25. 

Held  that  parties  who  appeared  and  testified  before,  and  at  the  instance  of,  an 
officer  charged  with  the  preliminary  investigation  of  a  case,  but  were  not  required  to 
attend  at  a  subsequent  trial,  were  not  legally  entitled  to  witness  fees.  Ibid.  ,  par.  2477. 

The  compensation  allowed  by  the  Secretary  of  War  for  witnesses  summoned  as 
experts  in  handwriting  before  a  court-martial  (see  Smith  v.  U.  S.,  24  Ct.  Cls., 
209)  ,  held  payable  out  of  the  annual  appropriation  '  '  for  compensation  of  witnesses 
attending  upon  courts-martial  and  courts  of  inquiry."  Ibid.,  par.  2483. 

Held  that  duly  attending  by  a  civilian  witness  before  a  duly  authorized  official  to 
give  a  deposition,  to  be  used  in  evidence  on  a  military  trial,  was  to  be  regarded  as 
practically  equivalent  to  attending  a  court-martial,  and  that  the  deponent  was 
entitled  to  be  paid  the  usual  allowances  (i.  e.  ,  the  same  as  those  of  witnesses  appear- 
ing before  the  court),  out  of  the  regular  appropriation  for  the  "compensation  of 
witnesses  attending  before  courts-martial,"  etc.  Ibid.,  par.  2484. 

2  Neither  the  appropriation  '  '  for  the  compensation  of  witnesses  '  '  attending  military 
courts,  nor  the  appropriation  for  the  contingent  expenses  of  the  Army,  is  applica- 
ble to  the  payment  of  allowances,  as  witnesses  before  civil  courts,  of  officers  or 
soldiers  of  the  Army,  or  of  civil  employees  of  the  military  establishment.     For  such 
allowances  they  must  look  to  the  laws  and  appropriations  fixing  and  authorizing 
the  payment  of  witness  fees  in  these  courts.     .Dig.  Opin.  J.  A.  G.,  par.  2486,     See 
paragraph  1070,  Army  Regulations  of  1901, 


MILITARY    LAWS    OF    THE    UNITED    STATES. 


707 


1814.  The  charges  for  return  journeys  of  witnesses  willne^turn  J°ur- 
be  made  upon  the  basis  of  the  actual  charges  allowed  for  ^ar.ioes^.R. 
travel  to  the  court,  and  the  entire  account  thus  completed 
wi1!  be  paid  upon  discharge   from  attendance,   without 
waiting  for  completion  of  return  travel.1    Par.  1068  ibid. 


EVIDENCE. 


Par. 

1814.  To  be  given  under  oath. 

1815.  No  exclusion  for  color,  interest,  etc. 

1816.  Administration  of  oaths. 

1817.  Testimony  of  accused  persons. 

1818.  Documentary  evidence;   copies  of 

records    in    Executive    Depart- 
ments. 

1819.  The  same;  records  in  Treasury  De- 

partment. 


Par. 

1820.  The  same;  transcripts  from  books. 

1821. "The  same. 

1822.  Returns  in  return's  office. 

1823.  Journals  of  Congress. 

1824.  Consular  records. 

1825.  Legislative  acts;   judicial  proceed- 

ings. 

1826.  Kecords  of  State  officers,  etc. 

1827.  Laws  of  the  United  States. 


1814.  All  persons  who   give  evidence  before  a  court-    Evidence  to  be 

firi  v  6ii    under 

martial  shall  be  examined  on  oath,  or  affirmation,  in  the  oath. 
following  form:  "You  swear  (or  affirm)  that  the  evidence 
you  shall  give,  in  the  case  now  in  hearing,  shall  he  the 
truth,  the  whole  truth,  and  nothing  hut  the  truth.     So  help 
you  God. " {     Ninety-second  Article  of  War. 

xThe  items  of  expenditure  authorized  in  paragraphs  1066  and  1067  (Army  Regula- 
tions) will  be  set  forth  in  detail  and  made  a  part  of  each  voucher  for  reimbursement. 
No  other  items  will  be  allowed.  The  correctness  of  the  items  will  be  attested  by  the 
affidavit  of  the  witness,  to  be  made  when  practicable  before  the  judge-advocate,  and 
the  voucher  will  be  accompanied  by  the  original  summons  or  a  duly  certified  copy 
thereof.  The  certificate  of  the  judge-advocate  will  be  evidence  of  the  fact  and  period 
of  attendance,  and  will  be  made  upon  the  voucher.  Par.  1069,  A.  R.  1901. 

2  Oath. — This  article  prescribes  a  single  specific  form  of  oath  to  be  taken  by  all  wit- 
nesses. The  Constitution,  however  (article  1  of  amendments),  has  provided  that 
Congress  shall  make  no  law  prohibiting  the  free  exercise  of  religion.  Where,  there- 
fore, the  prescribed  form  is  not  in  accordance  with  the  religious  tenets  of  a  witness, 
he  should  be  permitted  to  be  sworn  according,  to  the  ceremonies  of  his  own  faith  or 
as  he  may  deem  binding  on  his  conscience. 

The  article  does  not  prescribe  by  whom  the  path  shall  be  administered.  By  the 
custom  of  the  service  it  is  administered  by  the  judge-advocate.  (And  see,  now,  the 
provision  of  the  act  of  July  27,  1892,  sec.  4. )  When  the  judge-advocate  himself  takes 
the  witness  stand,  he  is  properly  sworn  by  the  president  of  the  court.  Dig.  Opin. 
J.  A.  G.,  par.  274. 

A  witness  who  has  once  been  sworn  and  has  testified  is  not  required  to  be  resworn 
on  being  subsequently  recalled  to  the  stand  by  either  party.  The  reswearing,  how- 
ever, of  such  a  witness  will  not  affect  the  legal  validity  of  the  proceedings  or  sen- 
tence. 

A  witness  who  has  given  his  testimony  should  in  general  be  allowed  to  modify  the 
same  where  he  desires  to  do  so  in  a  material  particular.  But  where  the  court  has 
refused  to  permit  a  witness  to  correct  his  statement  as  recorded,  such  refusal  need 
not  induce  a  disapproval  of  the  proceedings  unless  it  appear  that  the  rights  of  the 
accused  have  thus  been  prejudiced.  Ibid.,  par.  2472. 

Witnesses  should  not  in  general  be  admitted  to  the  court  room,  but  should  be  kept 
as  far  as  practicable  apart,  until  required  to  appear  and  give  their  testimony.  But 
that  a  witness  or  witnesses  may  have  been  permitted  to  remain  in  the  court  room 
and  hear  the  testimony  of  witnesses  previously  called  can  not  affect  the  legality  of 
the  proceedings. 

A  witness  can  have  no  authority  to  discharge  or  relieve  himself  from  attendance 
on  the  ground  that  the  testimony  desired  of  him  is  immaterial  or  for  any  other 


708  MILITARY    LAWS    OF    THE    UNITED    STATES. 

reason.  In  the  civil  practice  such  an  act  would  be  a  grave  contempt  of  court.  It  is 
for  the  court  to  judge  as  to  the  materiality  or  pertinency  of  the  evidence  of  witnesses, 
and  unless  a  witness  has  been  determined  by  the  court  to  be  incompetent  or  his  tes- 
timony to  be  inadmissible,  he  should  remain  and  stand  his  examination  till  informed 
by  the  court  or  judge-advocate  that  his  attendance  is  no  longer  required  in  the  case. 
Ibid.,  par.  2473.  See  also,  in  this  connection,  MANUAL  FOR  COURTS-MARTIAL. 

COMPETENCY    OF   WITNESSES. 

The  rules  governing  the  competency  of  witnesses  before  the  criminal  courts  of  the 
United  States  and  the  States  are,  where  apposite,  generally  (though  not  always  nec- 
essarily) followed  in  the  practice  of  courts-martial.  Ibid. ,  par.  2460.  See  also  MANUAL 
FOR  COURTS-MARTIAL,  p.  40. 

The  law  by  which,  in  the  opinion  of  this  court,  the  admissibility  of  testimony  in 
criminal  cases  must  be  determined  is  the  law  of  the  State  as  it  was  when  the  courts 
of  the  United  States  were  established  by  the  judiciary  act  of  1789.  The  courts  of  the 
United  States  have  uniformly  acted  upon  this  construction  of  these  acts  of  Congress, 
and  it  has  thus  been  sanctioned  by  a  practice  of  sixty  years.  U.  S.  v.  Reid,  12  How., 
361,  363,  366;  Logan  v.  U.  S.,  144  U.  S.,  263,  301. 

A  wife  is  not  a  competent  witness  for  or  against  a  person  accused  of  crime,  on  his 
trial.  Comment  on  her  absence  by  the  district  attorney  held  to  be  reversible  error. 
Graves  v.  U.  S.,  150  U.  S.,  118;  U.  S.  v.  Jones,  32  Fed.  Rep.,  569. 

It  has  been  uniformly  held  that  the  wife  of  a  person  on  trial  before  a  court-martial 
could  not  properly  be  admitted  as  a  witness  for  or  against  him; (a)  and  the  statute 
authorizing  accused  parties  to  testify  does  not  affect  this  rule.  The  wife,  however, 
of  an  officer  or  soldier  may  be  admitted  to  testify  in  his  case  before  a  court  of  inquiry, 
the  proceeding  before  such  a  body  not  being  a  trial,  but  an  investigation  merely. 
Where  a  court-martial  refused  to  admit  in  evidence  (as  being  incompetent)  the 
testimony  of  the  wife  of  the  prosecuting  witness,  held  that  its  action  was  entirely 
erroneous,  no  legal  objection  existing  to  the  competency  of  such  a  person.  Dig. 
Opin.  J.  A.  G.,  par.  2462.  See  also  MANUAL  FOR  COURTS-MARTIAL. 

A  wife  is  not  a  competent  witness  to  prove  a  charge  of  failing  to  support  her,  for 
which  her  husband  is  on  trial.  Ibid.,  par.  1305. 

It  is  no  objection  to  the  competency  of  a  witness  that  he  is  the  officer  upon  whom 
will  devolve  the  duty  of  reviewing  authority  when  the  proceedings  are  terminated. 
Ibid.,  par.  2464. 

An  insane  person  is  no  more  competent  as  a  witness  before  a  court-martial  than  at 
common  law.  Testimony  admitted  of  a  person  shown  to  be  insane  should  be  stricken 
out  on  motion  made. 

A  person  who  is  insane  at  the  time  is  incompetent  as  a  witness.  An  objection, 
however,  to  a  witness  on  account  of  alleged  insanity  will  not  properly  be  allowed, 
unless  sustained  by  clear  proof,  a  man  being  always  presumed  to  be  sane  till  prover 
to  be  otherwise.  Ibid.,  par.  2466. 

A  boy  of  five  is  not,  as  a  matter  of  law,  absolutely  disqualified  as  a  witness;  and  in 
this  case  the  disclosures  on  the  voir  dire  were  sufficient  to  authorize  his  admission  to 
testify.  Wheelers.  U.  S.,  159  U.  S.,  523;  Brasier's  case,  1  Leach  Crim.  Law,  199;  1 
Greenleaf,  sec.  367;  1  Wharton,  Evidence,  sees.  398-400;  1  Best,  sees.  155,  156;  State 
v.  Juneau,  88  Wisconsin,  180;  Ridenhour  v.  Kansas  City  Cable  Co.,  102  Missouri, 
270;  McGuff  v.  State,  «8  Alabama,  147;  State  v.  Levy,  230  Minnesota,  104;  Common- 
wealth v.  Mullins,  2  Allen  (Mass.),  295;  Peterson  v.  State,  4Y  Georgia,  524;  Stater. 
Edwards,  79  North  Carolina,  48;  State  v.  Jackson,  9  Oregon,  457;  Black  well  v.  State, 
11  Indiana,  196. 

It  is  no  objection  to  the  competency  of  a  witness  that  his  name  is  not  on  the  list  of 
witnesses  appended  to  the  charges  when  served.  The  prosecution  is  not  obliged  to 
furnish  any  list  of  witnesses,  nor,  where  one  is  furnished,  to  confine  itself  to  the 
witnesses  thus  specified.  The  fact  that  material  testimony  is  given  by  an  unex- 
pected witness  may  indeed  constitute  ground  for  an  application  by  the  accused 
(under  article  93)  for  further  time  for  the  preparation  of  his  defense.  Dig.  Opin.  J. 
A.  G.,  par.  2465. 

The  fact  that  a  party  is  a  public  enemy  of  the  United  States,  or  has  engaged  in 
giving  aid  to  the  enemy,  does  not  affect  the  competency  of  his  testimony  as  a  wit- 
ness before  a  court-martial.  Where  testifying,  however,  in  time  of  war,  either  in 
favor  of  a  person  in  the  enemy's  service  or  an  ally  of  or  sympathizer  with  the  enemy, 
or  against  a  Federal  officer  or  soldier,  his  statements  (like  those  of  an  accomplice) 

ciNor  will  the  testimony  of  the  wife  of  an  accused  be  admissible  in  favor  of  or  against  a  party 
jointly  charged  with  him,  where  her  testimony 'will  be  material  to  the  merits  of  the  question  of  the 
guilt  or  innocence  of  her  husband.  See  Territory  v.  Paul,  2  Montana,  314. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  709 

are  ordinarily  to  be  received  with  caution  unless  corroborated.  The  fact  that  a  party 
is  under  a  political  disability  is  not  one  which  goes  to  his  competency  if  offered  as  a 
witness.  So  the  fact  that  a  witness  has  been  convicted  of  desertion  may  impair  his 
credibility,  but  can  not  affect  his  competency.  Ibid.,  par.  1297. 

Desertion  is  not  a  felony  and  does  not  render  a  witness  incompetent  at  common 
law  or  before  a  court-martial.  Nor  does  the  loss  of  citizenship  upon  conviction  of 
desertion,  under  sections  1996  and  1998,  Revised  Statutes,  have  such  effect,  the  com- 
petency of  a  witness  not  depending  upon  his  citizenship.  A  pardon  of  a  person 
thus  convicted  would  not,  therefore,  add  to  his  competency.  But  where  it  was  pro- 
posed to  introduce  such  a  person  as  a  material  witness  for  the  prosecution  in  an 
important  case,  advised  that  it  would  be  desirable  to  remit  the  unexecuted  portion 
of  his  sentence,  if  any.  Ibid.,  par.  1298. 

Where  a  conviction  (of  rape)  rested  mainly  011  the  testimony  of  the  victim,  a  child 
of  8  years  of  age,  held  that  the  competency  of  the  witness  was  doubtful,  and  that  the 
trial  should  have  been  suspended  and  the  child  instructed,  (a)  Where  a  court- 
martial  received  the  testimony  of  a  female  child  of  3£  years  without  swearing  her, 
held  that  it  had  wholly  exceeded  its  authority,  unsworn  testimony  being  entirely 
incompetent  in  any  case.  Ibid.,  par.  1306. 

The  president  or  any  member  of  a  court-martial,  as  also  the  judge-advocate,  may 
legally  give  testimony  before  the  court.  That  the  court,  at  the  time  of  a  member's 
testifying,  is  composed  of  but  five  members  will  not  affect  the  validity  of  the  pro- 
ceedings, since  in  so  testifying  he  does  not  cease  to  be  a  member.  It  is  in  general, 
however,  most  undesirable  that  the  judge-advocate,  and  still  more  that  a  member, 
should  appear  in  the  capacity  of  a  witness,  except  perhaps  where  the  evidence  to  be 
given  relates  simply  to  the  good  character  or  record  of  the  accused.  (6 )  Ibid. ,  par.  2463. 

MISCELLANEOUS    PROVISIONS. 

Courts-martial,  in  the  absence  of  any  specific  statutory  rules,  are  in  general  gov- 
erned by  the  rules  of  evidence  of  the  common  law. 

Courts-martial  should  in  genera!  follow,  so  far  as  opposite  to  military  cases,  the 
rules  of  evidence  observed  by  the  civil  courts,  and  especially  the  courts  of  the  United 
States,  in  criminal  cases,  (c)  They  are  not  bound,  however,  by  any  statute  in  this 
particular,  and  it  is  thus  open  to  them,  in  the  interests  of  justice,  to  apply  these 
rules  with  more  indulgence  than  the  civil  courts — to  allow,  for  example,  more  latitude 
in  the  introduction  of  testimony  and  in  the  examination  and  cross-examination  of 
witnesses  than  is  commonly  permitted  by  the  latter  tribunals.  In  such  particulars, 
as  persons  on  trial  by  courts-martial  are  ordinarily  not  versed  in  legal  science  or 
practice,  a  liberal  course  should  in  general  be  pursued,  and  an  overtechnicality  be 
avoided,  (d)  Dig.  Opin.  J.  A.  G.,  par.  1285. 

The  law  by  which  the  admissibility  of  testimony  in  criminal  cases  in  the  courts  of 
the  United  States  must  bo  determined  is  the  law  of  the  State,  as  it  was  when  these 
courts  were  established  by  the  judiciary  act  of  1789.  They  have  uniformly  acted 
upon  this  construction  of  the  judiciary  act  of  1789  and  the  crimes  act  of  1790,  and  it 
has  thus  been  sanctioned  by  a  practice  of  sixty  years.  U.  S.  v.  Reid,  12  How. ,  361,  363, 
366;  Logan  v.  U.  S.,  144  U.  S.,  263,  300;  xvii,  Opin.  Att.  Gen.,  310. 

How  applied. — The  rules  of  evidence  should  be  applied  by  military  courts  irrespec- 
tive of  the  rank  of  the  person  to  be  affected.  Th  us  a  witness  for  the  prosecution, 
whatever  be  his  rank  or  office,  may  always  be  asked,  on  cross-examination,  whether 
he  has  not  expressed  animosity  toward  the  accused,  as  well  as  whether  he  has  not  on 
a  previous  occasion  made  a  statement  contradictory  to  or  materially  different  from 
that  embraced  in  his  testimony.  Such  questions  are  admissible  by  the  established 


al  Greenleaf  on  Evidence,  sec.  367. 

b  In  the  British  service  until  the  year  1805  oaths  were  only  administers  1  to  witnesses  before  gen- 
eral courts-martial.  In  that  year,  but  against  the  advice  of  many  general  officers  (including  the 
Duke  of  Wellington),  the  provisions  of  the  article  were  extended  in  this  respect  to  the  minor  cqurts. 
Clode,  Mil.  Law,  126. 

cSee  3  Greenl.  Ev.,  sec.  476;  Lebanon  v.  Heath,  47  N.  Hamp.,  359:  People  r.  Van  Allen,  55  N.  York, 
39;  II  Opin.  Atty.  Gen.,  343;  Grant  v.  Gould,  2  H.  Black.,  87;  1  McArthur,  47;  Halcourt,  76;  De  Hart, 
334;  O'Brien,  169;  G.  O.  51,  Middle  Department,  1865;  G.  C.  M.  O.  60,  Department  of  Texas,  1879;  G.  C. 
M.  O.  3,  52,  Department  of  the  East,  1880.  While  the  Federal  courts  sitting  within  a  State  must 
enforce  the  provisions  of  a  local  statute  prescribing  rules  of  evidence,  unless  it  is  in  conflict  with 
some  law  of  the  United  States  regulating  the  same  subject,  yet  the  decisions  of  the  State  courts  con- 
struing common-law  rules  of  evidence  are  not  obligatory  on  the  Federal  courts,  though  they  will  be 
followed  when  the  question  at  issue  is  balanced  with  doubt.  Union  Pacific  R.  R.  Co.  v.  Yates,  79  Fed. 
Rep.,  584;  McNeill  v.  Hoi  brook,  12  Peters,  84,  88,  89;  Wright  v.  Bales,  2  Black,  535;  Porter  v.  Bank,  102 
U.  S.,  163,  165;  Burgess  v.  Seligman,  107,  U.  S.,  20;  Railroad  Co.  v.  Baugh,  149,  U.  S.,  368;  Ryan  v. 
Staples,  76  Fed.  Rep.,  721,  727;  Railroad  Co.  v.  Hogan,  3  Fed.  Rep.,  102. 

dCompare  the  views  expressed  in  G.  C.  M.  O.  32,  War  Department,  1872;  G.  C.  M.  O.  23,  Department 
of  Texas,  1873;  G.  C.  M.  O.  60,  Department  of  California,  1873. 


no 


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712  MILITAEY    LAWS    OF    THE    UNITED    STATES. 


THE    RULES    OF    EVIDENCE. 

Jd  'onlc8     1815-  In  the  courts  of  the  United  States  no  witness  shall 
interest!  c°p?ovi-  ^e  excluded  in  any  action  on  account  of  color,  or  in  any 
de/uiyt2',  1864,  s.  c^v^  action   because  he  is  a  party  to  or  interested  in  the 
3>  MM.'  flees,  v.issue  tried:  Provided,  That  in  actions  by  or  against  execu- 
13j£iy!3i6,i862)8,tors5  administrators,  or  guardians,  in  which  judgment  may 
^SeS'JssTit.s.  ke  rendered  for  or  against  them,  neither  party  shall  be 
allowed  to  testify  against  the  other,  as  to  any  transaction 
with,  or  statement  by,  the  testator,  intestate,  or  ward, 
unless  called  to  testify  thereto  by  the  opposite  party,  or 
required  to  testify  thereto  by  the   court.      In  all  other 
respects  the  laws  of  the  State  in  which  the  court  is  held 
shall  be  the  rules  of  decision  as  to  the  competency  of  wit- 
nesses in  the  courts  of  the  United  States  in  trials  at  com- 
mon law  and  in  equity  and  admiralty.1 

tio^iaths.ra~  1816-  Judge-advocates  of  departments  and  of  courts- 
4,  vU27  p!^1?!92'  s'  martial,  and  the  trial  officers  of  summary  courts,  are  hereby 
authorized  to  administer  oaths  for  the  purposes  of  the 
administration  of  military  justice,  and  for  other  purposes 
of  military  administration.  Sec.  4,  act  of  July  27,  1892 
(27  Stat.  Z.,  278). 

TESTIMONY   OF   ACCUSED   PERSONS. 


sonsmlydtest?fy"      1817<  *n  tne  tr^  °^  a^  indictments,  informations,  com- 

2oMpar30  6>  18?8'  v'  .plains,  and  other  proceedings  against  persons  charged 

with  the  commission  of  crimes,  offenses,  and  misdemeanors, 

is,  indeed,  specially  empowered  to  exercise  this  function,  under  certain  circumstances, 
by  statute,  as  by  the  second,  eighty-fourth,  and  eighty-fifth  articles  of  war;  and, 
further,  by  section  183,  Revised  Statutes,  in  a  case  where;  being  an  officer  of  the  War 
Department,  he  is  detailed  to  investigate  frauds,  etc.  Dig.  Opin.  J.  A.  G:,  par.  1799. 

The  act  of  July  27,  1892  (27  Stat.  L,,  278),  in  authorizing  certain  military  officers 
to  administer  certain  oaths,  does  not,  of  course,  affect  the  power  of  administering 
such  oaths  of  other  officials  who  may  have  been  authorized  to  administer  them 
before  the  passage  of  the  act.  Such  officials  may  still  administer  the  same,  and  when 
doing  so  should  be  paid  their  fees  as  notaries,  commissioners,  etc.,  as  before.  But, 
to  avoid  expense,  it  is  desirable  to  resort  to  the  officers  empowered  by  the  statute, 
where  practicable.  Ibid.,  par.  1801. 

1U.  S.  v.  Murphy,  16  Pet.,  203;  Smyth  v.  Strader,  4  How.,  420;  U.  S.  v.  Reed,  12 
How.,  361;  Wrights.  Bales,  2  Bl.,  535;  Green  v.  U.  S.,  9  Wall.,  655;  Lucas  v.  Brooks, 
18  Wall.,  436;  Cornett  v.  Williams,  20  Wall.,  226;  Packet  Company  v.  Clough,  20 
Wall.,  528;  Texas  v.  Chiles,  21  Wall.,  488;  Railroad  Company  •  v.  Pollard,  22  Wall., 
341;  Johnson  v.  Owens,  2  Dill.,  475;  Eslava  v.  Mazange's  Administrator,  1  Woods, 
623.  Act  of  June  22,  1874,  sec.  8  (18  Stat.  L.,  180). 

No  witness  is  to  be  discredited  merely  because  of  his  race  or  color;  and,  where 
counsel  have  asserted'  that  comparatively  little  credit  is  to  be  attached  to  the  evidence 
of  ignorant  or  semibarbarous  Indian  witnesses,  there  is  no  error  in  the  court's  saying 
that  both  white  men  and  Indians  lie,  and  that  the  evidence  of  both  is  entitled  to  the 
same  credit,  and  such  credibility  is  to  be  determined  by  the  same  rules  of  law,  when 
this  is  coupled  with  a  correct  statement  of  the  jury's  right  to  consider  the  intelli- 
gence, appearance,  apparent  candor,  opportunities  of  knowledge,  etc.,  of  each  wit- 
ness. Shelp  v.  U.  S.,  81  Fed.  Rep.,  94. 


MILITARY    LAWS    OF   THE    UtflTED    STATES.  718 

in  the  United  States  courts,  Territorial  courts,  and  courts- 
martial,  and  courts  of  inquiry,  in  any  State  or  Territory, 
including  the  District  of  Columbia,  the  person  so  charged 
shall,  at  his  own  request  but  not  otherwise,  be  a  competent 
witness.  And  his  failure  to  make  such  request  shall  not 
create  any  presumption  against  him. 1  Act  of  March  16, 
1878(20  Stat.  Z.,30). 

1  The  act  of  March  16,  1878  (20  Stat.  L.,  30) ,  having  provided  that  a  person  charged 
with  the  commission  of  a  crime  may,  at  his  own  request,  be  a  competent  witness  in 
the  trial,  but  that  "his  failure  to  make  such  request  shall  not  create  any  presumption 
against  him,"  all  comment  upon  such  failure  must  be  excluded  from  the  jury.  Wil- 
son v.  U.  S.,  149  TJ.  S.,  60.  Such  failure  to  testify  is  not  to  create  a  presumption  of 
guilt.  U.  S.  v.  Pendergrast,  32  Fed.  Rep.,  198.  When  such  an  accused  person  elects 
to  testify  in  his  own  behalf  his  testimony  may  be  impeached.  U.  S.  t?.  Brown,  40 
Fed.  Kep.,  437. 

An  accused  person  can  not  testify  in  his  own  behalf  if  incompetent  to  testify  as 
a  witness  for  any  cause.  U.  S.  v.  Hollis,  43  Fed.  Rep.,  248. 

Pardon  restores  competency  to  testify.  Logan  v.  U.  S.,  144  U.  S.,  263;  Boyd  v.  U.  S., 
142  U.  S.,  450. 

If  he  waives  his  privilege  as  to  one  act  he  does  so  fully  in  relation  to  that  act; 
but  he  does  not  thereby  waiye  his  privilege  of  refusing  to  reveal  other  acts  wholly 
unconnected  with  the  act  of  which  he  has  spoken,  even  though  they  be  material  to 
the  issue.  Low  v.  Mitchell,  18  Me.,  372;  Tillson  v.  Bowley,  8  Greenl.,  163. 

Where  an  accused  party  waives  his  constitutional  privilege  of  silence  and  takes  the 
stand  in  his  own  behalf  and  makes  his  own  statement,  the  prosecution  has  a  right  to 
cross-examine  him  upon  such  statement  with  the  same  latitude  as  would  be  exercised 
in  the  case  of  an  ordinary  witness  as  to  the  circumstances  connecting  him  with  the 
alleged  crime.  Fitzpatrick  v.  U.  S.,  178  U.  S.,  304. 

Where  a  witness  has  voluntarily  answered  as  to  material  criminating  facts,  it  is 
held  with  uniformity  that  he  can  not  then  stop  short  and  refuse  further  explanation, 
but  must  disclose  fully  what  he  has  attempted  to  relate.  This  view  is  adopted  by 
the  text-writers,  and  is  very  well  explained  in  several  of  the  authorities,  wrhere  the 
principle  is  laid  down  and  enforced.  1  Starkie  Evid.  (9th  Am.  ed.);  Roscoe's  Grim. 
Ev.,  174;  1  Greenl.,  sec.  451;  2  Phill.  Ev.,  935;  2  Russ.  Cr.,  931;  Coburn  v.  Odell,  10 
Foster,  540;  State  v.  K.,  4  N.  H.,  562;  State  v.  Foster,  3  Foster,  348;  Foster  v.  Pierce, 
11  Gush.,  437;  Brown  v.  Brown,  5  Mass.,  320;  Amherst  v.  Hollis,  9  N.  H.,  107;  Low 
v.  Mitchell,  18  Me.,  372;  Chamberlain  v.  Willson,  12  Vt.,  491;  People  v.  Lohmann,  2 
Barb.  S.  C.,  216;  Norfolk  v.  Gaylord,  28  Conn.,  309. 

The  testimony  of  an  accused  party  is  competent  only  when  presented  as  author- 
ized by  the  act  of  March  16,  1878,  viz,  when  the  party  himself  requests  to  be  admitted 
to  testify.  But  such  testimony  is  not  excepted  from  the  ordinary  rules  governing 
the  admissibility  of  evidence,  nor  from  the  application  of  the  usual  tests  of  cross- 
examination,  rebuttal,  etc.  (Big.  Opin.  J.  A.  G.,  par.  1300.)  See,  also,  MANUAL  FOR 
COURTS-MARTIAL. 

It  was  heretofore  an  established  rule  that  accused  parties  could  not  legally  testify 
as  witnesses  before  military  courts,  (a)  But  now,  by  the  act  of  March  16,  1878,  it  is 
expressly  provided  that  at  trials,  not  only  before  the  courts  of  the  United  States,  but 
before  courts-martial  and  courts  of  inquiry,  "the  person  charged  shall,  at  his  own 
request,  but  not  otherwise,  be  a  competent  witness."  It  is  added:  "And  his  failure 
to  make  such  request  shall  not  create  any  presumption  against  him."  But  parties 
testifying  under  this  act  have  no  exceptional  status  or  privileges;  they  must  take  the 
stand  and  be  subject  to  cross-examination  like  other  witnesses.  The  submission  by 
the  accused  of  a  sworn  written  statement  is  not  a  legitimate  exercise  of  the  authority 
to  testify  conferred  by  the  statute,  and  such  a  statement  should  not  be  admitted  in 
evidence  by  the  court.  (6) 

The  testimony  of  the  defendant  in  a  criminal  case  is  to  be  considered  and  weighed 
by  the  jury,  taking  all  the  evidence  into  consideration,  and  such  weight  is  to  be  given 

a  See  G.  C.  M.  O.  3,  H.  Q.  A.,  1870,  in  which  is  incorporated  an  opinion  of  the  Judge- Advocate-General 
on  the  subject. 

bSee  the  general  orders  cited  in  the  note  to  "  Evidence"— a  co-conspirator  is  a  competent  witness 
upon  the  trial  of  an  indictment  for  conspiracy.  U.  S.  v.  Sacia,  2  Fed.  Rep.,  754.  The  evidence  of  an 
accomplice,  though  uncorroborated,  is  to  be  considered  for  what  it  is  worth.  U.  S.  v.  Hemming,  18 
ibid.,  907. 


714  MILITARY    LAWS    OF    THE    UNITED    STATES. 

to  it  as  in  their  judgment  it  ought  to  have.  Wilson  v.  U.  S.,  162  U.  S.,  13;  Hicks  v. 
U.  S.,  150  U.  S.,  442,  452;  Allison  v.  U.  S.,  160  U.  S.,  203.  See,  also,  Edgington  v. 
U.  S.,  164  U.  S.,  361. 

CRIMINATING    QUESTIONS. 

The  privilege,  recognized  by  the  common  law,  of  a  witness  to  refuse  to  respond  to 
a  question  the  answer  to  which  may  criminate  him,  is  a  personal  one,  which  the 
witness  may  exercise  or  waive,  as  he  may  see  fit.  It  is  not  for  the  judge-advocate  or 
accused  to  object  to  the  question  or  to  check  the  witness,  or  the  court  to  exclude  the 
question  or  direct  the  witness  not  to  answer.  Where,  however,  he  is  ignorant  of  his 
right,  the  court  may  properly  advise  him  of  the  same.  But  where  a  witness  declines 
to  answer  a  question  on  the  ground  that  it  is  of  such  a  character  that  the  answer 
thereto  may  criminate  him,  but  the  court  decides  that  the  question  is  not  one  of  this 
nature  and  that  it  must  be  answered,  the  witness  can  not  properly  further  refuse  to 
respond,  and,  if  he  does  so,  will  render  himself  liable  to  charges  and  trial  under  article 
62.  Dig.  Opin.  J.  A.  G.,  par.  2474. 

It  is  not  sufficient  to  excuse  the  witness  from  testifying  that  he  may,  in  his  own 
mind,  think  his  answer  to  the  question  might,  by  possibility,  lead  to  a  criminal  charge 
against  him,  or  tend  to  convict  him  of  it  if  made.  The  court  must  be  able  to  perceive 
that  there  is  reasonable  ground  to  apprehend  danger  to  the  witness  from  his  being 
compelled  to  answer.  U.  S.  v.  McCarty,  18  F.  R.,  87. 

Upon  a  trial  of  a  cadet  of  the  Military  Academy,  the  court  (against  the  objection  of 
the  accused)  required  another  cadet,  introduced  as  a  witness  for  the  prosecution,  to 
testify  as  to  facts  which  would  tend  to  criminate  him.  Held,  that  such  action  was 
erroneous,  the  not  answering  in  such  cases  being  a  privilege  of  the  witness  only,  who 
(whether  or  not  objection  were  made)  could  refuse  to  testify,  and  who,  if  ignorant 
of  his  rights,  should  be  instructed  therein  by  the  court.  Dig.  Opin.  J.  A.  G. ,  par.  1308. 

Section  860,  Revised  Statutes.— In  the  case  of  Tucker  v.  United  States  (151  U.  S.,  164, 
168)  the  Supreme  Court  of  the  United  States  has  placed  an  interpretation  upon  cer- 
tain clauses  of  section  860,  Revised  Statutes.  That  section  contains  the  requirement 
that  "  no  pleading  of  a  party,  nor  any  discovery  or  evidence  obtained  from  a  party  or 
witness  by  means  of  a  judicial  proceeding  in  this  or  any  foreign  country,  shall  be 
given  in  evidence  or  in  any  manner  used  against  him  or  his  property  or  estate,  in  any 
court  of  the  United  States,  in  any  criminal  proceeding,  or  for  the  enforcement  of  any 
penalty  or  forfeiture:  Provided,  That  this  section  shall  not  exempt  any  party  or  wit- 
ness from  prosecution  and  punishment  for  perjury  committed  in  discovering  or  testi- 
fying as  aforesaid."  In  its  decision  the  court  held  that  "  pleadings  of  parties "  are 
the  allegations  made  by  the  parties  to  a  civil  or  criminal  case  for  the  purpose  of  defi- 
nitely presenting  the  issue  to  be  tried  and  determined  between  them.  "Discovery 
or  evidence  obtained  from  a  witness  by  means  of  a  judicial  proceeding"  includes  only 
facts  or  papers  which  the  party  or  witness  is  compelled  by  subpoena,  interrogatory, 
or  other  judicialprocess  to  disclose,  whether  he  will  or  no,  and  is  inapplicable  to  testi- 
mony voluntarily  given  or  to  documents  voluntarily  produced.  The  clause  as  to  dis- 
covery or  evidence  is  conceived  in  the  same  spirit  as  the  fifth  amendment  of  the 
Constitution,  declaring  that  "no  person  shall  be  compelled  in  any  criminal  case  to 
be  a  witness  against  himself;"  and  as  the  act  of  March  16,  1878  (20  Stat.  L.,  30), 
enacted  that  a  defendant  in  any  criminal  case  may  be  a  witness  at  his  own  request, 
but  not  otherwise,  and  that  his  failure  to  make  such  request  shall  not  create  any  pre- 
sumption against  him.  Tucker  v.  U.  S.,  151  U.  S.,  164,  168;  Boyd  v.  U.  S.,  116  U.  S., 
616;  Wilson  v.  U.  S.,  149  U.  S.,  60;  Lees  r.  U.  S.,  150  U.  S.,  476.  No  statute  which 
(like section  860,  R.  S.)  leaves  the  party  or  witness  subject  to  prosecution,  after  he 
answers  the  criminating  question  put  to  him,  can  have  the  effect  of  supplanting  the 
privilege  conferred  by  the  Constitution.  Counselman  v.  Hitchcock,  142  U.  S.,  547. 

The  immediate  object  of  the  legislation  of  February  25,  1868,  from  which  section 
860,  R.  S.,  is  taken,  was  to  protect  against  certain  forfeitures  agents  of  the  Confederate 
States  whose  testimony  in  regard  to  assets  of  the  Confederacy  it  was  desired  to  obtain 
abroad.  Congressional  Globe,  2d  sess. ,  40th  Cong. ,  part  2,  p.  1334. 

A  witness  can  not  avoid  answering  any  question  by  the  mere  statement  that  the 
answer  would  tend  to  incriminate  him,  without  regard  to  whether  the  statement  is 
reasonable  or  not.  On  the  contrary,  it  is  for  the  judge  before  whom  the  question 
arises  to  decide  whether  an  answer  thereto  may  reasonably  have  a  tendency  to  crimi- 
nate the  witness,  or  to  furnish  proof  of  an  element  or  link  in  the  chain  of  evidence 
necessary  to  convict  him  of  a  crime.  Ex  parte  Irvine,  74  Fed.  Rep.,  954;  ex  parte 
Wagner,  ibid.  "To  entitle  a  party  called  as  a  witness  to  the  privilege  of  silence,  the 
court  must  see,  from  the  circumstances  of  the  case  and  the  nature  of  the  evidence 
which  the  witness  is  called  upon  to  give,  that  there  is  reasonable  ground  to  apprehend 
danger  to  the  witness  from  his  being  compelled  to  answer,"  but  that  "if  the  fact  of 
the  witness  being  in  danger  be  once  ma<le  to  appear,  great  latitude  should  be  allowed 


MILITARY    LAWS    OF    THE    UNITED    STATES.  715 


DOCUMENTARY    EVIDENCE. 

1818.  Copies  of  any  books,  records,  papers,  or  documents  pa^|nt  °fr ?c- 
in  any  of  the  Executive  Departments,  authenticated  under  ords  and  pftPers- 
the  seals  of  such  Departments,  respectively,  shall  be  c  sept.  515^  ™« 
admitted  in  evidence  equally  with  the  originals  thereof.1  c%fesS^v  IMP* 

347;  May  31,  1854,  c.  60,  s.  2,  v.  10,  p.  297.     Sec.  882,  R.'  S.' 

to  him  in  judging  for  himself  of  the  effect  of  any  particular  question,  there  being  no 
doubt  *  *  that  a  question  which  might  appear  at  first  sight  a  very  innocent 
one  might,  by  affording  a  link  in  the  chain  of  evidence,  become  the  means  of  bringing 
home  an  offense  of  the  party  answering. ' '  Ex  parte  Reynolds,  20  Chancery  Div. ,  294; 
Regina  v.  Boyes,  1  Best  and  S.  329;  People  •<>.  Mather,  4  Wendell,  229;  Wharton,  Grim. 
Evid.,  sec.  469,  note  1. 

On  the  trial  of  a  cadet  at  the  Military  Academy,  a  witness  declined  to  answer  cer- 
tain questions  upon  the  ground  that  the  answers  might  criminate  him.  Upon  being 
directed  by  the  court  to  answer  the  questions  to  which  the  above  objection  had  been 
made,  the  witness  (a  cadet)  persisted  in  his  refusal.  For  this  charges  were  preferred 
and  the  cadet  was  brought  to  trial,  found  guilty,  and  sentenced  to  dismissal.  The 
Secretary  of  War  in  reviewing  the  case  remarked  that  ' '  it  was  the  province  of  the 
court  to  determine,  under  all  the  circumstances  of  the  case,  whether  the  accused 
should  answer  the  questions  propounded  to  him  as  a  witness.  He  should  have  sub- 
mitted to  that  decision."  G.  C.  M.  O.,  No.  23,  War  Dept.,  1873. 

1  Public  docummts. — The  muster  rolls  on  file  in  the  War  Department  are  official  rec- 
ords, and  copies  of  the  same,  duly  certified,  are  primary  evidence  of  the  facts  origi- 
nally entered  therein  and  not  compiled  from  other  sources,  (a)  subject,  of  course,  to 
be  rebutted  by  evidence  that  they  are  mistaken  or  incorrect.  So,  though  such  rolls 
are  evidence  that  the  soldier  was  duly  enlisted  or  mustered  into  the  service,  and  is 
therefore  duly  held  as  a  soldier,  they  may  be  rebutted  in  this  respect  by  proof  of 
fraud  or  illegality  in  the  enlistment  or  muster  (on  the  part  of  the  representative  of 
the  United  States  or  otherwise),  properly  invalidating  the  proceeding  and  entitling 
the  soldier  to  a  discharge.  (But  that  the  entries  in  such  rolls  are  not  proof  of  the 
commission  of  an  offense,  as  desertion;  for  example,  see  Desertion.)  Dig.  Opin.  J. 
A.  G.,  par.  1293. 

General  orders  issued  from  the  War  Department  or  Headquarters  of  the  Army  may 
ordinarily  be  proved  by  printed  official  copies  in  the  usual  form.  The  court  will,  in 
general,  properly  take  judical  notice  of  the  printed  order  as  genuine  and  correct. 
A  court-martial,  however,  should  not,  in  general,  accept  in  evidence,  if  objected  to, 
a  printed  or  written  special  order  (which  has  not  been  made  public  to  the  Army) 
without  some  proof  of  its  genuineness  and  official  character,  (b)  Ibid.,  par.  1294;  see 
also  par.  1312. 

The  "enlistment  paper,"  the  "physical  examination  paper,"  and  the  "outline 
card ' '  are  original  writings  made  by  officers  in  the  performance  of  duty  and  compe- 
tent evidence  of  the  facts  recited  therein.  Copies,  authenticated  under  the  seal  of 
the  War  Department,  according  to  section  882,  Revised  Statutes,  are  equally  admis- 
sible with  the  originals.  Ibid.,  par.  1310. 

A  descriptive  list  is  but  secondary  evidence  and  not  admissible  to  prove  the  facts 
recited  therein.  It  is  not  a  record  of  original  entries,  made  by  an  officer  under  a 
duty  imposed  upon  him  by  law  or  the  custom  of  the  service,  but  is  simply  a  com- 
pilation of  facts  taken  from  other  records.  Ibid.,  par.  1314. 

The  morning  report  book  is  an  original  writing.  To  properly  admit  extracts  in 
evidence,  the  book  should  be  first  identified  by  the  proper  custodian,  and  the  extracts 
then  not  merely  read  to  the  court  by  the  witness,  but  copied,  and  the  copies,  properly 
verified,  attached  as  exhibits  to  the  record  of  the  court.  Ibid.  par.  1313. 

Official  books  and  papers  pertaining  to  the  administration  of  a  military  post  are 
produced  and  identified  by  their  proper  custodians — papers  from  the  post  headquar- 

aBut  note  in  this  connection  the  ruling  of  the  supreme  court  of  Massachusetts  in  the  case  of  Han- 
son v.  S.  Scituate,  115  Mass.,  336,  that  an  official  certificate  from  the  Adjutant-General's  Office  to  the 
effect  that  certain  facts  appeared  of  record  in  that  office,  but  which  did  not  purport  to  be  a  transcript 
from  the  record  itself,  and  was  therefore  simply  a  personal  statement,  was  not  competent  evidence  of 
such  facts. 

Ithasbeen  held  by  the  United  States  Supreme  Court  in  a  recent  case,  Evanston  v.  Gunn,  9  Otto, 
660,  that  the  record  made  by  a  member  of  the  United  States  Signal  Corps  of  the  state  of  the  weather 
and  the  direction  and  velocity  of  the  wind  on  a  certain  day  was  competent  evidence  of  the  facts 
reported,  as  being  in  the  nature  of  an  official  record  kept  by  a  public  officer  in  the  discharge  of  a 
public  duty. 

6 See  a  similar  ruling  in  G.  O.  121,  Second  Military  District,  1867. 


7l6*  MILITARY  LAWS  OF  THE  UNITED  STATES. 

ori?? ie! tc r  Yn  1819.  Copies  of  any  documents,  records,  books,  or  papers 
Srth^rlalury01" in  the  office  of  the  Solicitor  of  the  Treasury,  certified  by 
c  eibs  ?\  984p'  him  undef  the  seal  of  his  office,  or,  when  his  office  is  vacant, 
**Lc.  sss,  R.  s.  ^J  ^e  °fficer  acting  as  Solicitor  for  the  time,  shall  be 

evidence  equally  with  the  originals. 

fro^booSksrietc's  1820.  When  suit  is  brought  in  any  case  of  delinquency 
in  ^uit^agSnst  °^  a  revenue  officer,  or  other  person  accountable  for  pub- 
d6Mar  U3ni?97  c  ^c  moneji  a  transcript  from  the  books  and  proceedings  of 
Mar  3' m7Pc545;  ^e  Treasury  Department,  certified  by  the  Secretary  or  an 
July  si  3>iS9436s:  Assistant  Secretary  of  the  Treasury  and  authenticated 
^Sec^'s? '2R\  under  the  seal  of  the  Department,  or,  when  the  suit  in- 
volves the  accounts  of  the  War  or  Navy  Departments, 
certified  by  the  Auditors  respectively  charged  with  the 
examination  of  those  accounts,  and  authenticated  under 
the  seal  of  the  Treasury  Department,  shall  be  admitted  as 
evidence,  and  the  court  trying  the  cause  shall  be  authorized 
to  grant  judgment  and  award  execution  accordingly.  And 
all  copies  of  bonds,  contracts,  or  other  papers  relating  to, 
or  connected  with,  the  settlement  of  any  account  between 
the  United  States  and  an  individual,  when  certified  by  such 
auditor  to  be  true  copies  of  the  originals  on  file,  and  au- 
thenticated under  the  seal  of  the  Department,  may  be 
annexed  to  such  transcripts,  and  shall  have  equal  validity, 
and  be  entitled  to  the  same  degree  of  credit  which  would 
be  due  to  the  original  papers  if  produced  and  authenticated 
in  court:  Provided,  That  where  suit  is  brought  upon  a  bond 
or  other  sealed  instrument,  and  the  defendant  pleads  unon 
est  factum,"  or  makes  his  motion  to  the  court,  verifying 
such  plea  or  motion  by  his  oath,  the  court  may  take  the 
same  into  consideration,  and,  if  it  appears  to  be  necessary 
for  the  attainment  of  justice,  may  require  the  production 
of  the  original  bond,  contract,  or  other  paper  specified  in 
such  affidavit.1  Sec.  17,  act  of  July  31,  1894  (®#  Stat.  L., 
210). 

ters  by  the  post  commander  or  adjutant;  papers  belonging  to  regimental  headquarters 
by  the  colonel  or  regimental  adjutant;  from  the  Quartermaster's  Department  by  the 
post  quartermaster;  from  the  Subsistence  Department  by  the  post  commissary,  etc. 
After  having  been  submitted  and  identified,  and  used  for  evidential  purposes,  they 
are  attached  to  the  record,  or,  more  frequently,  restored  to  their  proper  custody,  the 
fact  of  their  submission  being  noted  in  the  record. 

Copies  of  pay  accounts  (charged  to  have  been  duplicated)  are  admissible  in  evi- 
dence where  the  accused  has  by  its  own  act  placed  the  originals  beyond  the  reach  of 
process  and  fails  to  produce  them  in  court  on  proper  notice.  So  where  the  originals 
are  in  the  hands  of  a  person  who  has  left  the  United  States,  so  that  they  can  not 
be  reached,  on  notice  to  the  accused  to  produce  them,  or  otherwise.  Ibid.,  par.  1315. 

1  Walton  v.  U.  S.,  9  Wh.,  651;  U.  S.  v.  Buford,  3  Pet.,  12;  Smith  v.  IT.  S.,  5  Pet.,  292; 
Cox  v.  U.  S.,  6  Pet.,  172;  U.  S.  v.  Jones,  8  Pet.,  375;  Gratiot  v.  U.  S.,  15  Pet,  336; 
U.  S.  v.  Irving,  1  How.,  250;  Hoyt  t>.  U.  S.,  10  How.,  109;  Bruce  v.  U.  S.,  17  How., 
437;  U.  S.  v.  Edwards,  1  McLean,  467;  U.  S.  v.  Hilliard  et  al.,  3  McLean,  324;  U.  S. 
v.  Lent,  1  Paine,  417;  U.  S.  v.  Martin,  2  Paine,  68;  U.  S.  v.  Van  Zandt,  2  Cr.  C.  C., 


MILITARY   LAWS    OF   THE   UNITED   STATES.  717 


1821.  Upon  the  trial  of  any  indictment  against  any  per-  f^^^of  thl 
son  for  embezzling  public  moneys,  it  shall  be  sufficient  evi-  JicTSIn^  for 
dence,  for  the  purpose  of  showing  a  balance  against  suc 

person,  to  produce  a  transcript  from  the  books  and  pro- 

ceedings  of  the  Treasury  Department,  as  provided  by  the  J,  ™>  g|°' 

preceding  section.  *  Sec*  8^'  B'  s* 

1822.  A  copy  of  any  return  of  a  contract  returned  and 

nled  in  the  returns  office  of  the  Department  of  the  Interior,  e  2  1862  c 
as  provided  by  law,  when  certified  by  the  clerk  of  the  said  ^2  s-  4>  v-  12>  P- 
office  to  be  full  and  complete,  and  when  authenticated  by  Sec-  888»  K-  s> 

328;  U.  S.  v.  Griffith,  2  Cr.  C.  C.,  336;  U.  S.  v.  Lee,  2  Or.  C.  C.,  462;  U.  S.  v.  Harrill, 
1  McAlL,  243;  U.  S.  v.  Mattison,  Gilp,  44;  U.  S.  v.  Corwin,  1  Bond,  149;  U.  S.  v. 
Gaussen,  19  Wall.,  198. 

The  transcripts  from  the  books  and  proceedings  of  the  Treasury  Department  were 
admissible  in  evidence  as  sufficient  transcripts  within  section  88  of  the  Eevised  Stat- 
utes, and  the  certificate  which  certified  that  the  papers  annexed  thereto  were  true 
copies  of  the  originals  on  file,  and  of  the  whole  of  such  originals,  was  a  full  compli- 
ance with  law.  Moses  v.  U.  S.,  166,  U.  S.  571;  U.  S.  v.  Pinson,  102  U.  S.,  548;  U.  S. 
v.  Bell,  111  U.  S.,  477. 

Though  certified  copies  of  the  books  and  accounts  of  the  Treasury  Department  are, 
by  statute,  made  evidence  in  favor  of  the  Government  in  actions  against  alleged  delin- 
quents, they  are  not  conclusive,  and,  if  reply  is  made  thereto,  the  case  is  to  be  decided 
on  all  the  evidence.  U.  S.  v.  Young,  44  Fed.  Eep.,  168;  U.  S.  v.  Curlevitz,  80  ibid., 
852. 

1  Except  by  the  consent  of  the  opposite  party,  the  testimony  contained  in  the  record 
of  a  previous  trial  of  the  same  or  a  similar  case  can  not  properly  be  received  in  evi- 
dence on  a  trial  by  court-martial;  nor  can  the  record  of  a  board  of  investigation 
ordered  in  the  same  case  be  —  otherwise  —  so  admitted.  In  all  cases  (other  than  that 
provided  for  by  the  one  hundred  and  twenty-first  article  ^  of  war)  testimony  given 
upon  a  previous  hearing,  if  desired  to  be  introduced  in  evidence  upon  a  trial,  must 
(unless  it  be  otherwise  specially,  stipulated  between  the  parties)  be  offered  de  novo 
and  as  original  matter.  Dig.  Opin.  J.  A.  G.,  par.  1291. 

At  the  trial,  in  1894,  of  an  officer  charged  with  a  disorder  and  breach  of  discipline 
which  involved  the  killing  by  him  of  another  officer,  there  was  offered  in  evidence, 
on  the  part  of  the  accused,  to  exhibit  the  character  and  disposition  of  the  officer 
killed,  a  copy  of  a  general  court-martial  order  of  1872,  setting  forth  certain  charges 
alleging  dishonest  and  unbecoming  conduct  upon  which  the  latter  officer  was  then 
tried  and  convicted,  and  the  findings  of  the  court  thereon.  Held,  that  such  evidence 
was  wholly  inadmissible  for  the  purpose  designed.  Ibid.,  par.  1317. 

Private  documents.  —  To  the  admission  in  evidence  of  a  letter  written  and  signed  by 
,  the  accused  (of  which  the  introduction  is  contested)  proof  of  his  h  andwriting  is  neces- 
sary. Evidence  of  handwriting  by  comparison  is  not  admissi  ble  at  common  law 
except  where  the  standard  of  comparison  is  an  acknowledge  d  or  proved  genuine 
writing  already  in  evidence  in  the  case.  A  writing  not  in  evidence  and  simply  offered 
to  be  used  as  a  standard  is  not  admissible.  Ibid.,  par.  1316. 

Strictly  speaking,  a  press  copy  is  secondary  to  the  original  document  from  which 
it  is  taken.  Such  a  copy  is  receivable  in  evidence  on  proof  of  the  loss  of  the  original. 
At  the  best,  however,  it  continues  secondary;  hence  it  has  been  held  that  a  copy  can 
be  produced  from  a  press  copy  of  a  lost  writing  without  producing  the  principal 
copy  .  Photographs  and  other  reproductions  are  secondary.  1  Wharton  Ev.  ,  sec.  93. 

Where  the  standards  of  comparison  are  properly  in  evidence  for  another  purpose, 
the  handwriting  may  be  compared.  Green  v.  Terwilliger,  56  Fed.  Kep.,  384;  Moore 
v.  U.  S.,  91  U.  S.,  274;  Williams  v.  Conger,  125  U.  S.,  933.  A  writing  specially  pre- 
pared for  the  purpose  of  comparison  is  inadmissible  on  a  question  of  genuineness. 
Hickory  v.  U.  S.,  151  IT.  S.,  303;  King  r.  Donohue,  110  Mass.,  155;  Williams  v.  State, 
61  Alabama,  33,  40,  83. 

Handwriting  can  not  be  proved  by  comparison  with  letters  not  admitted  to  be 
genuine  nor  belonging  to  the  witness'  testify  ing  as  to  the  party's  handwriting,  and 
produced  in  court  in  confirmation  or  explanation  of  his  testimony,  (a)  U.  S.  v. 
McMillan,  29  Fed.  Rep.,  247;  xvn  Opin.  Att.  Gen.,  310. 

a  The  jury  in  a  criminal  case  are  not  bound  by  the  expert  evidence  as  to  handwriting  any  further 
than  it  coincides  with  their  own  opinion  or  than  they  think  it  deserves  to  be  credited.  U.  S.  v.  Molloy, 
31  Fed.  Rep.,  19. 


718  MILITARY    LAWS    OF   THE    UNITED   STATES. 

the  seal  of  the  Department,  shall  be  evidence  in  any  pros- 
ecution against  any  officer  for  falsely  and  corruptly  swear- 
ing to  the  affidavit  required  by  law  to  be  made  by  such 
officer  in  making  his  return  of  any  contract,  as  required  by 
law,  to  said  returns-office. 

th!xjroauCmaisTf  1823.  Extracts  from  the  Journals  of  the  Senate  or  of 
c.  ^e  House  of  Representatives,  and  of  the  Executive  Jour- 
.'  nal  °f  the  Senate  when  the  injunction  of  secrecy  is  removed, 
certified  by  the  Secretary  of  the  Senate  or  by  the  Clerk  of 
the  House  of  Representatives,  shall  be  admitted  as  evidence 
in  the  courts  of  the  United  States,  and"  shall  have  the  same 
force  and  effect  as  the  originals  would  have  if  produced 
and  authenticated  in  court. 

ord°spielt?f  r!n      1824'  Copies  °f  a*l  official  documents  and  papers  in  the 

states  °f consult  °^ce  °^  any  consulj  vice-consul,  or  commercial  agent  of  the 

'  United  States,  and  of  all  official  entries  in  the  books  or 

J?in.  o,  loby,  c. 

7'«-  15'Q£«2«6'C  records  of  any  such  office,  certified  under  the  hand  and  seal 

OCC«  o"t5}  It.  N« 

of  such  officer,  shall  be  admitted  in  evidence  in  the  courts 
of  the  United  States. 

ne  acts  °^  ^e  legislature  °f  anJ  State  or  Terri- 
or  °^  any  coun^rJ  subject  to  the  jurisdiction  of  the 
of  United  States,  shall  be  authenticated  by  having  the  seals 
iiMvy'f  'p79i22:  °^  SUC^  State,  Territory,  or  country  affixed  thereto.  The 
56*s'22v '  2^299'  recor^s  an(*  judicial  proceedings  of  the  courts  of  any  State 
sec.' 965',%.  s.'  or  Territory,  or  of  any  such  country,  shall  be  proved  or 
admitted  in  any  other  court  within  the  United  States, 
by  the  attestation  of  the  clerk,  and  the  seal  of  the  court 
annexed,  if  there  be  a  seal,  together  with  a  certificate  of 
the  judge,  chief  justice,  or  presiding  magistrate,  that  the 
said  attestation  is  in  due  form.  And  the  said  records  and 
judicial  proceedings,  so  authenticated,  shall  have  such 
faith  and  credit  given  to  them  in  every  court  within  the 
United  States  as  they  have  by  law  or  usage  in  the  courts 
of  the  State  from  which  they  are  taken.1 

Ferguson  v.  Harwood,  7  Cr.,  408;  Mills  v.  Duryea,  7  Cr.,  481;  IT.  S.  v.  Amedy,  11 
Wh.,  392;  Buckner?.  Finley,  2  Pet.,  592;  Owings  v.  Hull,  9  Pet.,  627;  Urtetiqui  v. 
D'Arbel,  9  Pet.,  700;  McElmoylev.  Cohen,  13  Pet.,  312;  Stacey  v.  Thrasher,  6  How., 
44;  Bank  of  Alabama  v.  Dalton,  9  How.,  522;  D'Arcy  v.  Ketchum,  11  How.,  165; 
Kailroad  v.  Howard,  13  How.,  307;  Booth  v.  Clark,  17*  How.,  322;  Mason  v.  Lawra- 
son,  1  Cr.  C.  C.,  190;  Buford  v.  Hickman,  Hemp.,  232;  Craig  v.  Brown,  Pet.  C.  C.. 
354;  Stewarts.  Gray,  Hemp.,  94;  Gardner  v.  Lmdo,  1  Cr.  C.  C.,  78;  Trigg  v.  Con- 
way,  Hemp.,  538;  Turner  i-.  Waddington,  3  Wash.  C.  C.,  126;  Catlin  v.  Underbill, 
4  McL.,  199;  Morgan  v.  Curtenius,  4  McL.,  366;  Hale  v.  Brotherton,  3  Cr.  C.  C.,  594; 
Mewster  v.  Spalding,  6  McL.,  24;  Parrot  v.  Habersham,  1  Cr.  C.  C.,  14;  Talcott  v. 
Delaware  Ins.  Com.,  2  Wash.  C.  C.,  449;  James  v.  Stookey,  1  Wash.  C.  C.,  330;  Ben- 
nett?;. Bennett,  Dist.  Crt,  Oregon,  1867. 

The  courts  of  the  United  States  take  judicial  notice  of  the  public  statutes  of  the 
several  States.  Merchants  Exch.  Bank  v.  McGraw,  59  Fed.  Kep.,  972;  Owings  v. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  719 


1826.  All  records  and  exemplifications  of  books  which 
may  be  kept  in  any  public  office  of  any  State  or  Territory, 
or  of  any  country  subject  to  the  jurisdiction  of  the  United 

States,  not  appertaining  to  a  court,  shall  be  proved  or  ad-  g>-  Jf^gf6 

mitted  in  any  court  or  office  in  any  other  State  or  Terri-  l6^  4^  B  g 

tory,  or  in  any  such  country,  by  the  attestation  of  the 

keeper  of  the  said  records  or  books,  and  the  seal  of  his 

office  annexed,  if  there  be  a  seal,  together  with  a  certificate 

of  the  presiding  justice  of  the  court  of  the  county,  parish, 

or  district  in  which  such  office  may  be  kept,  or  of  the  gov- 

ernor, or  secretary  of  state,  the  chancellor  or  keeper  of 

the  great  seal  of  the  State,  or  Territory,  or  country,  that 

the  said  attestation  is  in  due  form,  and  by  the  proper  offi- 

cers.    If  the  said  certificate  is  given  by  the  presiding 

justice  of  a  court,  it  shall  be  further  authenticated  by  the 

clerk  or  prothonotary  of  the  said  court,  who  shall  certify, 

under  his  hand  and  the  seal  of  his  office,  that  the  said 

presiding  justice  is  duly  commissioned  and  qualified;  or, 

if  given  by  such  governor,  secretary,  chancellor,  or  keeper 

of  the  great  seal,  it  shall  be  under  the  great  seal  of  the 

State,  Territory,  or  country  aforesaid  in  which  it  is  made. 

And  the  said  records  and  exemplifications,  so  authenti- 

cated, shall  have  such  faith  and  credit  given  to  them  in 

every  court  and  office  within  the  United  States  as  they 

have  by  law  or  usage  in  the  courts  or  offices  of  the  State, 

Territory,  or  country,  as  aforesaid,  from  which  they  are 

taken. 

1827.  The  edition  of  the  laws  of  the  United  States,  pub-  little  &  Brown's 

edition  of  the 

lished  by  Little  &  Brown,  shall  be  competent  evidence  of  gatutestobeev- 
the  several  public  and  private  acts  of  Congress,  and  of  the  l(^y^  ^  g846^- 
several  treaties  therein  contained,  in  all  the  courts  of  law    sec".  OOS/K."  s.' 
and  equity  and  of  maritime  jurisdiction,  and  in  all  the  tri- 
bunals and  public  offices  of  the  United  States,  and  of  the 
several  States,  without  any  further  proof  or  authentication 
thereof.1 

Hull,  9  Peters,  625;  Bank  v.  Francklyn,  120  U.  S.,  747;  Lamar  v.  Micou,  114  U.S 
857;  Gormley  v.  Bunyan,  138  U.  S.,  453. 

The  testimony  of  a  credible  witness,  whether  a  lawyer  or  a  layman,  with  reason- 
able means  of  information,  to  the  effect  that  a  volume  containing  what  purports  to 
be  a  statute  of  a  foreign  country  is  commonly  received  in  the  business  and  courts  of 
such  country  as  such,  is  competent  and  sufficient  proof  of  the  existence  of  such 
statute.  Dundee  Mortgage  and  Investment  Co.  r.  Cooper,  26  Fed.  Rep.,  665. 

1  See,  in  respect  to  the  Revised  Statutes  and  Statutes  at  Large  of  the  United  States, 
paragraphs  454-486,  ante. 


720  MILITARY    LAWS    OF    THE    UNITED    STATES. 

DEPOSITIONS. 

Si5rt  o?  war.  1828-  The  deposition1  of  witnesses  residing  beyond  the 
limits  of  the  State,  Territory,  or  district  in  which  any 
military  court  may  be  ordered  to  sit,  if  taken  on  reason- 
able notice  to  the  opposite  party  and  duly  authenticated,2 

1  Procedure. — The  party,  prosecutor  or  defendant,  desiring  the  deposition,  submits 
to  the  court  a  list  of  interrogatories  to  be  propounded  to  the  absent  witness;  the 
opposite  party  then  prepares  and  submits  a  list  of  cross-irfterrogatories,  a  reasonable 
time  being  allowed  for  this  purpose;  redirect  and  recross-interrogatories  are  added, 
if  desired;  finally  the  court,  having  assented  to  the  interrogatories  thus  submitted, 
adds  such  as  in  its  judgment  may  be  necessary  to  elucidate  the  whole  of  the  witness's 
testimony. 

The  interrogatories  having  been  accepted  by  the  court,  the  judge-advocate  will 
prepare  duplicate  subpoenas  requiring  the  witness  to  appear  in  person,  at  a  time  and 
place  to  be  fixed  by  the  officer,  military  or  civil,  who  is  to  take  the  deposition.  If 
the  name  of  this  officer  is  not  known,  the  space  for  it  will  be  left  blank. (a) 

The  judge-advocate  will  then  send  the  interrogatories  and  subpoenas  to  the  con- 
vening authority,  with  a  request  that  the  deposition  be  secured. 

Depositions  may  also  be  taken  before  the  assembling  of  the  court-martial,  on  inter- 
rogatories and  cross-interrogatories  or  reasonable  notice,  subject  to  exceptions  when 
read  in  court. 

Judge-advocates  of  departments  and  of  courts-martial,  and  the  trial  officers  of 
summary  courts,  are  authorized  to  administer  oaths  and  take  depositions.  If  none 
of  these  officers  are  available,  any  other  army  officer  may  be  designated  to  see  that 
the  deposition  is  properly  taken;  (6)  but  the  oath  in  such  a  case  must  be  adminis- 
tered and  the  deposition  authenticated  by  a  civil  officer  empowered  by  law  to 
administer  oaths  for  general  purposes. 

Upon  the  return  of  the  interrogatories  and  deposition  they  will  be  submitted  to 
the  court  by  the  president  or  judge-advocate.  The  papers  will  then  be  properly 
marked,  appended  to  the  record,  and  referred  to  in  the  proceedings,  where  all  action 
upon  the  subject  necessary  for  the  information  of  the  reviewing  authority  will  be 
recorded. 

Upon  the  receipt  of  the  deposition,  the  judge-advocate  will  also  prepare  and  sign 
the  ordinary  "  accounts  for  a  civilian  witness,"  substituting  for  the  usual  statement 
in  regard  to  attendance  before  the  court  a  statement  that  he  duly  attended  as  a  wit- 
ness at  a  certain  time  and  place  and  duly  gave  his  deposition  before  a  certain  official 
named,  and  then  transmit  them  to  the  witness  with  duplicate  copies  of  the  order 
convening  the  court.  The  period  of  attendance  can  be  ascertained  from  the  deposi- 
tion. Manual  for  Courts-Martial,  pp.  37  and  38. 

2  The  article,  in  specifying  that  the  deposition,  to  be  admissible  in  evidence,  shall 
be  "duly  authenticated,"  makes  it  essential  that  the  same  shall  be  sworn  to  before — 
i.  e.,  taken  under  an  oath  administered  by — an  official  competent  to  administer  oaths 
for  such  purpose.     A  deposition  should  now  be  sworn  to  before  one  of  the  military 
officers  specified  in  section  4  of  the  act  of  July  27,  1892,  or  if  such  an  officer  be  not 
accessible,  by  a  civil  official  competent  to  administer  oaths  in  general.     An  official 
empowered  to  administer  oaths  only  for  a  certain  special  purpose  or  purposes  can 
not  legally  qualify  a  witness  whose  deposition  is  sought  to  be  taken  under  this  article. 

A  deposition,  introduced  by  either  party,  which  is  not  "duly  authenticated," 
should  not  be  admitted  in  evidence  by  the  court,  although  the  other  party  may  not 
object.  A  deposition  held  irregular  and  inadmissible  where  it  failed  to  show  that  the 
officer  by  whom  it  was  taken  was  authorized  to  take  it,  or  that  he  was  qualified  to 
administer  the  path  to  the  witness.  Dig.  Opin.  J.  A.  G.,  par.  263. 

A  court-martial  has  no  power  to  qualify  or  authorize  a  commanding  officer,  or  any 
other  officer  or  person,  to  take  a  deposition  or  administer  an  oath.  Ibid.,  par.  265. 

a  The  judge-ad  vacate,  in  forwarding  the  interrogatories  for  a  deposition,  should  transmit  with  them 
a  subposna  (in  duplicate)  requiring  the  witness  to  appear  at  a  stated  place  and  date  before  a  certain 
person  who  is  to  take  the  deposition.  Particulars  not  ascertained  may  be  left  blank,  to  be  supplied 
by  the  officer  or  person  by  whom  the  subpoena  is  served.  When  the  deposition  has  been  duly  taken 
and  returned,  the  judge-advocate  should  transmit  to  the  witness  (or  to  some  officer,  etc.,  for.  him)  the 
usual  certificate  of  attendance  (accompanied  by  a  copy  of  the  convening  order),  the  duration  of  the 
attendance  to  be  ascertained  from  the  deposition.  Dig.  Opin.  J.  A.  G.,  par.  1553. 

6 The  officer  detailed  to  have  a  deposition  taken,  i.  e.,  to  see  to  its  being  taken,  should,  before  serv- 
ing the  subprena,  complete  it,  if  necessary,  by  inserting  the  name  and  official  designation  of  the 
notary  (or  other  official  having  authority  to  administer  the  oath)  before  whom  it  is  to  be  taken,  and 
the  date  on  which  and  the  place  where  it  is  proposed  to  take  it.  And  when  the  deposition  has  been 
duly  taken,  he  should  certify  it  as  so  taken,  and  transmit  it  in  a  sealed  package  to  the  president  of 
the  court.  Ibid.,  par.  269. 


MILITAEY    LAWS    OF   THE    UNITED    STATES.  721 

may  be  read  in  evidence1  before  such  court  in  cases  not 
capital.2     Ninety -first  Article  of  War. 

1  This  article,  in  any  case  within  its  terms  and  in  which  its  conditions  are  complied 
with,  entitles  either  party  to  have  depositions  taken  and  "read  in  evidence."     The 
court  alone  has  no  power  to  decide  that  a  deposition,  where  legal  and  material,  shall 
not  be  taken.     Dig.  Opin.  J.  A.  G.,  par.  262. 

Where  the  judge-advocate  offered  in  evidence,  on  the  part  of  the  prosecution,  a 
deposition  which  proved  to  have  been  given  by  a  person  other  than  the  one  to  whom 
the  interrogatories  were  addressed,  and  the  accused  objected  to  its  introduction,  but 
the  objection  was  overruled  by  the  court,  held  error;  the  fact  that  the  intended  depo- 
nent was  but  the  agent,  in  the  transaction  inquired  about,  of  the  person  who  actually 
furnished  the  deposition  not  being  sufficient  to  make  such  deposition  admissible 
except  by  consent  of  parties,  (a)  Ibid.,  par.  261. 

The  party  at  whose  instance  a  deposition  has  been  taken  can  not  be  admitted, 
against  the  objection  of  the  other  party,  to  introduce  only  such  parts  of  the  deposi- 
tion as  are  favorable  to  him  or  as  he  may  elect  to  use;  he  must  offer  the  deposition 
in  evidence  as  a  whole  or  not  offer  it  at  all.  Ibid.,  par.  258. 

If  the  party  at  whose  instance  a  deposition  has  been  taken  decides  not  to  put  it  in, 
it  may  be  read  in  evidence  by  the  other  party.  One  party  can  not  withhold  a 
deposition  (duly  taken  and  admissible  under  this  article)  against  the  consent  of  the 
other.  Ibid.,  par.  259. 

2  A  deposition  can  not  be  read  in  evidence  in  a  capital  case,  as  in  a  case  of  a  viola- 
tion of  article  21,  or  a  case  of  a  spy,  or  one  of  desertion  in  time  of  war;  otherwise  in 
a  case  of  desertion  in  time  of  peace.     Nor  is  the  deposition  admissible  of  a  witness 
who  resides  in  the  State,  etc. ,  within  which  the  court  is  held,  except  by  consent. 
Ibid.,  par.  256. 

A  deposition  duly  taken,  under  the  article,  on  the  part  of  the  prosecution,  is  not 
subject  to  objection  by  the  accused  and  can  not  be  rejected  by  the  court  merely  upon 
the  ground  that  it  is  declared  in  the  sixth  amendment  to  the  Constitution  that  "in 
all  criminal  prosecutions  the  accused  shall  enjoy  the  right  *  to  be  confronted 

with  the  witnesses  against  him."  This  constitutional  provision  has  no  application  to 
courts-martial;  the  "criminal  prosecutions"  referred  to  are  prosecutions  in  the 
United  States  civil  courts.  Ibid.,  par.  272. 

A  deposition  is  not  in  general  satisfactory  evidence  for  purposes  of  personal 
identification  by  description,  and  should  not  be  resorted  to  for  the  identification  of 
an  accused  where  reliable  oral  testimony  can  be  obtained.  Ibid.,  par.  266. 

The  depositions  of  civilian  witnesses,  while  their  taking  generally  involves  less 
expense  than  would  the  personal  attendance  of  the  parties,  are  usually  quite  suffi- 
cient as  testimony,  except  when  the  purpose  of  the  evidence  is  to  personally  identify 
the  accused  before  the  court.  Ibid.,  par.  267. 

Civilian  witnesses  who  duly  give  their  depositions  under  this  article  are  entitled 
to  the  same  fees  and  allowances  as  are  witnesses  who  duly  attend  the  court  in  person. 
(See  Circular  No.  9  ( H.  Q.  A. )  1883. )  The  voucher,  to  enable  such  a  witness  to  obtain 
his  dues,  should  simply  set  forth  the  facts  as  to  his  service,  substituting,  for  the  usual 
statement  in  regard  to  attendance  before  the  court,  a  statement  that  he  duly  attended 
as  a  witness  at  a  certain  time  and  place,  and  duly  gave  his  deposition  before  a  certain 
official  named.  Ibid.,  par.  270. 

Held  that  duly  attending  by  a  civilian  witness  before  a  duly  authorized  official  to 
give  a  deposition  to  be  used  *in  evidence  on  a  military  trial  was  to  be  regarded  as 
practically  equivalent  to  attending  a  court-martial,  and  that  the  deponent  was  entitled 
to  be  paid  the  usual  allowances  (i.  e.,  the  same  as  those  of  witnesses  appearing  before 
the  court)  out  of  the  regular  appropriation  for  the  "compensation  of  witnesses 
attending  before  courts-martial."  Ibid.,  par.  2484. 

The  so-called  depositions  ("affidavits  or  depositions")  referred  to  in  paragraph 
683,  Army  Regulations,  are  entirely  distinct  from  the  depositions  provided  for  in 
article  91,  being  merely  sworn  ex  parte  statements  used  for  the  purpose  of  settling 
questions  of  "property  accountability."  The  regulation  has  no  application  what- 
ever to  depositions  proper  of  the  class  authorized  by  this  article.  (6) 

aSee  Gen.  Court-Martial  Orders,  No.  9,  H.  Q.  Army,  1879. 

6  In  the  case  of  Private  Harnett,  tried  for  desertion  in  1873  and  convicted,  the  proceedings  were 
disapproved  in  part  on  account  of  the  admission  by  the  court  of  an  ex  parte  affidavit  in  support  of  the 
case  for  the  prosecution.  As  the  facts  which  it  was  proposed  to  prove  by  the  affidavit  had  been 
admitted  by  the  accused,  and  as  no  injury  resulted  to  the  accused  by  the  error  of  the  court,  the  find- 
ings and  sentence  were  approved.  General  Court-Martial  Orders,  No.  33,  War  Dept,  1873. 

22924 


MILITARY    LAWS    OF    THK    VNITKP    STATES. 


THE   FINDING. 

1829>  Members  of  a  court-martial,  in  giving  their  votes, 
shall  begin  with  the  youngest  in  commission.1  ^Ninety- 
fifth  Article  of  War.  ' 

1  The  term  "youngest  in  commission"  as  used  in  this  article  has  been  uniformly 
interpreted  to  "mean  "junior  in  rank,"  and  votes  are  therefore  cast  in  the  inverse 
order  of  rank,  the  member  junior  in  rank  casting  the  first  vote. 

A  tie  vote  upon  any  proposition  submitted  to  the  court  is  equivalent  to  a  vote  in 
the  negative — a  majority  vote  being  necessary  to  a  determination  in  the  affirmative — 
and  the  proposition  is  not  approved.  Where  the  vote  is  a  tie  upon  an  objection  to 
testimony,  the  objection  is  not  sustained.  Where  it  is  tied  upon  a  certain  proposed 
finding  or  form  of  sentence,  the  same  is  not  adopted. 

rilK    KIN1HN*.;. 

There  should  be  a  separate  and  independent  finding  upon  each  charge  and  specr 
fication,  and  each  separate  finding  should  cover  the  charge  or  specification  as  to 
which  it  is  made;  so  that  if  any  chanre  or  specification  is  deemed  by  the  court  to  be 
proved  only  in  part,  the  finding  shall  show  specifically  what  is  found  to  IK  proved 
and  what  not.  Dig.  Opin.  J.  A.  G.,  par.  LSI 

The  finding  of  the  court  should  be  governed  by  the  evidence  considered  in  con- 
nection with  the  plea.  When*  no  evidence  is  introduced,  the  general  rule  is  that  the 
finding  should  conform  to  the  plea.  Ibid.,  par.  1 

The  finding  on  the  charge  should  be  supported  by  the  finding  on  the  s[Kvifieation 
(or  specifications),  and  the  two  findings  should  be  consistent" with  each  other.  A 
finding  of  guilty  on  the  charge  would  Iv  quite  inconsistent  with  a  finding  of  not 
guilty,  or  gn.ilty*  without  attaching  criminality,  on  the  specification,  So  a  finding?  of 
guilty  upon  a  well-pleaded  specification,  ftpfKtfnfttothfi  charge,  followed  by  a  finding 
of  not  guilty  either  of  the  offense  charged  or  some  lesser  offense  included  in  it,  would 
be  an  incongruous  verdict.  No  matter  how  many  specifications  there  may  be,  it 
requires  a  finding,  of  guilty  or  not  guilty,  on  but  one  specification  (apposite  to  the 
charged  to  support  a  similar  finding  lipon'the  charge.  Ibid.,  par.  l;> 

It  is  not  competent  for  a  court-martial  to  find  an  accused  not  guilty  of  the  specifica- 
tion, and  yet  guilty  of  the  charge,  where  there  is  but  one  specification.  By  finding 
him  not  giiiltv  of  the  specification,  they  acquit  him  of  all  that  goes  to  constitute  the 
offense  described  in  the  charge.  Where  the  court  Ivlieve  that  the  accused  is  guilty 
of  the  charge,  but  not  precisely  as  laid  in  the  specification,  they  should  find  him 
guilty  of  the  latter,  but  with  such  exceptions  or  substitutions  as  may  be  necessary  to 
present  the  facts  as  proved  on  the  trial,  and  then  guilty  of  the  charge.  Ibid.,  par. 
1356. 

In  finding  guilty  upon  a  specification — to  except  from  such  finding  the  word  or 
words  which  express  the  gravamen  of  the  act  as  charged  and  found,  is  contradictory 
and  irregular.  As — from  ft  finding  of  guilty  on  a  specification  to  a  charge  of  fraud 
under  Art.  t>0,  to  specially  except  the  word"" fraudulent"  or  ••fraudulently,"  while 
at  the  same  time  finding  the  accused  guilty  generally  upon  the  charge.  Ibid.,  par. 

Where,  upon  the  finding,  the  vote  on  a  charge  or  specification  is  ^Vtf,  the  accused 
is,  in  law,  found  not  guilty  thereon;  a  majority  vote  being  necessary  to  any  convic- 
tion. A  statement  iii  the  record  to  the  effect  that  the  vote  upon  a  specification,  etc., 

.1  fcV,  and  that  the  accused  was  therefore  acquitted,  is  of  course  irregular  and 
improper.a  Ibid.,  par.  • 

options  and  wbstiiutHms.— It  is  a  peculiarity  of  the  finding  at  military  law  that 
a  court-martial,  where  of  opinion  that  any  portion  of  the  allegations  in  a  specification 

:  proved,  is  authorized  to  find  the  accused  guilty  of  a  part  of  a  specification  only, 
excepting  the  remainder:  or,  in  finding  him  guilty  of  the  whole  ^or  any  part),  to  «t6- 
*ihtff  coned  words  or  allegations  in  the  place  of  such  as  are  shown  by  the  evidence 
to  have  been  inserted  through  error.  And  provided  the  exceptions  or  substitutions 

o  As  to  the  offense  and  irregularity  involved  in  stating  that  a  particular  finding  was  unanimous,  8e» 
the  8tth  Article  of  War,  see  also  th 

As  the  affirmative  of  any  proposition  can  be  adopted  by  a  court-martial  .jority  vote, 

and  as  all  tie  rotes  on  the  findings  inure  to  th,  :tal  thereon 

ahould  have  been  recorded.  U.  c.  M.  0. 17.  War  Dcpt..  i>:i.  See  also  O.  C.  M.  O..  No.  1.  War  Dept.. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  723 


1830.  Whenever  a  court-martial  shall  sit.  in  <  -lowed  ses-  . 

sion  the  judge-advocate  shall  withdraw,  and  when  his  legal2-  v-  27»  P-  278- 
advice  or  a—  i-t;mee  in  referring  to  the  recorded  evidence 

leave  the  specification  still  appropriate  to  the  charge  and  legally  sufficient  thereunder, 
the  court  may  then  properly  find  the  accused  guilty  of  the  charge  in  the  usual  man- 
ner. Dig.  Opin.  .1.  A.  <;.,  par.  1  :;.V>. 

Familiar  instances  of  the  exercise  of  the  authority  to  except  and  substitute  in  a  find- 

ing of  guilty  occur  in  cases  where,  in  the  specification,  the  name  or  rank  of  the 

"d,  or  some  other  person,  is  erroneously  designated,  or  there  is  an  erroneous 

averment  of  time  or  place,  or  a  mistaken  date,  or  an  incorrect  statement  as  to  amount, 

quantity,  quality,  or  other  particular,  of  funds  or  other  property,  etc.     Ibid.,  par.  1357. 

In  a  case  where  a  court-martial  made  such  exceptions  and  substitutions  in  its  find- 
ing upon  the  specification  to  a  charge  of  "  Forgery  to  the  prejudice  of  good  order  and 
military  discipline"  as  to  negative  the  material  allegation  01  false  writing  and  leave 
no  tapu  basis  for  the  finding  arrived  at  of  guilty  of  the  charge  —  advised  that  the  find- 
ing-  be-  disapproved  as  incongruous  and  insufficient  to  sustain  the  sentence.  Ibid., 
par.  i:w;. 

/''i-i,(li/i(/  of  a  minor  included  offense.  —  The  practice  of  making  exceptions  and  sub- 
stitution' in  the  findings  is  well  illustrated  by  the  finding  —  authorized  at  military 
law  when  called  for  by  the  evidence  (a)  —  of  a  leaser  kindred  offense  included  a*  a  corustttu- 
erd  dement  in  the  specific  offense  charged,  (b)  Of  this  form  of  verdict  the  most  familiar 
instance  is  the  finding  ofguilty  of  absence  without  leave  under  a  charge  of  desertion. 
A  full  acquittal  of  desertion  includes,  of  course,  an  absence  without  leave  involved  in 
it;  but  where  the  evidence  falls  short  of  establishing  a  desertion,  but  shows  an  unau- 
thorized absenting  of  himself  by  the  accused,  he  niay  and  should  be  convicted  of 
ab.-crice  without  leave  as  his  actual  offence.  In  arriving  at  this  conclusion,  the  find- 
ings on  the  epeciification  and  charge  should  be  consistent,  and  the  finding  on  the  for- 
mer should  be  euch  as  to  support  the  latter.  In  their  finding  of  guilty  upon  the 
specification,  the  court  should  in  terms  except  from  its  application  such  words  of  the 
specification  as  allege  or  describe  desertion  exclusively,  and  substitute  words  describ- 
ing the  lesser  offense;  the  words  "did  desert,"  for  example,  being  excepted,  and  the 
words  '  '  did  absent  himself  without  authority"  being  substituted.  The  finding  on 
the  charge  should  regularly  be  "not  guilty,  but  guilty  of  absence  without  leave,  (c) 
Ibid.,  par.  I.'i59. 

But  the  authority  to  find  guilty  of  a  minor  included  offense,  or  otherwise  to  make 
exceptions  or  substitutions  in  the  finding,  can  not  justify  the  conviction  of  the 
accused  of  an  offense  entirely  separate  and  distinct  in  its  nature  from  that  charged. 
Thus  held  that  it  was  not  a  finding  of  a  lesser  included  offense  to  find  the  accused 
guilty  merely  of  absence  without  leave  under  a  charge  of  a  violation  of  the  forty-second 
Articleof  Warin  abandoning  his  post  before  the  enemy.  Audaoheldot  a  finding,  under 
a  charge  of  a  violation  of  article  39,  of  not  guilty  but  guilty  of  a  violation  of  article 
40.  So,  where  a  soldier  charged  with  "conduct  to  the  prejudice  of  good  order  and 
military  discipline,"  in  concealing  the  fact  that  a  fellow  soldier  had  appropriated  to 
his  own  use  certain  public  property,  was  found  not  guilty  of  the  specification  as  laid, 
but.  guilty  of  "having  stolen  the  pioperty  himself,"  and  guilty  of  the  charge,  and 
was  accordingly  sentenced  to  imprisonment—  held  that  such  a  finding  was  manifestly 
unauthorized.  Having  been  found  not  guilty  of  the  offense  set  forth  hi  the  specifi- 
cation, and  which  alone  he  was  called  upon  to  answer,  he  should  have  been  acquitted 
on  both  charge  and  specification;  the  offense  of  which  he  was  found  guilty  was  not 
alleged  against  him,  and  not  being  included  in  that  charged,  could  not  properly  form 
the  subject  of  a  finding.  The  remission  of  his  sentence  therefore  recommended. 
Ibid.,  par.  l.W). 

It  is.  a  further  peculiarity  of  the  finding  at  military  law  that,  where  an  accused  is 
charged  with  "conduct  unbecoming  an  officer  and  a  gentleman,"  or  with  any  ;  spe- 
cific offense  made  punishable  by  the  Articles  of  War,  and  the  court  is  of  opinion 
that  while  the  material  allegations  in  the  specification  or  specifications  are  substan- 
tially made  out,  they  do  not  fully  sustain  the  charge  as  laia,  but  do  clearly  establish 
the  commission  of  a  neglect  of  military  duty  or  a  disorder  in  breach  of  military  discip- 
line, as  involved  in  the  acts  alleged,  the  'accused  may  properly  be  found  guilty  of 
the  specification  (or  specifications),  and  not  guilty  of  trie  charge,  but  guilty  of  "con- 
duct to  the  prejudice  of  good  order  and  military  discipline.1'  Sucn  a  form  of  "finding  ia 

aSee  XIII  Opins.  At.  Gen.,  460. 

6  Compare  Reynolds  r.  People,  83  Ills.,  479,  and  note  the  similar  authority  given  in  criminal  cases 
in  the  United  States  courts  bv  see.  1035,  Rev.  Stats. 

cA  simple  finding,  however,  of  guilty  of  absence  without  leave,  though  an  irregular  form,  would 
amount  in  law  to  an  acquittal  of  the  higher  offense  charged.  Compare  Morehead  v.  State,  34  Ohio 


724  MILITARY    LAWS    OF    THE    UNITED    STATES. 

is  required  it  shall  be  obtained  in  open  court.1      Section 
0,  act  of  July  27, 1892  (27  Stat.  L.,  278). 


SENTENCES. 


Par. 

1831.  Sentences  affecting  general  officers. 

1832.  Death  sentences. 

1833.  Flogging,  branding,  marking,  tat- 

tooing, etc. 


Par. 

1834.  Dismissal  of  officers. 

1835.  The  same,  cowardice  or  fraud. 

1836.  Suspension  of  officers. 

1837.  Confinement  in  penitentiary. 


1®31-  ^°  sentence  of  a  court-martial,  either  in  time  of 
war.  P^ce  or  in  time  of  war,  respecting  a  general  officer,  shall 
be  carried  into  execution,  until  it  shall  have  been  confirmed 
by  the  President.  2     One  hundred  and  eigJith  Article  of  War. 


now  common  in  our  practice  (especially  where  the  charge  is  laid  under  article  61), 
and  its  legality  is  no  longer  questioned.  Dig.  Opin.  J.  A.  G.,  par.  1361. 

The  authority  thus  to  find,  however,  has  not  been  extended  beyond  the  case  indi- 
cated in  the  last  paragraph;  the  reverse,  for  example,  of  this  form  of  finding  has 
never  been  sanctioned.  A  finding  of  guilty  of  a  certain  specific  offense,  under  a 
charge  of  another  specific  offense,  or  under  a  charge  of  "conduct  unbecoming  an 
officer  and  a  gentleman,"  or  of  "conduct  to  the  prejudice  of  good  order  and  military 
discipline,"  would  be  wholly  irregular  and  invalid.  Thus  a  finding  of  guilty  of 
disobedience  of  orders  (or  of  a  violation  of  article  21),  under  a  charge  of  mutiny  in 
violation  of  article  22,  or  a  finding  of  drunkenness  on  duty  (or  of  a  violation  of  article 
38),  under  a  charge  for  a  drunken  disorder  laid  under  article  62  or  61,  would  be  not 
only  unauthorized,  but  now  almost  unprecedented,  and,  if  such  a  finding  were  made, 
it  could  scarcely  fail  to  be  formally  disapproved.  And  so  of  a  finding  of  "conduct 
unbecoming  an  officer  and  a  gentleman"  under  a  charge  of  "conduct  to  the  preju- 
dice of  good  order  and  military  discipline."  Ibid.,  par.  1362. 

The  general  finding  of  "conduct  to  the  prejudice,"  etc.,  in  the  cases  above  indi- 
cated is  sanctioned  in  order  to  prevent  a  failure  of  justice,  not  for  the  purpose  of 
relieving  the  accused  of  any  of  his  due  share  of  culpability.  It  should  not  therefore 
be  resorted  to  where  the  specific  offense  charged  is  substantially  made  out  by  the 
testimony.  Thus  in  a  case  where  the  facts  set  forth  in  the  specification  to  a  charge 
of  '  '  conduct  unbecoming  an  officer  and  a  gentleman,  '  '  and  clearly  established  by  the 


prejudice  of  good  order  and  military  discipl 
accepted,  but  that  the  court  should  be  reconvened  for  the  purpose  of  inducing,  if 
practicable,  a  finding  in  accordance  with  the  facts  and  with  justice.  Ibid.,  par.  1363. 
It  is  an  important  part  of  the  judgment  of  the  court,  in  a  case  where  the  evidence 
is  conflicting,  to  determine  the  measure  of  the  credibility  to  be  attached  to  the  sev- 
eral witnesses.  In  its  finding,  therefore,  the  court  may,  in  connection  with  the  tes- 
timony, properly  take  into  consideration  the  appearance  and  deportment  of  the 
witnesses  on  the  stand  and  their  manner  of  testifying,  especially  when  under  cross- 
examination.  Ibid.,  par.  1365. 

1  All  deliberation  of  the  court  takes  place  with  closed  doors.     At  other  times,  except 
as  to  those  persons  who  have  been  summoned  as  witnesses,  a  court-martial  is  open 
to  the  public,  military  or  otherwise,  subject  to  the  capacity  of  the  room  or  tent  in 
which  it  is  held,  and  the  convenience  of  the  court  and  parties  before  it.     The  presi- 
dent orders  the  clearing  of  the  court  for  deliberation,  or  any  incidental  discussion 
when  he  may  deem  it  expedient,  or  at  the  instance  of  a  member;  where  it  is  more 
convenient  to  do  so  the  court  withdraws  for  deliberation.     In  every  case,  however,  in 
which  the  court  is  cleared  for  any  purpose  whatever,  the  judge-advocate,  under  the 
operation  of  the  above  statute,  together  with  the  accused  and  his  counsel,  the  inter- 
preters, reporters,  witnesses,  and  spectators  withdraw,  leaving  in  the  court  only  the 
officers  designated  to  compose  it.     Simmons,  454. 

2  Procedure. — The  best  approved  practice  of  military  courts  in  determining  upon  their 
sentences  is  believed  to  be  as  follows:  For  each  member  to  write  a  sentence  and  deposit 
it  with  the  judge-advocate;  and,  no  sentence  having  been  adopted  by  a  majority  of 
votes,  for  the  court,  after  all  the  sentences  have  been  read  to  it,  to  proceed  to  vote 
upon  them  in  the  order  of  their  severity,  beginning  with  the  least  severe,  until  some 
one  of  those  proposed  is  agreed  upon  by  a  majority  of  votes.     It  is  not  essential,  indeed, 


MILITARY    LAWS    OF   THE    UNITED   STATES. 

1832.  No  person  shall  be  sentenced  to  suffer  death,  except  t£&ss.th  sen' 
by  the  concurrence  of  two-thirds  of  the  members  of   a    96  Art- of  War* 
general  court-martial,  and  in  the  cases  herein  expressly 
mentioned.1     Ninety -sixth  Article  of  War. 

that  this  form,  of  voting  should  be  pursued — it  being  open  to  the  court,  in  its  discre- 
tion, to  adopt  a  different  one.     Dig.  Opin.  J.  A.  G.,  par.  2308. 

That,  upon  a  conviction  by  a  majority  vote  of  the  court,  all  the  members  of  the 
court,  those  who  voted  for  an  acquittal  equally  with  those  who  voted  for  conviction, 
must  vote  for  some  sentence — though  formerly  doubted — has  long  been  established 
ase,  principle  in  our  military  law.  While  a  member  who  voted  for  an  acquittal  can 
not  of  course  be  compelled  to  vote  a  punishment,  yet  his  persistent  refusal  to  do  so 
would  be  a  neglect  of  duty,  rendering  him  amenable  to  a  charge  under  article  62. 
Ibid.,  par.  2309. 

A  sentence,  to  be  valid,  must  of  course  rest  upon  an  approved  finding  of  guilty  of 
an  offence  for  which  the  accused  has  been  tried.  Thus  a  duly  approved  finding  of 
guilty  on  one  of  several  charges,  a  conviction  upon  which  requires  or  authorizes  the 
sentence  adjudged,  will  give  validity  and  effect  to  such  sentence,  although  the  sim- 
ilar findings  on  all  the  other  charges  are  disapproved  as  not  warranted  by  the  testi- 
mony. But  a  finding  of  guilty  of  a  specification  to  a  charge  but  not  guilty  of  the 
charge  itself  will  not  support  a  sentence,  unless,  indeed,  there  is  added  a  conviction  of 
some  lesser  offence  included  in  that  charged.  Ibid. ,  par.  2312. 

A  punishment,  adjudged  upon  conviction  of  the  accused  on  several  charges,  is  valid 
and  operative  provided  it  is  a  punishment  legally  imposable  on  conviction  of  any  one 
of  the  charges  of  which  the  conviction  is  duly  approved  by  the  reviewing  authority. 
Ibid.,  par.  2311. 

The  word  "month"  or  "months,"  employed  in  a  sentence,  is  to  be  construed  as 
meaning  calendar  month  or  months;  the  same  significance  being  given  to  the  term 
as  is  now  commonly  given  to  it  in  the  construction  of  American  statutes  in  which  the 
word  is  employed.  The  old  doctrine  that  "month,"  in  a  sentence  of  court-martial, 
meant  lunar  month,  has  long  since  ceased  to  be  accepted  in  our  military  law.  Ibid., 
par.  2314. 

A  legal  sentence  of  court-martial,  when  once  duly  approved  and  executed,  can  not 
be  reached  by  a  pardon,  nor  revoked,  recalled,  modified  or  replaced  by  a  milder 
punishment,  or  other  proceeding,  either  by  the  Executive  or  by  Congress,  (a)  The  only 
remedy  for  a  party  who  has  suffered  injustice  from  such  a  sentence  is  either  a  new 
appointment  to  the  Army  by  the  President  or  some  legislation  within  the  province  of 
Congress  relieving  or  indemnifying  him  for  and  on  account  thereof.  Ibid. ,  par.  2323. 

*A  sentence  of  death  imposed  by  a  court-martial,  upon  a  conviction  of  several 
distinct  offences,  will  be  authorized  and  legal  if  any  one  of  such  offences  is  made 
capitally  punishable  by  the  Articles  of  War,  although  the  other  offenses  may  not  be 
so  punishable.  Ibid.,  par.  285. 

A  court-martial,  in  imposing  a  death  sentence,  should  not  designate  a  time  or 
place  for  its  execution,  such  a  designation  not  being  within  its  province  but  pertain- 
ing to  that  of  the  reviewing  authority.  If  it  does  so  designate,  this  part  of  the  sen- 
tence may  be  disregarded  and  a  different  time  or  place  fixed  by  the  commanding 
general.  Ibid.,  par.  286. 

Where  a  death  sentence  imposed  by  a  court-martial  has  been  directed  by  the  proper 
authority  to  be  executed  on  a  particular  day,  and  this  day,  owing  to  some  exigency 
of  the  service,  has  gone  by  without  the  sentence  being  executed,  it  is  competent  for 
the  same  authority,  or  his  proper  superior,  to  name  another  day  for  the  purpose,  the 
time  of  its  execution  being  an  immaterial  element  of  this  punishment.  (&)  Ibid.,  par. 
287. 

Article  VIII  of  the  amendments  to  the  Constitution  prohibits  the  infliction  of 

a  The  well-established  principles— that  mere  irregularities  in  the  proceedings  will  not  affect  the 
validity  of  an  executed  sentence,  and  that  a  legal  sentence  once  duly  confirmed  and  executed  is  "no 
longer  subject  to  review  by  the  President  "—so  pointedly  set  forth(in  1843)  in  IVOpins.,274,  are  further 
illustrated  in  XIV  Id.,  290, 432. 

6  It  was  held  by  the  Supreme  Court,  in  Coleman  v.  Tennessee  (7  Otto,  519-520) ,  that  a  soldier  who  had 
been  convicted  of  murder  and  sentenced  to  death  by  a  general  court-martial  in  May,  1865,  but  the 
execution  of  whose  sentence  had  been  meanwhile  deferred  by  reason  of  his  escape  and  the  pendency 
of  civil  proceedings  in  his  case,  might  at  the  date  of  the  ruling  "be  delivered  up  to  the  military 
authorities  of  the  United  States  to  be  dealt  with  as  required  by  law." 

More  recently  it  has  been  held  in  this  case  by  the  Attorney-General  that  the  death  sentence  might 
legally  be  executed  notwithstanding  the  fact  that  the  soldier  had  meanwhile  been  discharged  from 
the  service,  such  discharge,  while  formally  separating  the  party  from  the  Army,  being  viewed  as  not 
affecting  his  legal  status  as  a  military  convict.  But  in  view  of  all  the  circumstances  of  the  case  it 
was  recommended  that  the  sentence  be  commuted  to  imprisonment  for  life  or  a  term  of  years.  XVI 
Opin.  Att.  Gen,,  349. 


f26  MILITARY    LAWS    OF   THE    tfltLTED    STATES. 

Pun£hm1entsted      1833-  No  person  in  the  military  service  shall  be  punished 
98  Art.  of  war.  by  flOgging?  or  ^y  branding,  marking,  or  tattooing  on  the 
body.     Ninety -eighth  Article  of  War. 

"cruel  and  unusual  punishments."  While  this  provision  does  not  necessarily  gov- 
ern courts-martial,  inasmuch  as  they  are  not  a  part  of  the  judiciary  of  the  United 
States,  (a)  it  should  be  observed  as  a  general  rule.  Thus,  where  for  an  offence  not 
peculiarly  aggravated  a  court-martial  imposed  upon  a  soldier,  in  connection  with  a 
forfeiture  of  pay  for  six  months,  the  further  penalty  of  carrying  a  loaded  knapsack 
weighing  twenty-four  pounds  every  alternate  hour  from  sunrise  to  sunset  of  each  day 
(Sundays  excepted)  during  that  period,  held  that  this  punishment  was  excessive  and 
exceptional,  and,  the  same  having  been  suffered  by  the  soldier  for  three  months, 
recommended  that  its  unexpired  term  be  at  once  remitted.  Die,  Opin.  J.  A.  G.,  par. 
2313,  note  1. 

The  punishment  of  ball  and  chain,  though  sanctioned  by  the  usage  of  the  service, 
should,  in  the  opinion  of  the  Judge- Advocate-General,  be  imposed  only  in  extreme 
cases.  Its  remission  has,  in  general,  been  recommended  by  him  except  in  cases  of 
old  offenders,  or  aggravated  crime,  where  deemed  serviceable  as  a  means  of  obviating 
violence  or  preventing  escape.  This  penalty,  like  those  of  shaving  the  head  and 
drumming  out  of  the  service,  has  become  rare  in  our  Army  since  the  further  corporal 
punishment  of  branding  or  marking  has  been  expressly  prohibited  by  statute.  (6) 
Ibid.,  par.  2314. 

Military  duty  is  honorable,  and  to  impose  it  in  any  form  as  a  punishment  must  tend 
to  degrade  it,  to  the  prejudice  of  the  best  interests  of  the  service.  Thus,  advised  that 
a  sentence  "to  do  extra  duty"  for  a  certain  term  would  properly  be  disapproved. 
So  advised  of  sentences  imposing  "guard  duty"  for  certain  periods.  So  advised  of  a 
sentence  imposing,  in  connection  with  a  term  of  confinement  in  charge  of  the  guard, 
the  penalty  of  ' '  sounding  all  the  bugle  calls  at  the  post  during  the  same  period. ' '  So 
advised  in  regard  to  a  sentence  which  required  a  deserter — not  for  the  purpose  of 
making  good  the  time  lost  by  his  desertion,  but  as  a  punishment — to  serve  for  an 
additional  year  after  the  expiration  of  his  term  of  enlistment,  (c)  Ibid.,  par.  2315. 

The  existing  law  fixing  the  term  of  a  soldier's  enlistment  at  three  years,  a  court- 
martial  can  have  no  power  to  prolong  it  by  adding  to  such  term  an  additional  period 
by  way  of  punishment.  Thus  a  sentence— "to  make  good,  at  the  expiration  of  his 
term,  a  period  of  fifty-seven  days  during  which  his  services  were  lost  to  the  United 
States  by  being  held  in  hospital  on  account  of  pistol  wound  received  by  him  while  in 
the  commission  of  a  disorder  in  violation  of  the  62d  Article  of  War" — held  unauthor- 
ized and  properly  disapproved,  Ibid.,  par.  2316. 

A  sentence  can  not  legally  extend  the  time  of  the  service  of  a  soldier  beyond  the 
term  for  which  he  originally  contracted.  Ibid. 

Discretionary  sentences. — In  a  case  where  its  sentence  is  discretionary,  a  court-martial 
may  impose  any  punishment  that  is  sanctioned  by  usage  (the  "custom  of  the  serv- 
ice" referred  to  in  Art.  84),  although  (in  cases  of  soldiers)  the  same  may  not  be 
included  in  the  list  of  the  more  usual  punishments  contained  in  the  manual  for  courts- 
martial.  Ibid.,  par.  2313.  Such  discretion  on  the  part  of  the  court-martial,  how- 
ever, is  regulated  in  its  exercise  in  respect  to  enlisted  men  by  the  orders  of  the 
President  imposing  limits  of  punishment  which  will  presently  be  described. 

Under  the  authority  conferred  by  the  act  of  September  27,  1890,  three  orders  have 
been  issued  by  the  President  prescribing  a  system  of  maximum  punishments  to  be 
imposed  by  the  several  military  tribunals  upon  enlisted  men  who  have  been  con- 
victed of  one  or  more  of  the  offenses  therein  set  forth.  The  first  of  these  orders  was 

aThat  the  provisions  of  the  Vth,  Vlth,  and  VHIth  amendments  to  the  Constitution,  relating  to 
criminal  proceedings,  apply  only  to  the  courts,  etc.,  of  the  United  States.  See  Barron  v.  Mayor  of  Bal- 
timore, 7  Peters,  243;  Ex  parte  Watkins,  Id.  573;  Twitchell  v.  The  Commonwealth,  7  Wallace,  326; 
Edwards  v.  Elliott,  21  Id.,  557;  Walker  v.  Sauvinet,  2  Otto,  90;  Pearson  v.  Yewdall,  5  Id.  294;  1  Bish.  Cr. 
L.,  §  725. 

6  The  exercise  of  the  power  conferred  upon  the  President  by  the  act  of  September  27, 1890  (26  Stat. 
L.,  491),  to  prescribe  limits  for  discretionary  punishments  has  operated  to  introduce  uniformity  among 
the  sentences  imposed  upon  enlisted  men  by  the  various  military  tribunals.  See,  also,  as  in  accord 
with  the  spirit  of  this  paragraph,  G.  C.  M.  O.  No.  329,  A.  G.  O.  1864;  G.  O.  17,  Department  of  the  Mis- 
souri, 1861;  G.  O.  56,  A.  of  P.,  1862;  G.  O.  No.  3,  Department  of  the  Northwest,  1864;  G.  O.  No.  49,  Middle 
Department,  1864. 

cThe  duty  of  a  sentinel  is  important  and  honorable,  and,  by  Army  Regulations,  all  persons  are 
required  to  observe  respect  toward  sentinels.  It  is  deemed  improper  to  impose  as  a  punishment  any- 
thing presenting  the  semblance  of  the  performance  of  the  duty  of  a  sentinel.  G.  C.  M.  O.  7,  War 
Dept,  1871. 

A  sentence  imposing  solitary  confinement  in  a  dark  cell  was  imposed  by  a  general  court-martial  in 
1873;  so  much  of  the  sentence  as  required  the  confinement  to  be  served  in  a  dark  cell  was  remitted 
by  the  Secretary  of  War  as  amenable  to  the  objection  of  being  "cruel  and  unusual  punishment." 
G.  C.  M.  O.  24,  War  Dept.,  1873. 


MILITARY    LAWS    OF   THE    UNITED    STATES.  727 


1834.  No  officer  shall  be  discharged  or  dismissed  from 
the  service,  except  by  order  of  the  President,  or  by  sen-  ^g6^  War< 
tence  pf  a  general  court-martial;  and  in  time  of  peace 
no  officer  shall  be  dismissed,  except  in  pursuance  of  the 
sentence  of  a  court-martial,  or  in  mitigation  thereof.1 
Ninety-ninth  Article  of  War. 

promulgated  in  General  Orders,  No.  21,  A.  G.  0.,  of  1891;  a  second  order  on  the  same 
subject  was  embodied  in  General  Orders,  No.  16,  of  1895;  the  third,  which  is  now  in 
force,  was  embodied  in  Executive  Orders  of  March  30,  1898,  and  was  promul- 
gated to  the  Army  in  General  Orders,  No.  16,  A.  G.  O.,  of  1898.  Under  the  strict 
terms  of  the  statute  the  orders  of  the  President  fixing  a  schedule  of  maximum  pun- 
ishments are  operative  only  in  time  of  peace,  and,  although  courts-martial  may,  at 
their  discretion,  apply  their  provisions  in  determining  sentences  imposed  by  them  in 
time  of  war,  they  are  under  no  legal  obligation  to  do  so.  For  the  maximum-punish- 
ment order  now  in  force,  see  page  1067,  post. 

Upon  the  conviction  of  an  officer  or  soldier  under  a  charge  of  a  crime,  such  as  man- 
slaughter, robbery,  larceny,  etc.,  to  the  prejudice  of  good  order  and  military  discipline, 
while  the  statute  of  the  United  States  or  State,  providing  for  its  punishment  as  a  civil 
offence,  may  well  be  referred  to  as  indicating  the  nature  and  extent  of  the  punish- 
ment deemed  proper  for  the  same  by  the  civil  authorities,  the  punishment  to  be 
imposed  by  the  court-martial  should,  nevertheless,  be  measured  less  by  the  crimi- 
nality of  the  act  as  a  civil  offence  than  by  its  gravity  as  a  breach  of  military  discipline. 
Thus,  where  a  soldier,  having  been  brought  to  trial  before  a  civil  court  for  the  homi- 
cide of  another  soldier,  and  inadequately  sentenced,  was  subsequently  tried  by  a 
general  court-martial  for  the  military  offence  involved  in  his  act,  held  that  the  court 
would  only  properly  impose  upon  him  a  penalty  proportioned  to  the  injury  done  to 
the  good  order  and  discipline  of  the  service,  and  should  not,  by  an  excessive  pun- 
ishment, attempt  to  compensate  for  the  over-lenient  judgment  of  the  civil  court. 
Dig.  Opin.  J.  A.  G.,  par.  2318. 

A  sentence  of  confinement  until  a  certain  sum  of  public  money,  proved  to  have  been 
embezzled  by  an  accused,  is  paid,  is  proper  for  the  reason  '  '  that  without  this  provision 
in  a  sentence  there  is  no  means,  in  the  case  of  an  officer  not  bonded,  of  enforcing  such 
restitution  beyond  the  extent  of  his  pay."  G.  C.  M.  O.  27,  War  Dept.,  1872. 

Mandatory  punishment.  —  Where  the  Article  of  War  under  which  the  charge  is  laid 
is  mandatory  as  to  the  punishment  (as  in  the  cases  of  Arts.  6,  8,  13,  14,  15,  18,  26,  37, 
38,  50,  57,  59,  61,  65),  and  the  sentence  imposes,  in  connection  with  the  mandatory 
punishment,  a  further  penalty  or  penalties,  this  addition  to  the  sentence  does  not 
affect  its  legality  so  far  as  relates  to  the  mandatory  punishment;  as  to  this  it  is  valid 
and  operative,  though  as  to  the  rest  it  is  a  nullity.  Dig.  Opin.  J.  A.  G.,  par.  2310. 

Where  a  sentence  in  excess  of  the  legal  limit  is  divisible,  such  part  as  is  legitimate 
may  be  approved  and  executed.  Thus  where  a  sentence  of  an  inferior  court  imposes 
a  fine  or  forfeiture  beyond  the  limit  of  the  83d  Article  pf  War,  the  sentence  may  be 
approved  and  executed  as  to  so  much  as  is  within  the  limit.  Ibid.,  par.  2324. 

Cumulative  punishment.  —  Where,  while  an  officer  or  soldier  is  undergoing  a  certain 
sentence,  he  is  again  brought  to  trial  for  a  military  offence,  and  a  further  sentence  is 
adjudged  him,  imposing  a  punishment  of  the  same  species  as  that  which  is  being 
executed,  it  is  the  general  rule  of  the  service  that  the  second  sentence  is  to  be  regarded 
as  cumulative  upon  the  first,  and  that  its  execution  is  to  commence  when  the  execu- 
tion of  the  first  is  completed.  This,  whether  or  not  the  court,  in  the  second  sentence, 
may  have  in  terms  specified  that  the  second  punishment  should  be  additional  to  the 
first;  such  second  punishment  being  made  cumulative  by  operation  of  law  irrespective 
of  any  direction  (and  such  direction  is,  in  fact,  rarely  expressed)  in  the  sentence. 
Ibid.,  par.  2317. 

1  Courts-martial  are  empowered  and  required  to  adjudge  dismissal  upon  officers  of  the 
Army  by  the  3d,  6th,  8th,  13th,  14th,  15th,  18th,  26th,  27th,  28th,  38th,  50th,  54th, 
59th,  61st  and  65th  Articles  of  War,  upon  conviction  of  the  specific  offences  therein 
described.  In  Articles  8  and  50  the  punishment  of  dismissal  is  referred  to  as  "cash- 
iering '  '  —  a  term  which  has  almost  passed  out  of  use  in  our  service,  and  when  employed 
means  no  more  than  dismissal.  Ibid.,  par.  1196. 

A  legal  sentence  of  dismissal  of  an  officer  when  finally  confirmed  by  the  competent 
authority,  according  to  the  106th  or  109th  Article  of  War,  takes  effect  upon  the 
officer  on  the  day  on  which  the  confirmation  is  officially  communicated  to  him,  either 
by  the  promulgation  of  the  order  of  confirmation  at  his  station  or  other  form  of 


728  MILITARY    LAWS    OF    THE    UNITED    STATES. 

coDwTrdfie  for      1835-  When  an  officer  is  dismissed  from  the  service  for 
tSS  oi  sentence!  cowardice  or  fraud,  the  sentence  shall  further  direct  that 
100  Art.  war.  j^e  crjme?  punishment,  name,  and  place  of  abode  of  the 
delinquent  shall  be  published  in  the  newspapers  in  and 
about  the  camp,  and  in  the  State  from  which  the  offender 
came,  or  where  he  usually  resides;  and  after  such  publi- 
cation it  shall  be  scandalous  for  an  officer  to  associate  with 
him. 1      One  hundredth  Article  of  War. 

ioipArtsiwar  1836.  When  a  court-martial  suspends  an  officer  from 
command  it  may  also  suspend  his  pay  and  emoluments 
for  the  same  time,  according  to  the  nature  of  his  offense.2 
One  hundred  and  first  Article  of  War. 

official  notice.  Thus  the  date  of  the  actual  confirmation  is  not  necessarily — is  not 
probably  in  the  majority  of  cases — the  date  on  which  the  dismissal  goes  into  effect. 
The  declaration  is  indeed  sometimes  added  in  the  order  of  confirmation,  that  the 
party  "  ceases  thereupon  to  be  an  officer  of  the  Army;"  but  this  declaration  is  imma- 
terial and  surplusage.  It  not  unfrequently  happens — especially  in  time  of  war,  and 
particularly  when  the  officer  has,  since  his  trial,  been  taken  prisoner  by  the  enemy — 
that  a  considerable  period  may  elapse  before  the  officer  is  officially  informed  of  the 
confirmation  of  the  sentence  and  thus  becomes,  in  law  and  fact,  dismissed  from  the 
service.  Dig.  Opin.  J.  A.  G.  par.  1197. 

A  sentence  of  dismissal  does  not  attach  any  legal  disability  to  the  person  dismissed. 
He  is  not — as  is  indeed  indicated  by  sec.  1228,  Revised  Statutes,  above  cited — dis- 
qualified to  be  newly  appointed  to  the  Army,  nor  is  he  disqualified  to  be  enlisted  as 
a  soldier,  or  to  hold  civil  office  under  the  United  States.  Ibid.,  par.  1201. 

1Though  the  injunction  of  the  article,  as  to  the  direction  to  be  added  in  the  sen- 
tence, should  of  course  regularly  be  complied  with,  a  failure  so  to  comply  will  not 
affect  the  validity  of  the  punishment  of  dismissal  adjudged  by  the  sentence,  (a)  The 
declaration  of  the  article,  that  after  the  publication  "it  shall  be  scandalous  for  an 
officer  to  associate  with"  the  dismissed  officer,  though  it  has  in  a  few  cases (6)  been 
incorporated  in  the  sentence,  is  not  intended  to  be,  and  should  not  be,  so  expressed 
by  the  court.  Dig.  Opin.  J.  A.  G.,  par.  302. 

The  punishment  of  suspension,  as  imposed  by  sentence,  is  usually  in  the  form  of  a 
suspension  from  rank,  or  from  command,  for  a  stated  term,  sometimes  accompanied 
by  a  suspension  from  pay  for  the  same  period.  Suspension  from  rank  includes  sus- 
pension from  command.  Ibid.,  par.  2408. 

In  rare  cases  the  form,  "to  be  suspended  from  the  service,"  has  been  employed  in 
the  sentence.  Such  a  suspension  is  equivalent  in  substance  to  a  suspension  from 
rank. 

A  still  rarer  form,  " to  be  suspended  from  duty,"  has  been  deemed  to  be  practi- 
cally equivalent  to  a  sentence  of  suspension  from  command,  (c)  These  forms  are 
now  rarely  resorted  to.  Ibid.,  732,  par.  12. 

A  sentence,  "to  be  suspended  from  the  Military  Academy,"  in  a  case  of  a  cadet, 
practically  severs  him  from  the  military  service  as  a  cadet  during  the  term  of  the  sus- 
pension. It  is  usually  added  in  such  a  sentence  that,  at  the  end  of  such  term,  the 
party  is  to  join  the  next  lower  class.  Ibid.,  par.  2416. 

Like  dismissal,  suspension  takes  effect  upon  and  from  notice  of  the  approval  of  the 
sentence  officially  communicated  to  the  officer,  either  by  the  promulgation  of  the 
same  at  his  station,  or — where  he  is  absent  therefrom  by  authority — by  the  delivery 
to  him  of  a  copy  of  the  order  of  approval  or  other  form  of  official  personal  notification 
of  the  fact  of  the  approval.  Ibid. ,  par.  2423. 

2  A  suspension  from  rank  does  not  affect  the  right  of  the  officer  to  his  office.  He 
retains  the  same  as  before,  and,  as  an  officer,  remains  subject  as  before  to  military 
control  as  well  as  to  the  jurisdiction  of  a  court-martial  for  any  military  offence  com- 
mitted pending  the  term  of  suspension,  (d)  Ibid.,  par.  2418. 

a  Note  the  action  taken  in  the  case  published  in  G.  C.  M.  0. 27,  War  Dept.,  1872. 

b  As  in  cases  published  in  G.  O.  (A.  and  I.  G.  O.)  of  May  13,  1820;  do.  168,  Dept.  of  the  Missouri,  1865. 

c  Suspension  from  duty,  as  distinguished  from  suspension  from  rank,  is  a  recognized  punishment 
in  the  naval  service.  Navy  Regulations,  Art.  32,  sec.  2;  Harwood,  134-5.  The  form,  "  to  be  suspended 
from  rank  and  duty,"  occurs  in  G.  C.  M.  0. 19,  of  1885. 

d  See  v.  Opin.  Att.  Gen.,  740;  vi.  ibid.,  715. 


MILITARY   LAWS    OF   THE    tTfflTED   STATES.  729 


1837.  No  person  in  the  military  service  shall,  under  the  i 
sentence  of  a  court-martial,  be  punished  by  confinement  in  tj  ^Artu  War. 
a  penitentiary  unless  the  offense  of  which  he  may  be  con- 

victed would,  by  some  statute  of  the  United  States,  or  by 
some  statute  of  the  State,  Territory,  or  District  in  which 
such  offense  may  be  committed,  or  by  the  common  law, 
as  the  same  exists  in  such  State,  Territory,  or  District, 
subject  such  convict  to  such  punishment.1  Ninety-seventh 
Article  of  War. 

1  This  article  by  necessary  implication  prohibits  the  imposition  of  confinement  in 
a  penitentiary  as  a  punishment  for  offenses  of  a  purely  or  exclusively  military  char- 
acter, such,  for  example,  as  desertion,  absence  without  leave,  or  disobedience  of 
orders,  (a)  Dig.  Opin.  J.  A.  G.,  par.  288.  A  sentence  of  penitentiary  confinement  in 
a  case  of  a  purely  military  offense  is  wholly  unauthorized  and  should  be  disapproved. 
Effect  can  not  be  given  to  such  a  sentence  by  commuting  it  to  confinement  in  a  mili- 
tary prison  or  to  some  other  punishment  which  would  be  legal  for  such  offense.  Nor 
in  case  of  such  an  offense  can  a  severer  penalty,  as  death,  be  commuted  to  confine- 
ment in  a  penitentiary.  Ibid,  par.  289.  Nor  can  penitentiary  confinement  be  legal- 
ized as  a  punishment  for  purely  military  offenses  by  designating  a  penitentiary  as  a 
''military  prison"  and  ordering  the  confinement  there  of  soldiers  sentenced  to 
imprisonment  on  conviction  of  such  offenses.  Ibid,  par.  290. 

The  term  "penitentiary,"  as  employed  in  this  article,  has  reference  to  civil  prisons 
only,  as  the  penitentiary  of  the  United  States  or  District  of  Columbia  at  Washington, 
the  public  prisons  or  penitentiaries  of  the  different  States,  and  the  penitentiaries 
"  erected  by  the  United  States"  (see  section  1892,  Re  vised  Statutes)  in  most  of  the 
Territories.  The  military  prison  at  Leavenworth  is  not  a  penitentiary  in  the  sense 
of  the  article.  The  term  State  or  State's  prison  in  a  sentence  is  equivalent  to  peni- 
tentiary. Ibid,  par.  292. 

Where  a  soldier  is  sentenced  to  be  confined  in  a  penitentiary  the  proper  reviewing 
authority  may  legally  designate  for  the  execution  of  the  punishment  any  State  or 
Territorial  penitentiary  within  his  command.  Where  there  is  no  such  penitentiary 
available  for  the  purpose,  or  desirable  to  be  resorted  to,  he  will  properly  submit  the 
case  to  the  Secretary  of  War  for  the  designation  of  a  proper  penitentiary. 

A  military  prisoner  duly  sentenced  or  committed  to  a  penitentiary  becomes  sub- 
ject to  the  government  and  rules  of  the  institution.  Ibid.,  par.  293. 

An  offence  charged  as  "Conduct  to  the  prejudice  of  good  order  and  military  dis- 
cipline," which,  however,  is  in  fact  a  larceny,  (6)  embezzlement,  violent  crime,  or 
other  offence  made  punishable  with  penitentiary  confinement  by  the  law  of  the 
State,  etc.,  may  legally  be  visited  with  this  punishment.  Ibid.,  par.  291. 

Where  the  act  is  charged  as  a  crime  under  article  62,  and  charge  and  specification 
taken  together  show  an  offence  punishable  with  confinement  in  a  penitentiary  by  the 
law  of  the  locus  of  the  crime,  the  sentence  may  legally  adjudge  such  a  punishment. 

So  held  —  in  a  case  where  charge  and  specification  together  made  out  an  allegation 
of  perjury  under  section  5392,  Revised  Statutes,  (c)  Ibid.,  par.  297. 

LIMITS   OF   PUNISHMENT. 

1838.  That  whenever  by  any  of  the  Articles  of  War  for 
the  government  of  the  Army  the  punishment  on  convic- 

tion  of  an}1-  military  offense  is  left  to  the  discretion  of  the  26-  P-  ^91 

a  See  General  Orders,  No.  4,  War  Dept.,  1867;  G.  O.  21,  Dept.  of  the  Platte,  1866;  21  ibid.,  1871;  G.  O. 
44,  Eighth  A.  C.,  1862;  G.  C.  M.  O.,  Nos.  34,  3»,  43,  46,  72,  and  73,  Dept.  of  the  Missouri,  1870. 

b  In  a  case  of  larceny  the  court  should  inform  itself  as  to  whether  the  value  of  the  property  stolen  be 
not  too  small  to  permit  of  penitentiary  confinement  for  the  offence  under  the  local  law  See  G.  O. 
44,  Eighth  Army  Corps,  1862;  G.  C.  M.  O.  63,  Dept.  of  the  Platte,  1872. 

c  Held  that  penitentiary  confinement  could  not  legally  be  adjudged  upon  a  conviction  of  a  violation 
of  the  21st  article,  alleged  in  the  specification  to  have  consisted  in  the  lifting  up  of  a  weapon  (a  pistol) 
against  a  commanding  officer  and  discharging  it  at  him  with  intent  to  kill.  By  charging  the  offence 
under  this  article  the  Government  elected  to  treat  it  as  a  purely  military  offence  subject  only  to  a 
military  punishment.  So,  upon  a  conviction  of  joining  in  a  mutiny,  in  violation  of  article  22',  held 
that  a  sentence  of  confinement  in  a  penitentiary  would  not  be  legal  although  the  mutiny  involved  a 
homicide,,  set  forth  in  the  specification  as  an  incidental  aggravating  circumstance.  To  have  war- 
ranted such  a  punishment  in  either  of  these  cases  the  Government  should  have  treated  the  act  as  a 
"crime,"  and  charged  and  brought  it  to  trial  as  such,  under  article  62.  Dig.  Opin.  J.  A.  G.,  par.  296, 


730  MILITARY    LAWS    OF   THE    UNITED    STATES. 

court-martial  the  punishment  therefor  shall  not,  in  time 
of  peace,  be  in  excess  of  a  limit  which  the  President  may 
prescribe.1  Act  of  September  27,  1890  (26  Stat.  Z.,  491). 

1  Under  the  authority  conferred  by  this  statute,  four  Executive  orders  have  been 
issued  prescribing  limits  of  punishment  for  offenses  to  which  specific  penalties  are 
not  attached  in  the  Articles  of  War.  See  General  Order,  No.  42,  A.  G.  0.  ot  1901, 
which  contains  the  Executive  order  of  March  12,  1901,  which  is  now  in  force.  For 
a  copy  of  the  Executive  order  of  March  12,  1901,  see  APPENDIX,  page  1067,  and  MAN- 
UAL FOR  COURTS-MARTIAL  (edition  of  March  16,  1901),  pp.  48-57. 

Disciplinary  punishments. — The  several  Articles  of  War,  and  other  statutes  of  simi- 
lar character,  conferring  jurisdiction  upon  certain  military  tribunals  for  the  triai  and 
punishment  of  military  offenses,  operate  to  deprive  commanding  and  other  officers 
of  the  power  to  inflict  punishment  upon  officers  and  enlisted  men  under  their  com- 
mand save  in  accordance  with  the  methods  prescribed  in  the  statutes  above  indicated. 

A  military  punishment  can  legally  be  imposed  only  by  sentence  of  court-martial 
after  a  regular  trial  and  conviction.  Such  a  punishment  can  not  be  imposed  by  a 
mere  order. 

We  have  in  our  military  law  no  system  of  disciplinary  punishments.  Except  in  a 
few  cases,  unimportant  in  themselves  or  of  rare  occurrence  in  practice  (see  arts.  25, 

52,  53,  and  54),  our  code  recognizes  no  punishments  other  than  such  as  may  be 
adjudged  upon  trial  and  conviction  by  a  military  court.     In  the  General  Orders  pun- 
ishments inflicted  merely  at  the  will  of  military  commanders  have  been  repeatedly 
condemned  as  illegal  and  forbidden  in  practice.     [See  G.  0.  81  (A.  G.  O.),  1822;  do. 

53,  Hdqrs.  of  Army,  1842;  do.  2,  4,  War  Dept.,  1843;  do.  39,  Hdqrs.  of  Army,  1845; 
do.  645,  War  Dept.,  1865;  do.  49,  Northern  Dept.,  1864;  do.  22,  Dept.  of  the  Platte, 
1867;  do.  44,  id.,  1871;  do.  63,  Dept.  of  Dakota,  1868;  do.  106,  id.,  1871;  do.  40,  Dept. 
of  the  East,  1868;  G.  C.  M.  0.  112,  id.,  1870;  do.  90,  id.,  1871;  G.  O.  14,  Dept.  of  the 
South,  1869;  do.  1,  23,  93,  id.,  1873;  do.  9,  Mil.  Div.  of  the  Atlantic,  1869;  do.  31,  id., 
1873;  do.  23,  Dept.  of  the  Lakes,  1870;  G.  C.  M.  0.  50,  Dept.  of  the  Missouri,  1871.] 
Officers  who  have  resorted  to  such  punishments  have  been  repeatedly  brought  to  trial 
and  sentenced.     [SeeG.  O.  (A.  and  I.  G.  O.),  of  June  30, 1821;  do.  8  (A.  G.  O.),  1826; 
do.  28,  id.,  1829;  do.  64,  id.,  1832;  do.  2,  6,  68,  War  Dept,  1843;  do.  39,  Hdqrs.  of 
Army,  1845;  do.  53,  Dept.  of  Va.  and  No.  Ca.,  1864;  do.  22,  Dept.  of  the  Platte,  1867; 
do.  9,  Mil.  Div.  of  the  Atlantic,  1869;  do.  14,  Dept.  of  South,  1869;  G.  C.  M.  O.  50, 
Dept.  of  the  Missouri,  1871.]     And  enlisted  men,  tried  and  sentenced  for  insubordi- 
nate conduct,  where  such  conduct  has  been  induced  or  aggravated  by  illegal  corporal 
punishments  inflicted  upon  them  by  superiors,  have  commonly  had  their  sentences 
remitted  or  mitigated,  or  altogether  disapproved.     [See  G.  0.  49,  76,  Northern  Dept., 
1864;  do.  40,  Dept.  of  the  East,  1868;  G.  C.  M.  0.  90,  id.,  1871;  G.  O.  63,  Dept.  of 
Dakota,  1868;  do.  76,  id.,  1871;  G.  C.  M.  O.  45,  id.,  1880;  do.  93,  Dept.  of  the  South, 
1873.]     In  proper  cases,  of  course,  as  where  violence  is  employed,  escape  attempted, 
etc.,  by  soldiers  who  are  mutinous  or  disorderly,  or  in  arrest  under  charges,  force  may 
be  used  against  them  according  to  the  necessities  of  the  case.     [See  also  G.  O.  53, 
Hdqrs.  of  Army,  1842;  do.  2,  War  Dept,  1843;  G.  C.  M.  O.  47,  Hdqrs.  of  Army, 
1877;  G.  O.  53,  Dept.  of  Va.  and  No.  Ca.,  1864;  do.  40,  Dept  of  the  East,  1868;  G.  C. 
M.  O.  112,  id.,  1870;  do.  90,  id.,  1871;  G.  O.  23,  Dept.  of  the  Lakes,  1870;  do.  106, 
Dept.  of  Dakota,  1871;  do.  93,  Dept,  of  the  South,  1873;  do.  31,  Mil.  Div.  of  the 
Atlantic,  1873;  G.  C.  M.  O.  37,  Dept.  of  Texas,  1880.]     This,  however,  is  prevention 
and  restraint,  not  punishment;  the  authority  to  use  the  needful  force  in  such  cases  will 
not  justify  the  superior,  when  the  offender  is  repressed  or  apprehended,  in  subject- 
ing him  to  arbitrary  punitory  treatment. 

Discretion  regarding  trial  by  summary  court. — Paragraph  7,  Circular  No.  13,  Adjutant- 
General's  Office,  December  5,  1891,  reads  as  follows: 

"The  fact  that  the  number  of  trials  by  inferior  court-martial  has  greatly  increased 
since  the  establishment  of  the  summary  court  indicates  that  officers  of  the  Army 
have  the  impression' that  under  the  present  system  they  must  bring  every  dereliction 
of  duty  before  a  court  for  trial,  and  that  they  are  allowed  no  discretion  in  the  mat- 
ter. This  is  a  mistake.  Their  discretion  is  the  same  now  as  it  was  under  the  garri- 
son court  system,  and  they  are  not  obliged  to  bring  cases  before  the  summary  court 
which  they  believe  ought  to  be  disposed  of  with  an  admonition  or  the  withholding 
of  privileges  or  indulgences.  The  extent  of  the  exercise  of  this  discretion,  within 
these  limits,  is  subject  to  the  control  of  the  commanding  officer." 

In  accordance  with  the  spirit  of  the  foregoing,  company  commanders  are  author- 
ized, subject  to  the  control  of  the  commanding  officer  of  the  post,  to  dispose  of  cases 
of  derelictions  of  duty  in  their  commands  which  would  be  within  the  jurisdiction  of 


MILITARY    LAWS    OF    THE    UNITED   STATES.  731 

THE    RECORD. 

1839.  Every  judge-advocate,  or  person  acting  as  such,  anVdFsposltVo°i? 
at  any  general  court-martial  shall,  with  as  much  expedi-    M*tkEMr«r. 
tion  as  the  opportunity  of  time  and  distance  of  place  may 

admit,  forward  the  original  proceedings  and  sentence  of 
such  court  to  the  Judge-Advocate-General  of  the  Army, 
in  whose  office  they  shall  be  carefully  preserved.1 

1840.  Every  party  tried  by  a  general  court-martial  shall,  to^acopyentitled 
upon  demand  thereof,  made  by  himself  or  by  any  person 

in  his  behalf,  be  entitled  to  a  copy  of  the  proceedings  and 
sentence  of  such  court.  One  hundred  and  fourteenth 
Article  of  War. 

1841.  The  judge-advocate  will  transmit  the  proceedings R^o?dSiti°n  of 
without  delay  to  the  officer  having  authority  to  confirm  the  19oiar<  1057>  A' R" 
sentence,2  who  will  state  at  the  end  of  the  proceedings  in 

inferior  courts-martial,  by  requiring  extra  tours  of  fatigue,  unless  the  soldier  con- 
cerned demands  a  trial.  This  right  to  demand  a  trial  must  be  made  known  to  him. 
Circulars,  A.  G.  O.,  1898. 

1  The  legal  record  of  a  court-martial  is  that  record  which  is  finally  approved  and 
adopted  by  the  court  as  a  body  and  authenticated  by  its  president  and  judge- 
advocate.  The  court  as  a  whole  is  responsible  for  the  record,  and  the  instrument 
which  it  approves  as  such  is  its  record,  however  the  same  may  have  been  made  up. 
It  is  immaterial  to  the  sufficiency  of  a  record  whether  the  same  was  kept  or  written 
by  the  judge-advocate  or  a  clerk.  So  where  a  clerk  or  reporter,  appointed  and 
sworn  to  keep  the  record,  did  not  act,  but  the  record  was  prepared  by  the  judge- 
advocate  or  some  other  person  employed  by  him  to  assist  him,  held  that  this  circum- 
stance did  not  affect  the  validity  of"  the  record  as  finally  approved  by  the  court. 
Dig.  Opin.  J.  A.  G.,  par.  2140. 

For  rules  respecting  the  contents  and  preparation  of  the  records  of  general  courts- 
martial  see  Ibid.,  paragraphs  2136-2140: 

Exhibits  and  appendixes. — It  is  not  necessary  to  encumber  a  record  by  spreading 
upon  its  documents,  or  other  writing  or  matter,  excluded  by  the  court.  But  it  should 
specify  the  character  of  the  writing  and  the  grounds  upon  which  it'wTas  ruled  out. 

Papers,  books,  certified  copies  of  documents  authorized  by  law  to  be  used  in  evi- 
dence, and  other  instruments  of  documentary  evidence  which  are  submitted  to  the 
court  and  read  in  evidence  during  the  progress  of  the  trial,  are  noted  in  the  record  as 
"read  to  the  court  and  appended,  marked  A,  B,  C,"  etc.  When  it  is  proposed  to  sub- 
mit documentary  evidence,  its  nature  and  character  are  explained  to  the  court  by  the 
party  in  whose  behalf  it  is  submitted,  and  these  statements,  together  with  any  objec- 
tions to  its  admission  which  may  be  made  by  the  opposite  party,  and  the  decision  of 
the  court  in  respect  to  its  admission,  are  fully  set  forth  in  the  record. 

Loss  or  destruction  of  record. — Where  the  proceedings  of  a  court-martial  have  regu- 
larly terminated,  and  the  sentence  has  been  confirmed  and  ordered  to  be  executed 
by  the  proper  and  final  reviewing  authority,  the  fact  that  the  record  has  since  been 
lost  does  not  impair  or  affect  the  judgment  of  the  court,  and  constitutes  no  legal 
obstacle  to  the  enforcement  of  the  penalty.  But  where  the  record  of  the  trial  of  a 
soldier  who  had  pleaded  not  guilty,  and  in  whose  case  considerable  evidence  had 
been  introduced,  was,  by  a  casualty  of  war,  lost  before  any  action  had  been  taken  upon 
the  sentence  by  the  reviewing  officer,  held  that,  unless  the  court  could  be  reconvened 
and  a  new  record  could  be  made  out  from  extant  original  notes,  the  proceedings,  inas- 
much as  they  could  not  be  intelligently  reviewed  or  formally  approved,  should  prop- 
erly be  considered  as  inoperative  and  the  sentence  of  no  effect.  Ibid.,  par.  2139. 

Held  that  the  destruction,  by  fire  or  other  casualty,  of  the  record  of  the  trial,  con- 
viction, and  sentence  of  a  deserter,  before  action  could  be  taken  upon  the  same,  was 
of  similar  effect  in  law  to  an  acquittal,  and  relieved  the  deserter  from  the  forfeiture 
of  pay  due  at  the  date  of  his  desertion.  Ibid. 

2The  104th  Article  of  War  contains  the  requirement  that  uno  sentence  of  a  court- 
martial  shall  be  carried  into  execution  until  the  same  shall  have  been  approved  by 


732  MILITAEY    LAWS    OF   THE    UNITED    STATES. 

each  case  his  decision  and  orders.     Par.  1057,  Army  Regu- 
lations. 

REVISION   PROCEEDINGS. 

ce?dSgs0n   rr°"      1842-  When  the  record  of  a  court  exhibits  error  in  prep- 

i9oiar* 1059>  A'  RM  ^ration,  or  seemingly  erroneus  conclusions,  the  reviewing 

authority  may  reconvene  the  court  for  a  reconsideration 

of  its  action,  pointing  out  defects.1     Should  the  court  con- 

the  officer  ordering  the  court,  or  by  the  officer  commanding  for  the  time  being." 
The  record  should  therefore  be  forwarded  by  the  judge-advocate  to  the  convening 
officer,  or  to  his  successor  in  command,  who,  under  the  law,  is  authorized,  by  his 
approval  of  the  findings  and  sentence,  to  make  the  latter  operative.  The  proceed- 
ings are  forwarded  through  the  same  channel,  even  where  the  sentence  imposed  is 
one  which  can  only  be  made  legally  operative  by  the  approval  of  superior  authority; 
and  it  is  the  duty  of  the  original  reviewing  officer  to  subject  such  proceedings  to  the 
same  examination  and  review  as  would  be  applied  to  cases  in  which  his  approval 
and  orders  are  final  and  conclusive. 

Disposition  of  record. — Where  the  court  was  convened  by  a  military  officer — as,  in 
a  case  of  a  general  court,  the  general  of  the  army  or  a  department  or  army  commander — 
it  is  the  duty  of  the  judge-advocate,  upon  the  completion  of  the  record,  to  transmit 
the  same  to  such  officer  (or  his  successor  in  his  command)  for  the  proper  action. 
Where  the  court  was  convened  by  the  President,  it  is  the  duty  of  the  judge-advocate 
to  transmit  the  completed  proceedings  directly  to  the  Judge- Advocate-General,  (a)  in 
order  that,  as  the  staff  officer  of  the  President,  he  may  exercise  the  revisory  function 
reposed  in  him  by  section  1199,  Revised  Statutes.  (6) 

1  Revision  proceedings. — Where  the  record  of  a  trial,  as  forwarded  to  the  reviewing 
authority  for  his  action,  is  deemed  by  him  to  exhibit  some  error,  omission,  or  other 
defect  in  the  proceedings  capable  of  being  supplied  or  remedied  by  the  court;  as,  for 
example,  an  inadequate,  excessive,  illegal,  or  irregular  sentence,  or  a  finding  not 
authorized  by  the  evidence;  or  an  omission  of  some  material  matter — as  a  failure  to 
prefix  to  the  record  a  copy  of  the  convening  order,  or  to  authenticate  the  proceed- 
ings by  the  signatures  of  the  President  or  Judge- Advocate,  or  to  enter  the  proper 
statement  as  to  the  members  present,  or  to  recite  as  to  the  offering  to  the  accused  of 
an  opportunity  to  object  to  the  same,  or  as  to  the  qualifying  of  the  court  by  the  pre- 
scribed oaths,  or  to  fully  record  the  plea,  finding,  or  sentence;  or  some  mere  clerical 
error  in  a  matter  of  form — the  court  may  and  in  general  properly  will  be  reconvened 
by  the  order  of  the  reviewing  officer  (the  convening  authority  or  his  successor  in  the 
command),  for  the  purpose  of  correcting  the  record  in  the  faulty  particular,  provided 
a  correction  be  practicable.  In  a  case  of  an  omission  the  object  of  course  is  that  the 
record  may  be  made  to  conform  with  the  fact.  If  the  fact  is  that  the  proceeding, 
apparently  merely  omitted  to  be  recorded,  was  actually  not  had,  the  proposed  correc- 
tion can  not  of  course  be  made.  There  is  no  limit  to  the  number  of  times  that  a 
court  may  be  reconvened  for  a  revision  of  its  proceedings.  It  is  not  often,  however, 
reassembled  a  second  time  where  it  declines  on  the  first  occasion  to  make  the  correc- 
tion desired,  (c)  Dig.  Opin.  J.  A.  G.,  par.  2249. 

The  order  reassembling  the  court  will  properly  indicate  the  particular  or  particu- 
lars as  to  which  a  revision  or  correction  is  desired,  or  refer  to  papers  accompanying 
it  in  which  the  supposed  omission  or  other  defect  is  set  forth.  Whether  to  make  or 
not  the  proposed  correction  will  be  in  the  discretion  of  the  court.  The  reviewing 
authority  can  not  of  course  compel  and  would  scarcely  be  authorized  to  command 
the  court  to  make  it.  Ibid.,  par.  2250. 

A  correction  can  be  made  only  by  a  legal  court.  At  least  five,  therefore,  of  the 
members  of  the  court  who  acted  upon  the  trial  must  be  present.  That  there  are 
fewer  members  at  the  reassembling  than  at  the  trial  is  immaterial,  provided  five  are 

a  See  G.  O.  72,  War  Dept.,  1873;  do.  39,  Hdqrs.  of  Army,  1877. 

b  It  may  here  be  noted  that  the  One  hundred  and  thirteenth  Article  of  War,  the  only  statute  relat- 
ing to  the  forwarding,  by  judge-advocates,  of  the  proceedings  of  general  courts,  is  incomplete,  and 
not  in  harmony  with  the  provisions  of  arts.  104  and  109.  The  practice  on  the  subject— as  determined 
by  par.  1057,  Army  Regulations,  and  the  supplementary  orders  indicated  in  the  foregoing  note— repre- 
sents quite  accurately  the  existing  law,  and  is  as  stated  in  the  text. 

cln  the  case  of  Judge- Advocate-General  Swaim,  tried  by  court-martial  in  1885,  the  record  was  twice 
returned  for  revision.  G.  C.  M.  O.,  No.  19,  War  Dept.,  1885. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  733 

cur  in  the  views  submitted,  it  will  proceed  by  amendment 
to  correct  its  errors,  and  may  modify  or  completely  change 
its  findings.  A  reopening  of  the  case,  by  calling  or  recall- 
ing witnesses,  is  illegal.  Par.  1059,  Army  Regulations, 
1901. 

present.  The  judge-advocate  should  be  present.  If  the  court  closes,  however,  he 
should  withdraw.  Dig.  Opin.  J.  A.  G.,  par.  2251. 

It  is  not  in  general  necessary  or  desirable  that  the  accused  be  present  at  a  revision. 
Where,  however,  any  possible  injustice  may  result  from  his  absence,  he  should  be 
required  or  permitted  to  be  present,  and  with  counsel  if  preferred.  Thus  where  the 
defect  to  be  corrected  consists  in  an  omission  properly  to  set  forth  a  special  plea 
made  or  objection  taken  by  the  accused,  it  may  be  desirable  that  he  should  be  pres- 
ent in  order  that  he  may  be  heard  as  to  the  proper  form  of  the  proposed  correction. 
Where  the  error  is  clerical  merely,  or,  though  relating  to  a  material  particular,  con- 
sists in  the  omission  of  a  formal  statement  only,  the  presence  of  the  accused  is  not  in 
general  called  for.  Ibid.,  par.  2252. 

It  is  now  settled  in  our  law  that  a  court-martial  is  not  empowered  at  this  proceed- 
ing to  take  or  receive  testimony. (a)  Ibid.,  par.  2253. 

The  amendment  can  only  be  made  by  the  court  when  duly  reconvened  for  the 
purpose,  and  when  made  must  be  the  act  of  the  court  as  such.  A  correction  made  by 
the  president  or  other  member,  or  by  the  judge-advocate  independently  of  the 
court,  and  by  means  of  an  erasure  or  interlineation  or  otherwise,  is  unauthorized 
and  a  grave  irregularity.  The  correction  must  be  wholly  made  and  recorded  in  and 
by  the  formal  proceedings  upon  the  revision.  The  record  of  the  correction  as  thus 
made  will  refer  of  course  to  the  page  or  part  of  the  record  of  the  trial  in  which  the 
omission  or  defect  occurs;  but  this  part  of  the  record  must  be  left  precisely  as  it 
stands.  The  court  is  no  more  authorized  to  correct  the  same  by  erasure  or  interline- 
ation on  the  page,  or  by  the  substitution  for  the  defective  portion  of  a  rewritten  cor- 
rected statement,  than  wduld  be  the  judge-advocate  or  a  member. (6)  Ibid.,  par. 
2254. 

Where  the  court  has  been  dissolved,  or,  by  reason  of  any  casualty  or  exigency  of 
the  service,  can  not  practically  be  reconvened,  there  can  of  course  be  no  correction 
of  its  proceedings.  Ibid.,  par'  2257. 

The  procedure  here  contemplated  is  of  course  quite  distinct  from  the  ordinary  revi- 
sion and  correction  of  its  proceedings  by  a  court-martial  from  day  to  day  during  a 
trial  and  before  the  record  is  completed.  Ibid.,  par.  2258. 

a  See  G.  O.  47,  Hdqrs.  of  Army,  1879. 

b  A  record  canliot  legally  be  corrected  by  an  interlineation  by  the  judge-advocate — as  by  the  words 
"at  hard  labor"  interlined  in  the  sentence.  Nor  can  it  legally  be  corrected  by  a  statement  on  the 
margin  of  a  page,  signed  by  the  judge-advocate.  Dig.  Opin.  J.  A.  Gen.,  651,  par.  15. 

In  the  case  of  Private  Gundlach,  of  the  Hospital  Corps,  the  sentence  was  set  aside  by  the  order  of  the 
President.  "The  record  of  the  trial  failed  to  show  that  the  members  of  the  court  and  judge-advocate 
were  sworn,  and  on  being  returned  for  necessary  action  the  court  was  not  reconvened,  as  contemplated 
by  paragraph  2,  page  56,  Court-Martial  Manual,  1898,  but  the  judge-advocate  interlined  a  statement 
in  the  record  that  the  members  of  the  court  and  the  judge-advocate  were  duly  sworn.  This  action 
was  unauthorized  and  invalid.  A  defective  record  returned  for  correction  can  only  be  amended  to 
conform  to  the  actual  facts  and  by  the  court  itself  on  revision  when  duly  reconvened  for  the  purpose." 
S.  O.,  99,  H.  Q.  A.  1900.  In  the  case  of  a  cadet  tried  by  general  court-martial  at  the  Military  Academy 
in  1844  a  verdict  of  acquittal  was  reached  by  the  full  court  composed  of  seven  members.  On  the 
following  day,  six  members  only  being  present,  the  acquittal  reached  at  the  previous  day's  session 
was  revoked  and  a  finding  of  guilty  was  reached  and  entered  upon  the  record.  In  respect  to  this 
j.ction  on  the  part  of  the  court  it  Avas  remarked  by  the  Secretary  of  War  that  "however  it  may  be 
asserted  that  the  usage  and  laws  of  courts-martial  may  sanction  the  right  of  the  court  to  annul  and 
entirely  change  their  positive  decision  at  any  time  before  their  final  adjournment,  yet  it  is  a  right 
wnich  should  be  cautiously  exercised,  and  only  on  obvious  and  extraordinary  occasions.  In  the 
I  resent  case  a  full  court  acquitted  the  prisoner,  and  upon  the  next  day  a  mutilated  court — one  mem- 
ber being  absent — undertake  to  rescind  the  judgment  of  the  previous  day,  and  to  pronounce  the 
ft  reused  guilty  and  sentence  him  to  punishment.  It  is  not  necessary  to  go  into  reasons  and  examples 
to  show  the  danger  and  injustice  which  might  result  from  a  portion  of  the  court  upon  the  occasion 
of  an  accidental  absence  of  one  or  more  of  its  members  reversing  their  judgment  and  changing 
innocence  to  guilt.  To  justify  such  a  reversal  the  court  should  be  as  full  and  constituted  precisely 
as  it  was  when  the  judgment  was  pronounced.  In  consequence  of  this  irregularity  the  proceedings 
of  the  court  are  disapproved  and  the  accused  ordered  to  be  released  from  arrest  and  restored  to 'duty. 
G.  O.  No.  40,  War  Dept.,  1844. 


734  MILITAEY    LAWS    OF    THE    UNITED    STATES. 


THE   REVIEWING   AUTHORITY. 


Par. 

1847.  Confirmation  of  death  sentence. 

1848.  The  same,  dismissal  of  officer. 

1849.  The  same,  time  of  peace. 

1850.  Suspension  of  sentence. 


Par. 

1843.  Approval  of  sentence. 

1844.  The  same,  time  of  war. 

1845.  The  same,  confirmation. 

1846.  The  same,  general  officers. 

1843.  No  sentence  of  a  court-martialshall  be  carried  into 
execution  until  the  same  shall  have  been  approved  by  the  court  °rde'ring 
officer  ordering  the  court,1  or  by  the  officer  commanding    104  Art>  War- 
for  the  time  being.2     One  hundred  and  f mirth  Article  of 
War. 

1  This  term  is  employed  in  military  parlance  to  designate  the  officer  whose  prov- 
ince and  duty  it  is  to  take  action  upon — approve  or  disapprove,  etc. — the  proceedings 
of  a  court-martial  after  the  same  are  terminated,  and  when  the  record  is  transmitted 
to  him  for  such  action.     This  officer  is  ordinarily  the  commander  who  has  convened 
the  court.     In  his  absence,  however,  or  where  the  command  has  been  otherwise 
changed,  his  successor  in  command,  or,  in  the  language  of  articles  104  and  109,  "the 
officer  commanding  for  the  time  being,"  is  invested  (by  those  articles)  with  the  same 
authority  to  pass  upon  the  proceedings  and  order  the  execution  01  the  sentence  in  a 
case  of  conviction.     Dig.  Opin.  J.  A.  G.,  par.  2227. 

While  approval  gives  life  and  operation  to  proceedings  or  sentence,  disapproval, 
on  the  other  hand,  quite  nullifies  the  same.  A  disapproval  of  the  proceedings  of  a 
court-martial  by  the  legal  reviewing  authority  is  not  a  mere  expression  of  disappro- 
bation, but  a  final,  determinate  act,  putting  an  end  to  such  proceedings  in  the  par- 
ticular case,  and  rendering  them  entirely  nugatory  and  inoperative;  and  the  legal 
effect  of  a  disapproval  is  the  same  whether  or  not  the  officer  disapproving  is  author- 
ized finally  to  confirm  the  sentence.  But  to  be  thus  operative  a  disapproval  should 
be  express.  As  frequently  remarked  in  the  opinions  of  the  Judge- Advocate  General, 
the  mere  absence  of  an  approval  is  not  a  disapproval,  nor  can  a  mere  reference  of  the 
proceedings  to  a  superior  without  words  of  approval  operate  as  a  disapproval  of  the 
proceedings  or  sentence,  (a)  The  effect  of  the  disapproval,  wholly,  of  a  conviction 
or  sentence  is  not  merely  to  annul  the  same  as  such,  but  also  to  prevent  the  accruing 
of  any  disability,  forfeiture,  etc.,  which  would  have  been  incidental  upon  an  approval. 
(6)  A  disapproval  of  a  conviction  of  a  particular  offense  also  operates  to  nullify  the 
conviction  of  any  lesser  included  offense,  involved  in  the  conviction  of  the  specific 
offense  charged. 

Where  the  original  reviewing  officer  disapproves  a  sentence,  to  the  execution  of 
which  the  confirmation  of  superior  authority  is  made  requisite  by  the  code,  as  where 
(in  time  of  peace)  the  department  commander  who  has  convened  the  court,  in  the 
case  of  an  officer,  disapproves  a  sentence  of  dismissal  adjudged  thereby,  the  sentence 
being  nullified  in  law,  there  remains  nothing  for  the  superior  authority  to  act  upon, 
and  to  transmit  the  proceedings  to  him  for  action  will  be  improper  and  unauthorized. 

A  reviewing  officer  can  not  disapprove  a  sentence  and  then  proceed  to  mitigate  or 
commute  the  punishment,  since  upon  the  disapproval  there  is  nothing  left  in  the 
case  upon  which  any  such  action  can  be  based. 

It  is  quite  immaterial  to  the  legal  effect  of  a  disapproval  whether  any  reasons  are 
given  therefor,  or  whether  the  reasons  given  are  well  founded  in  fact  or  sufficient  in 
law.  Ibid.,  par.  2229. 

2  The  "  officer  commanding  for  the  time  being,"  indicated  in  this  article,  is  an  officer 
who  has  succeeded  to  the  command  of  the  officer  who  convened  the  court,  as  where 
the  latter  has  been  regularly  relieved  and  another  officer  assigned  to  the  command, 
or  where  the  command  of  the  convening  officer  has  been  discontinued  and  merged 
in  a  larger  or  other  command,  at  some  time  before  the  proceedings  of  the  court  are 
completed  and  require  to  be  acted  upon.     Thus  where,  under  the  circumstances,  a 

a  See  XVI  Opin.  Att.  Gen.,  312,  where  it  is  remarked  that  it  is  not  a  legal  disapproval  of  a  conviction 
or  sentence  for  the  original  reviewing  officer,  in  forwarding  the  proceedings  for  the  action  of  superior 
authority,  to  indorse  upon  the  same  an  opinion  to  the  effect  that  the  finding  is  not  sustained  by  the 
evidence. 

6  A  disapproval  of  a  sentence  by  the  proper  review,ing  authority  is  "tantamount  to  an  acquittal  by 
the  court."  XIII  Opin.  Att.  Gen.,  460. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  735 


1844.  No  sentence  of  a  court-martial  appointed  by  the 
commander  of  a  division  or  of  a  separate  brigade  of  troops,  com0ma°nderf  ade 
directing  the  dismissal  of  an  officer,  shall  be  carried  into  „  Dec-24,  i86i,  c. 

O,  V.  L£,  p.  OOU. 

execution  until  it  shall  have  been  confirmed  by  the  general    107  Art-  War- 
commanding  the  army  in  the  field  to  which  the  division  or 
brigade  belongs  .      One  hundred  and  seventh  Article  of  War. 

separate  brigade  has  ceased  to  exist  as  a  distinctive  organization  and  been  merged  in 
a  division,  or  a  division  has  been  similarly  merged  in  an  army  or  department,  the 
commander  of  the  division  in  the  one  case,  and  of  the  army  or  department  in  the 
other,  is  "the  officer  commanding  for  the  time  being"  in  the  sense  of  the  article. 
So  where,  before  the  proceedings  of  a  garrison  court  convened  by  a  post  commander 
were  completed,  the  post  command  had  ceased  to  exist  and  the  command  become 
distributed  in  the  department,  held  that  the  department  commander,  as  the  legal 
successor  of  the  post  commander,  was  the  proper  authority  to  approve  the  sentence 
under  this  article.  Dig.  Opin.  J.  A.  G.,  par.  326. 

Where  a  department  command  was  discontinued,  without  being  transferred  to  or 
included  in  any  other  specific  command,  held  that  the  general  in  command  of  the 
army  was  "the  officer  commanding  for  the  time  being,"  and  the  proper  authority  to 
act,  under  this  article  and  the  one  hundred  and  ninth,  upon  the  proceedings  and  sen- 
tence of  a  court  which  had  been  ordered  by  the  department  commander,  but  whose 
judgment  had  not  been  completed  at  the  time  of  the  discontinuance  of  the  command. 
Ibid.,  par.  333. 

The  "officer  commanding  for  the  time  being"  must,  to  legally  act,  have  the  neces- 
sary qualifications.  Thus,  where  the  sentence  is  one  of  a  general  court-martial,  this 
officer  must  have  the  same  rank  and  status  as  the  convening  officer  must  have  had 
under  the  seventy-second  article,  i.  e.  ,  he  must  be  either  a  general  officer  commanding 
the  army,  division,  or  department,  or  a  colonel  commanding  the  department.  Ibid., 
par.  335. 

In  cases,  however,  of  sentences  of  dismissal  and  of  death,  imposed  in  time  of  peace, 
and  of  some  death  sentences  adjudged  in  time  of  war,  as  also  of  all  sentences,  "re- 
specting general  officers,"  while  the  convening  officer  (or  his  successor)  is  the 
original  reviewing  authority,  with  the  same  power  to  approve  or  disapprove  as  in 
other  cases,  yet  inasmuch  as  it  is  prescribed  by  articles  105,  106,  108,  and  109  that  the 
sentence  shall  not  be  executed  without  the  confirmation  of  the  President,  the  latter 
becomes  in  these  cases  the  final  reviewing  officer,  when,  the  sentence  having  been 
approved  by  the  commander  (for,  if  disapproved  by  him,  there  is  nothing  left  to  be 
acted  upon  by  the  superior),  the  record  is  transmitted  to  him  for  his  action.  A  sim- 
ilar division  of  the  reviewing  function  exists  in  cases  in  which  sentences  are  approved, 
but  the  execution  of  the  samo  is  suspended,  and  the  question  of  their  execution 
referred  to  the  President,  under  article  111.  The  same  function  is  also  shared 
between  inferior  and  superior  commanders,  under  article  107,  in  cases  in  which  sen- 
tences are  imposed  by  division  or  separate  brigade  courts.  So,  under  article  110,  in 
cases  of  sentences  adjudged  by  field  officers'  courts  in  time  of  war. 

Where  a  general  court-martial  is  convened  directly  by  the  President,  as  com- 
mander in  chief,  he  is,  of  course,  both  the  original  and  final  reviewing  authority. 
Ibid.  See,  also,  in  connection  with  the  review  of  proceedings,  the  MANUAL  FOB 
COURTS-MARTIAL. 

The  reviewing  authority  should  properly  authenticate  the  action  taken  by  him  in 
any  case  by  subscribing  in  his  own  hand  (adding  his  rank  and  command,  as  indi- 
cating his  legal  authority  to  act)  the  official  statement  of  the  same  as  written  in  or 
upon  the  record.  Impressing  the  signature  by  means  of  a  stamp  is  not  favored. 
Ibid.,  par.  2233. 

In  acting  upon  the  proceedings  of  a  court-martial,  the  legal  reviewing  officer  acts 
partly  in  a  judicial  and  partly  in  a  ministerial  capacity.  He  "decides"  and 
"orders,"  and  the  due  exercise  of  his  proper  functions  can  not  be  revised  by  superior 
military  authority.  Thus  held  that  a  reviewing  officer  who  had  duly  acted  upon  a 
sentence  and  promulgated  his  action  in  orders  could  not  be  required  by  a  higher 
commander,  or  by  the  Secretary  of  War,  to  revoke  such  action.  If  the  sentence  be 
deemed  unwarranted  or  excessive,  relief  may  be  extended  through  the  power  of 
pardon  or  remission.  Ibid.,  par.  2243. 

This  article  is  properly  to  be  complied  with  by  an  approval  of  the  sentence  (where 
the  same  is  approved  in  fact)  by  "the  officer  ordering  the  court,"  etc.,  although—  as 
in  a  case  of  a  sentence  of  dismissal  in  time  of  peace  —  he  may  not  be  empowered  finally 


736  MILITARY    LAWS    OF    THE    UNITED    STATES. 

1845.  All  sentences  of  a  court-martial  may  be  confirmed 


court °rdering  and  carried  into  execution  by  the  officer  ordering  the  court, 
109  Art.  tfar.  or  ^y  fa^  officer  commanding  for  the  time  being,  where 
confirmation  by  the  President,  or  by  the  commanding  gen- 
eral in  the  field,  or  commander  of  the  department,  is  not 
req uired  by  these  articles.  One  hundred  and  ninth  Article 
of  War. 

to  confirm  and  give  effect  to  the  sentence.  His  approval  is  required  as  showing  that 
he  does  not,  as  he  is  authorized  to  do,  disapprove.  Dig.  Opin.  J.  A.  G.,  par  323. 

The  approval  of  the  sentence  indicated  by  this  article  should  properly  be  of  a 
formal  character.  An  indorsement,  signed  by  the  commander,  of  the  single  word 
"approved" — a  f orm  not  unfrequently  employed  during  the  late  war — though  strictly 
sufficient  in  law,  is  irregular  and  objectionable.  So,  held  that  a  mere  statement, 
written  in  or  upon  the  proceedings,  in  transmitting  them  to  the  President,  that  the 
record  was  "forwarded"  for  the  action  of  superior  authority,  was  insufficient  as  not 
implying  the  requisite  approval  according  to  the  article.  And  similarly  held  of  a 
mere  recommendation  that  the  proceedings  be  approved  by  such  authority.  Ibid., 
par.  324. 

A  military  commander  can  not,  of  course,  delegate  to  an  inferior  or  other  officer  hii 
function  as  reviewing  authority  of  proceedings  or  sentence  of  a  court-martial,  as  con- 
ferred by  the  one  hundred  and  fourth  or  one  hundred  and  ninth  article  of  war  or 
other  statute.  Nor  can  he,  regularly,  authorize  a  staff  or  other  officer  to  \vrite  and 
subscribe  for  him  the  action,  by  way  of  approval,  disapproval,  etc.,  which  he  has 
decided  to  take  upon  such  proceedings.  An  approval  purporting  to  be  subscribed 
by  the  commander,  "by"  his  staff  judge-advocate  or  assistant  adjutant-general, 
would  be  open  to  question  and  quite  irregular,  as  would  also  be  any  action  subscribed 
by  such  an  officer  purporting  to  be  taken  ' '  in  the  absence  and  by  the  direction  of ' ' 
the  commander.  Ibid.,  par.  2234. 

Action  taken  by  a  reviewing  officer  upon  the  proceedings  and  sentence  of  a  court- 
martial  may  be  recalled  and  modified  before  it  is  published,  and  the  party  to  be 
affected  is  duly  notified  of  the  same.  After  such  notice  the  action  is  beyond  recall. 
The  power  of  remission,  indeed,  may  be  exercised  so  long  as  any  part  of  the  punish- 
ment imposed  remains  unexecuted.  But  when  the  final  approval  of  the  sentence 
(or  other  action  taken)  has  been  once  officially  communicated  to  the  accused,  the 
function  and  authority  of  the  reviewing  authority  as  such  over  and  respecting  the 
same  is  exhausted  and  can  not  be  revived.  An  approval  can  not  then  be  substituted 
for  a  disapproval,  or  vice  versa.  Ibid.,  par.  2235. 

A  disapproval  of  a  finding  by  the  proper  reviewing  authority  has  the  same  legal 
effect  as  an  acquittal,  and  the  soldier  can  not  be  made  to  suffer  any  of  the  legal  con- 
sequences of  a  conviction.  Ibid.,  675,  par.  9. 

Held  a  good  ground  for  the  disapproval  of  a  sentence  that  the  court  denied  the 
request  of  the  accused  to  have  summoned  a  clearly  material  and  important  witness, 
whose  testimony  would  not  have  been  merely  cumulative.  Ibid.,  par.  2238. 

It  is  beyond  the  power  of  the  reviewing  officer  to  change,  by  his  own  action,  a  find- 
ing. Thus  where,  in  a  case  of  conviction  of  desertion,  the  reviewing  authority 
approved  "so  much  only  of  the  finding  of  guilty  of  desertion  as  convicted  the  accused 
of  absence  without  leave,"  held  that  he  thus  substituted  a  finding  of  his  own  for  that 
of  the  court,  and  that  his  action  was  unauthorized.  Ibid.,  par.  2239. 

It  is  within  the  authority  of  a  department  commander,  as  reviewing  officer,  in  a 
case  in  which  a  soldier  of  his  command  has  been  sentenced  to  confinement  in  a  peni- 
tentiary, to  designate  a  particular  penitentiary  within  such  command  as  the  place  of 
confinement.  Ibid.,  par.  2240. 

It  is  an  established  principle  that  when  the  final  action  of  the  reviewing  officer 
has  been  published  in  orders  to  the  command  and  notified  to  the  accused,  his  power 
of  approval  and  disapproval  in  the  case  is  exhausted,  and  his  action  can  not  be  recalled 
or  modified.  Where  a  department  commander  applied  to  the  War  Department  for 
the  return  of  the  proceedings  in  a  case  in  order  that  he  might  modify  his  action 
thereon,  held  that  as  the  same  had  been  formally  promulgated  in  orders  and  had  duly 
taken  effect,  the  power  of  the  reviewing  officer  over  the  case  was  exhausted,  and  the 
application  could  not  legally  be  complied  with.  Ibid.,  par.  2236. 

But  where,  after  the  reviewing  commander  had  approved  a  sentence  in  general 
orders,  and  the  court  had  been  dissolved,  it  was  discovered  that  there  was  a  fatal 
defect  in  the  proceedings  in  that  they  did  not  show  that  the  court  or  judge-advocate 
had  been  sworn  in  the  case,  held  that  the  commander  would  properly  issue  a  supple- 


MILITARY   LAWS    OF   THE    UNITED   STATES.  737 


1846.  No  sentence  of  a  court-martial,  either  in  time  of 
peace  or  in  time  of  war,  respecting  a  general  officer, 

be  carried  into  execution  until  it  shall  have  been  con- 
firmed by  the  President.  One  hundred  and  eighth  Article 
of  War. 

1847.  No  sentence  of  a  court-martial  inflicting  the  pun- 
ishment  of  death  shall  be  carried  into  execution  until  it  tenj|-  Art  War 
shall  have  been  confirmed  by  the  President;  except  in  the20^y517^!' 
cases  of  persons  convicted,  in  time  of  war,  as  spies,  muti-  ^  *£|J  *>  ;11|6|; 
neers,  deserters,  or  murderers,  and  in  the  cases  of  guerrilla  c^i 
marauders,  convicted,  in  time  of  war,  of  robbery,  burglary,  356- 

arson,  rape,  assault  with  intent  to  commit  rape,  or  of  viola- 
tion of  the  laws  and  customs  of  war;  and  in  suchexcepted 
cases  the  sentence  of  death  may  be  carried  into  execution 
upon  confirmation  by  the  commanding  general  in  the  field, 
or  the  commander  of  the  department,  as  the  case  may  be. 
One  hundred  and  fifth  Article  of  War. 

1848.  In  time  of  peace  no  sentence  of  a  court-martial  of 
directing  the  dismissal  of  an  officer  shall  be  carried  into  Jfejg1  in  time 
execution  until  it  shall  have  been  confirmed  by  the  Presi-    f06  Art*  War> 
dent.  l      One  hundred  and  sixth  Article  of  War. 

mental  order  declaring  the  proceedings  a  nullity  and  the  original  order  inoperative 
and  withdrawn  on  account  of  the  defect,  (a)  Dig.  Opin.  J.  A.  G.,  par.  2242. 

Where  the  convening  commander  dissolves  a  court  pending  a  trial,  his  power  as  to 
that  court  is  exhausted,  and  he  can  not  revive  it  as  such.  He  may  reconvene  the 
same  members  as  a  court-martial,  but  it  will  be  another  and  distinct  tribunal.  Ibid.  , 
676,  par.  16. 

1  The  article  does  not  require  that  the  confirmation  of  the  sentence  shall  be  signed 
by  the  President,  nor  does  it  prescribe  any  form  in  which  the  confirmation  shall  be 
declared.  Held,  therefore,  that  a  written  approval  of  a  sentence  of  dismissal  authen- 
ticated by  the  signature  of  the  Secretary  of  War,  or  expressed  to  be  by  his  order, 
was  a  sufficient  confirmation  within  the  article;  the  case  being  deemed  to  be  gov- 
erned by  the  well-established  principle  that  where,  to  give  effect  to  an  Executive 
proceeding,  the  personal  signature  of  the  President  is  not  made  essential  by  law, 
that  of  the  head  of  the  Department  to  which  the  subject  belongs  shall  be  sufficient 
for  the  purpose;  the  assent  of  the  President  to  his  order  or  direction  being  presumed, 
and  his  act  being  deemed  in  law  the  act  of  the  President  whom  he  represents,  (b) 
Ibid.,  par.  337. 

The  word  "approved,"  employed  by  the  President  in  passing  upon  a  sentence  of 
dismissal,  held  to  be  substantially  equivalent  to  "confirmed,"  the  word  used  in  the 

a  See  G.  C.  M.  O.,  23,  Dept.  Dakota,  1888,  setting  aside  void  sentences  and  restoring  to  duty  the 
prisoners,  both  of  whom  were  serving  confinement,  and  had  been  under  the  terms  of  the  void  sen- 
tences dishonorably  discharged.  See  also  G.  C.  M.  0.,  20,  Dept.  Cal.,  1890,  where  a  void  sentence  was 
set  aside,  the  dishonorable  discharge  "  canceled"  and  the  prisoner  restored  to  duty. 

If,  however,  the  court  has  not  been  dissolved  it  may  be  reconvened  to  amend  its  record  to  conform 
to  the  actual  facts;  that  is,  to  make  it  speak  the  truth.  See  par.  19,  S.  O.,  99,  A.  G.  O.,  1900,  in  which 
the  following  is  promulgated:  "By  direction  of  the  President,  the  sentence  in  the  case  *  *  * 
published  in  paragraph  1,  Special  Orders,  No.  214,  Headquarters  Separate  Brigade,  Provost  Guard, 
Manila,  Philippine  Islands,  November  8,  1899,  is  set  aside.  The  record  of  the  trial  failed  to  show  that 
the  members  of  the  court  and  judge-advocate  were  sworn,  and  on  being  returned  [by  the  War 
Department]  for  necessary  action  the  court  was  not  reconvened,  as  contemplated  by  paragraph  2, 
page  56,  Court-Martial  Manual,  1898,  but  the  judge-advocate  interlined  a  statement  in  the  record  that 
the  members  of  the  court  and  judge-advocate  were  duly  sworn.  This  action  was  unauthorized  and 
invalid.  A  defective  record  returned  for  correction  can  only  be  amended  to  conform  to  the  actual 
facts  and  by  the  court  itself  on  revision  when  duly  reconvened  for  the  purpose." 

b  This  view  has  been  sustained  by  an  opinion  of  the  Attorney-General  of  June  6,  1877  (XV  Opins.,  290), 
and  by  a  report  of  the  Judiciary  Committee  of  the  Senate  of  March  3,  1879,  Report  No.  868,  Forty-fifth 
Congress,  thud  session.  From  this  report,  indeed,  two  members  of  the  committee  dissented  in  a  sub- 
sequent report  of  April  7,  1879,  Mis.  Doc.  No.  21,  Forty-sixth  Congress,  first  session. 

22924—08  -  47 


738  MILITARY    LAWS    OF    THE    UNITED    STATES. 

se8n?encfe8  of  1849.  Any  officer  who  has  authority  to  carry  into  execu- 
mlssai  pending ti°n  ^be  sentence  of  death,  or  of  dismissal  of  an  officer, 
Executive  ac-may  SUSpend  the  same  until  the  pleasure  of  the  President 

111  Art. war.  snan  jje  known;   and  in  such  case  he  shall  immediately 

transmit  to  the  President  a  copy  of  the  order  of  suspension, 
together  with  a  copy  of  the  proceedings  of  the  court.1 
One  hundred  and  eleventh  Article  of  War. 

mitigation'ol  1850.  Every  officer  who  is  authorized  to  order  a  general 
P^iy1i7ei862  c  court-martial  shall  have  power  to  pardon  or  mitigate  any 
201,  s.  7,  v.  12,  p.  punishment  adjudged  by  it,  except  the  punishment  of  death 

112  Art.  war.  or  of  <Jigmissal  of  an  officer.     Every  officer  commanding  a 

regiment  or  garrison  in  which  a  regimental  or  garrison 
court-martial  may  be  held,  shall  have  power  to  pardon  or 
mitigate  any  punishment  which  such  court  may  adjudge.2 
One  hundred  and  twelfth  Article  of  War. 

article.  In  practice  the  two  words  are  used  indifferently  in  this  connection.  Dig. 
Opin.  J.  A.  G.,  par.  386. 

This  subject  has  been  more  recently  considered  by  the  United  States  Supreme 
Court  in  a  succession  of  cases  (Runkle  v.  U.  S.,  122  U.  S.,  543;  U.  S.  v.  Page,  137 
U.  S.,  673;  U.  S.  v.  Fletcher,  148  U.  S.,  84),  the  effect  of  which  is  that  a  statement  of 
approval  of  a  sentence  of  dismissal,  authenticated  by  the  Secretary  of  War,  is  legally 
sufficient,  provided  that  it  appear  by  clear  presumption  therefrom  that  the  proceed- 
ings have  actually  been  submitted  to  the  President. 

In  an  opinion  of  the  Attorney-General  of  April  1, 1879  (XVIOpins.,  298),  it  was  held 
that  a  confirmation  of  a  sentence  of  dismissal  of  an  officer,  though  irregularly  and 
unduly  authenticated,  would  be  ratified  by  an  appointment  by  the  President  of 
another  officer  to  fill  the  supposed  vacancy,  and  that  the  appointment  thus  made 
would  be  valid  and  operative. 

!An  officer  suspending  the  execution  of  a  sentence  for  the  action  of  the  President 
under  this  article  should  first  formally  approve  the  same.  Simply  to  forward  the 
proceedings,  stating  that  the  sentence  has  been  suspended,  is  incomplete  and  irregu- 
lar. If  the  commander  disapproves  the  sentence,  he  can  not,  of  course,  suspend  and 
transmit  under  this  article,  since  there  remains  nothing  for  the  President  to  act  upon. 
Ibid.,  par.  339. 

Where  a  case  is  submitted  to  the  President  for  his  action  under  this  article,  he  may 
approve  or  disapprove  the  sentence  in  whole  or  in  part,  and,  if  approving,  may  exer- 
cise the  power  of  remission  or  mitigation.  Ibid.,  par.  340. 

2  The  reviewing  authority,  in  approving  the  punishment  adjudged  by  the  court  and 
ordering  its  enforcement,  is  authorized,  if  he  deems  it  too  severe,  to  graduate  it  to 
the  proper  measure  by  reducing  it  in  quantity  or  quality,  without  changing  its  spe- 
cies; this  is  mitigation.  Imprisonment,  fine,  forfeiture  of  pay,  and  suspension  are 
punishments  capable  of  mitigation.  As  an  instance  of  a  mitigation  both  in  quantity 
and  quality,  held  that  a  sentence  of  imprisonment  for  three  years  in  a  penitentiary 
was  mitigable  to  an  imprisonment  for  two  years  in  a  military'prison.(a)  Ibid.,  par. 
345. 

Held  that  a  reviewing  officer  other  than  the  President  was  not  empowered  by  this 
article  to  commute  a  punishment;  that  the  "pardon"  here  specified  was  remission, 
which,  unlike  the  pardoning  power  vested  in  the  President,  did  not  include  commu- 
tation or  conditional  pardon.  So.  held  that  a  reviewing  commander  was  not  author- 
ized to  commute  the  punishment  of  dishonorable  discharge,  and  that,  as  such  pun- 

a  The  power  to  remit  or  commute  sentences  of  death  and  dismissal  is  reserved  by  this  article  for  the 
President.  A  military  commander  can  not  exercise  such  power,  even  where^  in  time  of  war,  he  is 
authorized  to  approve  and  execute  the  sentence.  He  may  then,  however,  if  he  thinks  that  the  sen- 
tence should  be  remitted  or  commuted,  suspend  its  execution  for  the  action  of  the  President  (with  a 
recommendation  to  clemency)  under  the  preceding  article.  VI  Opin.  Att.  Gen.,  124, 126. 

See  opinion  of  Judge- Advocate-General  published  in  G.  0.,  71,  War  Department,  1875;  I  Opin.  Att.  Gen., 
327;  4  ibidM  444.  (It  may  be  noted  that  these  early  opinions  of  the  Attorney-General  inaccurately 
describe  the  substitution  of  a  lesser  punishment  for  a  death  sentence  as  a  mitigation,  the  proceeding 
being  properly  commutation.) 


Par. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  739 


THE   INFERIOR   COURTS-MARTIAL. 


Par. 


1854.  Power  of  inferior  courts  to  punish. 
1855-1861.  The  summary  court. 


1851,  1852.  The  regimental  court-martial. 
1853.  The  garrison  court-martial. 

1851.  Every  officer  commanding  a  regiment  or 
shall,  subject  to  the  provisions  of  article  eighty,  be  compe- 
tent to  appoint,  for  his  own  regiment  or  corps,  courts-  ™<  s- 7-  v- 12>  P- 
martial,  consisting  of  three  officers,  to  try  offenses  not 
capital.2     Eighty-first  Article  of  War. 

ishment  was  not  susceptible  of  mitigation,  it  could  not  legally  be  reduced  under  this 
article.  Dig.  Opin.  J.  A.  G.,  par.  347. 

The  substitution  of  the  punishment  of  confinement  for  that  of  dishonorable  dis- 
charge, imposed  by  sentence  of  court-martial,  would  not,  of  course,  be  authorized  by 
way  of  mitigation  (which  can  not  change  the  nature  of  the  punishment),  but  may  be 
affected  by  a  commutation  of  the  sentence  by  the  President,  accepted  by  the  soldier. 
See  the  action  of  the  President  in  the  case  of  Private  Hayes,  Fifth  Artillery,  in  G.  C. 
M.  O.,  58,  of  1888.  Ibid.,  par.  348. 

The  order  prescribing  maximum  punishments  was  not  intended  to  and  does  not 
affect  the  established  principle  that  the  reviewing  authority,  in  the  exercise  of  his 
power  of  mitigation,  can  not  change  the  kind  of  punishment.  The  power  of  substi- 
tution which  may  be  exercised  by  the  court  under  the  order  has  no  relation  to  the 
power  of  the  reviewing  officer.  Thus  held  that  the  substitution  by  the  reviewing  officer 
of  confinement  for  forfeiture,  though  the  period  of  confinement  proposed  were  less 
than  the  court  could  have  substituted,  would  not  be  legal  mitigation.  Ibid.,  par.  357. 

Where  a  prisoner  is  serving  out  a  sentence  of  imprisonment  at  a  military  prison  or 
place  of  confinement  within  the  command  of  the  officer  who  approved  the  proceed- 
ings, such  officer  (or  his  successor  in  the  command)  may,  under  this  article,  remit  at 
any  time  the  unexpired  portion  of  the  pending  confinement,  although  the  punish- 
ment of  dishonorable  discharge,  imposed  by  the  same  sentence,  may  meanwhile  have 
been  duly  executed.  Ibid.,  par.  349. 

A  military  commander  vested  with  the  power  of  pardon  or  mitigation  under  this 
article  is  not  authorized  to  delegate  the  same  to  an  inferior.  Thus  held  that  a  depart- 
ment commander  could  not  legally  authorize  a  post  commander  to  remit  in  part, 
upon  good  behavior,  the  punishment  of  a  soldier  under  sentence  at  the  post  of  the 
latter,  who  had  been  convicted  by  a  general  court,  convened,  and  whose  proceedings 
had  been  acted  upon,  by  the  former.  Ibid. ,  par.  342. 

A  punishment  can  not  be  pardoned  or  mitigated  under  this  article  where  it  has  been 
once  duly  executed.  Where,  however,  a  sentence  has  been  executed  only  in  part,  it 
may  be  remitted  as  to  the  portion  remaining  unexecuted.  Ibid.,  par.  343. 

The  pardoning  power  here  given  is  not  limited  in  its  exercise  to  the  moment  of  the 
approving  of  the  sentence,  but  may  be  employed  as  long  as  there  remains  any  mate- 
rial for  its  exercise.  Under  this  article,  as  interpreted  by  the  usage  of  the  service,  a 
department  (or  army)  commander  may  remit  at  any  time,  in  his  discretion,  for  any 
cause  deemed  by  him  to  be  sufficient,  the  unexecuted  portion  of  the  sentence  of  any 
soldier  confined  in  his  command  under  a  sentence  imposed  by  a  court-martial  con- 
vened by  him  or  by  a  predecessor  in  the  command.  Ibid.,  par.  344. 

lHeld  that  the  Chief  of  Engineers  was  authorized  to  order  acourt  under  this  article 
for  the  trial  of  soldiers  of  the  engineer  battalion;  the  same,  in  connection  with  the 
engineer  officers  of  the  Army,  being  deemed,  in  view  of  sections  1094, 1151, 1154,  etc. ,  of 
the  Revised  Statutes,  to  constitute  a  "corps"  in  the  sense  of  the  article.  So  held  that 
the  Chief  of  Ordnance  was  authorized  to  convene  such  a  court  for  the  trial  of  the 
enlisted  men  authorized  by  section  1162,  Revised  Statutes,  to  be  enlisted  by  him;  the 
same  being  deemed  to  constitute,  with  the  ordnance  officers,  such  a  separate  and 
distinct  branch  of  the  military  establishment  as  to  come  within  the  general  designa- 
tion of  "corps"  employed  in  the  article.  So  held  that  the  Chief  Signal  Officer,  under 
the  provisions  of  the  acts  of  July  24,  1876,  June  20,  1878,  etc.,  relating  to  his  branch 
of  the  service,  was  authorized  to  order  courts-martial,  as  commanding  a  "corps"  in 
the  sense  of  this  article.  Ibid.,  par.  212. 

2 The  jurisdiction  of  the  regimental  court-martial  sitting  as  a  criminal  tribunal  and 
that  of  the  garrison  court-martial  also,  in  respect  to  persons  and  cases  have  been  very 


740  MILITARY    LAWS    OF    THE    UNITED    STATES. 

wrongs™88  °f  1852.  Any  soldier  who  thinks  himself  wronged  by  any 
so  Irt.  war.  ofgcer  may  complain  to  the  commanding  officer  of  his  regi- 
ment, who  shall  summon  a  regimental  court-martial  for  the 
doing  of  justice  to  the  complainant.1  Either  party  may 
appeal  from  such  regimental  court-martial  to  a  general 
court-martial;  but  if,  upon  such  second  hearing,  the  appeal 
appears  to  be  groundless  and  vexatious,  the  party  appeal- 
ing shall  be  punished  at  the  discretion  of  said  general 
court-martial.2  Thirtieth  Article  of  War. 

courte-martili0 "  1853.  Every  officer  commanding3  a  garrison,  fort,  or 
other  place,*  where  the  troops  consist  of  different  corps,5 

materially  restricted  by  the  act  of  June  18,  1898  (30  Stat.  L.,  483),  which  created  the 
summary  court.  These  courts  can  now  try  only  noncommissioned  officers,  who  if 
they  object  to  trial  by  the  summary  court  are  required  to  be  brought  before  regi- 
mental or  garrison  courts  for  trial,  unless  their  trial  by  summary  court  is  directed  by 
the  authority  ' '  of  the  officer  competent  to  order  their  trial  by  general  court-martial, ' ' 
and  by  the  act  of  March  2,  1901  (31  Stat.  L.,  951),  which  authorizes  an  enlisted  man, 
in  the  case  therein  stated,  to  appeal  to  a  garrison  or  regimental  court.  See  para- 
graph 1854,  post. 

lThe  authority  to  summon  a  regimental  court  under  this*article  is  vested  in  terms 
in  the  regimental  commander.  A  department  or  other  superior  commander  can  not 
properly  exercise  such  authority,  nor  will  his  order  add  to  the  validity  or  effect  of 
the  proceeding. 

2  There  are  two  manifest  and  unqualified  limitations  to  the  province  of  the  regi- 
mental court  under  this  article,  viz:  (1)  It  can  not  usurp  the  place  of  a  court  of 
inquiry;  (2)  it  can  take  no  cognizance  of  matters  which  it  would  be  beyond  the 
power  of  the  regimental  commander  to  redress.  When  the  matter  is  beyond  the 
reach  of  the  commander,  it  is  beyond  the  jurisdiction  of  this  court.  If  it  involve  a 
question  of  irregular  detail,  excessive  work  or  duty,  wrongful  stoppages  of  pay  or  the 
like,  a  regimental  court  under  this  article  may  be  resorted  to  for  the  correction  of  the 
wrong.  Otherwise  when  the  case  is  one  of  a  wrong  such  as  can  be  righted  only  by 
the  punishment  of  the  officer.  Dig.  Opin.  J.  A.  G.,  par.  42. 

The  '*  regimental  court-martial"  under  the  30th  A.  W.  can  not  be  used  as  a  substi- 
tute for  a  general  court-martial  or  court  of  inquiry,  for  it  can  not  try  an  officer  nor 
make  an  investigation  for  the  purpose  of  determining  whether  he  shall  be  brought 
to  trial.  When,  if  the  soldier's  complaint  should  be  sustained,  the  only  redress 
would  be  a  reprimand  to  the  officer,  the  matter  would  not  be  within  the  jurisdic- 
tion of  this  court.  It  can  only  investigate  such  matters  as  are  susceptible  of  redress 
by  the  doing  of  justice  to  the  complainant — that  is,  when  in  some  way  he  can  be  set 
right  by  putting  a  stop  to  the  wrongful  condition  which  the  officer  has  caused  to 
exist.  Erroneous  stoppages  of  pay,  irregularity  of  detail,  the  apparent  requirement 
of  more  labor  than  from  other  soldiers  and  the  like  might  in  this  way  be  investigated 
and  the  wrongful  condition  put  an  end  to.  The  court  will  in  such  cases  record  the 
evidence  and  its  conclusions  of  fact  and  recommend  the  action  to  be  taken.  The 
members  of  the  court  (and  the  judge-advocate)  will  be  sworn  faithfully  to  perform 
•their  duties  as  members  (and  judge-advocate)  of  the  court,  and  the  proceedings  will 
be  recorded  as  nearly  as  practicable  in  the  same  manner  as  the  proceedings  of  ordi- 
nary courts-martial.  MANUAL  FOR  COURTS-MARTIAL. 

3 It  is  not  essential  that  the  "  officer  commanding"  should  be  of  the  rank  of  field 
officer.  A  commanding  officer,  though  a  captain  or  lieutenant,  may  convene  a  court- 
martial  under  this  article,  provided  he  has  the  required  command.  Dig.  Opin.  J.  A. 
G.,  par.  214. 

4 The  general  term  "other  place"  is  deemed  to  be  intended  to  cover  and  include 
\ny  situation  or  locality  whatever — post,  station,  camp,  halting  place,  etc. — at  which 
there  may  remain  or  l>e,  however  temporarily,  a  separate  command  or  detachment 
in  which  different  corps  of  the  Army  are  represented,  as  indicated  in  the  next  para- 
graph. If  such  a  command,  so  situated,  contains  three  officers,  other  than  the  com- 
mander, available  for  service  on  court-martial,  the  commander  wih  be  competent  to 
exercise  the  authority  conferred  by  this  article.  Ibid.  r  par.  216. 

5 Held,  in  view  of  the  early  orders  (a)  relating  to  the  subject  and  of  the  practice 

ctThe  original  ordjr  is  G.  O.,  5  headquarters  of  Army,  1843.  And  see  the  law  as  announced  later  in 
G.  O.,13,  Fourth  Military  District,  1867. 


MILITAKY    LAWS    OF   THE    UNITED   STATES.  741 


shall,  subject  to  the  provisions  of  article  eighty,1  be 
petent  to  appoint,  for  such  garrison  or  other  place,  courts- 
martial,  consisting  of   three  officers,  to  try  offenses  not    82  Art.  war. 
capital.2     Eighty  -second  Article  of  War. 

1854.  Regimental  and  garrison  courts-martial  and  sum-  riorWcourtsnfto 
mary  courts  detailed  under  existing  laws  to  try  enlisted  pujJjrh-2  1901  ^ 
men  shall  not  have  power  to  try  capital  cases  or  commis-  4>  ^  JrfwSi 
sioned  officers,  but  shall  have  power  to  award  punishment 
not  to  exceed'  confinement  at  hard  labor  for  three  months 
or  forfeiture  of  three  months'  pay,  or  both,  and  in  addi- 
tion thereto,  in  the  case  of  noncommissioned  officers,  reduc- 
tion to  the  ranks,  and  in  the  case  of  first-class  privates, 
reduction  to  second-class  privates:  Provided,  That  a  sum- 
mary court  shall  not  adjuge  confinement  and  forfeiture  in 
excess  of  a  period  of  one  month,  unless  the  accused  shall 
before  trial  consent  in  writing  to  trial  by  said  court,  but 
in  any  case  of  refusal  to  so  consent,  the  trial  may  be  had 
either  by  general,  regimental,  or  garrison  court-martial, 
or  by  said  summary  court,  but  in  case  of  trial  by  said 
summary  court  without  consent  as  aforesaid,  the  court 
shall  not  adjuge  confinement  or  forfeiture  of  pay  for  more 
than  one  month.3  Section  h  act  of  March  #,  1901'  (31 
Stat.  L.,  951.) 

thereunder,  that  the  presence  on  duty  with  a  garrison,  detachment,  or  other  separate 
command,  at  a  fort,  arsenal,  or  other  post  or  place,  and  as  a  part  of  such  command, 
of  a  single  representative,  officer  or  soldier,  of  a  corps,  arm,  or  branch  of  the  service 
other  than  that  of  which  the  bulk  of  the  command  is  composed  —  as  an  officer  of  the 
quartermaster,  subsistence,  or  medical  department,  a  chaplain,  an  ordnance  sergeant 
or  hospital  steward,  an  officer  or  soldier  of  artillery  where  the  command  consists  of 
infantry  or  cavalry,  or  vice  versa,  etc.  —  might  be  deemed  sufficient  to  fix  upon  the 
command  the  character  of  one  "  where  the  troops  consist  of  different  corps,"  in  the 
sense  of  this  article,  and  to  empower  the  commanding  officer  to  order  a  court-martial 
under  the  same.  The  presence,  however,  with  the  command  of  a  civilian  employee 
of  the  Army  —  an  acting  assistant  or  contract  surgeon  —  could  have  no  such  effect. 
Dig.  Opin.  J.  A.  G.,  par.  217. 

'The  Eightieth  Article  of  War,  which  was  repealed  by  the  act  of  June  18,  1898  (30 
Stat.  L.,  483),  gave  the  field  officers  court  exclusive  jurisdiction,  in  time  of  war,  to 
try  enlisted  men  for  offenses  cognizable  by  the  inferior  courts-martial.  As  this 
court  wasabolished  by  the  act  of  June  18,  1898,  and  its  jurisdiction  vested  in  the  new 
summary  court  created  by  that  act,  this  clause  is  no  longer  operative. 

2  A  commanding  officer  is  not  authorized  to  detail  himself,  with  two  other  officers, 
as  a  court  under  this  (or  the  preceding)  article.  An  "acting  assistant  surgeon,"  not 
being  an  officer  of  the  Army,  can  not  be  detailed  on  such  court.  Ibid.,  par.  215. 

3Capital  offenses  (i.  e.,  offenses  capitally  punishable),  not  being  within  the  jurisdic- 
tion of  inferior  courts,  such  courts  can  not  take  cognizance  of  acts  specifically  made 
punishable  by  article  21,  however  slight  be  the  offenses  actually  committed,  (a) 

While  inferior  courts  have,  equally  with  general  courts,  jurisdiction  of  all  military 
offenses  not  capital,  committed  by  enlisted  men,  yet,  in  view  of  the  limitations  upon 
their  authority  to  sentence,  it  is  in  general  inexpedient  to  resort  to  them  for  the  trial 
of  the  graver  offenses,  such  as  larcenies,  aggravated  acts  of  drunkenness,  protracted 
absences  without  leave,  etc.,  a  proper  and  adequate  punishment  for  which  would  be 
beyond  the  power  of  such  tribunals.  The  more  serious  offenses  should,  where  prac- 
ticable, be  referred  for  trial  to  general  courts,  which  alone  are  vested  with  a  full  dis- 

ci G.  O.,  21,  Headquarters  of  Army,  1858.  And  see  G.  O.,  18,  War  Department,  1859;  G.  O.,  9,  Depart- 
ment of  Utah.  1858,  where  the  proceedings  of  garrison  courts  in  cases  of  capital  offenses  are  pronounced 
void. 


742  MILITARY   LAWS   OF   THE   UNITED   STATES. 


THE    SUMMARY  COURT. 

1855-  Tne  commanding  officer  of  each  garrison,  fort,  or 
fa  June  is,  1898,  otner  place,  regiment  or  corps,  detached  battalion  or  coru- 
v.  so,  p.  483.  pany,  or  other  detachment  in  the  Army,  shall  have  power 
to  appoint  for  such  place  or  command,  or  in  his  discre- 
tion for  each  battalion  thereof,  a  summary  court  to  con- 
sist of  one  officer  to  be  designated  by  him,  before  whom 
enlisted  men  who  are  to  be  tried  for  offenses,  such  as  were 
prior  to  the  passage  of  the  act  "  to  promote  the  adminis- 
tration of  justice  in  the  Army,"  approved  October  first, 
eighteen  hundred  and  ninety,  cognizable  by  garrison  or 
regimental  courts-martial,  and  offenses  cognizable  by  field 
officers  detailed  to  try  offenders  under  the  provisions  of 
the  eightieth  and  one  hundred  and  tenth  Articles  of  War,1 
shall  be  brought  to  trial  within  twenty-four  hours  of  the 
time  of  the  arrest,  or  as  soon  thereafter  as  practicable,2 

cretion  to  impose  punishment  in  proportion  to  the  gravity  of  the  offense.  Dig.  Opin. 
J.  A.  G.,  par.  224. 

A  sentence  forfeiting  pecuniary  allowances  in  addition  to  pay,  where  the  entire 
forfeiture  amounted  to  a  sum  greater  than  one  month's  pay,  held  not  authorized  under 
this  article.  Ibid.,  par.  220. 

A  sentence,  adjudged  by  a  garrison  court,  of  confinement  "  till  the  expiration  of 
the  term  of  service"  of  a  soldier,  held  unauthorized  unless  the  soldier  had  not  more 
than  one  month  left  to  serve.  Ibid.,  par.  221. 

The  limitation  of  the  authority  of  inferior  courts  in  regard  to  sentences  of  impris- 
onment and  fine,  held  not  to  preclude  the  imposition  by  them  of  other  punishments 
sanctioned  by  the  usage  of  the  service;  such,  for  example,  as  reduction  to  the  ranks, 
either  alone  or  in  connection  with  those  or  one  of  those  expressly  mentioned.  Ibid., 
par.  222. 

The  limitations  imposed  by  the  article  have  reference,  of  course,  to  single  sentences. 
For  distinct  offenses  made  the  subject  of  different  trials,  resulting  in  separate  sen- 
tences, a  soldier  may  be  placed  at  one  and  the  same  time  under  several  penalties  of 
forfeiture  and  imprisonment,  or  of  either,  exceeding  together  the  limit  affixed  by  the 
article  for  a  single  sentence,  (a)  Ibid.,  par.  223. 

1  This  court  replaces  the  summary  court  created  by  the  act  of  October  1, 1890  (26  Stat. 
L.,  648),  which  was  restricted  in  its  operations  to  a  time  of  peace.     The  jurisdiction 
of  the  new  summary  court  extends  to  cases  which  were  formerly  tried  by  regimental 
and  garrison  courts,  and  is  exclusive,  in  respect  to  the  trial  of  enlisted  men  charged 
with  minor  offenses,  except  in  cases  of  noncommissioned  officers  who  object  to  being 
tried  by  the  summary  court.     When  such  objection  is  made  the  offender,  being  a 
noncommissioned  officer,  is  entitled  to  be  tried  by  a  regimental  or  garrison  court, 
unless  the  authority  for  his  trial  has  been  obtained  from  the  authority  competent  to 
order  the  trial  of  the  offender  by  a  general  court-martial.     The  act  of  June  18,  1898, 
became  operative,  in  accordance  with  its  terms,  on  August  17,  1898  (G.  O.,  80, 
A.  G.  O.,  1898).    Commanding  officers  of  division  field  hospitals  and  division  ambu- 
lance companies,   being  responsible  direct  to  the  division  surgeons  and  division 
commanders,  have  authority  to  appoint  summary  courts.     Par.  2,  Circular  No.  49, 
A.  G.  O.,  1898. 

2  The  provision  of  the  act  that  accused  soldiers  shall  be  brought  before  the  sum- 
mary court  for  trial  "within  twenty-four  hours  from  the  time  of  their  arrest"  is  not 
a  statute  of  limitations  nor  jurisdictional  in  its  character,  but  directory  only — direc- 
tory upon  the  officers  whose  duty  it  is  to  bring  offenders  before  the  court.     The 
proceedings  will  thus  be  legally  valid  though  the  accused  does  not  appear  for  trial 

a  See  G.  O.,  18,  War  Department,  1859. 


LAWS    OF   THE    UNITED   STATES.  743 

except  when  the  accused  is  to  be  tried  by  general  court- 
martial;  but  such  summary  court  may  be  appointed  and 
the  officer  designated  by  superior  authority  when  by  him 
deemed  desirable.1  Act  of  June  18,  1898  (30  Stat.  L., 


1856.  The  officer  holding  the  summary  court  shall  have 
power  to  administer  oaths  and  to  hear  and  determine  such 
cases,  and  when  satisfied  of  the  guilt  of  the  accused  adjudge 
the  punishment  to  be  inflicted,2  which  said  punishment 
shall  not  exceed  confinement  at  hard  labor  for  three  months 
and   forfeiture  of   three   months'  pay,  and,  in   addition 
thereto,  in  the  case  of  a  noncommissioned  officer,  reduc- 
tion to  the  ranks;  and,  in  the  case  of  first-class  privates, 
reduction  to  second-class  privates.     Ibid. 

1857.  There  shall  be  a  summary  court  record  kept  at  each    J ggrd- 
military  post  and  in  the  field  at  the  headquarters  of  the 
proper  command,  in  which  shall  be  entered  a  record  of  all 
cases  heard  and  determined  and  the  action  had  thereon; 

and  no  sentence  adjudged  by  said  summary  court  shall  be 
executed  until  it  shall  have  been  approved  by  the  officer 
appointing  the  court,  or  by  the  officer  commanding  for  the 
time  being.3  Ibid. 

within  the  period  specified.  So  held,  in  a  case  of  an  accused  soldier  arrested  on 
Saturday,  that  the  court  did  not,  by  not  sitting  on  Sunday,  lose  jurisdiction;  and 
therefore  that  it  is  not  necessary  that  a  summary  court  should  ever  sit  on  a  Sunday. 
Dig.  Opin.  J.  A.  G.,  par.  2395. 

The  provision  in  the  act  in  regard  to  the  trial  being  had  within  twenty-four  hours 
of  the  arrest  being  directory  only,  a  trial  held  after  that  time  is  entirely  valid.  Thus, 
where  a  soldier,  by  reason  of  drunkenness  or  otherwise,  is  not  in  a  condition  to  be 
tried  within  that  time,  his  trial  may  be  postponed  till  he  is  in  such  condition.  Ibid., 
par.  2396. 

1  The  procedure  of  the  summary  court  should  be  similar  to  that  of  the  older  courts- 
martial.     The  charges  and  specifications  should  be  read  to  the  accused,  and  he  be 
required  to  plead  guilty  or  not  guilty,  and  the  witnesses  should  be  sworn.    But  the 
testimony  is  not  set  forth  in  the  record.     Ibid. ,  par.  2398.     For  procedure  of  this  court 
see  MANUAL  FOR  COURTS-MARTIAL,  pp.  65-69,  121,  122. 

Held  that  the  provision  of  the  ninety-fourth  Article  of  War  relating  to  the  hours 
of  session  of  courts-martial  was  not  applicable  to  summary  courts.  Ibid.,  par.  2397. 

2  The  act  of  June  18,  1898,  in  providing  that  the  trial  officer  "shall  have  power  to 
administer  oaths,"  has  reference  to  the  oaths  of  witnesses.     The  officer  himself  is  not 
sworn.     But  the  witnesses  must  be  sworn;  and,  in  a  case  in  which  it  appeared  that 
they  were  not  in  fact  sworn,  held  that  the  proceedings  and  sentence  were  invalidated, 
and  that  a  forfeiture  imposed  was  illegally  charged  against  the  accused,  who  should 
be  credited  with  the  amount  of  the  same  on  the  next  muster  and  pay  roll.     But  the 
record  need  not  state  in  terms  that  the  witnesses  were  sworn;  it  will  be  presumed 
that  the  law  has  been  complied  with  unless  the  contrary  appears.     Dig.  Opin.  J.  A. 
G.,  par.  2239. 

A  summary  court  is  not  empowered  to  issue  process  of  attachment  to  compel  the 
attendance  of  a  civilian  witness.  Ibid.,  par.  2400. 

A  summary  court  is  not  empowered  to  impose  a  sentence  of  dishonorable  discharge. 
Such  punishment  is  not  in  terms  authorized  by  article  83  to  be  adjudged  by  regi- 
mental or  garrison  courts,  and  it  is  impliedly  restricted  to  general  courts  by  the  fourth 
Article  of  War.  Ibid.,  par.  2402. 

3  For  form  of  record  see  MANUAL  FOR  COURTS-MARTIAL,  pp.  121, 122. 


744  MILITARY    LAWS    OF    THE    UNITED   STATES. 

officer manding     1858.  When  but  one  commissioned  officer  is  present  with 

Ibid"  a  command  he  shall  hear  and  finally  determine  such  cases.1 

Ibid. 

Non^ommis-  1859.  No  one  while  holding  the  privileges  of  a  certificate 
"Tbid  °mcers>  of  eligibility  to  promotion  shall  be  brought  before  a  sum- 
mary court,  and  noncommissioned  officers  shall  not,  if  they 
object  thereto,  be  brought  to  trial  before  summary  courts 
without  the  authority  of  the  officer  competent  to  order  their 
trial  by  general  court-martial,  but  shall  in  such  cases  be 
brought  to  trial  before  garrison,  regimental,  or  general 
courts-martial,  as  the  case  may  be.  Hid. 

Approval.  1860.  The  commanding  officers  authorized  to  approve  the 

sentences  of  summary  courts  and  superior  authority  shall 
have  power  to  remit  or  mitigate  the  same.2  Sec.  3,  ibid. 

Report.  1861.  Post  and  other  commanders  shall,  in  time  of  peace, 

on  the  last  day  of  each  month,  make  a  report  to  the  depart- 
ment headquarters  of  the  number  of  cases  determined  by 
summary  court  during  the  month,  setting  forth  the  offenses 
committed  and  the  penalties  awarded,  which  report  shall 
be  filed  in  the  office  of  the  judge-advocate  of  the  depart- 
ment, and  may  be  destroyed  when  no  longer  of  use.3  Sec. 
4,  ibid. 

MILITARY    COMMISSIONS. 

?pr8io,  1806  o.  1862.  All  persons  who,  in  time  of  war,  or  of  rebellion 
37i-SFe2b  13 1862'  against  the  supreme  authority  of  the  United  States,  shall 
wo^Mar1  Vis^S!'  ^e  f°und  lurking  or  acting  as  spies,  in  or  about  any  of  the 
P.  737S'  38'  v<  12>  fortifications,  posts,  quarters,  or  encampments  of  any  of 

1  Where  a  post  commander  sits  as  a  summary  court  no  approval  of  the  sentence  is 
required  by  law,  but  he  should  sign  the  sentence  and  date  his  signature.     A  certifica- 
tion by  the  post  adjutant  is  unnecessary  and  irregular  and  should  not  be  permitted. 

2  By  the  act  of  July  28,  1892,  "commanding  officers  authorized  to  approve  the  sen- 
tences of  summary  courts"  are  empowered  to  "remit  or  mitigate  the  same."     Held, 
that  where  a  soldier  who  had  been  convicted  by  a  summary  court  had  passed  into 
another  command,  so  that  the  officer  who  approved  his  sentence  was  no  longer  his 
commanding  officer,  such  officer  could  not  legally  exercise  the  power  of  remission  or 
mitigation  of  the  sentence.     Dig.  Opin.  J.  A.  G.,  par.  2403. 

8  For  form  of  report  see  MANUAL  FOR  COURTS-MARTIAL,  p.  122. 

Discretion  respecting  trials  by  summary  courts. — Paragraph  7,  Circular  No.  13,  A.  G.  0., 
December  5,  1891,  reads  as  follows:  "The  fact  that  the  number  of  trials  by  inferior 
courts-martial  has  greatly  increased  since  the  establishment  of  the  summary  court 
indicates  that  officers  of  the  Army  have  the  impression  that  under  the  present  system 
they  must  bring  every  dereliction  of  duty  before  a  court  for  trial,  and  that  they  are 
allowed  no  discretion  in  the  matter.  This  is  a  mistake.  Their  discretion  is  the  same 
now  as  it  was  under  the  garrison-court  system,  and  they  are  not  obliged  to  bring 
cases  before  the  summary  court  which  they  believe  ought  to  be  disposed  of  with  an 
admonition,  or  the  withholding  of  privileges  or  indulgences.  The  extent  of  the 
exercise  of  this  discretion  within  those  limits  is  subject  to  the  control  of  the  com- 
manding officer."  In  accordance  with  the  spirit  of  the  foregoing,  company  com- 
manders are  authorized,  subject  to  the  control  of  the  commanding  officer  of  the  post, 
to  dispose  of  cases  of  derelictions  of  duty  in  their  commands  which  would  be  within 
the  jurisdiction  of  inferior  courts-martial  by  requiring  extra  hours  of  fatigue,  unless 
the  soldier  demands  a  trial.  This  right  to  demand  a  trial  must  be  made  known  to 
him.  Circular  No.  5,  A.  G.  O.,  1898. 


MILITARY    LAWS    OF   THE    UNITED   STATES. 


745 


the  armies  of  the  United  States,  or  elsewhere,  shall  be 
triable  by  a  general  court-martial,  or  by  a  military  com- 
mission,1 and  shall,  on  conviction  thereof,  suffer  death. 


COURTS   OF   INQUIRY. 


Par. 


Par. 


1867.  Opinion,  when  given. 

1868.  Record,  authentication. 

1869.  The  same,  use  in  evidence. 


1863.  Constitution;  restriction. 

1864.  Composition. 

1865.  Oaths. 

1866.  Witnesses. 


1863.  A  court  of  inquiry,  to  examine  into  tne  nature  of    ^S**  of  in~ 
any  transaction  of,  or  accusation  or  imputation  against,    11&  Art-  War- 
any  officer  or  soldier,  may  be  ordered  by  the  President  or 
by  any   commanding   officer;  but,    as   courts  of  inquiry 
may  be  perverted  to  dishonorable  purposes,  and  may  be 
employed,  in  the  hands  of  weak  and  envious  commandants, 
as  engines  for  the  destruction  of  military  merit,  they  shall 

lAuthority  and  history. — By  a  practice  from  1847,  (a)  and  renewed  and  firmly  estab- 
lish during  the  late  war,  (6)  military  commissions  have  become  adopted  as  authorized 
tribunals  in  this  country  in  time  of  war.  They  are  simply  criminal  war  courts, 
resorted  to  for  the  reason  that  the  jurisdiction  of  courts-martial,  creatures  as  they  are 
of  statute,  is  restricted  by  law,  and  can  not  be  extended  to  include  certain  classes  of 
offenses,  which,  in  war,  would  go  unpunished  in  the  absence  of  a  provisional  forum 
for  the  trial  of  the  offenders.  Their  authority  is  derived  from  the  Law  of  War,  (c) 
though  in  some  cases  their  powers  have  been  added  to  by  statute,  (c?)  Their  compe- 
tency has  been  recognized  not  only  in  acts  of  Congress,  (e)  but  in  Executive  procla- 
mations, (/)  in  rulings  of  the  courts,  (g)  and  in  opinions  of  the  Attorneys-General,  (h) 
During  the  rebellion  they  were  employed  in  several  thousand  cases;  more  recently 
they  were  resorted  to  under  the  "  Reconstruction"  act  of  1867;  and  still  later  one  of 
these  courts  has  been  convened  for  the  trial  of  Indians  as  offenders  against  the  laws 
of  war.(i)  Dig.  Opin.  J.  A.  G.,  par.  1077.  See  also,  ibid.,  par.  1678-1692. 

aSeeMaj.  Gen.  Scott's  G.  O.  20,  Hdqrs.  of  Army,  Tampico,  Feb.  19, 1847,  republished,  "with  im- 
portant additions,"  in  G.  0. 190  and  287  of  the  same  year.  In  this  connection,  note,  also,  the  institu- 
tion by  Gen.  Scott  of  "Councils  of  War" — summary  courts  for  the  punishment  of  certain  violations 
of  the  laws  of  war— as  exibited  in  G.  O.,  Hdqrs.  of  Army,  Nos.  181,  184,  and  372,  of  1847,  and  Nos.  35 
and  41,  of  1848. 

6  The  first  military  commission  of  the  war  is  believed  to  have  been  that  convened  by  Mai.  Gen 
Fremont,  by  G.  0. 118,  Western  Department,  St.  Louis,  Sept.  2, 1861. 

cSeeG.  0. 100,  War  Dept.,  1863,  Sec.  I,  §  13;  do.  1,  Dept.  of  the  Missouri,  1862;  do.  20,  Hdqrs.  of 
Army,  1847;  United  States  v .  Reiter,  13  Am.  Law  Reg.,  534;  State  v.  Stillman,  7  Cold.,  341;  Heffennan  v. 
Porter,  6  do.,  697.  And  see  also  Opins.  At.  Gen.  cited  under  this  §,  post. 

dSee  section  30  of  the  act  of  March  3,  1863  (12  Stat.  L.,  736),  declaring  that,  in  time  of  war,  etc., 
murder,  manslaughter,  robbery,  larceny,  and  other  specified  crimes,  when  committed  by  persons  in 
the  military  service,  shall  be  punishable  by  sentence  of  court-martial  "or  military  commission," 
etc.— an  enactment  repeated,  as  to  courts-martial,  in  the  58th  article  of  war;  also,  section  38  of  the 
same  act  (repeated  in  section  1343,  Rev.  Stat.),  making  spies  triable  by  general  court-martial  "or 
military  commission"  and  punishable  with  death.  See,  further,  act  of  July  2, 1864,  by  which  com- 
manders of  departments  and  commanding  generals  in  the  field  were  authorized  to  carry  into  execu- 
tion sentences  imposed  by  military  commission  upon  guerrillas.  See,  also,  sections  6  and  8  of  the  act 
of  July  4, 1864  (13  Stat.  L.,  397)  (not  now  in  force),  making  inspectors  in  the  quartermaster  depart- 
ment triable  and  punishable  by  sentence  of  court-martial  or  "military  commission  "  for  fraud  or  neg- 
lect of  duty,  as  also  other  employees  and  officers  of  that  department  for  accepting  bribes  from  con- 
tractors, etc.;  also  the  reconstruction  act  of  March  2, 1867  (14  Stat.  L.,  428),  by  which  commanders  of 
military  districts  were  authorized  to  convene  military  commissions  for  the  trial  of  certain  offenders. 

eSee  the  acts  cited  in  last  note,  together  with  sections  1199, 1643,  and  1344,  Rev.  Stat.,  as  also  the 
recent  appropriation  acts  of  July  24,  1876,  November  21,  1877,  June  18,  1878,  June  23, 1879,  and  May  4, 
1880,  in  which,  among  other  items  for  the  Pay  Department,  appropriation  is  made  "for  compensation 
for  citizen  clerks  and  witnesses  attending  upon  courts-martial  and  military  commissions." 

/See  the  proclamations  of  September  24, 1862,  and  April  2, 1866. 

oEx  parte  Vallandigham,  1  Wallace,  243;  in  the  matter  of  Martin,  45  Barb.,  146;  Ex  parte  Bright, 
1  Utah,  145;  State  v.  Stillman,  7  Cold.,  341.  In  the  last  case  the  court  says:  "  A  military  commission 
is  a  tribunal  now  (1870)  as  well  known  and  recognized  in  the  laws  of  the  United  States  as  a  court- 
martial."  It  has  been  "recognized  by  the  executive,  legislative,  and  judicial  departments  of  the 
Government  of  the  United  States." 

/iSee  V  Opins.  Att.  Gen. ,55;  XI  Id.,  297;  XII  Id.,  332;  XIII  Id.,  59;  XIV  Id.,  249. 

iThecase  of  the  Modoc  Indians  tried  by  military  commission  in  July,  1873.  G.  ('.  M.  O.  32,  War 
Dept.,  1873.  See  XIV  Opins.  Att.  Gen.,  249. 


746  MILITAKY    LAWS    OF   THE   UNITED   STATES. 

never  be  ordered  by  any  commanding  officer,  except  upon 

a  demand  by  the  officer  or  soldier  whose  conduct  is  to  be 

inquired  of.1      One  hundred  and  fifteenth  Article  of  War. 

Composition.        1864.  A  court  of  inquiry  shall  consist  of  one  or  more 

'  officers,  not  exceeding  three,  and  a  recorder,  to  reduce  the 

proceedings  and  evidence  to  writing,2     One  hundred  and 

sixteenth  Article  of  War. 

oaths  of  mem-  1865.  The  recorder  of  a  court  of  inquiry  shall  administer 
er.  to  the  members  the  following  oath:  "  You  shall  well  and 

117  Art.  War.  .  ,    . 

truly  examine  and  inquire,  according  to  the  evidence,  into 

1This  article  authorizes  the  institution  of  a  court  of  inquiry  (a)  only  in  a  case  of 
an  "officer  or  soldier,"  and  the  word  "officer,"  as  employed  in  the  articles,  is  denned 
by  section  1342,  Revised  Statutes,  to  mean  commissioned  officer.  A  court  of  inquiry 
can  not,  therefore,  be  convened  on  the  application  or  in  a  case  of  a  person  who  is  not 
an  officer  (or  soldier)  of  the  Army  at  the  time.  Such  a  court  can  not  be  ordered  to 
investigate  transactions  of,  or  charges  against,  a  party  who,  by  dismissal,  discharge, 
resignation,  etc.,  has  become  separated  from  the  military  service,  although  such 


par.  366. 

A  court  of  inquiry  should  not  in  general  be  ordered  by  an  inferior — post  or  regi- 
mental—commander where  the  charges  required  to  be  investigated  are  not  such  as 
an  inferior  court-martial  could  legally  take  cognizance  of.  Courts  of  inquiry  con- 
vened by  such  commanders  are,  however,  of  rare  occurrence  in  our  service.  Ibid., 
par.  367. 

Though  a  court  of  inquiry  has  sometimes  been  compared  to  a  grand  jury,  there  is 
little  substantial  resemblance  between  the  two  bodies.  The  accused  appears  and 
examines  witnesses  before  such  a  court  as  freely  as  before  a  court-martial  (see  article 
118),  and  its  proceedings  are  not  required  to  be  secret,  but  may  be  open  at  the  dis- 
cretion of  the  court.  Ibid.,  par.  368. 

Although  neither  article  88  nor  other  provision  of  the  code  specifically  authorizes 
the  challenging  of  the  members  of  a  court  of  inquiry,  yet,  in  the  interests  of  justice 
and  by  the  usage  of  the  service  in  this  country,  this  proceeding  is  permitted  in  the 
same  manner  as  before  courts-martial.  Article  117  requires  that  members  of  courts 
of  inquiry  shall  be  sworn  "well  and  truly  to  examine  and  inquire,  according  to  the 
evidence,  without  partiality,  prejudice,"  etc.;  and  it  is  the  sense  of  the  service  that 
their  competency  so  to  do  should  be  liable  to  be  tried  by  the  same  tests  as  in  a  case 
of  a  court-martial,  (b)  Ibid.,  par.  368,  note  1. 

2  A  court  of  inquiry  has  no  power  to  punish  as  for  a  contempt.  Such  power  of  this 
nature  as  is  conferred  by  article  86  is  restricted  in  terms  to  courts-martial.  Moreover, 
a  court  of  inquiry,  not  being  in  a  proper  sense  a  court,  can  not  exercise  the  strictly 
judicial  function  of  punishing  contempts.  A  loose  observation  of  Hough  (Authorities, 
10),  that  "contempts  before  courts  of  inquiry  are  as  much  punishable  as  before  courts- 
martial,"  has  been  carelessly  repeated  by  several  American  writers.  The  recent 
English  writer,  Clode,  correctly  states  the  law  (as  to  witnesses)  in  saying  (Mil.  and 
Mar.  Law,  198)  that  a  court  of  inquiry  "has  no  power  to  punish  them  for  contumacy 
or  silence."  The  act  of  March  2,  1901  (G.  O.  27,  A.  G.  O.,  1901),  providing  for  the 
punishment  of  civilian  witnesses  refusing  to  appear  or  testify,  is  limited  by  its  terms 
to  general  courts-martial. 

a  A  court  of  inquiry  is  not  a  court  in  the  legal  sense  of  the  term,  but  rather  a  council,  commission, 
or  board  of  investigation.  It  does  1191  administer  justice;  no  plea  or  specific  issue  is  presented  to  it 
for  trial;  its  proceedings  are  not  a  trial  of  guilt  or  innocence;  it  does  not  come  to  a  verdict  or  pass  a 
sentence.  For  purposes  of  investigation,  however,  a  court  of  inquiry  in  this  country  is  clothed  with 
ample  powers,  and,  in  an  important  case,  its  opinions  may  be  scarcely  less  significant  and  even  final  than 
that  of  a  military  court  proper,  that  is  to  say,  a  court-martial.  1  Winthrop's  Military  Law  and  Prec- 
edents, chapter  24. 

bSee  Macomb,  sec.  204;  O'Brien.  292;  De  Hart,  278.  In  the  joint  resolution  of  Congress  of  February 
13, 1874,  authorizing  the  President  to  convene  a  certain  special  court  of  inquiry,  it  was  "provided 
that  the  accused  may  be  allowed  the  same  right  of  challenge  as  allowed  by  law  in  trials  by  court- 
martial."  It  appears,  however,  to  have  been  regarded  in  the  debate  on  this  resolution  (see  Con- 
gressional Record,  vol.  2,  Nos.  38,40)  that  this  provision  was  unnecessary  to  entitle  the  party  to  the 
privilege. 


MILITARY   LAWS    OF   THE   UNITED   STATES.  747 

the  matter  now  before  you,  without  partiality,  favor,  affec- 
tion, prejudice,  or  hope  of  reward:  so  help  you  God"  After 
which  the  president  of  the  court  shall  administer  to  the 
recorder  the  following  oath:  "You,  A  B,  do  swear  that 
you  will,  according  to  your  best  abilities,  accurately  and 
impartially  record  the  proceedings  of  the  court  and  the 
evidence  to  be  given  in  the  case  in  hearing:  so  help  you 
God."  One  hundred  and  seventeenth  Article  of  War. 

1866.  A  court  of  inquiry,  and  the  recorder  thereof,  shall  m^waenrdtoeSS" 
have  the  same  power  to  summon  and  examine  witnesses  as  ^M^r^S  c 
is  given  to  courts-martial  and  the  judge-advocates  thereof.  ?3^Mar Vises' 
Such  witnesses  shall  take  the  same  oath  which  is  taken  by  ^,5.25,  v'.  1-2,  P'. 
witnesses   before   courts-martial,  *  and  the  party  accused    118  Art- War- 
shall  be  permitted  to  examine  and  cross-examine  them,  so 

as  fully  to  investigate  the  circumstances  in  question.  One 
hundred  and  eighteenth  Article  of  War. 

1867.  A  court  of  inquiry  shall  not  give  an  opinion  on  the  PPnnion;  when 
merits  of  the  case  inquired  of  unless  specially  ordered  to    n»  Art.  war. 
do  so.2      One  hundred  and  nineteenth  Article  of  War. 

1  So  in  the  roll. 

2  An  opinion  given  by  a  court  of  inquiry  is  not  in  the  nature  of  a  sentence  or  adjudi- 
cation pronounced  upon  a  trial.    The  accused,  upon  a  subsequent  trial  by  court-martial, 
of  charges  investigated  by  a  court  of  inquiry,  can  not  plead  the  proceedings  or  opinion 
of  the  latter  as  a  former  trial,  acquittal,  or  conviction.     Dig.  Opin.  J.  A.  G.,  par.  369. 

While  it  is  of  course  desirable  that  the  members  of  a  court  of  inquiry,  directed  to 
express  an  opinion,  should  concur  in  their  conclusions,  they  are  not  required  to  do  so 
by  law  or  regulation  (a).  The  majority  does  not  govern  the  minority,  as  in  the  case 
of  a  finding  or  sentence  by  court-martial.  If  a  member  or  a  minority  of  members 
can  not  conscientiously,  and  without  a  weak  yielding  of  independent  convictions,  agree 
with  the  majority,  it  is  better  that  such  member  or  members  should  formally  disagree 
and  present  a  separate  report  or  reports  accordingly.  The  very  disagreement,  indeed, 
of  intelligent  minds  is  a  material  and  important  fact  in  the  case,  and  one  of  which  the 
review' ig  authority  is  entitled  to  have  the  advantage  in  his  consideration  of  and 
action  upon  the  same.  Ibid.,  par.  370. 

Where,  as  in  the  majority  of  cases,  the  inquiry  is  instituted  with  a  view  of  assisting 
the  determination  by  the  President,  or  a  military  commander,  of  the  question  whether 
the  party  should  be 'brought  to  trial,  the  opinion  of  the  court  will  properly  be  as  to 
whether  further  proceedings  before  a  court-martial  are  called  for  in  the  case,  with  the 
reasons  for  the  conclusions  reached.  Where  no  such  view  enters  into  the  inquiry, 
but  the  court  is  convened  to  investigate  a  question  of  military  right,  responsibility, 
conduct,  etc.,  the  opinion  will  properly  confine  itself  to  the  special  question  proposed 
and  its  legitimate  military  relations.  A  court  of  inquiry,  composed  as  it  is  of  military 
men,  will  rarely  find  itself  called  upon  to  express  an  opinion  upon  questionsof  a  purely 
legal  character  (6).  Ibid.,  par.  371. 

It  is  not  irregular,  but  authorized,  fora  court  of  inquiry,  in  a  proper  case,  to  reflect, 
in  connection  with  its  opinion,  upon  any  improper  language  or  conduct  of  the  accused, 
prosecuting  witness,  or  other  person  appearing  before  it  during  the  investigation  (c). 

a  In  the  case  of  the  court  of  inquiry  (composed  of  seven  general  officers)  on  the  Cintra  Convention, 
in  1808,  the  members  who  dissented  from  the  majority  were  required  by  the  convening  authority  to 
put  on  record  their  opinions,  and  three  dissenting  opinions  were  accordingly  given.  A  further  instance, 
in  which  two  of  the  five  members  of  the  court  gave  each  a  separate  dissenting  opinion,  is  cited  by 
Hough  ( Precedents,  642).  Mainly  upon  the  authority  of  the  former  case,  both  Hough  (Precedents,  642) 
and  Simmons  (sec.  339)  hold  that  members  nonconcurring  with  the  majority  are  entitled  to  have  their 
opinions  reported  in  the  record. 

6  In  an  exceptional  case,  that  of  the  special  court  of  inquiry  authorized  by  Congress  in  the  joint 
resolution  of  February  13,  1874,  the  court  was  required  to  express  an  opinion  not  only  upon  the 
"moral"  but  upon  the  "technical  and  legal  responsibility"  of  the  officer  for  the  "offenses"  charged. 

cThus  the  court  of  inquiry  on  the  conduct  of  the  Seminole  war  adverted,  in  its  opinion,  unfavorably 
upon  certain  offensive  and  reprehensible  language  employed  against  each  other  by  the  two  general 
officers  concerned,  the  one  in  his  statement  to  the  court  and  the  other  in  his  official  communications, 
which  were  put  in  evidence.  See  G.  O.  13,  Headquarters  of  Army,  1837. 


748  MILITARY    LAWS   OF   THE   UNITED   STATES. 


1868>  The  Proceedings  of  a  court  of  inquiry  must  be 
f20Art.w»r.  authenticated  by  the  signatures  of  the  recorder  and  the 
president  thereof,  and  delivered  to  the  commanding  officer. 
One  hundred  and  twentieth  Article  of  War. 

1869.  The  proceedings  of  a  court  of  inquiry  may  be  ad- 
war.  minted  as  evidence  by  a  court-martial,  in  cases  not  capital, 
nor  extending  to  the  dismissal  of  an  officer:  Provided, 
That  the  circumstances  are  such  that  oral  testimony  can 
not  be  obtained.  1  One  hundred  cmd  twenty-first  Article 
of  War. 

1  While  the  proceedings  of  a  court  of  inquiry  can  not  .be  admitted  as  evidence  on 
the  merits  upon  a  trial  before  a  court-martial  of  an  offense  for  which  the  sentence  of 
dismissal  will  be  mandatory  upon  conviction,  («)  yet  held  that  upon  the  trial  of  such 
offense,  as  upon  any  other,  such  proceedings,  properly  authenticated,  would  be 
admissible  in  evidence  for  the  purpose  of  impeaching  the  statements  of  a  witness 
upon  the  trial  who  —  it  was  proposed  to  show  —  had  made  quite  different  statements 
upon  the  hearing  before  the  court  of  inquiry,  (b)  Dig.  Opin.  J.  A.  G.,  par.  372. 

a  Compare  G.  O..33,  Department  of  Arizona,  1871. 

6See  this  ruling,  published,  as  adopted  by  the  President,  in  G.  C.  M.  O.,  40,  Headquarte*s  of  Army, 


CHAJPTER 


CITIZENSHIP  AND  NATURALIZATION. 


Par. 

1870.  Citizenship  defined. 

1871.  Citizenship  of  children  of  citizens 

born  abroad. 

1872.  Citizenship  of  married  women. 

1873.  Citizenship  of  persons  born  in  Ore- 

gon. 

1874.  Rights  of  citizenship  forfeited  by 

desertion. 

1875.  Certain    soldiers  and    sailors    ex- 

empted from  forfeitures  of  last 
section. 

1876.  Avoiding  the  draft. 

1877.  Right  of  expatriation. 

1878.  Protection  to  naturalized  citizens 

in  foreign  states. 

1879.  Release  of  citizens  imprisoned  by 

foreign    governments  to   be  de- 
manded. 

1880.  Naturalization  of  aliens. 


Par. 

1881.  Declarations    of     intention,    how 

made. 

1882.  Aliens  honorably  discharged  from 

military  service. 

1883.  Aliens  honorably  discharged  from 

the  naval  service. 

1884.  Minor  residents. 

1885.  Widow  and  children  of  declarants. 

1886.  Aliens    of    African    nativity    and 

descent. 

1887.  Residence  required. 

1888.  Alien  enemies  not  admitted. 

1889.  Children  of  persons  naturalized. 

1890.  Police  court  of  District  of  Columbia 

has  no  power  to  naturalize  aliens. 

1891.  Naturalization  of  seamen. 

1892.  Citizenship  to  be  accorded  allottees 

and  to  Indians  adopting  civilized 
life. 


CITIZENSHIP. 

1870.  All  persons  born  in  the  United  States  and  not  sub-  fln«tizenship  de- 
ject to  any  foreign  power,  excluding  Indians  not  taxed,  are  31^p['  y'li866^?' 
declared  to  be  citizens  of  the  United  States.1  sec.'  1992'$.  s.' 

1871.  All  children  heretofore  born  or  hereafter  born  out    citizenship  of 

t>  ,..,..  .  children  of  citi- 

of  the  limits  and  ]urisdiction  of  the  United  States,  whose  zensbom  abroad. 
fathers  were  or  may  be  at  the  time  of  their  birth  citizens  |?.  »•  4.y-  2,  P.  iss- 
thereof  ,  are  declared  to  be  citizens  of  the  United  States  ;s.i,v.io,  p.  604.  ' 
but  the  rights  of  citizenship  shall  not  descend  to  children 
whose  fathers  never  resided  in  the  United  States. 

1872.  Any  woman  who  is  now  or  may  hereafter  be  mar-    citizenship  of 

.     ,  .   .  J  married  women. 

ried  to  a  citizen  of  the  United  States,  and  who  might  her-  n»w>-  i<M«£  «• 
self  be  lawfully  naturalized,  shall  be  deemed  a  citizen.2 


604. 


Planters'  Bank  v.  St.  John,  1  Woods,  585;  McKay  v.  Campbell,  2  Saw.,  118. 
See,  also,  for  a  definition  of  the  term  "citizen  of  the  United  States,"  the  fourteenth 
amendment  to  the  Constitution. 
2  Kelly  v.  Owen,  7  Wall,  496. 

749 


750  MILITARY    LAWS    OF   THE    UNITED    STATES. 


in     1873'  All  persons  born  in  the  district  of  country  for- 
yni8,  1872,  c.  mei'ly  known  as  the  Territory  of  Oregon,  and  subject  to 
i72,8.3,V.i7;P:tne  jurisdiction  of  the  United  States  on  the  18th  May, 
sec.  i995,R.s.  18Y2,  are  citizens  in  the  same  manner  as  if  born  elsewhere 

in  the  United  States. 

zenS?p%rfeited      18?4.  All  persons  who  deserted  the  military  or  naval 

^Mar^isfe?^:  service  of  the  United  States  and  did  not  return  thereto  or 

loo.8'  21>  v'  13'  p'  report  themselves  to  a  provost-marshal  within  sixty  da}Ts 

Sec.  i996,K.s.  after  ^he  issuance  of  the  proclamation  by  the  President, 

dated  the  llth  day  of  March,  1865,  are  deemed  to  have 

voluntarily  relinquished  and  forfeited  their  rights  of  citi- 

zenship, as  well  as  their  right  to  become  citizens;  and  such 

deserters  shall  be  forever  incapable  of  holding  any  office 

of  trust  or  profit  under  the  United  States,  or  of  exercising 

any  rights  of  citizens  thereof.1 

diersrand  sailors     1875.  No  soldier  or  sailor,  however,  who  faithfully  served 

thlS?flfturfesTfaccordmg  to  nis  enlistment  until  the  19th  day  of  April', 

^euiaysi9fi867nc.  1865>  and  who>  without  proper  authority  or  leave   first 

^Sec/i&iVii.s.  obtained,  quit  his  command  or  refused  to  serve  after  that 

date,  shall  be  held  to  be  a  deserter  from  the  Army  or  Navy  ; 

but  this  section  shall  be  construed  solely  as  a  removal  of 

any  disability  such  soldier  or  sailor  may  have  incurred, 

under  the  preceding  section,  by  the  loss  of  citizenship  and 

of  the  right  to  hold  office,  in  consequence  of  his  desertion. 

drtft°iding  the     1876>  Every  person  who  hereafter  deserts  the  military 

79Asa2i3'v18i3>  p'or  naval  service  of  the  United  States,  or  who,  being  duly 

49s'ec  1998  R  s  enrolled,  departs  the  jurisdiction  of  the  district  in  which. 

he  is  enrolled,  or  goes  beyond  the  limits  of  the  United 

States,  with  intent  to  avoid  any  draft  into  the  military  or 

naval  service,  lawfully  ordered,  shall  be  liable  to  all  the 

penalties  and  forfeitures  of  section  nineteen  hundred  and 

ninety  -six.1 

tnatfon  °f  expa~  1877.  Whereas  the  right  of  expatriation  is  ft  natural  and 
249Usyi2V8i58'  v  inherent  right  of  all  people,  indispensable  to  the  enjoy  - 
122|ec  1999  R  s  ment  of  the  rights  of  life,  liberty,  and  the  pursuit  of  hap- 
piness; and  whereas  in  the  recognition  of  this  principle 
this  Government  has  freely  received  emigrants  from  all 
nations,  and  invested  them  with  the  rights  of  citizenship; 
and  whereas  it  is  claimed  that  such  American  citizens, 
with  their  descendants,  are  subjects  of  foreign  states, 
owing  allegiance  to  the  governments  thereof;  and  whereas 
it  is  necessary  to  the  maintenance  of  public  peace  that 
this  claim  of  foreign  allegiance  should  be  promptly  and 

1  These  penalties  only  take  effect  upon  conviction  by   court-martial.     Kurtz  v. 
Moffett,  115  U.S.,  501. 


MILITAEY   LAWS    OF   THE    UNITED   STATES.  751 

finally  disavowed:  Therefore  any  declaration,  instruction, 
opinion,  order,  or  decision  of  any  officer  of  the  United 
States  which  denies,  restricts,  impairs,  or  questions  the 
right  of  expatriation  is  declared  inconsistent  with  the  fun- 
damental principles  of  the  Republic. 

1878.  All  naturalized  citizens  of  the  United  States,  while    Protection   to 

.  naturalized  citi- 

in  foreign  countries,  are  entitled  to  and  shall  receive  from  zens  in  foreign 

states. 

this  Government  the  same  protection  of  persons  and  prop-    July  27,  ises.c. 

.    .  '     249,  s.  2,  v.  15,  p. 

erty  which  is  accorded  to  native-born  citizens.  224^  ^^ 

1879.  Whenever  it  is  made  known  to  the  President  that    Release  of  citi- 

•  •  zens  imprisoned 

any  citizen  of  the  United  States  has  been  unjustly  deprived  by  foreign  gov- 
of  his  liberty  by  or  under  the  authority  of  any  foreign  gov-  demanded. 
eminent,  it  shall  be  the  duty  of  the  President  forthwith  to  249,  s.  3,  v.  i5,V 
demand  of  that  government  the  reasons  of  such  imprison-  sec.  2001,  B.  s. 
rnent;  and  if  it  appears  to  be  wrongful  and  in  violation  of 
the  rights  of  American  citizenship,  the  President  shall 
forthwith  demand  the  release  of  such  citizen,  and  if  the 
release  so  demanded  is  unreasonably  delayed  or  refused, 
the  President  shall  use  such  means,  not  amounting  to  acts 
of  war,  as  he  may  think  necessary  and  proper  to  obtain 
or  effectuate  the  release;  and  all  the  facts  and  proceedings 
relative  thereto  shall  as  soon  as  practicable  be  communi- 
cated by  the  President  to  Congress. 


1880.  An  alien  may  be  admitted  to  become  a  citizen  of  Naturalization 
the  United  States  in  the  following  manner,  and  not  other-  Sec.  2160,  K.  s. 
wise: 

First.  He  shall  declare  on  oath,  before  a  circuit  or  district    Declaration  of 
court  of  the  United  States,  or  a  district  or  supreme  court  inApr?°i4,  1802, 
of  the  Territories,  or  a  court  of  record  of  any  of  the  States  2,'  ppTit  3'i55 
having  common-law  jurisdiction,  and  a  seal  and  clerk,  two  istfs.2^',  v82t  p 
years,  at  least,  prior  to  his  admission,  that  it  is  bona  fide  c?  5,  ^g,1  p.1®?6 
his  intention  to  become  a  citizen  of  the  United  States,  and 
to  renounce  forever  all  allegiance  and  fidelity  to  any  foreign 
prince,  potentate,  state,  or  sovereignty,  and,  particularly, 
by  name,  to  the  prince,  potentate,  state,  or  sovereignty  of 
which  the  alien  may  be  at  the  time  a  citizen  or  subject. 

lrThe  power  of  naturalization  is  exclusively  in  Congress.  Chirac  v.  Chirac,  2 
Wheat.,  260.  Jurisdiction  for  that  purpose  having  been  conferred  by  Congress, 
courts  of  record  in  the  several  States  and  Territories  have  the  power  to  extend  the 
privileges  of  citizenship  to  aliens  by  an  application  of  the  provisions  of  the  natural- 
ization laws  of  the  United  States.  Campbell  v.  Gordon,  6  Cr.,  176;  Stark  v.  Chesa- 
peake Ins.  Co.,  7  Cr.,  420;  Chirac  v.  Chirac,  2  Wheat.,  259;  Osborn  v.  United  States 
Bank,  9  Wheat.,  827;  Spratt  v.  Spratt,  4  Pet.,  393. 

For  a  discussion  of  the  power  of  the  several  States  to  confer  the  privilege  of  State 
citizenship  upon  aliens,  see  Collet  v.  Collet  (2  Dall.,  294). 


752  MILITAEY   LAWS    OF   THE    UNITED   STATES. 

po?tatthetocon?§-     Second.  He  shall,  at  the  time  of  his  application  to  be 
?  declare,  on  oath,  before  some  one  of  the  courts 


c.2$rs.  i^ifpl^ove  specified,  that  he  will  support  the  Constitution  of 
16S-  the  United  States,  and  that  he  absolutely  and  entirely 

renounces  and  abjures  all  allegiance  and  fidelity  to  every 
foreign  prince,  potentate,  state,  or  sovereignty;  and,  par- 
ticularly, by  name,  to  the  prince,  potentate,  state,  or  sover- 
eignty of  which  he  was  before  a  citizen  or  subject;  which 
proceedings  shall  be  recorded  by  the  clerk  of  the  court. 
u5teesdstetes  m  Third.  It  shall  be  made  to  appear  to  the  satisfaction  of 
moS'chwacte?  tne  court  admitting  such  alien  that  he  has  resided  within 
the  United  States  five  years  at  least,  and  within  the  State 
or  Territory  where  such  court  is  at  the  time  held,  one  year 
at  least;  and  that  during  that  time  he  has  behaved  as  a 
man  of  good  moral  character,  attached  to  the  principles  of 
the  Constitution  of  the  United  States,  and  well  disposed 
to  the  good  order  and  happiness  of  the  same;  but  the  oath 
of  the  applicant  shall  in  no  case  be  allowed  to  prove  his 
residence.1 

it  ™tos  °benobre-     Fourth.  In  case  the  alien  applying  to  be  admitted  to  cit- 
nounced.  izenship  has  borne  any  hereditary  title,  or  been  of  any  of 

the  orders  of  nobility  in  the  kingdom  or  state  from  which 
he  came,  he  shall,  in  addition  to  the  above  requisites,  make 
an  express  renunciation  of  his  title  or  order  of  nobility  in 
the  court  to  which  his  application  is  made,  and  his  renun- 
ciation shall  be  recorded  in  the  court. 

ingicftheuXted  Fifth.  Any  alien  who  was  residing  within  the  limits  and 
j^tl9,ib795fore  under  the  jurisdiction  of  the  United  States  before  the 
twenty-ninth  day  of  January,  one  thousand  seven  hundred 
and  ninety  -five,  may  be  admitted  to  become  a  citizen,  on 
due  proof  made  to  some  one  of  the  courts  above  specified, 
that  he  has  resided  two  years,  at  least,  within  the  jurisdic- 
tion of  the  United  States,  and  one  year,  at  least,  immedi- 
ately preceding  his  appliction,  within  the  State  or  Territory 
where  such  court  is  at  the  time  held;  and  on  his  declaring 
on  oath  that  he  will  support  the  Constitution  of  the  United 
States,  and  that  he  absolutely  and  entirely  renounces  and 
abjures  all  allegience  and  fidelity  to  any  foreign  prince, 
potentate,  state,  or  sovereignty,  and,  particularly,  by  name, 

1  By  the  treaty  of  cession  with  Russia  subjects  of  that  nation  inhabiting  the  Terri- 
tory of  Alaska  at  the  date  of  the  treaty,  and  continuing  to  remain  such  inhabitants 
for  three  years,  became  thereupon  American  citizens.  But  the  treaty  neither  men- 
tions nor  refers  to  British  subjects  or  the  subjects  of  any  foreign  nation  other  than 
Russia.  Such  persons,  therefore,  residing  in  the  Territory,  can  become  citizens  only 
in  the  mode  and  form  prescribed  by  the  United  States  naturalization  laws.  Dig. 
Opin.  J.  A.  Gen.,  par.  400. 


MILITARY   LAWS    OF   THE    UNITED   STATES.  753 

to  the  prince,  potentate,  state,  or  sovereignty  whereof  he 
was  before  a  citizen  or  subject;  and,  also,  on  its  appearing 
to  the  satisfaction  of  the  court,  that  during  such  term  of 
two  years  he  has  behaved  as  a  man  of  good  moral  char- 
acter, attached  to  the  Constitution  of  the  United  States, 
and  well  disposed  to  the  good  order  and  happiness  of  the 
same;  and  where  the  alien,  applying  for  admission  to 
citizenship,  has  borne  any  hereditary  title,  or  been  of  any 
of  the  orders  of  nobility  in  the  kingdom  or  state  from  which 
he  came,  on  his,  moreover,  making  in  the  court  an  express 
renunciation  of  his  title  or  order  of  nobility.  All  of  the 
proceedings,  required  in  this  condition  to  be  performed  in 
the  court,  shall  be  recorded  by  the  clerk  thereof. 

Sixth.  Any  alien  who  was  residing  within  the  limits  and  ingb^eSenrjS?e 
under  the  jurisdiction  of  the  United  States,  between  theg;™'andjune 
eighteenth  day  of  June,  one  thousand  seven  hundred  and  s^z'iVp1^' 
ninety-eight,  and  the  eighteenth  day  of  June,  one  thousand  JJ^sH'  v82f  p' 
eight  hundred  and  twelve,  and  who  has  continued  to  reside  m 
within  the  same,  may  be  admitted  to  become  a  citizen  of 
the  United  States  without  having  made  any  previous  dec- 
laration of  his  intention  to  become  such;  but  whenever 
any  person,  without  a  certificate  of  such  declaration  of 
intention,  makes  application  to  be  admitted  a  citizen,  it 
must  be  proved  to  the  satisfaction  of  the  court  that  the 
applicant  was  residing  within  the  limits  and  under  the 
jurisdiction  of  the  United  States  before  the  eighteenth  day 
of  June,  one  thousand  eight  hundred  and  twelve,  and  has 
continued  to  reside  within  the  same;  and  the  residence  of 
the  applicant  within  the  limits  and  under  the  jurisdiction 
of  the  United  States,  for  at  least  five  years  immediately 
preceding  the  time  of  such  application,  must  be  proved  by 
the  oath  of  citizens  of  the  United  States,  which  citizens 
shall  be  named  in  the  record  as  witnesses;  and  such  con- 
tinued residence  within  the  limits  and  under  the  jurisdic- 
tion of  the  United  States,  when  satisfactorily  proved,  and 
the  place  where  the  applicant  has  resided  for  at  least  five 
years  shall  be  stated  and  set  forth,  together  with  the 
names  of  such  citizens,  in  the  record  of  the  court  admit- 
ting the  applicant;  otherwise  the  same  shall  not  entitle  him 
to  be  considered  and  deemed  a  citizen  of  the  United  States. 

1881.  That  the  declaration  of  intention  to  become  a  citi-    Declaration  of 

j>     i_      TT    •       10  intention,    how 

zen  oi  the  U  nited  States,  required  by  section  two  thou- m^e.  l  1876  c 
sand  one  hundred  and  sixty-five  of  the  Kevised  Statutes5' j 
of  the  United  States,  may  be  made  by  an  alien  before  the 
clerk  of  any  of  the  courts  named  in  said  section  two  thou- 
22924—08 48 


V 


754  MILITARY    LAWS    OF    THE    UNITED   STATES. 

sand  one  hundred  and  sixty-five;  and  all  such  declarations 
heretofore  made  before  any  such  clerk  are  hereby  declared 
as  legal  and  valid  as  if  made  before  one  of  the  courts  named 
in  said  section. 

abfyXharged     1882.  Any  alien  of  the  age  of  twenty-one  years  and 
service.  mihtary  upward,  who  has  enlisted,  or  may  enlist,  in  the  armies  of  the 
musy2i%18i2;£  United  States,  either  the  regular  or  volunteer  forces,  and 
59s'ec.2i66,R.s.  ^as  been,  or  may  be  hereafter,  honorably  discharged,  shall 
be  admitted  to  become  a  citizen  of  the  United  States,  upon 
his  petition,  without  any  previous  declaration  of  his  inten- 
tion to  become  such;  and  he  shall  not  be  required  to  prove 
more  than  one  year's  residence  within  the  United  States 
previous  to  his  application  to  become  such  citizen;  and  the 
court  admitting  such  alien  shall,  in  addition  to  such  proof 
of  residence  and  good  moral  character,  as  now  provided  by 
law,  be  satisfied  by  competent  proof  of  such  person's  having 
been  honorably  discharged  from  the  service  of  the  United 
States.1 

awyieffscha°rged  1883.  Any  alien  of  the  age  of  twenty -one  years  and  up- 
servicehe  naval  ward  who  has  enlisted  or  may  enlist  in  the  United  States 
2sf p!yi24.' 1894>  v'  Navy  or  Marine  Corps,  and  has  served  or  may  hereafter 
serve  five  consecutive  years  in  the  United  States  Navy  or 
one  enlistment  in  the  United  States  Marine  Corps,  and  has 
been  or  may  hereafter  be  honorably  discharged,  shall  be 
admitted  to  become  a  citizen  of  the  United  States  upon  his 
petition,  without  any  previous  declaration  of  his  intention 
to  become  such;  and  the  court  admitting  such  alien  shall, 
in  addition  to  proof  of  good  moral  character,  be  satisfied 
by  competent  proof  of  such  person's  service  in  and  honor- 
able discharge  from  the  United  States  Navy  or  Marine 
Corps.  Act  of  July  <26,  1894  (28  Stat.  Z.,  1&4). 

1  Aliens,  honorably  discharged  after  enlisting  in  our  Army,  are  not,  by  such  dis- 
charge alone,  made  citizens,  but  they  are  thereupon  entitled  (under  a  provision  of 
the  act  of  July  17,  1862,  now  section  2166,  Revised  Statutes)  to  be  admitted  to  become 
citizens  without  previous  declaration  of  intention,  upon  merely  presenting  to  the 
proper  court  (see  section  2165,  Revised  Statutes)  a  petition  for  the  purpose,  accom- 
panied by  proof  of  at  least  one  year's  residence  within  the  United  States  previous  to 
the  application,  of  good  moral  character,  and  of  the  fact  of  honorable  discharge.  Dig. 
Opin.  J.  A.  G.,  par.  401. 

Under  the  act  of  July  30,  1892,  an  enlisted  man,  to  be  eligible  for  promotion  as 
commissioned  officer,  must  be  a  citizen  of  the  United  States.  And,  in  order  to  be 
promptly  naturalized,  under  section  2166,  Revised  Statutes,  he  must  first  be  honor- 
ably discharged.  So,  advised  that  such  alien,  to  be  qualified  for  examination  and 
appointment  under  the  act,  should  be  discharged  and,  after  naturalization,  be  reen- 
listed.  Ibid.,  par.  403. 

The  mere  enlistment  and  honorable  discharge  of  an  alien  as  a  soldier  of  our  Army 
do  not  per  se  constitute  him  a  citizen  of  the  United  States.  He  must  still  make  formal 
petition  to  one  of  the  courts,  etc.,  specified  in  section  2165,  Revised  Statutes,  and 
present  thereupon  the  evidence  required  by  section  2166.  Ibid.,  par.  736. 

A  native-born  minor  is  a  citizen  of  the  United  States  under  the  fourteenth  amend- 
ment of  the  Constitution.  Ibid.,  par.  737. 


MILITAEY    LAWS    OF    THE    UNITED    STATES.  755 


1884.  Any  alien,  being  under  the  age  of   twenty-one       *01 


years,  who  has  resided  in  the  United  States  three  years  is 
next  preceding  his  arriving  at  that  age,  and  who  has  con- 
tinued  to  reside  therein  to  the  time  he  may  make  applica- 
tion to  be  admitted  a  citizen  thereof,  may,  after  he  arrives 
at  the  age  of  twenty-one  years,  and  after  he  has  resided 
five  years  within  the  United  States,  including  the  three 
years  of  his  minority,  be  admitted  a  citizen  of  the  United 
States,  without  having  made  the  declaration  required  in 
the  first  condition  of  section  twenty-one  hundred  and  sixty- 
five;  but  such  alien  shall  make  the  declaration  required 
therein  at  the  time  of  his  admission;  and  shall  further 
declare,  on  oath,  and  prove  to  the  satisfaction  of  the  court, 
that,  for  two  years  next  preceding,  it  has  been  his  bona 
fide  intention  to  become  a  citizen  of  the  United  States; 
and  he  shall  in  all  other  respects  compty  with  the  laws  in 
regard  to  naturalization. 

1885.  When  any  alien,  who  has  complied  with  the  % 
condition  specified  in  section  twenty-one  hundred  and  sixty-  1304  c 
five,  dies  before  he  is  actually  naturalized,  the  widow  and4V<2>oi«api»2^- 

Sec.  *lt>3,lt.^. 

the  children  of  such  alien  shall  be  considered  as  citizens 
of  the  United  States,  and  shall  be  entitled  to  all  rights 
and  privileges  as  such,  upon  taking  the  oaths  prescribed1 
by  law. 

1886.  The  provisions  of  this  Title2  shall  apply  to  aliens    Aliens  of  Afri- 
[being  free  white  persons,  and  to  aliens]  of  African  nativity  descent!™ 


and  to  persons  of  African  descent. 

256;  Feb.  18,  1875,  c.  80,  v.  18,  p.  318.     Sec   2169,B.S. 

1887.  No  alien  shall  be  admitted  to  become  a  citizen  who  qi5reddence  re' 
has  not  for  the  continued  term  of  five  years  next  preceding  42Msari|;  y81!,'  p. 
his  admission  resided  within  the  United  States.  81s'ec.2i70,R.s. 

1888.  No  alien  who  is  a  native  citizen  or  subject,  or  a    Alien  enemies 

.        not  admitted. 

denizen  of  any  country,  state,  or  sovereignty  with  which    Apr.  H,  1802,  c. 
the  United  States  are  at  war,  at  the  time  of  his  applica-  July  so,'  isis,  c.' 
tion,  shall  be  then  admitted  to  become  a  citizen  of  the    sec.2m,B.s. 
United  States;   but  persons  resident  within   the  United 
States,  or  the  Territories  thereof,  on  the  eighteenth  day  of 
June,  in  the  year  one  thousand  eight  hundred  and  twelve, 
who  had  before  that  day  made  a  declaration,  according  to 
law,  of  their  intention  to  become  citizens  of  the  United    • 
States,  or  who  were  on  that  day  entitled  to  become  citizens 
without  making  such  declaration,  may  be   admitted   to 
become  citizens  thereof,  notwithstanding  they  were  alien 
enemies  at  the  time  and  in  the  manner  prescribed  by  the 


1  Error  in  the  roll;  should  be  prescribed. 

2  Title  XXX,  Revised  Statutes;  paragraphs  454-480  of  this  work, 


756  MILITARY   LAWS   OF   THE    UNITED   STATES. 

laws  heretofore  passed  on  that  subject;  nor  shall  anything 
herein  contained  be  taken  or  construed  to  interfere  with 
or  prevent  the  apprehension  and  removal,  agreeably  to 
law,  of  any  alien  enemy  at  any  time  previous  to  the  actual 
naturalization  of  such  alien. 

citizenship  of     1889.  The  children  of  persons  who  have  been  duly  natu- 

sons  naturalized,  ralized  under  any  law  of  the  United  States,  or  who,  previous 

28,8?4Jv.2,p.i&5!to  the  passing  of  any  law  on  that  subject,  by  the  Govern- 

GOTdOT?b6e  cement  of  the  United  States,  may  have  become  citizens  of 

field,  is'  Biatcl."  any  one  of  the  States,  under  the  laws  thereof,  being  under 

Sec.2i72,  H.S.  the  age  of  twenty-one  years  at  the  time  of  the  naturaliza- 

tion of  their  parents,  shall,  if  dwelling  in  the  United 

States,  be  considered  as  citizens  thereof;  and  the  children 

of  persons  who  now  are,  or  have  been,  citizens  of  the 

United  States,  shall,  though  born  out  of  the  limits  and 

jurisdiction  of  the  United  States,  be  considered  as  citizens 

thereof;  but  no  person  heretofore  proscribed  by  any  State, 

or  who  has  been  legally  convicted  of  having  joined  the 

army  of  Great  Britain  during  the   Revolutionary  war, 

shall  be  admitted  to  become  a  citizen  without  the  consent 

of  the  legislature  of  the  State  in  which  such  person  was 

proscribed. 

police  court  of     1890.  The  police  court  of  the  District  of  Columbia  shall 

District    of    Co-,  ->•/?' 

lumwa  has  no  have  no  power  to  naturalize  foreigners. 

^sec^m  £asu  ralize  aliens-  June  17)  1870>  c'  133>  s-  5>  v-  16>  p-  154> 
Naturalization      1891.  Every  seaman,  being   a  foreigner,  who  declares 

.  his  intention  of  becoming  a  citizen  of  the  United  States  in 


c. 

322,  s.  29,  v.  17,  p.  i      i      11  i  i  .LI 

268.  any  competent  court,  and  shall  have  served  three  years  on 

'  board  of  a  merchant  vessel  of  the  ^United  States  subse- 
quent to  the  date  of  such  declaration,  may,  on  his  applica- 
tion to  any  competent  court,  and  the  production  of  his 
certificate  of  discharge  and  good  conduct  during  that  time, 
together  with  the  certificate  of  his  declaration  of  intention 
to  become  a  citizen,  be  admitted  a  citizen  of  the  United 
States;  and  every  seaman,  being  a  foreigner,  shall,  after 
his  declaration  of  intention  to  become  a  citizen  of  the 
United  States,  and  after  he  shall  have  served  such  three 
years,  be  deemed  a  citizen  of  the  United  States  for  the 
purpose  of  manning  and  serving  on  board  any  merchant 
vessel  of  the  United  States,  anything  to  the  contrary  in 
any  act  of  Congress  notwithstanding;  but  such  seaman 
shall,  for  all  purposes  of  protection  as  an  American  citizen, 
be  deemed  such,  after  the  filing  of  his  declaration  of  inten- 
tion to  become  such  citizen.  l 

1For  statutory  provisions  respecting  seamen  in  the  naval  service  of  the  United 
States,  see  paragraph  1883,  ante. 


MILITARY   LAWS    OP   THE    UNITED   STATES.  757 

1892.  That  upon  the  completion  of  said  allotments  and  becitaSded  to 
the  patenting  of  the  lands  to  said  allottees,  each  and  every  ^f6^^ 
member  of  the  respective  bands  or  tribes  of  Indians  to  Cig1ecze6d  ^  8> 
whom  allotments  have  been  made  shall  have  the  benefit  of 1887)  v- 24>  p- m 
and  be  subject  to  the  laws,  both  civil  and  criminal,  of  the 
State  or  Territory  in  which  they  may  reside;  and  no  Ter- 
ritory shall  pass  or  enforce  any  law  denying  any  such 
Indian  within  its  jurisdiction  the  equal  protection  of  the 
law.  And  every  Indian  born  within  the  territorial  limits 
of  the  United  States  to  whom  allotments  shall  have  been 
made  under  the  provisions  of  this  act,  or  under  any  law  or 
treaty,  and  every  Indian  born  within  the  territorial  limits 
of  the  United  States  who  has  voluntarily  taken  up,  within 
said  limits,  his  residence  separate  and  apart  from  any  tribe 
of  Indians  therein,  and  has  adopted  the  habits  of  civilized 
life,  is  hereby  declared  to  be  a  citizen  of  the  United  States, 
and  is  entitled  to  all  the  rights,  privileges,  and  immunities 
of  such  citizens,  whether  said  Indian  has  been  or  not,  by 
birth  or  otherwise,  a  member  of  any  tribe  of  Indians  within 
the  territorial  limits  of  the  United  States  without  in  any 
manner  impairing  or  otherwise  affecting  the  right  of  any 
such  Indian  to  tribal  or  other  property.1  Sec.  6,  act  of 
February  8,  1887  (24  Stat.  Z., 


xFor  the  Indian  allotment  act,  see  the  act  of  Februarys,  1887  (24  Stat.  L.,  358-390). 


CHAPTER  XXXVIII. 


THE  INDIANS. 


INDIAN   AGENTS — INDIAN    [RESERVATIONS — THE   INDIAN   COUNTRY. 


Par. 

1893-1895.  The  Secretary  of  the  Interior; 
the  Commissioner  of  Indian  Af- 
fairs. 

1896-1921.  Indian  inspectors  and  Indian 
agents;  agencies. 

1922-1940.  Performance  of  engagements 
with  Indians;  annuities. 


Par. 
1941-1959.  Government   and    protection 

of  Indians. 

1960-1974.  Indian  traders. 
1975-1985.  Sales  of  liquor  to  Indians. 
1986-2010.  Crimes  and  criminal  offenses. 
2011-2014.  The  Indian  police. 


THE   SECRETARY   OP  THE   INTERIOR — THE   COMMISSIONER   OF   INDIAN    AFFAIRS. 


Par. 

1893.  Secretary  of  the  Interior;  duties. 

1894.  Commissioner    of    Indian  Affairs; 

duties. 


Par. 

1895.  Commissioner  of  Indian  Affairs  to 
cause  laws  relating  to  Indian 
service  to  be  compiled  for  use  of 
agents,  etc. 

Ma?6!'  1849  s      1893.  The  Secretary  of  the  Interior  is  charged  with  the 
6>gee!'£iVB.  s.  supervision  of  public  business  relating  to  the  following 
subjects: 


Third.  The  Indians.     Sec.  5,  act  of  March  3,  1849  (9 
Stat.  Z.,  395). 

July  9, 1832,  s.      1894.  The  Commissioner  of  Indian  Affairs  shall,  under 
'  sec.' IBS,  B.  s.  the  direction  of  the  Secretary  of  the  Interior,  and  agree- 
ably to  such  regulations  as  the  President  may  prescribe, 
have  the  management  of    all   Indian  affairs  and   of  all 
matters  arising  out  of  Indian  relations. 
Laws  to  be      1895.  It  shall  be  the  duty  of  the  Commissioner  of  Indian 

compiled  for  use    .   _   ,  .,     ,          ,         .          ,    ., 

of  agents,  etc.     Affairs  to  cause  to  be  compiled  and  printed  for  the  use  of 

TVTfl  v  1 7    1  &82    R 

7,  v.  22,  p.  ss. '  '  Indian  agents  and  inspectors  the  provisions  of  the  statutes 
regulating  the  performance  of  their  respective  duties,  and 
also  to  furnish  said  officers,  from  time  to  time,  information 
of  new  enactments  upon  the  same  subject.  Sec.  7,  act  of 
May  17,  1882  (2%  Stat.  Z.,  88). 
758 


MILITARY    LAWS    OF   THE    UNITED    STATES. 


759 


INDIAN    INSPECTORS   AND    INDIAN    AGENT8. 


Par. 

1909.  Administration  of  oaths. 

1910.  Acknowledgments. 

1911.  Investigations;  oaths  to  witnesses. 

1912.  Restrictions  on  officeholding. 

1913.  Compensations  to  be  in  full. 

1914.  Traveling  expenses. 

1915.  Additional  security. 

1916.  Discontinuance  of  agencies. 

1917.  Consolidation  of  agencies. 
1918-1919.  Transfer  of  agencies. 

1920.  Discharge  of  employees. 

1921.  Duties  of  Indian  agents. 


Par. 

1896.  Indian  inspectors;  appointment. 

1897.  Powers  and  duties. 

1898.  Indian  agents. 

1899.  Tenure  of  office. 

1900.  Bonds. 

1901.  Limits  of  agency,  etc. 

1902.  Residence  of  agents. 
1903-1904.  Army  officers  as  agents. 

1905.  Restriction   on  agents'    compensa- 

tion. 

1906.  Special  agents,  etc. ;  appointment. 

1907.  Sub-Indian  agents. 

1908.  Superintendents  of  manual  training 

schools  to  act  as  agents. 

1896.  There  shall  be  appointed  by  the  President,  by  and 

with  the  advice  and  consent  of  the  Senate,  a  sufficient  fic^b  14 1873  c 
number  of  Indian  inspectors,  not  exceeding  five1  in  num-J^'.  MarVisTs' 
ber,  to  perform  the  duties  required  of  such  inspectors  by 
the  provisions  of  this  title.  Each  inspector  shall  hold  his 
office  for  four  years,  unless  sooner  removed  by  the  Presi- 
dent. 

1897.  Each  Indian  superintendency  and  agency  shall  be 
visited  and  examined  as  often  as  twice  a  year 2  by  one  or 
more  of  the  inspectors.     Such  examination  shall  extend  to  J|^ 
a  full  investigation  of  all  matters  pertaining  to  the  busi- 
ness of  the  superintendency  or  agency,  including  an  exam- 
ination of  accounts,  the  manner  of  expending  money,  the 
number  of  Indians  provided  for,  contracts  of  all  kinds 
connected  with  the  business,  the  condition  of  the  Indians, 
their  advancement  in  civilization,  the  extent  of  the  reserva- 
tions, and  what  use  is  made  of  the  lands  set  apart  for  that 
purpose,  and,  generally,  all  matters  pertaining  to  the  Indian 
service.     For  the  purpose  of  making  such  investigations, 
each  inspector  shall   have  power  to   examine  all  books, 
papers,  and  vouchers,  to  administer  oaths,  and  to  examine 
on  oath  all  officers  and  persons  employed  in  the  superin- 
tendency or  agency,  and  all  such  other  persons  as  he  may 
deem   necessary  or  proper.     The   inspectors,  or  any  of 
them,  shall  have  power  to  suspend  any  superintendent  or 
agent  or  employee,  and  to  designate  some  person  in  his 

xThe  act  of  May  31,  1900  (31  Stat.  L.,  224),  makes  provision  for  eight  Indian 
inspectors,  one  of  whom  shall  be  an  engineer  competent  to  the  location,  construction, 
and  maintenance  of  irrigation  works. 

2 The  act  of  March  3,  1875  (18  Stat.  L.,  422),  repealed  the  above  requirement  in 
respect  to  semiannual  examinations  by  inspectors. 


3  18?5  c 
v> 


B.s. 


760  MILITARY    LAWS    OF   THE    UNITED    STATES. 

place  temporarily,  subject  to  the  approval  of  the  Presi- 
dent, making  immediate  report  of  such  suspension  and 
designation;  and  upon  the  conclusion  of  each  examination 
a  report  shall  be  forwarded  to  the  President  without  delay. 
The  inspectors,  in  the  discharge  of  their  duties,  jointly 
and  individually,  shall  have  power,  by  proper  legal  pro- 
ceedings, which  it  shall  be  the  duty  of  the  district 
attorney  of  the  United  States  for  the  appropriate  district 
duly  to  effectuate,  to  enforce  the  laws  and  to  prevent  the 
violation  of  law  in  the  administration  of  affairs  in  the 
several  agencies  and  superintendences.  So  far  as  practi- 
cable, the  examinations  of  the  agencies  and  superintend- 
ences shall  be  made  alternately  by  different  inspectors,  so 
that  the  same  agency  or  superintendency  may  not  be 
examined  twice  in  succession  by  the  same  inspector  or 
inspectors. 
Indian  agente.  1898.  The  President  is  authorized  to  appoint  from  time 

Ifr'junek1!7^'  to  tmie5  ky  and  with  the  advice  and  consent  of  the  Senate, 

c'Iec'2052^B4s'  ^e  following  Indian  agents:1 
Term  of  office.      1899.  Each  Indian  agent  shall  hold  his  office  for  the  term 

Feb.  27,  1861,  c.      <•    j.  r       j          x'i    i.  •  •      j    i  •    A.    j 

14,  s.  6,v.9,  p.  587;  of  f  our  years  [and  until  his  successor  is  duly  appointed 

Apr.8,1864,c.48,         -,  ,./,     -.-,  2 

s.  4,  v.  i3,p.  40.    and  qualified]  . 
Bonds.   '   *  *      1900.  Each  Indian  agent,  before  entering  upon  the  duties 

Feb.  27,  1851,  c.      »    ,  .          ™  i     n        •         i          i     -  i  il-  j         -,i 

Hs.6,v.9,p.587;of  his  office,  shall  give  bond  in  such  penalties  and  with 
i32,r's.  10,  v.  is,  p."  such  security  as  the  President  or  the.  Secretary  of  the  Inte- 

451.  .  .        u 

Sec.  2067,  JR.  s.  rior  may  require/ 

Limits  of  su-  1901.  The  limits  of  each  superintendency,  agency,  and 
a?e  n^e^S  subagency  shall  be  established  by  the  Secretary  of  the 
Sujune3o!i834,  c.  Interior,  either  by  tribes  or  geographical  boundaries. 

162,  s.  7,  v.  4,  p.  736.  Mar  3>  1847(  c_  g^  s  lf  v>  9>  p>  203.     Sec.    2066,  B.S. 


1902>  Eveiy  Indian   agent    shall   reside  and   keep   his 
8*6*2060  B  s  a£fency  w^hin  or  near  the  territory  of  the  tribe  for  which 
he  may  be  agent,  and  at  such  place  as  the  President  may 
designate,  and  shall  not  depart  from  the   limits  of  his 
agency  without  permission. 


1  The  act  of  August  15, 1894  (28  Stat.  L.,  286),  contained  the  folio  whig  requirement: 
"Hereafter  the  annual  salaries  of  the  several  Indian  agents  shall  be  as  provided  for 

revisions  of 
agents  and 
ion  for  the 
makes  pro- 


in  this  act. "(«)  This  legislation  Operated  as  an  express  repeal  of  the  provisions  of 
section  2057,  Revised  Statutes,  in  pari  materia.  The  number  of  Indian  agents  and 
their  respective  salaries  are  now  fixed  in  the  annual  acts  of  appropriation  for  the 
support  of  the  Indian  service.  That  for  March  3, 1901  (31  Stat.  L.  1058),  mal 


vision  for  forty -nine  Indian  agents  at  an  aggregate  expense  of  $77,600. 

2  Amended  by  the  insertion  of  the  words  in  brackets  by  the  act  of  May  17,  1882 
(22  Stat.  L.,  87). 

3  For  statute  authorizing  additional  security  to  be  required  in  certain  cases  see 
paragraph  1915,  post. 

a  The  act  of  July  4, 1884  (23  Stat.  L.,  76),  contained  a  provision  repealing  all  statutes  fixing  compen- 
sation of  Indian  agents  in  excess  of  the  amounts  therein  appropriated.  For  a  list  of  agencies,  with 
the  salaries  thereto  pertaining,  as  fixed  by  the  act  of  August  15, 1884  (28  Stat.  L.,  286),  see  Vol.  II, 
Supplement  to  the  Revised  Statutes,  page  244,  note  2. 


MILITARY   LAWS    OF   THE    UNITED   STATES.  761 


1903.  The  President  may  require  any  military  officer  of 

the  United  States  to  execute  the  duties  of  an  Indian  agent;  ggjj  £ 
and  when  such  duties  are  required  of  any  military  officer,  162UJef  'i^v'J 
he  shall  perform  the  same  without  any  other  compensa-  P%ec!to62,  R.S. 
tion  than  his  actual  traveling  expenses.1 

1904.  Hereafter  the  President  may  detail  officers  of  the 
United  States  Army  to  act  as  Indian  agents  at  such  agen-  30>  p-  573- 
cies  as,  in  the  opinion  of  the  President,  may  require  the 
presence  of  an  army  officer,  and  while  acting  as  Indian 
agents  such  officers  shall  be  under  the  orders  and  direc- 

tion  of  the  Secretary  of  the  Interior.2     Act  of  July  1, 
1898(30  Stat.  L.,  573). 

1905.  No  compensation  beyond  their  actual  expenses  for 

extra  services  shall  be  allowed  any  Indian  agent  or  sub-icjjay31  1832  ^ 
agent  for  services  when  doing  duty  under  the  order  of  the  \$  *•  2>  v-  4'  p- 
Government,  detached  from  their  agency  and  the  boundary  Sec-  2068'  B-s< 
of  the  tribe  to  which  they  are  agents  or  subagents. 

1906.  All  special  agents  and  commissioners  not  appointed  ansf  com 
by  the  President  shall  be  appointed  by  the  Secretary  of  erjjar 


99,s.l,v.l2,p.792. 
Sec.  2067,  R.S. 


1907.  A  competent  number  of  sub-Indian  agents  shall  be  of 
appointed  by  the  President,  with  a  salary  of  one  thousand  a^J}JJ'80  1834  c 
dollars  a  year  each,  to  be  employed,  and  to  reside  wherever  Ijjfc  8-  b>  v-  4»  p- 
the  President  may  direct,  and  who  shall  give  bonds,  with   sec.2056,R.s. 
one  or  more  sureties,  in  the  penal  sum  of  one  thousand 

dollars,  for  the  faithful  execution  of  their  duties.  But  no 
subagent  shall  be  appointed  who  shall  reside  within  the 
limits  of  any  agency  where  there  is  an  agent  appointed. 

1908.  The  Commissioner   of   Indian  Affairs,  with  tlfe  J£Sfrt*gJgj 
approval  of  the  Secretary  of  the  Interior,  may  devolve  the     ooi  to  act  as 
duties  of  any  Indian  agency  upon  the  superintendent  of 

the  Indian  training  school  located  at  such  agency,  when- 

ever in  his  judgment  such  superintendent  can  properly 

perform  the  duties  of  such  agency.    And  the  superintend- 

ent upon  whom  such   duties  devolve   shall  give  bond  as 

other  Indian  agents.3    Act  of  March  3,  1899  (30  Stat.  L.  ,  30'  p- 

924.)  _ 

1  Officers  of  the  Army  acting  as  Indian  agents  at  places  where  there  are  suitable 
quarters  provided  by  the  Government  are  not  entitled  to  commutation  of  quarters. 
IV  Compt.  Dec.,  212;  III,  ibid.,  223. 

2  The  acts  of  July  1,  1898  (30  Stat.  L.,  573),  March  2,  1899  (ibid.,  926),  and  May  31, 
1900  (31  ibid.,  224),  have  contained  the  requirement  that  the  sums  appropriated  for 
compensation  of  Indian  agents  "shall  not  take  effect  or  become  available  in  any  case 
for  or  during  the  time  in  which  any  officer  of  the  Army  of  the  United  States  shall  be 
engaged  in  the  performance  of  the  duties  of  Indian  agent  at  any  of  the  agencies" 
named  therein. 

3The  act  of  June  10,  1896  (29  Stat.  L.,  321),  contained  the  same  requirement. 


762  MILITARY    LAWS    OF   THE    UNITED   STATES. 


pen"     1909-  Declaration  in  (pension)  claims  of  Indians  may  be 
2,  ^Jfp.  272  '  s'  made  before  a  United  States  Indian  agent.     Sec.  8,  act  of 

July  26,  1892  (27  Stat.  Z.,  272). 

mratkno°fwdeedd!;      191°-  Indian  agents  are  authorized  to  take  acknowledg- 

etMa?y3*gi8^'c.  ments  of  deeds  and  other  instruments  of  writing,  and  to 

^t:s-10>v'10'p-  administer  oaths  in  investigations  committed  to  them  in 

sec.2064,K.  s.  Jn^ian  country,  pursuant  to  such  rules  and  regulations  as 

may  be  prescribed  for  that  purpose  by  the  Secretary  of 

the  Interior;  and  acknowledgments  so  taken  shall  have  the 

same  effect  as  if  taken  before  a  justice  of  the  peace. 

o£S3Sistmtion      1911t  Hereafter  each  special  agent,  supervisor  of  schools, 

3ofpai924.18">v'or  otner  official  charged  with  the  investigation  of  Indian 

agencies  and  schools,  in  the  pursuit  of  his  official  duties, 

shall  have  power  to  administer  oaths  and  to  examine,  on 

oath,  all  officers  and  persons  'employed  in  the  Indian  serv- 

ice, and  all  such  other  persons  as  may  be  deemed  necessary 

and  proper.     Act  of  March  1,  1899  (30  Stat.  Z.,  924). 

MISCELLANEOUS. 

tw™°ffices°     1912-  No  Person  shall  hold  more  than  one  office  at  the 
?c:  same  time  under  this  Title;1  nor  shall  any  agent,  subagent, 
162,  s.  10,  v.  4,  p.  interpreter,  or  person  employed  under  this  Title,  receive 
sec.  2074,R.s.  hjs  salary  while  absent  from  his  agency  or  employment 
without  leave  of  the  superintendent  or  Secretary  of  the 
Interior;  but  such  absence  shall  at  no  time  exceed  sixty 
days. 

prescribed8?.?  be      1913t  ^e  severa^  compensations  prescribed  by  this  Title  J 

injS!e3o  1834  c  ska^  be  m  ^u^  °^  a^  emoluments  or  allowances  whatso- 

162,  s.  10,  v.  4,'p.  ever.     But,  where  necessary,  a  reasonable  allowance  or 

sec.2076,B.s.  provision  may  be  made  for  offices  and  office  contingencies. 

trt  v°eT?£ge  efx-      1914'  Where  persons  are  required,  in  the  performance  of 

pejnune3o  1834  c  ^e^r  ^u^esj  under  this  Title,1  to  travel  from  one  place  to 

162,  s.  10,  V.  4,'p.  another,  their  actual  expenses,  or  a  reasonable  sum  in  lieu 

15Minis^u.  s.,  thereof,  may  be  allowed  them,  except  that  no  allowance 

Sec.2077,B.  s.  shall  be  made  to  any  person  for  travel  or  expenses  in  com- 

ing to  the  seat  of  Government  to  settle  his  accounts,  unless 

thereto  required  by  the  Secretary  of  the  Interior. 

curit^fronm^t      1915-  The  President  may,  from  time  to  time,  require 

etcraing  °mcers'  additional  security,  and  in  larger  amounts,  from  all  per- 

lei^Ti?  vf^'p!  sons  charged  or  trusted,  under'  the  laws  of  the  United 

73sec.  2075,  R.  s.  States,  with  the  disbursement  or  application  of  money, 

goods,  or  effects  of  an}^  kind,  on  account  of  Indian  affairs. 

1  Title  XXVIII,  Revised  Statutes. 


MILITARY    LAWS    OF    THE    UNITED   STATES.  763 


DISCONTINUANCE   OF    AGENCIES. 


1916.  It  shall  be  the  duty  of  the  President  to  dispense 

with  the  services  of  such  Indian  agents  and  superintend-  ^.t{Je  dispensed 
ents  as  may  be  practicable;  and  where  it  is  practicable  he  June  22^374 
shall  require  the  same  person  to  perform  the  duties  of  twoj^-^18^14^ 
agencies  or  superintendencies  for  one  salary.  ^cTma^iuJ.' 

1917.  The  President  may,  in  his  discretion,  consolidate    consolidation 

T     ,.  of  agencies,  etc. 

two  or  more  agencies  into  one,  and  where  Indians  are  March  i,  isss, 
located  on  reservations  created  by  executive  order,  he 
may,  with  the  consent  of  the  tribes  to  be  affected  thereby, 
expressed  in  the  usual  manner,  consolidate  one  or  more 
tribes,  and  abolish  such  agencies  as  are  thereby  rendered 
unnecessary;  and  preference  shall  at  all  times,  as  far  as 
practicable,  be  given  to  Indians  in  the  employment  of 
clerical,  mechanical,  and  other  help  on  reservations  and 
about  agencies.  Sec.  6,  act  of  March  1,  1883  (22  Stat.  L., 

. 

1918.  The  President  shall,  whenever  he  may  judge  it  Discontinuance 

»  J    J        »    ,  '  and   transfer  of 


expedient,  discontinue  any  Indian  agency,  or  transfer  1834 

' 


same,  from  the  place  or  tribe  designated  by  law,  to  such  ig,  s.  4,  v.  4,  p. 
other  place  or  tribe  as  the  public  service  may  require.  sec.  2059,  B.  s. 

1919.  Whenever  any  one  or  more  of  the  superintenden-    The  same. 

July    15,    1870, 

cies  is  abolished  by  law,  or  discontinued  by  the  President,  c^296,s.6,v.i6,p. 
the  Indian  agents  in  such  superiu tendencies  shall  report  sec.  2054,  B.  s. 
directly  to, the  Commissioner  of  Indian  Affairs. 

1920.  The  Secretary  of  the  Interior  shall,  under  the  Discontinuance 

.  .  of  the  offices  of 

direction  or  the  President,  cause  to  be  discontinued  the subagents,    in- 

terpreters,  etc. 

services  ot  fcuch     agents]   subagfents,   interpreters,   and    July  9, 1332,  c. 

,         .  174,  s.  5,  v.  4,  p. 

mechanics,  as  may  from  time  to  time  become  unnecessary,  564;  Feb.  27,1877, 
in  consequence  of  the  {immigration}  [emigration]  of  the  'sec.2073,B.s. 
Indians,  or  other  causes. 

DUTIES   OF   INDIAN    AGENTS. 

1921.  Each  Indian  agent  shall,  within  his  agency,  man-    jjjjjf8^  1834i 
age  and  superintend  the  intercourse  with   the   Indians,  i^2juul'5'i&x>' 
agreeably  to  law;  and  execute  and  perform  such  regula- ^616^Jb4)2^ ^J- 
tions  and  duties,  not  inconsistent  with  law,  as  may  be^1.4'^' J-^- 
prescribed  by  the  President,  the  Secretary  of  the  Interior,  °;  i^pp!  449%5i! 
the  Commissioner  of  Indian  Affairs,  or  the  Superintendent   Sec.  2068,  B.  s. 
of  Indian  Affairs.1 

1  For  statutes  imposing  other  duties  upon  Indian  agents  see  section  9,  act  of  July  4, 
1884  (23  Stat.  L.,  98),  requiring  a  census  to  be  taken.  See,  also,  the  annual  acts  of 
appropriation.  For  the  statute  establishing  the  Indian  police  see  the  act  of  May  27, 
1878  (20  Stat.  L.,  86),  paragraphs  2011-2014,  post. 


764 


MILITARY   LAWS    OF    THE    UNITED    STATES. 


PERFORMANCE   OF    ENGAGEMENTS   WITH   INDIANS. 


Par. 

1922.  No  treaties  to  be  made  in  future. 

1923.  Abrogation  of  treaties. 

1924.  Payment  of  certain   annuities 

coin. 

1925.  Payment  of  annuities  in  goods. 

1926.  Purchases  of  goods  for  Indians. 

1927.  Methods  of  purchase. 

1928.  Claims  for  supplies. 

1929.  Payment  of  annuities. 

1930.  Withholding  annuities. 


Par. 

1931.  Army  officer  to  be  present  at  issues. 

1932,  1933.  Mode  of  distribution. 

1934.  Reports  of  issues;  number  present. 

1935.  No  annuities  to  hostile  Indians. 

1936.  No  annuities  to  Indians  who  have 

violated  treaties. 

1937.  Annuities  to  minors. 

1938.  No  annuities  to  Indians  holding 

captives. 

1939.  1940.  Sale  of  buildings. 

ties  with  Indian      1922-  ^°  Indian  nation  or  tribe  within  the  territory  of 
triMar  3, 1871,  c.  ^ne  United  States  shall  be  acknowledged  or  recognized  as 
J-  an  independent  nation,  tribe,  or  power  with  whom  the 


*  **oso  it  ^ 

* 


P.  ^76;s'june'  io,  United  States  may  contract  by  treaty;  but  no  obligation  of 

J?758  c' 122' v' 19' anv  treaty  lawfully  made  and  ratified  with  any  such  Indian 

Sec.  2079,R.s.  nation  or  tribe  prior  to  March  third,  eighteen  hundred  and 

seventy -one,  thall  be  hereby  invalidated  or  impaired. 
Abrogation  of      1923.  Whenever  the  tribal  organization  of  any  Indian 
iT*j£iy\  1862,  c.  tribe  is  in  actual  hostility  to  the  United  States,  the  Presi- 
p'  dent  is  authorized,  by  proclamation,  to  declare  all  treaties 
with  such  tribe  abrogated  by  such  tribe,  if  in  his  opinion 
the  same  can  be  done  consistently  with  good  faith  and  legal 
and  national  obligations.1 

cePrtaSteiSin£-      1924'  Tne  SecretaiT  of  tne  Treasury  is  authorized  to  pay 
ties  in  coin.       in  coin  such  of  the  annuities  as  by  the  terms  of  any  treaty 

iMtir.  of  looo,  c.  •/  •/ 

Si' 8'  3>  v>  13>  p'  °^      e  United  States  with  any  Indian  tribe  are  required  to 
'  s'ec.208i,B.s.  be  paid  in  coin.  > 

paymentofan-      1925.  The  President  may,  at  the  request  of  any  Indian 

-  ui ties  in  goods.       .,  ,  .   ,  •  ,      •  i  i     « 

June 30, 1834,  c.  tribe,  to  wnicn  any  annuity  is  pa}7able  in  money,  cause  the 

>2,  3.  12,  V*  4,  p.  i  .  1     •  i  -.  •11*1 

same  to  be  paid  in  goods,  purchased  as  provided  in  the 

next  section. 

Purchase  of  1926.  All  merchandise  required  by  any  Indian  treaty  for 
dians.  l  n  the  Indians,  payable  after  making  of  such  treaty,  shall  be 
162,  s.  is,  V.  4,' pi  purchased  under  the  direction  of  the  Secretary  of  the  Inte- 

737;  June  22, 1874,     .  .  .       J, 

c.  389,  v.  is,  p.  176;  nor,  upon  proposals  to  be  received,  to  be  based  on  notices 

Mar.  3,    1875,  C.  .•        ,  j       n  i         j- 

132,  s.  7,  v.  is,  p.  previously  to  be  erven;  and  all  merchandise  required  at 

450;  Aug.  15, 1876,  f,  I-.CTJ-  unv  u  J 

c.  289,  v.  19,  p.  196.  the  making  of  any  Indian  treaty  shall  be  purchased  under 

'  the  order  of  the  Commissioner  of  Indian  Affairs  by  such 

person  as  he  shall  appoint.    All  other  purchases  on  account 

of  the  Indians,  and  all  payments  to  them  of  money  or 

Section  2  of  the  act  of  March  2,  1875  (18  Stat.  L.,  449),  contains  the  requirement 
that  no  money  appropriated  for  the  Indian  service  shall  be  paid  to  any  band  of 
Indians  while  said  band,  or  any  part  thereof,  is  at  war  with  the  United  States. 


162 

737. 

Sec.  2082,  U.S. 


MILITARY    LAWS    OF   THE    UNITED    STATES.  765 

goods,  shall  be  made  by  such  person  as  the  President  shall 
designate  for  that  purpose. 

1927.  No  goods  shall  be  purchased  by  the  Office  of  Indian  ch^nnerof  pur* 
Affairs,  or  its  agents,  for  any  tribe,  except  upon  the  written  u£^J'v?§  £ 
requisition  of  the  superintendent  in  charge  of  the  tribe,  and  52|ec.2o84,B.  s. 
only  upon  public  bids  in  the  mode  prescribed  by  the  pre- 
ceding section. 

1928.  No  claims  for  supplies  for  Indians,  purchased  with-  p]-^"18  forsuP- 
out  authority  of  law,  shall  be  paid  out  of  any  appropria- 29^ulsy215^8™'«; 
tion  for  expenses  of  the  Office  of  Indian  Affairs,  or  for36^-ec .2o85,R.s, 
Indians. 

1929.  The  payment  of  all  moneys  and  the  distribution  of  in^nnufitiaeys 
all  goods  stipulated  to  be  furnished  to  any  Indians,  or  tribe  ^.istributing 
of  Indians,  shall  be  made  in  one  of  the  following  ways,  as  lea^n/v^'p! 
the  President  or  the  Secretary  of  the  Interior  may  direct:  c3 66,^3,  v.g^p' 

First.  To  the  chiefs  of  a  tribe,  for  the  tribe.  ^%~:ffi 

Second.  In  cases  where  the  imperious  interest  of  the  tribe  ^^e/ss15^™'. 
or  the  individuals  intended  to  be  benefited,  or  any  treaty  ilrfc^^fJl ?! 
stipulation,  requires  the  intervention  of  an  agency,  then  to}!;  i8?6?c!;289??: 
such  person  as  the  tribe  shall  appoint  to  receive  such  mon-  19feei.1|o86,B.  s. 
eys  or  goods;  or  if  several  persons  be  appointed,  then 
upon  the  joint  order  or  receipt  of  such  persons. 

Third.  To  the  heads  of  the  families  and  to  the  individ- 
uals entitled  to  participate  in  the  moneys  or  goods. 

Fourth.  By  consent  of  the  tribe,  such  moneys  or  goods 
may  be  applied  directly,  under  such  regulations,  not  in- 
consistent with  treaty  stipulations,  as  may  be  prescribed 
by  the  Secretary  of  the  Interior,  to  such  purposes  as  will 
best  promote  the  happiness  and  prosperity  of  the  members 
of  the  tribe  and  will  encourage  able-bodied  Indians  in  the 
habits  of  industry  and  peace. 

1930.  No  annuities,  or  moneys,  or  goods,  shall  be  paid  of^nn^tiesdfJom 
or  distributed  to  Indians  while  they  are  under  the  influ-  goJ2xicated  per 
ence  of  any  description  of  intoxicating  liquor,  nor  while  ee^' 
there  are  good  and  sufficient  reasons  leading  the  officers    ^ec- 

or  agents,  whose  duty  it  may  be  to  make  such  payments 
or  distribution,  to  believe  that  there  is  any  species  of 
intoxicating  liquor  within  convenient  reach  of  the  Indians, 
nor  until  the  chiefs  and  headmen  of  the  tribe  shall  have 
pledged  themselves  to  use  all  their  influence  and  to  make 
all  proper  exertions  to  prevent  the  introduction  and  sale 
of  such  liquor  in  their  country. 

1931.  The  superintendent,  agent,  or  subagent,  together 

with  such  military  officer  as  the  President  may  direct,  shall  J£sery  of  annui' 


766  MILITARY    LAWS    OF    THE    UNITED    STATES. 

i62Usnei!°  v8^'?:  be  P^sent  and  certify  to  the  delivery  of  all  goods  and 
i57min423'U'S"money  required  to  be  paid  or  delivered  to  the  Indians.1 

Sec.  2088,  B.S. 

d        1932«  At  tlle  discretion  of  the  President  all  disbursements 


^  moneys,  whether  for  annuities  or  otherwise,  to  fulfill 
sec.  2089,  B.S.  treaty  stipulations  with  individual  Indians  or  Indian  tribes, 
shall  be  made  in  person  by  the  superintendents  of  Indian 
affair^,  where  superintendencies  exist,  to  all  Indians  or 
tribes  within  the  limits  of  their  respective  superintend- 
encies, in  the  presence  of  the  local  agents  and  interpreters, 
who  shall  witness  the  same,  under  such  regulations  as  the 
Secretary  of  the  Interior  may  direct. 

1933-  Whenever  goods  and  merchandise  are  delivered 
p.  to  tne  chiefs  of  a  tribe,  for  the  tribe,  such  goods  and  mer 
sec.  2090,  B.S.  chandise  shall  be  turned  over  by  the  agent  or  superintend- 
ent of  such  tribe  to  the  chiefs  in  bulk,  and  in  the  original 
package,  as  nearly  as  practicable,  and  in  the  presence  of 
the  headmen  of  the  tribe,  if  practicable,  to  be  distributed 
to  the  tribe  by  the  chiefs  in  such  manner  as  the  chiefs  may 
deem  best,  in  the  presence  of  the  agent  or  superintendent. 
1934.  Whenever  the  issue  of  food,  clothing,  or  supplies 
re  orted8  to  *G  °^  an^  kind  to  Indians  is  provided  for,  it  shall  be  the  duty 
isf  esV^  l\i  PP'  °^  ^e  a£en^  or  commissioner  issuing  the  same,  at  such 
46slcftio9,B.s.  issue  thereof,  whether  it  be  both  of  food  and  clothing,  or 
either  of  them,  or  of  any  kind  of  supplies,  to  report  to  the 
Commissioner  of  Indian  Affairs  the  number  of  Indians 
present  and  actually  receiving  the  same. 

toSpmCakeagay-      1935.  ^n  a^   payments  or  disbursements  of  money  to 

mMar'  3  1895  s  In<^ians  individually  the  Secretary  of  the  Interior  is  hereby 

11,  v.  28,'p.  916.    authorized,  in  his  discretion,  to  detail  an  officer  from  his 

Department  or  appoint  a  special  agent  to  make  or  to  super- 

intend and  inspect  such  payment;  and  when  made  by  spe- 

compensation.  cial  agent  the  Secretary  shall  fix  a  reasonable  compensation 

for  the  services  of  such  special  agent  and  pay  it  out  of  the 

money  to  be  disbursed.     In  all  cases  the  agent  making 

Bond.  such  payment  shall  give  bond  to  the  United  States  in 

double  the  amount  to  be  disbursed^  with  good  and  suffi- 

cient security,  to  be  approved  by  the  Secretary,  condi- 

tioned for  the  faithful  performance  of  his  duties.     All 

such  payments  to  be  made  under  such  rules  and  regula- 

tions as  the  Secretary  may  prescribe.      Sec.  11,  act  of 

March  3,  1895  (28  Stat.  Z.,  910). 

1  An  officer  of  the  Army  who,  under  proper  authority,  witnesses  and  certifies  to 
the  insue  of  annuity  goods  to  Indians  is  entitled  to  actual  traveling  expenses,  but 
not  to  mileage,  while  traveling  in  the  performance  of  such  duty,  such  expenses  to  be 
paid  from  the  proper  Indian  appropriation.  5  Compt.  Dec.,  982. 


MILITARY    LAWS    OF   THE    UNITED    STATES.  767 


1936.  No  moneys  or  annuities  stipulated  by  any  treaty  ho^t?ie 

with  an  Indian  tribe  for  which  appropriations  are  made17^r>22'v18fj'£- 

shall  be  expended  for,  or  paid,  or  delivered  to  any  tribe  51|ec  2100^  BS> 

which,  since  the  next  preceding  payment  under  such  treaty, 

has  engaged  in  hostilities  against  the  United  States,  or 

against  its  citizens  peacefully  or  lawfully  sojourning  or 

traveling  within  its  jurisdiction  at  the  time  of  such  hostil- 

ities; nor  in  such  case  shall  such  stipulated  payments  or 

deliveries  be  resumed  until  new  appropriations  shall  have 

been  made  therefor  by  Congress.     And  the  Commissioner 

of  Indian  Affairs  shall  report  to  Congress,  at  each  session, 

any  case  of  hostilities,  by  any  tribe  with  which  the  United 

States  has  treaty  stipulations,  which  has  occurred  since  his 

next  preceding  report. 

1937.  No  delivery  of  goods  or  merchandise  shall  be  made  Goods  withheld 

J  from  chiefs  who 

to  the  chiefs  of  any  tribe,  by  authority  of  any  treaty, 


such  chiefs  have  violated  the  stipulations  contained  in  such  tio.ns- 

Apr.  10)  1869,  c. 

treaty  upon  their  part.  16feec2>2ioi'6ls' 

1938.  All  persons  whatsoever  charged  or  trusted  with    Annual  ac- 
the  disbursement  or  application  of  money,  goods,  or  effects  bursements,  etc! 

'  of  any  kind  for  the  benefit  of  the  Indians  shall  settle  their  c.i62!s.i3,V.4,p! 
accounts,  annually,  at  the  Department  of  the  Interior  onc.ib.s^v'.is.p! 
the  first  day  of  October;  and  copies  of  the  same  shall  be    s'ec.209i,n.s. 
laid  before  Congress,  at  the  commencement  of  the  ensuing 
session,  by  the  proper  accounting  officers,  together  with  a 
list  of  the  names  of  all  persons  to  whom  money,  goods,  or 
effects  have  been  delivered  within   the  preceding  year  for 
the  benefit  of  the  Indians,  specifying  the  amount  and  ob- 
ject for  which  they  were  intended,  and  showing  who  are 
delinquents,  if  any,  in  forwarding  their  accounts  according 
to   the  provisions  of  this  section;  and  also  with  a  list  of 
the  names  of  all  persons  appointed  or  employed  under  this 
Title,  with  the  dates  of  their  appointment  or  employment, 
and  the  salary  and  pay  of  each. 

1939.  Hereafter  all  Indians  when  they  arrive  at  the  age  Annuities  to 
of  18  years   shall  have  the  right  to  receive  and  receipt  for    Mar-  1.  l*w,  s. 
all  annuity  money  that  maybe  due  or  become  due  to  them, 

if  not  otherwise  incapacitated  under  the  regulations  of  the 
Indian  Office.  Sec.  8,  act  of  March  1,  1899  (30  Stat.  L., 
947). 

1940.  The  Secretary  of  the  Interior  shall  withhold  from  „  Moneys  due  in- 

..,          j,  T    j.  i  .  dians  holding 

any  tribe  ot  Indians  who  may  hold  American  captives  any  ^sericancap" 
moneys  due  them  from  the  United  States  until   such  cap-M^  ^o18™- 

Kes.  No.  oA  s.  o, 

tives  have  been  surrendered  to  the  lawful  authorities  of  v-*6' 

_       . 

the  United  States. 


768 


MILITARY    LAWS    OF    THE    UNITED    STATES. 


GOVERNMENT   AND   PROTECTION   OF   INDIANS. 


Par. 

1941.  Sending  seditious  messages. 

1942.  Carrying  seditious  messages. 

1943.  Correspondence  with  foreign  na- 

tions. 

1944.  General  superintendence  by  Presi- 

dent. 

1945.  Survey  of  reservations. 

1946.  White  men  not  to  -acquire  tribal 

rights    by  marriage    to    Indian 
women. 

1947.  Indian    women    marrying    white 

men,  to  become  citizens. 


Par. 

1948.  Evidence  of  marriage. 

1949.  Legitimacy  of  children. 

1950.  Purchases  or  grants  from  Indians. 

1951.  Driving  stock  on  Indian  lands. 

1952.  Settling  on  Indian  lands. 
1953-1955.  Protection  of  Indians  desiring 

civilized  life. 

1956.  Penalties,  how  recovered. 

1957.  Proceedings  against  goods. 

1958.  Burden  of  proof. 

1959.  Sales  of  Indian  cattle  by  agents. 


Sending  sedi- 
tious messages; 
penalty. 

June  30, 1834,  c. 


1941.  Every  person  who  sends  any  talk,  speech,  message, 
or  letter  to  any  Indian  nation,  tribe,  chief,  or  individual, 
i6i,  s.  is,  y.  4,  p.  wjth  an  intent  to  produce  a  contravention  or  infraction  of 
sec.  2in,R.s.  any  treaty  or  law  of  the  United  States,  or  to  disturb  the 
peace  and  tranquillity  of  the  United  States,  is  liable  to  a 
penalty  of  two  thousand  dollars. 
carrying  sedi-      1942.  Every  person  who  carries  or  delivers  any  talk, 

tious    messages:  J     r  .  J 

pejuaney3o  1834  c  message?  speech,  or  letter,  intended  to  produce  a  contra- 
i6i,  s.  14,' v.  4,'p.  vention  or  infraction  of  any  treaty  or  law  of  the  United 
sec.  2112, B.S.  States,  or  to  disturb  the  peace  or  tranquillity  of  the  United 
States,  knowing  the  contents  thereof,  to  or  from  any  In- 
dian nation,  tribe,  chief,  or  individual,  from  or  to  any  per- 
son or  persons  whatever,  residing  within  the  United  States, 
or  from  or  to  any  subject,  citizen,  or  agent  of  any  foreign 
power  or  state,  is  liable  to  a  penalty  of   one  thousand 
dollars. 

1943.  Every  person  who  carries  on  a  correspondence,  by 
nations,  to  letter  or  otherwise,  with  any  foreign  nation  or  power,  with 
Wjunee3oai834  c  an  in^en^  to  m^uce  such  foreign  nation  or  power  to  excite 
lei,  s.  15,' v.  4,'p.  any  Indian  nation,  tribe,  chief,  or  individual  to  war  against 
sec.  2ii3,R.s.  the  United  States,  or  to  the  violation   of  any  existing 
treaty;  or  who  alienates,  or  attempts  to  alienate,  the  con- 
fidence of  any  Indian  or  Indians  from  the  Government  of 
the  United  States,  is  liable  to  a  penalty  of  one  thousand 
dollars. 
General  super-      1944.  The  President  is  authorized  to  exercise  general 

intendence  by  .     .  ...  ..     '        ,  .    , 

the  President  superintendence  and  care  over  any  tribe  or  nation  which 

over    tribes    re-  ,  ,  «  ,         .,  ,  ,* 

moved  west  of  was  removed  upon  an  exchange  or  territory  under  autnor- 
May^Mm'c.  ity  of  the  act  of  May  twenty-eighth,  eighteen  hundred 

148   ss    7   8  v  4 

P.  412.  '  and  thirtv,  "to  provide  for  an  exchange  of  lands  with  the 

^Ur    21 1  I   li  S 

'  Indians  residing  in  any  of  the  States  or  Territories,  and  for 
their  removal  west  of  the  Mississippi,"  and  to  cause  such 


MILITARY    LAWS    OF    THE    UNITED    STATES.  769 

tribe  or  nation  to  be  protected,  at  their  new  residence, 
against  all  interruption  or  disturbance  from  any  other  tribe 
or  nation  of  Indians,  or  from  any  other  person  or  persons 
whatever. 1 

1945.  Whenever  it  becomes  necessary  to  survey  any  In-di^JTreserva- 
dian  or  other  reservations,  or  any  land,  the  same  shall  betlc^  8, 1864,  c. 
surveyed  under  the  direction  and  control  of  the  General  4%s;06;2iil,R.4s; 
Land  Office,  and  as  nearly  as  may  be  in  conformity  to  the 

rules  and  regulations  under  which  other  public  lands  are 
surveyed. 

1946.  No  white  man,  not  otherwise  a  member  of  anv    white  men 

•"   marrying  Indian 

tribe   of   Indians,  who   may   hereafter  marry  an   Indian  wj>men 
woman,  member  of  anv  Indian  tribe  in  the  United  States  rights. 

Aug.  y, 

or  any  of  its  Territories,  except  the  Five  Civilized  Tribes  2&.  P-  392. 
in  the  Indian  Territory,  shall  by  such  marriage  hereafter 
acquire  any  right  to  any  tribal  property,  privilege,  or  inter- 
est whatever  to  which  any  member  of  such  tribe  is  entitled.2 
Act  of  August  9,  1888  (25  Stat.  L., 


1947.  Every  Indian  woman,  member  of  any  such  tribe    Indian  women 

.  T     i.  ,  £     '      ,  .     ,  .   .          marrying   white 

01  Indians,  who  may  nerearter  be  married  to  any  citizen  men  to  become 
of  the  United  States  is  hereby  declared  to  become  by  guoh    sec.  2,  *wd 
marriage  a   citizen   of   the  United   States,   with  all   the 
rights,  privileges,  and  immunities  of  any  such  citizen, 
being  a  married  woman:  Provided,  That  nothing  in  this    Proviso. 

lThe  internal  affairs  of  the  Indians  were  never  interfered  with  by  England,  and 
the  United  States  has  always  recognized  them  as  nations  separate  from,  but  depend- 
ent upon,  us.  Worcester?;.  Georgia,  6  Pet.,  515. 

The  States  can  not  withdraw  Indians  within  their  limits  from  the  operation  of  the 
laws  of  Congress  regulating  trade  with  them.  U.  S.  v.  Holliday,  3  Wall.,  407. 

If  the  tribal  organization  is  recognized  by  the  National  Government  as  existing, 
the  States  can  not  regard  it  as  gone.  The  Kansas  Indians,  5  Wall.,  737. 

While  the  Government  of  the  United  States  has  recognized  in  the  Indian  tribes 
heretofore  a  state  of  semiindependence  and  pupilage,  it  has  the  right  and  authority, 
instead  of  controlling  them  by  treaties,  to  govern  them  by  acts  of  Congress,  they 
being  within  the  geographical  limits  of  the  United  States  and  being  necessarily  sub- 
ject to  the  laws  which  Congress  may  enact  for  their  protection  and  for  the  protection 
of  the  people  with  whom  they  come  in  contact.  U.  S.  v.  Kagama,  118  U.  S.,  375; 
Choctaw  Nation  v.  U.  S.,  119  U.  S.,  1. 

The  States  have  no  such  power  over  them  as  long  as  they  maintain  their  tribal 
relations.  Ibid. 

The  Indians  owe  no  allegiance  to  a  State  within  which  their  reservation  may  be 
established,  and  the  State  gives  them  no  protection.  Ibid. 

Where  Indians  on  a  reservation  made  by  order  of  the  President  are  organized 
tribes  or  bands,  and  are  placed  under  the  charge  of  an  agent  appointed  by  the  Gov- 
ernment, the  laws  applicable  to  Indian  reservations  must  be  regarded  as  applicable 
to  them.  XVIII  Opin.  Att.  Gen.,  563. 

2  The  fact  that  a  man  is  permitted  to  live  on  a  reservation  with  his  Indian  wife  does 
not  raise  the  presumption  that  the  Government  intended  that  he  should  acquire 
the  status  of  a  tribal  Indian.  Stiff  v.  McLoughlin,  48  Pac.  Rep.,  232.  One  not  an 
Indian  acquires  no  tribal  relations  by  marriage  with  an  Indian  woman  and  residence 
on  a  reservation.  Ibid.  See  also  Nofire  v.  U.  S.,  164  U.  S.,  657.  For  rights  of  the 
issue  of  such  marriages  see  sec.  10,  act  of  June  7,  1897  (30  Stat.  L.,  62),  par.  1949, 
post. 

22924—08 49 


770  MILITARY    LAWS    OF    THE    UNITED    STATES. 

act  contained  shall  impair  or  in  any  way  affect  the  right  or 
Tribal  rights.   ^tle  of  suc\l  married  woman  to  any  tribal  property  or  any 

interest  therein.     Sec.  2,  ibid. 

marnagence  °f      1948.  Whenever  the  marriage  of  aoy  white  man  with 
sec.  3,  ibid,      any  Indian  woman,  a  member  of  any  such  tribe  of  Indians, 
is  required  or  offered  to  be  proved  in  any  judicial  pro- 
ceeding, evidence  of  the  admission  of  such  fact  by  the 
party  against  whom  the  proceeding  is  had,  or  evidence  of 
general  repute,  or  of  cohabitation  as  married  persons,  or  any 
other  circumstantial  or  presumptive  evidence  from  which 
the  fact  may  be  inferred,  shall  be  competent.    Sec.  3,  ibid. 
chmfrieJfiacy  °f     1949.  A^  children  born  of  a  marriage  heretofore  solemn - 
ir/v^V8*?)7' s'  ized  between  a  white  man  and  an  Indian  women  bv  blood 

-LU)   v»  uU»  p.  O^.  •/ 

and  not  by  adoption,  where  said  Indian  woman  is  at  this 
time,  or  was  at  the  time  of  her  death,  recognized  by  any 
tribe,  shall  have  the  same  rights  and  privileges  to  the 
property  of  the  tribe  to  which  the  mother  belongs,  or 
belonged  at  the  time  of  her  death,  by  blood,  as  any  other 
member  of  the  tribe,  and  no  prior  act  of  Congress  shall 
be  construed  to  debar  such  child  of  such  right.  Sec.  10, 
act  of  June  7,  1897  (30  Stat.  Z.,  6'%). 

grantshfrom  in-      1950.  No  purchase,  grant,  lease,  or  other  conveyance  of 

June  so,  1834,  c.  lands,  or  of  any  title  or  claim  thereto,  from  any  Indian 

730  8' 12>  v' 4)  P>  nation  or  tribe  of  Indians  shall  be  of  any  validity  in  law 

see^Mcintofh  or  equity  unless  the  same  be  made  by  treaty  or  convention 

8Stt5.''ar?6,B.s.  entered  into  pursuant  to  the  Constitution.     Every  person 

who,  not  being  employed  under  the  authority  of  the  United 

States,  attempts  to  negotiate  such  treaty  or  convention, 

directly  or  indirectly,  or  to  treat  with  an}^  such  nation  or 

tribe  of  Indians  for  the  title  or  purchase  of  any  lands  by 

them  held  or  claimed,  is  liable  to  a  penalty  of  one  thousand 

dollars.     The  agent  of  any  State  who  may  be  present  at 

any  treat}?-  held  with  Indians  under  the  authority  of  the 

United  States,  in  the  presence  and  with  the  approbation  of 

the  commissioner  of  the  United  States  appointed  to  hold 

the  same,  may,  however,  propose  to,  and  adjust  with,  the 

Indians  the  compensation  to  be  made  for  their  claim  to 

lands  within  such  State  which  shall  be  extinguished  by 

treaty.1 

to?4?5a  Indian  1951.  Every  person  who  drives  or  otherwise  conveys 
Iajune3o  1834  c  anJT  s^ock  of  horses,  mules,  or  cattle  to  range  and  feed  on 
lei,  s.  9,  v.  4,  p.  anv  jan(j  belonging  to  any  Indian  or  Indian  tribe,  without 

1  The  inhibition  contained  in  section  2116  of  the  Revised  Statutes  has  the  same 
application  to  individual  Indians  that  it  has  to  Indian  nationsand  tribes.  XVIII  Opin. 
Att.  Gen.,  486. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  771 

the  consent  of  such  tribe,  is  liable  to  a  penalty  of  one  J^,  f  saw.^s" 
dollar  for  each  animal  of  such  stock.1  8ec.aii7,fe.s. 


1952.  Every  person   who  makes  a  settlement  on   any  8^lyiSf  i?nds 
lands  belonging,  secured,  or  granted  by  treaty  with 

United  States  to  any  Indian  tribe,  or  surveys  or  attempts 

to  survey  such  lands,  or  to  designate  any  of  the  boundaries  73^c>  2ii8,K.s. 

by  marking  trees,  or  otherwise,  is  liable  to  a  penalty  of 

one  thousand  dollars.    The  President  may,  moreover,  take 

such  measures  and  empW  such  military  force  as  he  may 

judge  necessary  to  remove  any  such  person  from  the  lands.2 

1953.  Whenever  any  Indian,  being  a  member  of  any  band  In!SsCdesMng 
or  tribe  with  whom  the  Government  has  or  shall  have  ^JjjJSiMMa  c 
entered  into  treaty  stipulations,  being  desirous  to  adopt  the  J°*-  s-  *•  v-  12'  P- 
habits  of  civilized  life,  has  had  a  portion  of  the  lands  belong-  Sec-  2119>  B-  s- 
ing  to  his  tribe  allotted  to  him  in  severalty,  in  pursuance 

of  such  treaty  stipulations,  the  agent  and  superintendent  of 
such  tribe  shall  take  such  measures,  not  inconsistent  with 
law,  as  may  be  necessary  to  protect  such  Indian  in  the 
quiet  enjoyment  of  the  lands  so  allotted  to  him. 

1954.  Whenever  anv  person  of  Indian  blood  belonging    Indians  tres 

~  .  .  .         ,  .^passing    upon 

to  a  band  or  tribe  which  receives  or  is  entitled  to  receive  lands  of  civilized 
annuities  from  the  United  States,  and  who  has  not  adopted    June  14,  186-2,  c. 

101  s.  2  v.  12  p. 

the  habits  and  customs  of  civilized  life  and  received  his  427! 

.  •  i  '  •      •  i  Sec.  2120,  K.  S. 

lands  in  severalty  by  allotment,  as  mentioned  in  the  pre- 
ceding section,  commits  any  trespass  upon  the  lands  or 
premises  of  any  Indian  who  has  so  received  his  lands  by 
allotment,  the  superintendent  and  agent  of  such  band  or 
tribe  shall  ascertain  the  damages  resulting  from  such  tres- 
pass, and  the  sum  so  ascertained  shall  be  withheld  from  the 
payment  next  thereafter  to  be  made,  either  to  the  band  or 
tribe  to  which  the  party  committing  such  trespass  shall 
belong,  as  in  the  discretion  of  the  superintendent  he  shall 
deem  proper;  and  the  sum  so  withheld  shall,  if  the  Secre- 
tary of  the  Interior  approves,  be  paid  over  by  the  agent  or 
superintendent  to  the  party  injured. 

1955.  Whenever  such  trespasser  as  is  mentioned  in  the 
preceding  section  is  the  chief  or  headman  of  a  band  orPass 


Sawyer,  148.  See  also  U.  S.  v.  Loring,  34  Fed.  Rep.,  715,  and  XVI  Opin.  Att.  Gen., 
568.  There  is  no  law  empowering  the  Interior  Department  to  authorize  Indians 
to  lease  their  lands  for  grazing  purposes.  Neither  the  President  nor  the 

Secretary  has  authority  to  make  a  lease,  for  such  purposes,  of  any  part  of  an  Indian 
reservation;  nor  would  their  approval  of  any  such  lease  made  bv  Indians  render  it 
lawful  and  valid.  XVIII  Opin.  Att.  Gen.,  235. 

2  Worcester  v.  Georgia,  6  Peters,  515;  Clark  c.  Smith,  13  ibid.,  195;  Lattiiner  v. 
Poteet,  4  McLean,  82. 


772  MILITARY    LAWS    OF   THE    UNITED   STATES. 

ioiu?e314v18i?'p'  tribe,  the  superintendent  of  Indian  affairs  in  his  district 
4s?ec.  2121,  R.  s.  sna^  also  suspend  the  trespasser  from  his  office  for  three 
months,  and  shall  during-  that  time  deprive  him  of  all  tho 
benefits  and  emoluments  connected  therewith;  but  the 
chief  or  headman  may  be  sooner  restored  to  his  former 
standing  if  the  superintendent  shall  so  direct. 

recovered8'  how      1956>  A11  penalties  which  shall  accrue  under  this  Title  l 
be  sued  for  and  recovered  in  an  action  in  the  nature 


7  Sec.  2124  R  s  °^  <dn  ac^i°n  of  debt,  in  the  name  of  the  United  States, 

before  any  court  having  jurisdiction  of  the  same,  in  any 

State  or  Territory  in  which  the  defendant  shall  be  arrested 

or  found,  the  one  half  to  the  use  of  the  informer  and  the 

other  half  to  the  use  of  the  United  States,  except  when  the 

prosecution  shall  be  first  instituted  on  behalf  of  the  United 

States,  in  which  case  the  whole  shall  be  to  their  use. 

a  ainsteoodsga      1957.  When  goods  or  other  property  shall  be  seized  for 

June  so,  1834,  c.  any  violation  of  this  Title,1  it  shall  be  lawful  for  the  person 

lei,  s.  28,  v.  4,  p.  prosecuting  on  behalf  of  the  United  States  to  proceed 

Sec.  2125,  R.S.  against  such   goods,  or   other  property,  in   the  manner 

directed  to  be  observed  in  the  case  of  goods,  wares,  or 

merchandise  brought  into  the  United  States  in  violation 

of  the  revenue  laws. 

proof  rden  °f      1958>  I"  all  t™!8  about  the  right  of  property  in  which 

wiu™22'v®i'p  an  Indian  raav  be  a  party  on  one  side  and  a  white  person 

7^ec  2126  R  s  on  ^ne  °^ner,  the  burden  of   proof  shall  rest  upon  the 

white  person  whenever  the  Indian  shall  make  out  a  pre- 

sumption of  title  in  himself  from  the  fact  of  previous  pos- 

session or  ownership. 

etcalof  °the  inil-      1959-  The  agent  of  each  tribe  of  Indians,  lawfully  resid- 
ans  'by  agents.     mg  jn  ^he  Indian  country,2  is  authorized  to  sell  for  the 

1  Title  XXVIII,  Revised  Statutes. 

-The  term  "Indian  country"  contained  in  section  1  of  the  act  of  June  30,  1834  (4 
Stat.  L.,  79),  though  not  incorporated  in  the  Revised  Statutes,  and  though  repealed 
simultaneously  with  their  enactment,  may  be  referred  to  in  order  to  determine  what 
is  meant  by  the  term  when  used  in  statutes;  and  it  applies  to  all  the  country  to 
which  the  Indian  title  has  not  been  extinguished  within  the  limits  of  the  United 
States,  whether  within  a  reservation  or  not,  and  whether  acquired  before  or  since 
the  passage  of  that  act.  Ex  parte  Crow  Dog,  109  U.  S.,  556;  Bates  v.  Clark,  95  U.  S., 
204.  See  also,  as  to  the  status  of  the  Indian  Territory,  Cook  v.  U.  S.,  138  U.  S.,  157. 

Held  (October,  1877)  that  the  term  "Indian  country,"  as  employed  in  the  statutes 
regulating  trade  and  intercourse  with  the  Indians  (see,  particularly,  Ch.  IV,  Title 
XXVIII,  Rev.  Stat.),  might  properly  be  defined  in  general  as  including  the  follow- 
ing territory,  viz:  Indian  reservations  occupied  by  Indian  tribes;  other  districts  so 
occupied  to'  which  the  Indian  title  has  not  been  extinguished;  any  districts  not  in 
other  respects  Indian  country  over  which  the  operation  of  those  "  statutes  maybe 
extended  by  treaty  or  act  of  Congress.  (  a  )  Dig.  Opin.  J.  A.  G.,  par.  1498. 

a  See  this  opinion  as  adopted  and  incorporated  in  G.  O.  97,  Headquarters  of  Army,  187?;  also,  in  the 
same  connection,  XIV  Opins.  Att.  Gen.,  290-  United  States  r.  Forty-three  Gallons  of  Whisky,  3  Otto,  188; 
Bates  v.  Clark,  f>  ibid..  204;  U.  S.  r.  SevelofY.  2  Sawyer,  31  1.  That,  in  view  of  the  act  of  March  3.  1873, 
extending  to  it  certain  provisions  of  the  act  of  June  SO.  1X31,  the  Territory  of  Alaska  is  "  Indian  coun- 
try," so  far  as  concerns  the  introduction  and  disposition  of  spirituous  liquor,  and  that  persons  violating 
such  provisions  may  therefore  be  arrested  by  military  force.  See  In  re  Carr,  3  Sawyer,  316;  also  cita- 
tion from  same  case  in  note  to  Alaska,  §  2,  and  XIV  Opins.  Att.  Gen.,  327;  Patchen  v.  U.  S.,  11  Fed. 
Rep.,  47;  U.  S.  v.  Forty-three  Cases  of  Cognac  Brandy,  14  ibid.,  539. 


MILITARY    LAWS    OF   THE    UNITED   STATES. 


773 


benefit  of  such  Indians  any  cattle,  horses,  or  other  live  12JlHsr-f 
stock  belonging  to  the  Indians,  and  not  required  for  their  56|;M.  .,127  B  g 
use  and  subsistence,  under  such  regulations  as  shall  be 
established  by  the  Secretary  of  the  Interior.  But  no  such 
sale  shall  be  made  so  as  to  interfere  with  the  execution  of 
any  order  lawfully  issued  by  the  Secretary  of  War  con- 
nected with  the  movement  or  subsistence  of  troops. 

INDIAN    TRADERS. 


Par. 

1960.  Appointment. 

1961.  Appointees. 

1962.  Licenses  to  trade. 

1963.  Refusal  of  license. 

1964.  Revocation  of  licenses. 

1965.  Prohibition  of  trade  by  President. 


Par. 

1968.  Expulsion    of    foreigners    without 

passports  from  reservations. 

1969.  Prohibited  purchases  and  sales. 

1970.  Sale  of  arms  to  Indians. 

1971.  The  same. 

1972.  Hunting  on  reservations  forbidden. 

1973.  Removing  cattle;  penalty. 

1974.  Sales  of  cattle;  penalty. 


1966.  Penalty  for  unlicensed  trading. 

1 967.  Em'ployees  not  to  trade. 

1960.  Hereafter  the  Commissioner  of  Indian  Affairs  shall 

have  the  sole  power  and  authority  to  appoint  traders  to  5>  v- 19>  p*  20°* 
the  Indian  tribes,  and  to  make  such  rules  and  regulations 
as  he  may  deem  just  and  proper,  specifying  the  kind  and 
quantity  of  goods  and  the  prices  at  which  such  goods  shall 
be  sold  to  the  Indians.  Sec.  5,  act  of  August  15,  1876 
(<19  Stat.  Z.,  WO]. 

1961.  Any  loyal  person,  a  citizen  of  the  United  States,    Appointees. 
of  good  moral  character,  shall  be  permitted  to  trade  with 266,  s.  4,  v.  14, 'p! 
any  Indian  tribe  upon  giving  bond  to  the  United  States  in    s"ec.2i28,B.s. 
the  penal  sum  of  not  less  than  five  nor  more  than  ten  thou- 
sand dollars,  with  at  least  two  good  sureties,  to  be  approved 

by  the  superintendent  of  the  district  within  which  such 
person  proposes  to  trade,  or  by  the  United  States  district 
judge  or  district  attorney  for  the  district  in  which  the 
obligor  resides,  renewable  each  year,  conditioned  that  such 
person  will  faithfully  observe  all  laws  and  regulations  made 
for  the  government  of  trade  and  intercourse  with  the 
Indian  tribes,  and  in  no  respect  violate  the  same. 

1962.  No  person  shall  be  permitted  to  trade  with  any  of  tr^ecense   to 
the  Indians  in  the  Indian  country  without  a  license  there-  i6iu"el°'v8844'p' 
for  from  a  superintendent   of  Indian  affairs,  or  Indian  72^j  s  r  cisna  l 
agent,  or   subagent,  which  license  shall  be  issued  for  a  M§ec?i'2954B  s. 
term  not  exceeding  two  years  for  the  tribes  east  of  the 
Mississippi  and  not  exceeding  three  years  for  the  tribes 

west  of  that  river.1 


1  The  Secretary  of  War  has  no  general  authority  to  license  trade  with  Indians  in 
the  Indian  country.     By  section  2129,  Revised  Statutes,  such  licenses  can  be  given 


774  MILITARY    LAWS    OF   THE    UNITED    STATES. 

censeusal  '  1963-  Any  superintendent  or  agent  may  refuse  an  appli- 

i6ius.e|°v1.84!'p!  Cation  for  a  license  to  trade  if  he  is  satisfied  that  the  appli- 

72s'ec.2i3o,K.s.  c'an^  ™  a  person  of  bad  character,  or  that  it  would  be 

improper  to  permit  him  to  reside  in  the  Indian  country,  or 

if  a  license  previously  granted  to  such  applicant  has  been 

revoked,   or  a  forfeiture  of  his  bond  decreed.     But  an 

appeal  may  be  had  from  the  agent  or  the  superintendent 

to  the  Commissioner  of  Indian  Affairs. 

ii  *nlecati°n  °f  1964-  The  superintendent  of  the  district  shall  have  power 
i6i,Use!0V184?'p.' to  revoke  and  cancel  any  license  to  trade  within  the  Indian 
72sec.2isi,R.s.  country  whenever  the  person  licensed  has,  in  his  opinion, 
transgressed  any  of  the  laws  or  regulations  provided  for 
the  government  of  trade  and  intercourse  with  the  Indian 
tribes,  or  whenever,  in  his  opinion,  it  is  improper  to  per- 
mit such  person  to  remain  in  the  Indian  country.  No 
trade  with  the  tribes  shall  be  carried  on  within  their 
boundary  except  at  certain  suitable  and  convenient  places, 
to  be  designated  from  time  to  time  by  the  superintendents, 
agents,  and  subagents,  and  to  be  inserted  in  the  license. 
The  persons  granting  or  revoking  such  licenses  shall  forth- 
with report  the  same  to  the  Commissioner  of  Indian 
Affairs  for  his  approval  or  disapproval.1 

trPadheibby°?h0e      1965.  The  President  is  authorized,  whenever  in  his  opin- 

P  je^e5j'i884,  c.  i°n  the  public  interest  may  require  the  same,  to  prohibit  the 

ig,  s.  3,  v.  4,  p.  introduction  of  goods,  or  of  any  particular  article,  into  the 

Sec'2132'R's*  country  belonging  to  any  Indian  tribe,  and  to  direct  all 

licenses  to  trade  with  such  tribe  to  be  revoked,  and  all 

applications  therefor  to   be  rejected.     No  trader  to  any 

other  tribe  shall,  so  long  as  such  prohibition  may  continue, 

trade  with  any  Indians  of  or  for  the  tribe  -against  which 

such  prohibition  is  issued. 

tradeingawUhofSt  1966.  Any  person,  other  than  an  Indian  of  the  full  blood, 
a  June  so,  1834,  c.  who  shall  attempt  to  reside  in  the  Indian  country,  or  on 
729;  jufy  3^1882;  any  Indian  reservation^ as  a  trader,  or  to  introduce  goods, 
eiS.V2iI^R.7s.' or  to  trade  therein,  without  such  license,  shall  forfeit  all 
merchandise  offered  for  sale  to  the  Indians  or  found  in  his 

only  by  a  "superintendent  of  Indian  affairs.  Indian  agent,  or  subagent."  Dig.  Opiii. 
J.  A.  G.,  par.  1499. 

A  trader  at  a  military  post  in  the  Indian  country  can  not  lawfully  maintain  a  traffic 
with  the  Indians  unless  he  be  properly  licensed  for  such  trade.  XVI  Opins.  Att. 
Gen.,  403.  License  to  trade  with  the  Indians  at  the  establishments  of  post  traders 
can  not  be  given  by  the  military  authorities.  Ibid. 

1  The  fact  that  an  Indian  trader  is  licensed  by  the  Government  to  trade  with  the 
Indians  does  not  exempt  his  stock  in  trade  from  State  and  county  taxation,  such 
trader  being  a  mere  licensee,  and  not  an  agent  of  the  Government.  Cosier  v.  McMil- 
lan, 56  Pac.  Rep.,  965.  For  a  contrary  decision,  in  which  it  was  held  that  an  Indian 
trader  was  an  agent  of  the  United  States  and,  for  that  reason,  exempt  from  State  and 
Territorial  taxation,  see  Fremont  County  (Wyo.)  v.  Moore,  19  Pac.  Eep.,  438. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  775 

possession,  and  shall  moreover  be  liable  to  a  penalty  of 
five  hundred  dollars:  Provided,  That  this  section  shall  not 
apply  to  anv  person  residing1  among  or  trading  with  the 
Cboctaws,  Cherokees,  Chickasaws,  Creeks,  or  Seminoles, 
commonly  called  the  Five  Civilized  Tribes,  residing  in  said 
Indian  country,  and  belonging  to  the  Union  Agency  therein: 
And  provided  further^  That  no  white  person  shall  be  em- 
ployed as  a  clerk  by  any  Indian  trader,  except  such  as 
trade  with  said  Five  Civilized  Tribes,  unless  first  licensed  so 
to  do  by  the  Commissioner  of  Indian  Affairs,  under  and  in 
conformity  to  regulations  to  be  established  by  the  Secre- 
tary of  the  Interior.  Act  of  July  31,  1882  (22  Stat.  L.  ,  179). 

1967.  No  person  employed  in  Indian  affairs  shall  have  to^ra§e°w1th  "he 
any   interest  or  concern  in  any   trade  with  the  Indians  ^me  so,  ISM,  e. 
except  for,  and  on  account  of,  the  United  States;  and  anvyss!  s' 
person  offending  herein  shall  be  liable  to  a  penalty  of  five 
thousand  dollars,  and  shall  be  removed  from  his  office. 

1968.  Every  foreigner1  who  shall  go  to  the  Indian  coun-  foreignere  enter- 
try  without  a  passport  from  the  Department  of  the  Inte-  ^JggSt«JJ*: 
rior,  superintendent,  agent,  or  subagent  of  Indian  affairs,  or  ^jJieao,  1884>  c> 
officer  of  the  United  States  commanding  the  nearest  mili-lgj;  s>  6>  v<  4-  p- 
tary  post  on  the  frontiers,  or  who  shall  remain  intentionally    Sec*  2134'u-s- 
therein  after  the  expiration  of  such  passport,  shall  be  liable 

to  a  penalty  of  one  thousand  dollars.  Every  such  pass- 
port shall  express  the  object  of  such  person,  the  time  he  is 
allowed  to  remain,  and  the  route  he  is  to  travel. 

1969.  Every  person,  other  than  an  Indian,  who,  within 
the  Indian  country,  purchases  or  receives  of  any  Indian, 

in  the  way  of  barter,  trade,  or  pledge,  a  gun,  trap,  or  other  735Je(.  2is»,K.s. 

article  commonly  used  in  hunting,  any  instrument  of  hus- 

bandry, or  cooking  utensils  of  the  kind  commonly  obtained 

by  the  Indians  in  their  intercourse  with  the  white  people, 

or  any  article  of  clothing,  except  skins  or  furs,  shall  be 

liable  to  a  penalty  of  fifty  dollars. 

1970.  The  Secretary  of  the  Interior  shall  adopt  such  e^aletoofbe™i 
rules  as  may  be  necessary  to  prohibit  the  sale  of  arms  or  h^^4|  1873  v< 
ammunition  within  any  district  or  country  occupied  by  ^g^.4^'?  R.  s. 
uncivilized  or  hostile  Indians,  and  shall  enforce  the  same. 

1971.  If  any  trader,  his  agent,  or  any  person  acting  f  or 

or  under  him,  shall  sell  any  arms  or  ammunition  at  his  JSi 
trading  post  or  other  place  within  any  district  or  country 

alty. 


^he  word  "foreigner"  in  section  2134  of  the  Revised  Statutes  is  used  in  its  ordi- 
nary signification,  meaning  one  who  is  born  out  of  the  United  States  and  is  not 
naturalized,  or  who  owes  allegiance  to  any  other  government  than  that  of  the  United 
States.  XVIII  Opin.  Atty.  Gen.,  555. 


776  MILITARY    LAWS    OF   THE    UNITED    STATES. 

i38,es.'iVi7?'p!  occupied  by  uncivilized  or  hostile  Indians,  contrary  to  the 

j5R.JNog2o,'v8i9;  rules  and  regulations  of  the  Secretary  of  the  Interior,  such 

P's2ec."  2136, R.S.  trader  shall  forfeit  his  right  to  trade  with  the  Indians,  and 

the  Secretary  shall  exclude  such  trader,  and  the  agent,  or 

other  person  so  offending,  from  the  district  or  country  so 

occupied. 

MISCELLANEOUS   PROVISIONS. 

huPnt°ingbionniS-      1972'  EveiT  person,  other  than  an  Indian,  who,  within 

dij5ne3odi834,c. the  limits  of  any  tribe  with  whom  the  United  States  has 

i6i,  s.  *    .4,  p.  existing  treaties,  hunts,  or  traps,  or  takes  and  destroys 

Sec.  2137,  R.  s.  any  peltries  or  game,  except  for  subsistence  in  the  Indian 

country,  shall  forfeit  all  the  traps,  guns,  and  ammunition 

in  his  possession,  used  or  procured  to  be  used  for  that 

purpose,  and  all  peltries  so  taken;  and  shall  be  liable  in 

addition  to  a  penalty  of  five  hundred  dollars.1 

movfn^lTtfe      1973<  Every  person  who  drives  or  removes,  except  by 
couirtrylndianaut^lor^3r  °^  an  or&Qr  lawfully  issued  by*the  Secretary  of 
m^sV8!?'  p'  War,  connected  with  the  movement  or  subsistence  of  troops, 
^le-i.  2138,  K.  s.  an3T  cattle,  horses,  or  other  stock  from  the  Indian  country 
for  the  purposes  of  trade  or  commerce,  shall  be  punishable 
by  imprisonment  for  not  more  than  three  years,  or  by  a 
fine  of  not  more  than  five  thousand  dollars,  or  both.2 
eSim?ty°f  c&tile'     1974.  Where  Indians   are  in  possession  or  control  of 
23Jp1 944' 1884'  v'  cattle  or  their  increase  which  have  been  purchased  by  the 
Government,  such  cattle  shall  not  be  sold  to  any  person  not 
a  member  of  the  tribe  to  which  the  owners  of  the  cattle 
belong,  or  to  any  citizen  of  the  United  States,  whether 
intermarried  with  the  Indians  or  not,  except  with  the  con- 
sent in  writing  of  the  agent  of  the  tribe  to  which  the 
owner  or  possessor  of  the  cattle  belongs.     And  all  sales 
made  in  violation  of  this  provision  shall  be  void,  and  the 
offending  purchaser,  on  conviction  thereof,  shall  be  fined 
not  less  than  five  hundred  dollars  and  imprisoned  not  less 
than  six  months.     Act  of  July  4,  1884  (®$  Stat.  L.,  94). 

1  Property  seized  by  the  military  under  the  provisions  of  section  2137  of  the  Revised 
Statutes  should,  as  soon  as  practicable,  after  report  of  seizure  to  the  United  States 
attorney,  be  placed  in  the  custody  of  the  proper  civil  officers.  XVIII  Opin.  Att. 
Gen.,  555;  ibid.,  544. 

Section  5388  of  the  Revised  Statutes  makes  110  provision  for  seizure  of  property 
belonging  to  a  wrongdoer.  XVIII  Opin.  Att.  Gen.,  555. 

*  See  paragraph  1959,  ante. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  777 


SALES   OF   LIQUOR   TO    INDIANS— INTRODUCING    LIQUOR   INTO   THE    INDIAN    COUNTRY. 


Par. 

1981.  Sales  to  minors. 

1982.  Sales  in  the  Indian  Territory. 

1983.  Power  to  search  for  liquors,  etc. 

1984.  Military  persons    not  to  furnish, 

barter,  donate,  etc.,  liquors. 

1985.  Sales  in  Indian  country. 


Par. 

1975.  Introduction  of  liquor,  etc. 

1976.  The  same. 

1977-1978.  Authority    of    War    Depart- 
ment; repealing  clause. 

1979.  Complaints;  arrests;  trials. 

1980.  Indians  in  Alaska. 

1975.  No  ardent  spirits,  ale,  beer,  wine,  or  intoxicating 
liquor  or  liquors  of  whatever  kind  shall  be  introduced, 
under  any  pretense,  into  the  Indian  country.1     Every  per-  depenalty. 
son  who  sells,  exchanges,  gives,   barters,  or  disposes  of  27^ly2g; 1892>  v- 
any  ardent  spirits,  ale,  beer,  wine,  or  intoxicating  liquors    Sec. 2139,  B.S. 
of  any  kind  to  any  Indian  under  charge  of  any  Indian 
superintendent   or   agent,  or   introduces   or  attempts  to 
introduce  any  ardent  spirits,  ale,  wine,  beer,  or  intoxicat- 
ing liquor  of  any  kind  into  the  Indian  country  shall  be 
punished  by  imprisonment  for  not  more  than  two  years 

and  b}^  tine  of  not  more  than  three  hundred  dollars  for 
each  offense.  Act  of  July  23,  1892  (27  Stat.  Z.,  260). 

1976.  Any  person  who  shall  sell,  give  away,  dispose  of,    J^n.SjIbr.v. 
exchange,  or  barter  any  malt,  spirituous,  or  vinous  liquor,  29-  P-  506- 
including  beer,  ale  and  wine,  91*  any  ardent  or  other  in- 
toxicating liquor  of  any  kind  whatsoever,  or  any  essence, 

extract,  bitters,  preparation,  compound,  composition,  or 
any  article  whatsoever,  under  any  name,  label,  or  brand, 
which  produces  intoxication,  to  any  Indian  to  whom  allot- 
ment of  land  has  been  made  while  the  title  to  the  same 
shall  be  held  in  trust  by  the  Government,  or  to  any  Indian 
a  ward  of  the  Government  under  charge  of  any  Indian 
superintendent  or  agent,  or  any  Indian,  including  mixed 

1 A  stock  of  liquors  is  not  introduced  into  the  Indian  country  by  being  transported 
across  an  Indian  reservation  to  a  place  where  it  may  be  lawfully  sold  and  is  not  sub- 
ject to  seizure  while  in  transit  nor  after  its  arrival  at  its  place  of  destination.  U.  S. 
r.  Four  Bottles  of  Sour  Mash  Whisky,  90  Feb.  Rep.,  720. 

The  disposition  of  spirituous  liquors  to  an  Indian,  under  the  charge  of  an  Indian 
agent,  who  has  abandoned  his  nomadic  life  and  tribal  relations  and  adopted  the  hab- 
its and  manners  of  civilized  people  violates  section  2139  of  the  Revised  Statutes. 
U.  S.  v.  Osborn,  52  Fed.  Rep.,  58. 

Section  2139  of  the  Revised  Statutes  provides  that  every  person  who  disposes  of 
spirituous  liquors  to  any  Indian  under  the  charge  of  any  Indian  superintendent  or 
agent  shall  be  punished,  etc.  Held,  that  an  Indian  of  the  Nez  Perces  tribe,  a  soldier 
in  the  United  States  Army,  is  within  the  meaning  of  the  statute.  U.  S.  ?•.  Hursh- 
man,  53  Fed.  Rep.,  543.  It  is  no  defense  to  a  prosecution  under  section  2139  for 
introducing  spirituous  liquors  into  the  Indian  country  that  the  United  States  has 
licensed  the  traffic  in  such  liquors  therein.  U.  S.  r.  Ellis,  51  ibid. ,'808. 

As  section  2139  of  the  Revised  Statutes  previous  to  the  amendment  of  July  23, 
1892,  made  punishable  the  introduction  into  the  Indian  country  of  "spirituous  liquor 
or  wine"  only,  it  did  not  include  lager  beer,  that  being  a  malt  liquor  made  by  fer- 
mentation. In  re  McDonough,  49  ibid.,  360;  U.  S.  v.  Ellis,  51  ibid.,  808,  reversed  in 
Sarlia  r.  U.  S.,  152  U.  S.,  570. 


778  MILITARY    LAWS    OF    THE    UNITED    STATES. 

bloods,  over  whom  the  Government,  through  any  of  its 
departments,  exercise  guardianship,  and  any  person  who 
shall  introduce  or  attempt  to  introduce  any  malt,  spiritu- 
ous, or  vinous  liquor,  including  beer,  ale,  and  wine,  or 
any  ardent  or  intoxicating  liquor  of  any  kind  whatsoever 
into  the  Indian  country,  which  term  shall  include  any 
Indian  allotment  while  the  title  to  the  same  shall  be  held 
in  trust  by  the  Government,  or  while  the  same  shall 
remain  inalienable  by  the  allottee  without  the  consent  of 
the  United  States,  shall  be  punished  by  imprisonment  for 
not  less  than  sixty  days,  and  by  a  fine  of  not  less  than  one 
hundred  dollars  for  the  first  offense  and  not  less  than  two 
hundred  dollars  for  each  offense  thereafter:  Provided, 
however,  that  the  person  convicted  shall  be  committed 
until  fine  and  costs  are  paid.  Act  of  January  30,  1897 
(29  Stat.  L.,506). 

by^aShSSfy™      1977<  But  ^  sha11  be  a  sufficient  defense  to  any  charge 
Sent  Depart"of  introducing  or  attempting  to  introduce  ardent  spirits, 
iMd.  a]e?  beer?  wine,  or  intoxicating  liquors  into  the  Indian 

country  that  the  acts  charged  were  done  under  authority, 
in  writing,  from  the  War  Department  or  any  officer  duly 
authorized  thereto  by  the  War  Department.1  Ibid. 

1978-  So  much  of  the  act  of  the  twenty -third  of  July, 
eighteen  hundred  and  ninety -two,  as  is  inconsistent  with 
the  provisions  of  this  act  is  hereby  repealed.     Sec.  2,  ibid. 
ar?e°t?  trials1  ts;      1979.  All  complaints  for  the  arrest  of  any  person  or 
27July26o  189^' v'  Persons  made  for  violation  of  any  of  the  provisions  of 
this  act  shall  be  made  in  the  county  where  the  offense 
shall  have  been  committed,  or  if  committed  upon  or  within 

1  The  Secretary  of  War  has  no  general  authority  to  license  the  introduction  of 
spirituous  liquors  into  the  Indian  country  Under  section  2139,  Revised  Statutes,  and 
the  act  of  July  23,  1892,  chapter  234,  amending  that  section  and  extending  it  to  beer 
and  other  malt  liquors,  the  Secretary  of  War  is  without  authority  to  permit  the  intro- 
duction into  that  country  of  any  spirituous  or  malt  liquors  intended  for  sale.  Dig. 
Opin.  J.  A.  G.,  par.  1500. 

Where  an  enlisted  Indian  soldier  belongs  to  a  tribe  which  remains  "under  the 
charge  of  any  Indian  superintendent  or  agent,"  it  is  an  offense  under  section  2139, 
Revised  Statutes,  to  sell  him  spirituous  liquor.  Otherwise  if  he  be  attached  to  no 
such  tribe  and  is  under  no  such  "charge."  (a)  Ibid.,  par.  1508. 

Held  that  there  was  no  statute  of  the  United  States  under  which  the  selling  of 
spirituous  liquor  to  Indian  soldiers  (not  under  the  charge  of  an  Indian  agent)  sta- 
tioned on  a  United  States  military  reservation,  by  a  civilian  making  the  sales  off  the 
reservation,  could  be  punished  as  an  offense.  Ibid.,  par.  1510. 

In  view  of  the  terms  of  the  act  of  May  21, 1884,  establishing  a  civil  government  for 
Alaska,  held  that  the  military  authorities  could  no  longer  legally  issue  permits  for  the 
introduction  of  liquors  into  Alaska  under  G.  O.  57  of  1874;  section  14  of  said  act 
being  deemed  impliedly  to  repeal,  as  to  Alaska,  that  portion  of  section  2139,  Revised 
Statutes,  which  empowered  the  Secretary  of  War  to  authorize  such  introduction.  (I) 
Ibid.,  par.  1502. 


a  U.  S.  v.  Hurshman,  53  Fed.  Rep.,  543.  b  See  U.  S.v.  Nelson,  29  Fed.  Rep.  202. 


MILITARY    LAWS    OF   THE    UNITED    STATES.  779 

any  reservation  not  included  in  any  county,  then  in  any 
county  adjoining  such  reservation,  and  if  in  the  Indian 
Territory,  before  the  United  States  court  commissioner  or 
commissioner  of  the  circuit  court  of  the  United  States 
residing  nearest  the  place  where  the  offense  was  com- 
mitted who  is  not  for  any  reason  disqualified;  but  in  all 
cases  such  arrests  shall  be  made  before  any  United  States 
court  commissioner  residing  in  such  adjoining  county  or 
before  any  magistrate  or  judicial  officer  authorized  by  the 
laws  of  the  State  in  which  such  reservation  is  located  to 
issue  warrants  for  the  arrest  and  examination  of  offenders 
by  section  ten  hundred  and  fourteen  of  the  Revised  Stat- 
utes of  the  United  States.  And  all  persons  so  arrested 
shall,  unless  discharged  upon  examination,  be  held  to 
answer  and  stand  trial  before  the  court  of  the  United 
States  having  jurisdiction  of  the  offense.  Act  of  Jidy 
23,  1892  (27  Stat.  Z.,  260). 

1980.  If  any  person  shall,  without  the  authority  of  the    sales  of  liquor 

.  or  firearms  to  In- 

U  nited   btates  or  some   authorized  officer  thereof,   sell  dians  in  Alaska. 

T     , .  !      Mar.  3,  1899,  s. 

barter,  or  give  to  any  Indian  or  half-breed  who  lives  and  142,  v.  so,  p.  1-253. 
associates  with  Indians  any  firearms  or  ammunition  there- 
for whatever,  or  any  spirituous,  malt,  or  vinous  liquor, 
such  person,  upon  conviction  thereof,  shall  be  punished 
by  imprisonment  in  the  county  jail  not  less  than  two 
months  nor  more  than  six  months,  or  by  fine  not  less 
than  one  nor  more  than  five  hundred  dollars.  Sec.  11$+ 
act  of  March  3, 1899  (30  Stat.  L.,  1253}. 

1981.  Under  the  license  issued  in  accordance  with  this    Sales  of  ^quor 

in  Alaska. 

act  no  intoxicating  liquors  shall  be  sold,  given,  or  in  any    Mar- 3.  !*99,  s. 

J  466,  v.  30,  p.  1253. 

way  disposed  of  to  any  minor,  Indian,  or  intoxicated  per- 
son, or  to  an  habitual  drunkard.  Sec.  486,  act  of  March 
3,  1899  (30  Stat.  Z.,  1853). 

1982.  That  any  person,  whether  an  Indian  or  otherwise.  ,  Punishment 

.  ,  *1  I <>'•  sale,  etc.,  of 

who  shall  in  said  Territory  manufacture,  sell,  give  away,  lkJJJ™j 
or  in  any  manner,  or  by  any  means  furnish  to  anyone,  28>  P-  ™i  s. «.' 
either  for  himself  or  another,  any  vinous,  malt,  or  fer- 
mented liquors,  or  any  other  intoxicating  drinks  of  any 
kind  whatsoever,  whether  medicated  or  not,  or  who  shall 
carry,  or  in  any  manner  have  carried,  into  sai'd  Territory 
any  such  liquors  or  drinks,  or  who  shall  be  interested  in 
such  manufacture,  sale,  giving  away,  furnishing  to  any- 
one, or  carrying  into  said  Territory  any  of  such  liquors  or 
drinks,  shall,  upon  conviction  thereof,  be  punished  by  fine 
not  exceeding  five  hundred  dollars  and  by  imprisonment 


780  MILITARY    LAWS    OF   THE    UNITED    STATES. 

for  not  less  than  one  month  nor  more  than  live  years.1 
Sec.  8,  act  of  March  1,  1895  (28  Stat.  L.,  693.) 

1983.  If  any  superintendent  of  Indian   affairs,  Indian 
ol>  subagent,  or  commanding  officer  of  any  military 
conceaSdrenfq  -  P08*  *ias  reason  to  suspect  or  is  informed  that  any  white 
U(Mar  is  1864  c  Person  or  Indian  is  about  to  introduce  or  has  introduced 
33Amerf Jaipur an^  spirituous  liquor  or  wine  into  the  Indian  country  in 
ckKt>.u.s.,2Pet.t  violation  of  law,  such  superintendent,  agent,,  subagent,  or 
sec.  2140, K.S.  commanding  officer  may  cause  the  boats,  stores,  packages, 
wagons,  sleds,  and  places  of  deposit  of  such  person  to  be 
searched;  and  if  any  such  liquor  is  found  therein,  the  same, 
together  with  the  boats,  teams,  wagons,  and  sleds  used  in 
conveying  the  same,  and  also  the  goods,  packages,  and 
peltries  of  such  person,  shall  be  seized  and  delivered  to  the 
proper  officer,  and  shall  be  proceeded  against  by  libel  in 
the  proper  court,  and  forfeited,  one-half  to  the  informer 
and  the  other  half  to  the  use  of  the  United  States;  and  if 
such  person  be  a  trader  his  license  shall  be  revoked  and 
his  bond  put  in  suit.     It  shall,  moreover,  be  the  duty  of 
any  person  in  the  service  of  the  United  States  or  of  any 
Indian  to   take   and   destroy  any  ardent   spirits  or  wine 
found  in  the  Indian  country,  except  such  as  may  be  intro- 
duced therein  by  the  War  Department.     In  all  cases  aris- 
ing under  this  and  the  preceding  section  Indians  shall  be 
competent  witnesses.2 

1(The  above  statute  relates  to  the  Indian  Territory,  and  is  for  that  reason  not  oper- 
ative elsewhere.  The  act  of  May  2,  1890  (26  Stat.  L.,  81,  97),  establishing  a  tempo- 
rary government  for  Oklahoma  Territory,  confers  original  jurisdiction  upon  the 
United  States  court  for  the  Indian  Territory  to  enforce  the  provisions  of  Title  XXVIII, 
chapters  three  and  four  of  the  Revised  Statutes,  except  as  to  the  offenses  defined  and 
embraced  in  sections  2142  and  2143  of  the  Revised  Statutes.  Concurrent  jurisdiction 
over  the  offenses  defined  in  section  2139  was  conferred  upon  this  court  in  connection 
with  the  United  States  courts  for  the  western  district  of  Arkansas  and  the  eastern 
district  of  Texas. 

2  The  act  of  July  4,  1884,  provides  that  no  part  of  section  twenty-one  hundred  and 
thirty-nine  or  of  section  twenty-one  hundred  and  forty  of  the  Revised  Statutes  shall 
be  a  bar  to  the  prosecution  of  any  officer,  soldier,  sutler  or  storekeeper,  attach^,  or 
employee  of  the  Army  of  the  United  States  who  shall  barter,  donate,  or  furnish  in 
any  manner  whatsoever  liquors,  wines,  beer,  or  any  intoxicating  beverage  whatso- 
soever  to  any  Indian.  23  Stat.  L. ,  94. 

In  view  of  the  positive  terms  of  section  2140,  Revised  Statutes,  an  officer  of  the 
Army  not  only  may  but  should  "take  and  destroy  any  ardent  spirits  or  wine  found 
in  the  Indian  country  except  such  as  may  be  introduced  therein  by  the  War  Depart- 
ment." The  section  imposes  this  as  a  "duty  "  upon  "any  person  in  the  service  of 
the  United  States,"  including,  of  course,  military  as  well  as  civil  officials.  Held,  how- 
ever, that  the  authority  given  by  the  statute  to  destroy  liquor  brought  into  an  Indian 
reservation  did  not  authorize  the  destruction  by  the  military  of  a  building,  the  pri- 
vate property  of  a  citizen,  in  which  the  liquor  was  found  stored.  Dig.  Opin.  J.  A.  ( i . , 
par.  1503. 

In  view  of  the  duty  devolved  by  section  2140,  Revised  Statutes,  upon  * '  any  person 
in  the  service  of  the  United  States, ' '  to  take  and  destroy  spirituous  liquors  in  the 
Indian  country,  held  tfiat  a  post  commander  in  such  country  who  seized  and  destroyed 
a  quantity  of  such  liquors  introduced  into  such  country  without  the  authority  of  the 
Secretary  of  War,  but  not  found  within  the  limits  of  his  military  command,  had  not 
exceeded  his  powers.  Ibid.,  par.  1504. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  781 


1984.  No  part  of  section  twenty-one  hundred  and  thirty-  go°dfec^rsnot 
nine  or  of  section  twenty-one  hundred  and  forty  of  the 
Revised  Statutes  shall  be  a  bar  to  the  prosecution  of  anJ  ^s 
officer,  soldier,  sutler  or  storekeeper,  attache,  or  employee  23J'  1884>  v- 
of  the  Army  of  the  United  States  who  shall  barter,  donate, 

or  furnish  in  any  manner  whatsoever  liquors,  wines,  beer, 
or  any  intoxicating  beverage  whatsoever  to  any  Indian.1 
Act  of  July  4,  1884  (23  Stat.  L.,  94). 

1985.  P>ery  person  who  shall,  within  the  Indian  country, 

set  up  or  continue  any  distillery  for  manufacturing  ardent  jn  Indian  couri- 
spirits,  shall  be  liable  to  a  penalty  of  one  thousand  dollars;  I6l™*$t't^*\ 
and  the  superintendent  of  Indian  Affairs,  Indian  agent,  or7gc  gm  B  g 
subagent,  within  the  limits  of  whose  agency  any  distillery 
of  ardent  spirits  is  set  up  or  continued,  shall  forthwith 
destroy  and  break  up  the  same. 


CRIMES    AND    CRIMINAL   OFFENSES. 


Par.  I   Par. 

1986.  Forgery;  depredations  on  mails.       I  1998.  Injuries  to  property  by  Indians. 


1987.  General  laws  extended  to  Indian 

country. 

1988.  Exceptions.  i  2001.   Removal  of  persons   from  Indian 
1989. '  Indians  committing  certain  offenses  j  country. 


1999.  Timber  depredations. 

2000.  Disposal  of  dead  and  fallen  timber. 


2002.  Penalty  for  return. 

2003.  Removal  from  reservations. 

2004.  Employment  of  military  force. 

2005.  Detention  of  arrested  persons. 

2006.  Arrest    of    absconding    Indians 

charged  with  crime. 

2007.  Marshals  to  execute  process. 

2008.  Execution  of  process. 

2009.  Depositions. 

2010.  Indians  not  to  be  permitted  to  enter 

State  of  Texas. 


subject  to  criminal  laws. 

1990.  Assault;  penalty. 

1991.  Arson. 

1992.  Rape. 

1993.  Horse  stealing  in  the  Indian  Terri- 

tory. 

1994.  Robbery,       burglary,      offenses 

against  Indians. 

1995.  Repealing  clause;  larceny  excepted. 

1996.  Reparation  for  injured  property. 

1997.  Payment  for  injuries  to  property. 

1986.  The    general    laws  of    the    United    States 

ing   and  prescribing   punishments   for   forgery    and  ^^    Mar  3  1855  c 
depredations  upon  the  mails    shall  extend  to  the  Indian  ™*' 8-  8'  v- 10'  P- 

COUntry.  Sec.2144,R.S. 

1987.  Except  as  to  crimes  the  punishment  of  which  is  General  laws  re- 

.        T  .  .  •.        i  i  ,»i      specting   crimes 

expresslv  provided  for  in  this  title,  the  general  laws  ot  the  extended  to  in- 

,   ^  *  ,  dian  country. 

I  nited  States  as  to  the  punishment  of  crimes  committed    June  so,  1334, 

.^  .       .,  ,       .          .       .     ,.    ,.  c.  161,s.  25,  v.4,p. 

in  any  place  within  the  sole  and  exclusive  jurisdiction  of  788; Mar. 27, isw, 

the  United  States,  except  the  District  of  Columbia,  shall 270.  U.'s'.r.  Rog- 
ers, 4  How.,  567. 

extend  to  the  Indian  country.  Sec.2i45,R.s. 

1  The  act  of  July  4,  1884,  declaring  that  section  2139  of  the  Revised  Statutes  shall 
not  be  a  bar  to  the  prosecution  of  any  officer,  soldier,  or  employee  of  the  United 
States  who  shall  "furnish  liquors,  wines,  beer,  or  any  intoxicating  beverage  to"  any 
Indian  is  not  a  legislative  construction  of  such  section.  In  re  McDonough,  49  Fed. 
Rep.,  360. 

See  also  for  the  offense  of  selling  liquor  to  Indians  by  licensed  dealers  in  Alaska, 
section  460  of  the  act  of  March  3,  1899  (30  Stat.  L.,  1253),  paragraph  1980,  ante. 


782  MILITARY    LAWS    OF    THE    UNITED    STATES. 


S      1988'  The  preceding  section  shall  not  be  construed  to 
section?receding  extend  to  crimes  committed  by  one  Indian  against  the  per- 
26Msai3,2v.1io!'p;  son  or  Pr°Pei'ty  of  another  Indian,  nor  to  an}^  Indian  com- 
c^vhsfp.^is:  mining  any  offense  in  the  Indian  country  who  has  been 
Sec-2146'RtS-  punished  by  the  local  law  of  the  tribe,    or  to  any  case 
where,  by  treaty  stipulations,  the  exclusive  jurisdiction 
over  such  offenses  is  or  may  be  secured  to  the  Indian 
tribes,  respectively.1 

mitntfn|nScerCSfn      1989«  That  immediately  upon  and  after  the  date  of  the 
8^6   °f  tnis  act  aU  Indians   committing  against  the 
a385;  Person  or  property  of  another  Indian  or  other  person  any 
of  the  following  crimes,  namely,  murder,  manslaughter, 
rape,2  assault  with  intent  to  kill,  arson,  burglary,  and  lar- 
ceny within  any  Territory  of  the  United  States,  and  either 
within  or  without  an  Indian  reservation,  shall  be  subject 
therefor  to  the  laws  of  such  Territory  relating  to  said 
crimes,  and  shall  be  tried  therefor  in  the  same  courts  and 


Neither  the  provisions  of  the  treaty  with  the  Sioux  Indians  of  1868  (15  Stat.  L., 
635),  nor  the  provision  embodied  in  the  act  of  February  28,  1877  (19  Stat.  L.,  256), 
that  they  "shall  be  subject  to  the  laws  of  the  United  States,"  nor  any  other  provi- 
sion in  that  agreement  or  act,  operated  to  repeal  the  provision  of  section  2146  of  the 
Revised  Statutes,  which  excepts  from  the  general  jurisdiction  of  the  courts  of  the 
United  States  over  offenses  committed  in  the  Indian  country,  "  crimes  committed  by 
one  Indian  against  the  person  or  property  of  another  Indian,"  and  offenses  committed 
in  Indian  country  by  an  Indian  who  has  been  punished  by  the  local  law  of  the  tribe; 
and  offenses  where  by  treaty  stipulation  the  exclusive  jurisdiction  over  the  same 
is  or  may  be  secured  to  the  Indian  tribes,  respectively.  Ex  parte  Crow  Dos,  109 
U.  8.,  556. 

The  United  States  circuit  court  has  jurisdiction,  under  section  753,  Ee  vised  Statutes, 
to  inquire  upon  habeas  corpus  whether  a  member  of  an  Indian  tribe,  in  custody  of 
State  officers  for  violation  of  a  State  statute,  is  illegally  restrained  of  his  liberty  in 
violation  of  a  treaty  with  the  Indian  tribe,  by  virtue  of  which  such  Indian  claimed 
the  right  to  do  the  act  alleged  to  be  a  violation  of  the  State  statute.  In  re  Race 
Horse,  70  Fed.  Rep.,  598. 

Indians,  while  prfserving  their  tribal  relations  and  residing  upon  a  reservation  set 
apart  for  them  by  the  United  States,  are  wards  of  the  General  Government  and  as 
such  the  subject  of  Federal  authority,  and  the  power  to  legislate  for  them  is  exclu- 
sively in  Congress,  and  for  acts  committed  within  the  limits  of  the  reservation  they 
are  not  subject  to  the  criminal  laws  of  the  State.  State  r.  Campbell,  55  N.  W.  Rep., 
553.  Independently  of  any  question  of  title  the  Federal  courts  have  jurisdiction,  for, 
regarding  the  Indians  as  wards  of  the  nation,  the  United  States  has  full  power  to  pass 
such  laws  as  may  be  necessary  to  their  protection  and  to  punish  all  offenses  com- 
mitted against  them  within  the  limits  of  the  reservation.  U.  S.  v.  Thomas,  151 
U.  S.,  577. 

Unless  otherwise  provided  by  treaty  stipulations  with  an  Indian  tribe  or  by  the 
act  admitting  the  State  into  the  Union,  the  criminal  laws  of  the  State,  except  so  far 
as  restricted  by  the  authority  of  Congress,  "to  regulate  commerce  with  the  Indian 
tribes,"  extend  to  all  crimes  committed  on  an  Indian  reservation  by  persons  other 
than  tribal  Indians.  State  v.  Campbell,  55  N.  W.  Rep.,  553. 

The  Territorial  laws  denning  crimes  and  prescribing  punishments  therefor  have  no 
application  to  Indian  reservations,  where  Congress  has,  by  special  enactment,  created 
the  same  offenses  and  made  them  punishable  under  the  laws  of  the  United  States. 
Goodson  v.  U.  S.,  54  Pac.  Rep.,  423. 

2  The  offense  of  assault  with  intent  to  commit  rape,  committed  by  an  Indian  upon 
an  Indian  woman,  both  residing  upon  an  Indian  reservation,  is  not  cognizable  as  a 
crime  by  any  statute  of  the  United  States,  and  the  United  States  courts  have  no 
jurisdiction  of  such  offense.  U.  S.  r.  King,  81  Fed.  Rep.,  625. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  783 

in  the  same  manner  and  shall  be  subject  to  the  same  pen- 
alties as  are  all  other  persons  charged  with  the  commission 
of  said  crimes,  respectively;  and  the  said  courts  are  hereby juSdictionV IS 
given  jurisdiction  in  all  such  cases;  and  all  such  Indians a11  such  cases- 
committing  any  of  the  above  crimes  against  the  person  or 
property  of  another  Indian  or  other  person  within  the 
boundaries  of  any  State  of  the  United  States,  and  within 
the  limits  of  any  Indian  reservation,  shall  be  subject  to 
the  same  laws,  tried  in  the  same  courts  and  in  the  same 
manner,  and  subject  to  the  same  penalties  as  are  all  other 
persons  committing  any  of  the  above  crimes  within  the 
exclusive  jurisdiction  of  the  United  States.1  Sec.  9,  act 
of  March  3,  1885  (23  Stat.  Z.,  385). 

1990.  Every  white  person  who  shall  make  an  assault  al^ssault;   pen" 
upon  an  Indian,  or  other  person,  and  every  Indian  who^^2^1^4^- 
shall  make  an  assault  upon  a  white  person,  within  the27^c  2142  BS 
Indian  country,  with  a  gun,  rifle,  sword,  pistol,  knife,  or 

any  other  deadly  weapon,  with  intent  to  kill  or  maim  the 
person  so  assaulted,  shall  be  punishable  by  imprisonment 
at  hard  labor  for  not  more  than  five  years  nor  less  than 
one  year. 

1991.  Every  white  person  who  shall  set  fire,  or  attempt    ^a?  27  ISM  c. 
to  set  fire,  to  any  house,  outhouse,  cabin,  stable,  or  other  go s'  '*' v'  10)  p< 
building,  in  the  Indian  country,  to  whomsoever  belong-    Sec.  21*3,  B.S. 
ing;  and  every  Indian  who  shall  set  fire  to  any  house,  out- 
house, cabin,  stable,  or  other  building,  in  the  Indian  coun- 
try, in  whole  or  in  part  belonging  to  or  in  lawful  possession 

of  a  white  person,  and  whether  the  same  be  consumed  or 
not,  shall  be  punishable  by  imprisonment,  at  hard  labor 
for  not  more  than  twenty-one  years  nor  less  than  two 
years. 

1  U.  S.  f.  Kagama,  118  U.  S.,  375;  U.  S.  v.  Thomas,  151  U.  S.,577;  Ex  parte  Crow 
Dog,  109  U.  S.,  556;  In  re  May  field,  141  U.  S.,  107;  Famous  Smith  v.  U.  S.,  151  U.  K, 
50.  For  cases  not  falling  within  the  scope  of  the  act  of  March  3,  1885,  see  1  Gould 
and  Tucker,  499,  500;  2  Ibid,  192. 

The  supreme  court  of  the  District  of  Columbia  has  jurisdiction  of  an  offense  com- 
mitted by  One  Indian  upon  another  Indian  when  committed  outside  the  Indian 
country.  In  re  Wolf,  27  Fed.  Rep.,  60.  The  prohibition  against  the  jurisdiction  of 
the  United  States  courts  to  try  an  Indian  for  an  offense  committed  on  another  Indian 
applies  only  when  the  offense  is  committed  in  the  Indian  country.  When  the 
Indian  commits  a  crime  outside  the  Indian  country  (although  that  crime  may  be  on 
another  Indian)  he  is,  like  any  other  person,  amenable  to  the  criminal  laws  of  the 
place  where  the  crime  is  committed.  Pablo  v.  People,  46  Pac.  Rep.,  636. 

The  power  of  Congress  to  regulate  the  intercourse  between  the  inhabitants  of  the 
United  States  and  the  Indian  tribes  therein  is  not  limited  by  State  lines  or  govern- 
ments, but  may  be  exercised  and  enforced  wherever  the  subject — Indian  tribes — 
exists.  U.  S.  v.  Bridleman,  7  Fed.  Rep.,  894;  U.  S.  v.  Earl,  17;  Ibid,  75.  In  the 
exercise  of  its  constitutional  power  to  regulate  intercourse  with  the  Indian  tribes, 
Congress  may  define  and  punish  crimes  committed  by  white  men  upon  the  person 
or  property  of  an  Indian,  and  vice  versa,  within  as  well  as  without  the  limits  of  a 
State.  U.  S.  v.  Martin,  14  Fed.  Rep.,  817;  U.  S.  r.  Renfrew,  41  Pac.  Rep.,  161. 


784  MILITARY    LAWS    OF    THE    UNITED    STATES. 


1897,  s.      1992.  Any  Indian  who  shall  commit  the  offense  of  rape 
5,  v.  29,  p.  487.     wjthin  the  limits  of  any  Indian  reservation  shall  be  pun- 
ished by  imprisonment  at  the  discretion  of  the  court.     Sec- 
tion 5,  act  of  January  15,  1897  (29  Stat.  Z.,  487). 
et?,°rinStiSd"ui      1993.    Any  person   hereafter  convicted  in  the  United 
TeFeb°ri5,  1888,  States  courts  having  jurisdiction  over  the  Indian  Territory 
or  parts  .thereof,  of  stealing  any  horse,  mare,  gelding, 
filly,  foal,  ass,  or  mule,  when  said  theft  is  committed   in 
the  Indian  Territory,  shall  be  punished  by  a  fine  of  not 
Punishment.    more  than  one  thousand  dollars,  or  by  imprisonment  not 
more  than  fifteen  years,  or  by  both  s.uch  fine  and  imprison  - 
ment,  at  the  discretion  of  the  court.     Act  of  February  15, 
1888(25  Stat.  Z.,  33). 

bu^Sr?3    a"d      1994.  Any  person  hereafter  convicted  of  any  robbery 

punishment.    or  burglary  in  the  Indian  Territory  shall  be  punished  by 

a  fine  of  not  exceeding  one  thousand  dollars,  or  imprison- 

ment not  exceeding  fifteen  years,  or  both,  at  the  discretion 

sec.  2,  ibid.      Of  the  court:  Provided,  That  this  act  shall  not  be  so  con- 

indfansS,ee\cUp°n  strued  as  to  appty  to  any  offense  committed  by  one  Indian 

upon  the  person  or  property  of  another  Indian,  or  so  as 

to  repeal  any  former  act  in  relation  to  robbing  the  mails 

or  robbing  any  person  of  property  belonging  to  the  United 

Pending  trials,  states:    And  provided  further,  That  this    act   shall  not 

affect  or  apply  to  any  prosecution   now  pending,  or  the 

prosecution  of  an  y  offense  already  committed.     Section  2, 

ibid. 

clause1!  e  larceny  1995.  All  acts  and  parts  of  acts  inconsistent  with  this 
exsceecpt3dfluu  act  are  hereby  repealed  :  Provided,  Jwwever,  That  all  such 
acts  and  parts  of  acts  shall  remain  in  force  for  the  punish- 
ment of  all  persons  who  have  heretofore  been  guilty  of 
the  crime  of  larceny  in  the  Indian  Territory.  Section  3, 
ibid. 

tafSSd^o^      1996.  Whenever,  in  the  commission,  by  a  white  person, 

erjune  so,  1834,  c.  °f  anJ  crime,  offense,  or  misdemeanor,  within  the  Indian 

i6i,  s.  16,  v.  4,  p.  country,  the  property  of  any  friendly  Indian  is  taken, 

Sec'2164'K's*  injured,  or  destroyed,  and  a  conviction  is  had  for  such 

crime,  offense,  or  misdemeanor,  the  person  so  convicted 

shall  be  sentenced  to  pay  to  such  friendly  Indian  to  whom 

the  property  may  belong,  or  whose  person  may  be  injured, 

a  sum  equal  to  twice  the  just  value  of  the  property  so  taken, 

injured,  or  destroyed. 

thea^ffTnde?ei!  1997-  If  such  offender  shall  be  unable  to  pay  a  sum  at 
same*6  to  make  least  equal  to  the  just  value  or  amount,  whatever  such  pay- 
iof1?\60'v84!'J:mentshall:fa11  short  of  the  same  shall  be  paid  out  of  the 
73sec.2i55,u.s.  Treasury  of  the  United  States,  If  such  offender  can  not 


MILITARY    LAWS    OF    THE    UNITED    STATES.  785 

be  apprehended  and  brought  to  trial,  the  amount  of  such 
property  shall  be  paid  out  of  the  Treasury.  But  no  Indian 
shall  be  entitled  to  any  payment  out  of  the  Treasury  of  the 
United  States  for  any  such  property  if  he,  or  &ny  of  the 
nation  to  which  he  belongs,  have  sought  private  revenge, 
or  have  attempted  to  obtain  satisfaction  by  any  force  or 
violence. 

1998.  If  any  Indian,  belonging  to  any  tribe  in  amity  with  p,4£Jrty  *by  in- 
the  United  States,  shall,  within  the  Indian  country,  takedij^e30  1834  c 
or  destroy  the  property  of  any  person  lawfully  within  such  ™\\  Feb'zs  iss?' 
country,  or  shall  pass  from  Indian  country  into  any  State  J^66-  s-  8'  v-  u«  P- 
or  Territory  inhabited  by  citizens  of  the  United  States,  and    Sec'21&<>,  B.S. 
there  take,  steal,  or  destroy,  any  horse,  or  other  property, 
belonging  to  any  citizen  or  inhabitant  of  the  United  States, 

such  citizen  or  inhabitant,  his  representative,  attorney,  or 
agent,  may  make  application  to  the  proper  superintendent, 
agent,  or  subagent,  who,  upon  being  furnished  with  the 
necessary  documents  and  proofs,  shall,  under  the  direction 
of  the  President,  make  application  to  the  nation  or  tribe 
to  which  such  Indian  shall  belong,  for  satisfaction;  and  if 
such  nation  or  tribe  shall  neglect  or  refuse  to  make  satis- 
faction, in  a  reasonable  time  not  exceeding  twelve  months, 
such  superintendent,  agent,  or  subagent  shall  make  return 
of  his  doings  to  the  Commissioner  of  Indian  Affairs,  that 
such  further  steps  may  be  taken  as  shall  be  proper,  in 
the  opinion  of  the  President,  to  obtain  satisfaction  for  the 
injury. 

1999.  Every  person  who  unlawfully  cuts,  or  aids  or  is  .Penalty  for 

J    l  J  timber  depreda- 


employ  ed  in  unlawfully  cutting,  or  wantonly  destroys  or         e  4  1888 

procures  to  be  wantonly  destroyed,  any  timber  standing  25^  ig^  ^ 

upon  the  land  of  the  United  States  which,  in  pursuance  oxf 

law,  may  be  reserved  or  purchased  for  military  or  other 

purposes,  or  upon  any  Indian  reservation,  or  lands  belong-  l° 

ing  to  or  occupied  by  any  tribe  of  Indians  under  authority 

of  the  United  States,  shall  pay  a  fine  of  not  more  than  five 

hundred  dollars  or  be  imprisoned  not  more  than  twelve 

months,  or  both,  in  the  discretion  of  the  court.1     Act  of 

June  4,  1888  (25  Stat.  Z.,  166). 


1  The  act  of  June  4,  1888,  prohibiting  the  cutting  of  timber  on  Indian  lands,  is  opera- 
tive upon  the  Osage  Reservation,  and  in  respect  to  the  Osage  Indians.  Labadie  v. 
U.  S.,  51  Pac.  Rep.,  666.  The  act  also  applies  to  an  Indian  sustaining  tribal  rela- 
tions who  cuts  timber  for  speculative  purposes.  Ibid. 

Indians  occupying  reservations,  the  title  to  which  is  in  the  United  States  subject 
to  their  occupancy,  have  no  right  to  cut  and  remove  the  dead  and  fallen  timber 
thereon  for  the  purpose  of  sale  alone;  such  timber,  where  not  used  by  the  Indians 
for  fuel  or  for  agricultural  purposes  connected  with  the  occupation  of  the  land,  being 
the  property  of  the  United  States.  XIX  Opin.  Att.  Gen.,  194. 

22924—08 50 


786  MILITARY    LAWS    OF   THE    UNITED   STATES. 


200a  The  ^resident  of  the  United  States  may  from  year 
wmbe?nd  fallen  *°  year,  in  his  discretion,  under  such  regulations  as  he  may 
25Fpb673'1889'v'Prescr^e>  authorize  the  Indians  residing  on  reservations 
or  allotments,   the  fee  to  which  remains  in  the  United 
States,  to  fell,  cut,  remove,  sell,  or  otherwise  dispose  of 
the  dead  timber  standing  or  fallen,  on  such  reservation  or 
allotment,  for  the  sole  benefit  of  such  Indian  or  Indians. 
But  whenever  there  is  reasonable  cause  to  believe  that 
such  timber  has  been  killed,  burned,  girdled,  or  otherwise 
injured  for  the  purpose  of  securing  its  sale  under  this  act, 
then  in  that  case  such  authority  shall  not  be  granted.1 
Act  of  February  16,  1889  (25  Stat.  L.,  673). 
°f     20°1.  Tae  superintendent  of  Indian  affairs,  and  the  In 
'p'  dian  agents  and  subagents,  shall  have  authority  to  remove 
78s'ee.  2i47,B.s.  ^  rom  ^ne  Indian  country  all  persons  found  therein  contrary 
to  law;  and  the  President  is  authorized  to  direct  the  mili 
tary  force  to  be  employed  in  such  removal.2 

tuSnalty  for  re      2002-  H  anv  Person  who  has  been  removed  from  the  In- 
i^?'v^?i?'p'  dian  country  shall  thereafter  at  any  time  return  or  be  found 
^Sec.  2i48,R.s.  within  the  Indian  country,  he  shall  be  liable  to  a  penalty 
of  one  thousand  dollars. 

1  A  contract  by  an  Indian  to  cut  and  deliver  to  a  purchaser  a  certain  quantity  of 
dead  timber  from  a  reservation,  "  more  or  less,"  or  "about,"  and  which  is  approved 
by  the  President  under  the  act  of  February  16,  1889,  limits  the  quantity  to  which 
the  purchaser  can  obtain  title  thereunder  to  that  stated;  allowance  being  made  only 
for  immaterial  and  accidental  variation.  U.  S.  v.  Pine  River  Logging  Co.,  90  Fed. 
Rep.,  907.  The  timber  on  Indian  reservations  belongs  to  the  United  States,  and, 
in  the  absence  of  legislative  authority,  the  Indians  have  no  authority  to  cut  or  dis- 
pose of  it.  Ibid.  The  act  empowering  the  President  to  authorize  Indians  to  cut 
and  remove  from  their  reservations  "dead  timber"  includes  in  that  designation 
trees  still  living,  but  vitally  injured,  so  that  they  will  die  in  a  short  time,  but  not 
living  and  uninjured  trees  merely  because  they  stand  among  trees'  a  large  proportion 
of  which  are  dead.  Ibid.  It  is  not  unlawful  for  an  Indian  having  a  contract, 
approved  by  the  President,  to  cut  and  deliver  a  certain  quantity  of  dead  timber  from 
a  reservation,  to  permit  other  Indians  to  cut  and  deliver  timber  thereunder  in  his 
name.  Ibid. 

3  Under  section  2147,  Revised  Statutes,  authorizing  the  use  of  the  military  in  the 
removal  from  the  Indian  country  of  "persons  found  therein  contrary  to  law,"  held 
that  the  President  was  authorized  to  direct  that  a  company  of  United  States  troops 
be  stationed  in  the  Indian  Territory  near  the  Kansas  line  to  act  as  a  patrol,  and  to 
apprehend  and  return  within  that  line  any  and  all  lawless  persons,  guilty  of  crimes 
committed  in  Kansas,  who  have  escaped  from  justice  into  the  Indian  country.  Dig. 
Opin.  J.  A.  G.  par.  1505. 

Under  the  Constitution,  the  acts  of  Congress,  and  the  regulations  adopted  by  the 
Indian  department,  the  power  of  the  Commissioner  of  Indian  Affairs  and  the  agent 
acting  under  him  and  by  his  direction  in  removing  any  one  not  a  member  of  an 
Indian  tribe  is  a  matter  intrusted  to  the  discretion  of  the  Commissioner,  and  is  not 
reviewable.  Adams  v.  Freeman,  50  Pac.  Rep.,  135. 

An  order  from  a  State  court  restraining  an  Indian  agent  from  ousting  trespassers 
from  an  Indian  reservation  should  be  disregarded  as  without  jurisdiction.  XX  Opin. 
Att.  Gen.,  245. 

An  Indian  agent  has  no  authority  forcibly  to  eject  persons  from  land  not  within 
an  Indian  reservation,  although  it  is  inclosed  in  allotments  made  to  Indians  in  fulfill- 
ment of  a  treaty  stipulation,  and  may  be  restrained  by  injunction  from  so  ejecting  one 
who,  before  such  allotment,  entered  the  land  as  a  homestead  and  made  valuable 
improvements  thereon.  La  Chapelle  v.  Bubb,  2  Feel.  Rep.,  545. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  787 


2003.  The  Commissioner  of  Indian  Affairs  is  authorized 
and  required,  with  the  approval  of  the  Secretary  of  the 
Interior,  to  remove  from  any  tribal  reservation  any  person  33|ec  2i49,R.s. 
being  therein  without  authority  of  law,  or  whose  presence 

within  the  limits  of  the  reservation  may,  in  the  judgment 
of  the  Commissioner,  be  detrimental  to  the  peace  and  wel- 
fare of  the  Indians;  and  may  employ  for  the  purpose  such 
force  as  ma}7  be  necessaiy  to  enable  the  agent  to  effect  the 
removal  of  such  person. 

2004.  The  military  forces  of  the  United  States  may  be  oft>jf^ynj  ££| 
employed  in  such  manner  and  under  such  regulations  as  in  apprehending 

A      J  ~  t  persons  violating 

the  President  may  direct  —  jmSao  1334  c 

First.  In  the  apprehension  of  every  person  who  may  be16^8-21'23^'*, 
in  the  Indian  country  in  violation  of  law;  and  in  convey-    Sec.2iso,K.s. 
ing  him  immediately  from  the  Indian  country,  by  the  near- 
est convenient  and  safe  route,  to  the  civil  authority  of  the 
Territory  or  judicial  district  in  which  such  person  shall  be 
found,  to  be  proceeded  against  in  due  course  of  law; 

Second.  In  the  examination  and  seizure  of  stores,  pack- 
ages, and  boats,  authorized  by  law; 

Third.  In  preventing  the  introduction  of  persons  and 
property  into  the  Indian  country  contrary  to  law;  which 
persons  and  property  shall  be  proceeded  against  according 
to  law; 

Fourth.  And  also  in  destroying  and  breaking  up  any 
distillery  for  manufacturing  ardent  spirits  set  up  or  con- 
tinued within  the  Indian  country.1 

1  Under  section  2150,  Revised  Statutes,  a  military  commander  may  be  authorized 
and  directed  by  the  President  to  arrest  by  military  force  and  deliver  to  the  proper 
civil  authorities  for  trial  any  white  persons  or  Indians  who  may  be  in  the  Indian 
country  engaged  in  furnishing  liquor  to  Indians  in  violation  of  law,  as  also  to  pre- 
vent by  military  force  the  entry  into  such  country  of  persons  designing  to  introduce 
liquor  therein  contrary  to  law.  Held  that  this  authority  to  prevent  was  clearly  an 
authority  to  arrest  where  arrests  were  found  necessary  to  restrain  persons  attempting 
to  introduce  liquor  or  other  inhibited  property.  Dig.  Opin.  J.  A.  G.,  par.  1506. 

The  troops  of  the  United  States  can  not  be  employed  in  the  Indian  Territory  for 
the  purpose  of  assisting  in  the  preservation  of  the  peace  and  the  arrest  of  bandits  and 
outlaws  unless  they  are  trespassing  upon  Indian  country,  or  absconding  offenders 
within  the  provisions  of  section  2152  of  the  Revised  Statutes.  XXI  "Opin.  Att. 
Gen.,  72. 

Whatever  may  be  the  rule  in  time  of  war  and  in  the  presence  of  actual  hostilities, 
military  officers  can  no  more  protect  themselves  than  civilians  for  actual  wrongs 
committed  in  time  of  peace  under  orders  emanating  from  a  source  which  is  itself 
without  authority  in  the  premises.  Hence  a  military  officer  seizing  liquors  supposed 
to  be  in  Indian  country  when  they  are  not  is  liable  to  an  action  as  a  trespasser. 
Bates  v.  Clark,  95  U.  S.*,  204. 

Officers  of  the  Army  making  arrests  under  section  23  of  the  act  of  June  30,  1834 
(4  Stat.  L.,  732;  sec.  2150,  Revised  Statutes),  act  as  officers  of  civil  law.  To  justify 
*uch  arrests  there  must  be  strong  probable  cause.  In  re  Carr,  3  Sawyer,  316. 

The  troops  of  the  United  States  can  not  be  employed  in  the  Indian  Territory  to 
aid  in  the  preservation  of  the  peace  and  in  the  arrest  of  alleged  "  outlaws  "  and 
"bandits"  unless  such  persons  are  trespassing,  or  are  absconding  offenders  within 
the  provisions  of  section  2152,  Revised  Statutes.  XXI  Opin.  Att.  Gen.,  72, 


788  MILITARY    LAWS    OF   THE    UNITED   STATES. 


2<X)5.  No  person  apprehended  by  military  force  under  the 
mmtary.by  the  preceding  section  shall  be  detained  longer  than  five  days 
lec!li5i^K.s.  after  arrest  and  before  removal.     All  officers  and  soldiers 
who  may  have  any  such  person  in  custody  shall  treat  him 
with  all  the  humanity  which  the  circumstances  will  permit. 
scondtngindiam     2006.  Tne  superintendents,  agents,  and  subagents  shall 
gujune°3ofi834?e.  endeavor  to  procure  the  arrest  and  trial  of  all  Indians  ac- 
732'  s'  19>  v>  4)  p>  cused  of  committing  any  crime,  offense,  or  misdemeanor, 
sec.2i52,R.s.  an(j  of  a]|  other  persons  who  may  have  committed  crimes 
or  offenses  within  any  State  or  Territory,  and  have  fled 
into  the  Indian  country,  either  by  demanding  the  same 
of  the  chiefs  of  the  proper  tribe,  or  by  such  other  means 
as  the  President  may  authorize.     The  President  may  direct 
the  military  force  of  the  United  States  to  be  employed  in 
the  apprehension  of  such  Indians,  and  also  in  preventing 
or  terminating  hostilities  between  any  of  the  Indian  tribes.1 
ecu^rSStai     2007.  After  the  passage  of  this  act  any  United  States 
25^pni67%.1888'  v'  marshal  is  hereby  authorized  and  required,  when  necessary 
to  execute  any  process  connected  with  any  criminal  pro- 
ceeding issued  out  of  the  circuit  or  district  court  of  the 
United  States  for  the  district  of  which  he  is  marshal,  or 
by  any  commissioner  of  either  of  said  courts,  to  enter  the 
Indian  Territory,  and  to  execute  the  same  therein  in  the 
same  manner  that  he  is  now  required  by  law  to  execute 
like  processes  in  his  own  district.     Act  of  June  4,  1988 
($5  Stat.  Z.,  167). 

eessxecutingpru      2008.  In  executing  process  in  the  Indian  country,  the 

im!?6^.1!^  marshal  may  employ  a  posse  comitatus,  not  exceeding 

36Iec.  21&3,  R.S.  three  persons  in  any  of  the  States  respectively,  to  assist  in 

executing  process  by  arresting  and  bringing  in  prisoners 

from  the  Indian  country,  and  allow  them  three  dollars  for 

each  day  in  lieu  of  all  expenses  and  services. 

en^sPertcte  au       2009.  The  superintendents,  agents,  and  subagents  within 
thorized  to  take  their  respective  districts  are  authorized  and  empowered  to 

depositions.  A 

/ime  80,i884,c.  take  depositions  of  witnesses  touching  any  depredations, 
73|ec  2157  R  s  w^hin  the  purview  of  the  three  preceding  sections,  and  to 
administer  oaths  to  the  deponents. 

lHeld  that  under  section  2152,  Revised  Statutes,  the  military  forces  may,  by  the 
authority  of  the  President,  be  employed  to  assist  in  making  the  arrest  of  Indians 
concerned  in  the  killing  of  cattle  and  committing  of  depredations  on  the  frontier, 
provided  their  offenses  were  committed  in  the  Indian  country  or  by  Indians  under 
the  legal  charge  of  an  Indian  agent.  Dig.  Opin.  J.  A.  G.,  par.  1507. 

Held  that  in  the  execution  of  process  of  arrest  under  the  act  of  March  3,  1885  (ren- 
dering Indians  amenable  to  the  criminal  laws  of  the  Territories),  the  military  may, 
by  direction  of  the  President,  legally  be  employed  to  aid  the  civil  officials  in  such 
arrests,  such  employment  being  expressly  authorized  by  section  2152,  Revised  Stat- 
utes. Ibid.,  par.  490, 


MILITARY    LAWS    OF    THE    UNITED    STATES.  789 


2010.  All  officers  and  agents  of  the  Army  and  Indian 
Bureaus  are  prohibited,  except  in  a  case  specially  directed 
by  the  President,  from  granting  permission  in  writing  or  thae8stagt°einof 
otherwise  to  any-  Indian  or  Indians  on  any  reservation  to  Tes*cS>4,  May  n, 
go  into  the  State  of  Texas  under  any  pretext  whatever  ;1880'v-21'p-1 
and  any  officer  or  agent  of  the  Army  or  Indian  Bureau 
who  shall  violate  this  provision  shall  be  dismissed  from 
the  public  service.     And  the  Secretary  of  the  Interior  is 
hereby  directed  and  required  to  take  at  once  such  other 
reasonable  measures  as  may  be  necessary  in  connection 
with  said  prohibition  to  prevent  said  Indians  from  entering 
said  State.     Sec.  4,  act  of  May  11,  1880  (21  Stat.  Z., 


THE    INDIAN    POLICE. 


Par. 


2011.  Purpose  of  employment. 

2012.  Preference  in  appointment  to  al- 


Par. 


2013.  Crimes  against  Indian  police. 

2014.  Assault  upon   United   States  offi- 


lottees.  cials. 

2011.  Pay  of  Indian  police:  For  the  services  of  not  ex-  li(£he Indian P°- 
ceeding  four  hundred  and  thirty  privates  at  five  dollars  20Mpay867' 1878>  v' 
per  month  each,  and  not  exceeding  fifty  officers  at  eight 
dollars  per  month  each,  of  Indian  police,  to  be  employed 
in  maintaining  order  and  prohibiting  illegal  traffic  in 
liquor  on  the  several  Indian  reservations,  thirty  thousand 
dollars:  Provided,  That  Indians  employed  at  agencies  in 
any  capacity  shall  not  be  construed  as  part  of  agency  em- 
ployees named  in  section  five  of  the  act  making  appropri- 
ations for  the  Indian  service  for  the  fiscal  year  eighteen 
hundred  and  seventy-six,  approved  March  third,  eighteen 
hundred  and  seventy-five.1  Act  of  May  27,  1878  (80  Stat. 
L.,  86). 

1  The  establishment  of  Indian  police  has  been  authorized  by  the  several  acts  of 
appropriation  since  that  of  March  27,  1868  (20  Stat.  L.  86).  The  detachments 'of 
this  force  authorized  by  the  Secretary  of  the  Interior  to  be  maintained  at  the  several 
Indian  reservations  are  employed,  under  the  direction  of  the  respective  Indian  agents, 
in  the  preservation  of  order  and  in  the  execution  of  the  laws  relating  to  the  manage- 
ment of  Indians  and  the  government  of  the  Indian  country. 

The  powers  and  duties  of  the  Indian  police  authorized  by  the  act  of  May  15,  1886, 
can  not  be  exercised  outside  the  reservation  to  which  they  may  be  assigned.  XVIII 
Opin.  Att.  Gen.,  440. 

A  member  of  the  Indian  police  is  not  an  officer  of  the  United  States  within  the 
meaning  of  the  first  clause  of  section  5398  of  the  Revised  Statutes,  imposing  a  pen- 
alty for  resisting  any  officer  of  the  United  States  in  serving  a  writ  or  process;  but 
such  police  are  included  among  the  other  persons  who  may  be  authorized  to  serve 
writs  or  process  within  the  last  clause  of  the  section.  U.  S.  v.  Mullin,  71  Fed.  Rep., 
682;  in  re  Garrett,  ibid.  The  written  order  of  an  Indian  agent,  made  in  pursuance 
of  the  duty  of  the  Government  to  protect  the  Indians  in  the  use  of  their  reserva- 


790  MILITARY    LAWS    OF    THE    UNITED    STATES. 


m      2012>  Hereafter  in  the  employment  of  Indian  police,  or 
payment  of  Po-  any  other  employees  in  the  public  service  among  any  of  the 
5^24  8P  lm  "'  Indian  tribes  or  bands  affected  by  this  act,   and  where 
Indians  can  perform  the  duties  required,  those  Indians 
who  have  availed  themselves  of  the  provisions  of  this  act 
and  become  citizens  of  the  United  States  shall  be  pre- 
ferred.    Sec.  o,  act  of  February  8,  1887  (24  Stat.  L.,  390). 
crimes  against     2013.  Immediately  upon  and  after  the  passage  of  this 

Indian  police  to  .  ,. 

be  tried  in  dis-  act  any  Indians  committing  against  the  person  or  any 

trict  courts.  J  ,       TT    .       -, 

Mar.  2,  1887,  v.  Indian  policeman  appointed  under  the  laws  or  the  United 
States,  or  any  Indian  United  States  deputy  marshal  while 
lawfully  engaged  in  the  execution  of  any  United  States 
process,  or  lawfully  engaged  in  any  other  duty  imposed 
upon  such  policeman  or  marshal  by  the  laws  of  the  United 
States,  any  of  the  following  crimes,  namely,  murder,  man- 
slaughter, or  assault  with  intent  to  kill,  within  the  Indian 
Territory,  shall  be  subject  to  the  laws  of  the  United  States 
relating  to  such  crimes,  and  shall  be  tried  by  the  district 
court  of  the  United  States  exercising  criminal  jurisdiction 
where  said  offense  was  committed,  and  shall  be  subject  to 
the  same  penalties  as  are  all  other  persons  charged  with  the 
commission  of  said  crimes,  respectively;  and  the  said  courts 
are  hereby  given  jurisdiction  in  all  such  cases.  Act  of 
March  2,  1887  (®4  Stat.  L.,  464). 

Assault,  etc.^  2014.  Any  Indian  hereafter  committing  against  the  per- 
ls tat"  s  officials;  son  of  any  Indian  agent  or  policeman  appointed  under 
pTuaniy9,  isss,  v.  the  laws  of  the  United  States,  or  against  any  Indian 
United  States  deputy  marshal,  posse  comitatus,  or  guard, 
while  lawfully  engaged  in  the  execution  of  any  United 
States  process,  or  lawfully  engaged  in  any  other  duty 
imposed  upon  such  agent,  policeman,  deputy  marshal, 
posse  comitatus,  or  guard  by  the  laws  of  the  United 
States,  any  of  the  following  crimes,  namely,  murder,  man- 
slaughter, or  assault  with  intent  to  murder,  assault,  or 
assault  and  battery,  or  who  shall  in  any  manner  obstruct 

tions,  is  a  legal  or  judicial  writ  or  process  within  the  meaning  of  section  5398  of 
the  Revised  Statutes.     In  re  Garrett,  71  ibid.,  682. 

ALASKA. 

AUuska  though  unorganized  as  a  Territory,  and  constituting  a  military  department, 
is  no  more  under  military  government  or  jurisdiction  than  is  any  other  Territory  or 
any  State  of  the  United  States,  (a)  Dig.  Opin.  J.  A.  G.,  147,  par.  2.  For  the  penal 
code  of  Alaska  see  act  of  March  3,  1899  (30  Stat.  L.,  1253). 


a  "It  is  a  mistake  to  suppose  that  the  Territory  of  Alaska  is  under  military  rule  anymore  than  any 
other  part  o !  the  country,  except  as  to  the  introduction  of  spirituous  liquors,  and  the  making  of 
arrSb ?fo violations  of  "the  existing  law  regulating  their  introduction  and  disposition  (see  Indian 
Country  sec.  1,  note),  in  cases  of  which  arrests  "the  military  really  act  as  civil  officers  and  in  subor- 

j  • A-  „„    *„   .1.-U  n  .  ;-«»il   !«««»   »»        In   t»£i  f~*aw     Q  tia  WVPTV   31 R. 


V/UU-Ula.  j  •   o^Vy.    A,   IAVVW/I   A*-*  x^*^^^  v.    , 

dination  to  the  civil  law."    In  re  Carr,  3  Sawyer,  318. 


MILITARY    LAWS    OF   THE    UNITED    STATES.  791 

by  threats  or  violence  any  person  who  is  engaged  in  the 

service  of  the  United  States  in  the  discharge  of  any  of  his 

duties  as  agent,  policeman,  or  other  officer  aforesaid,  within 

the  Indian  Territory,  or  who  shall  hereafter  commit  either 

of  the  crimes  aforesaid,  in  said  Indian  Territory,  against 

any  person  who,  at  the  time  of  the  commission  of  said 

crime,  or  at  any  time  previous  thereto,  belonged  to  either 

of  the  classes  of  officials  hereinbefore  named,  shall  be  sub 

ject  to  the  laws  of  the  United  States  relating   to   such 

crimes,  and  shall  be  tried  by  the  district  court  of  the    Jurisdiction  of 

TT    .       ,  ~  .    .  district  court. 

United  btates  exercising  criminal  jurisdiction  where  such 
offense  was  committed,  and  shall  be  subject  to  the  same 
penalties  as  are  all  other  persons  charged  with  the  com- 
mission of  said  crimes,  respectively;  and  the  said  courts 
are  hereby  given  jurisdiction  in  all  such  cases.  Act  of 
June  9,  1888  (25  Stat.  Z.,  178). 


CHAPTER  XXXIX. 


THE  EMPLOYMENT  OF  MILITARY  FORCE. 


Par. 

2015-2022.  Invasion  and  insurrection. 
2023-2028.  Employment  of  troops  on  In- 
dian reservations. 

2029-2050.  Suspension  of  intercourse. 
2051-2065.  Civil  rights. 
2066,  2067.  The  elective  franchise. 
2068.  The  public  health. 
2069-2071.  The  public  lands. 

2072.  Obstructing  the  mails. 

2073.  Contracts  and  combinations  in  re- 

straint of  trade. 

2074.  Northern  Pacific  Railroad. 

2075.  Union  and    Central    Pacific  Rail- 

roads. 


Par. 

2076.  Atlantic  and  Pacific  Railroad. 

2077.  Southern  Pacific  Railroad. 

2078.  Enforcement  of  law  in  the  Hawaiian 

Islands. 

2079-2089.  Neutrality. 

2090-2093.  Extradition. 

2094-2102.  Guano  islands. 

2103.  Restriction  on  employment  of  mili- 
tary force. 

2104-2111.  Treason. 

2112.  The  law  of  war — Military  occupa- 
tion. 


INSURRECTION    AND   INVASION. 


Par. 


2015.  Power  of  Congress  over  the  militia. 

2016.  Insurrections. 

2017.  Thesame,  against  the  United  States. 

2018.  The  same,  against  a  State. 


Par. 

2019.  Proclamation  to  insurgents. 

2020.  Invasion. 

I  2021.  Militia,  how  apportioned. 

!  2022.  Militia  subject  to  Articles  of  War. 


Power  of  Con- 
gress over  mili- 
tia. 

Constitution, 
art.  I,  s.  8,  p.  15. 


Power  to  sup 
press  insurrec 
tion. 

Apr.  20,  1871,  c. 


2015.  The  Congress  shall  have  power     *     *     * 

To  provide  for  calling  forth  the  militia  to  execute  the 
laws  of  the  Union,  to  suppress  insurrections,  and  repel 
invasions.1  Constitution  of  the  United  States,  Article  7, 
section  8,  paragraph  15. 

2016.  Whenever  insurrection,  domestic  violence,  unlaw- 
^  combinations,  or  conspiracies  in  any  State  so  obstructs 

.^^  K/S.'  or  hinders  the  execution  of  the  laws  thereof,  and  of  the 
United  States,  as  to  deprive  any  portion  or  class  of  the 
people  of  such  State  of  any  of  the  rights,  privileges,  or 
immunities,  or  protection,  named  in  the  Constitution  and 
secured  by  the  laws  for  the  protection  of  such  rights, 
privileges,  or  immunities,  and  the  constituted  authorities 
of  such  State  are  unable  to  protect,  or,  from  any  cause, 
fail  in  or  refuse  protection  of  the  people  in  such  rights, 
such  facts  shall  be  deemed  a  denial  by  such  State  of  the 

1  For  enactments  of  Congress  in  pursuance  of  the  authority  above  conferred  see  the 
chapter  entitled  THE  MILITIA.     See  also  subsequent  paragraphs  of  this  chapter. 

792 


MILITARY    LAWS    OF    THE    UNITED   STATES.  793 

equal  protection  of  the  laws  to  which  they  are  entitled 
under  the  Constitution  of  the  United  States;  and  in  all  such 
cases,  or  whenever  any  such  insurrection,  violence,  unlaw- 
ful combination  or  conspiracy,  opposes  or  obstructs  the 
laws  of  the  United  States,  or  the  due  execution  thereof, 
or  impedes  or  obstructs  the  due  course  of  justice  under 
the  same,  it  shall  be  lawful  for  the  President,  and  it  shall 
be  his  duty,  to  take  such  measures,  by  the  employment  of 
the  militia  or  the  land  and  naval  forces  of  the  United  States, 
or  of  either,  or  by  other  means,  as  he  may  deem  necessary, 
for  the  suppression  of  such  insurrection,  domestic  violence, 
or  combinations.1 

2017.  Whenever,  by  reason  of  unlawful   obstructions,    insurrection 

'  against  the  Gov- 

combmations,    or   assemblages   of   persons,    or   rebellion  eminent  of  the 

..  United  States. 

against  the  authority  of  the  Government  of  the  United    July  29,  ISGI,  c. 

25,  s.  1,  V.  12,  p. 

States,  it  shall  become  impracticable,  in  the  judgment  of  231. 
the  President,  to  enforce,  by  the  ordinary  course  of  judi- 
cial proceedings,  the  laws  of  the  United  States  within  any 
State  or  Territory,  it  shall  be  lawful  for  the  President  to 
call  forth  the  militia  of  any  or  all  the  States,  and  to  employ 
such  parts  of  the  land  and  naval  forces  of  the  United 
States  as  he  may  deem  necessary  to  enforce  the  faithful 
execution  of  the  laws  of  the  United  States,  or  to  suppress 
such  rebellion,  in  whatever  State  or  Territory  thereof  the 
laws  of  the  United  States  may  be  forcibly  opposed,  or  the 
execution  thereof  forcibly  obstructed.2 

1  The  power  to  enforce  its  laws  and  to  execute  its  functions  in  all  places  does  not 
derogate  from  the  power  of  the  State  to  execute  its  laws  at  the  same  time  and  in  the 
same  places.     The  one  does  not  exclude  the  other  except  where  both  can  not  be  exe- 
cuted at  the  same  time.     In  that  case  the  words  of  the  Constitution  itself  show  which 
is  to  yield;  "  this  Constitution  and  the  laws  of  the  United  States  which  shall  be  made 
in  pursuance  thereof;    '  :    shall  be  the  supreme  law  of  the  land." 

Although  no  State  could  establish  and  maintain  a  permanent  military  government, 
yet  it  may  use  its  military  power  to  put  down  an  armed  insurrection  too  strong  to  be 
controlled  by  the  civil  authority.  The  State  must  determine  for  itself  what  degree 
of  force  the  crisis  demands.  Luther  v.  Borden,  7  How.,  1.  See  also  XVI  Opin.  4tt. 
Gen.,  162.  See  also  note  to  paragraph  2018,  post. 

2  The  National  Government  has  the  right  to  use  physical  force  in  any  part  of  the 
United  States  to  compel  obedience  to  its  laws,  and  to  carry  into  execution  the  powers 
Conferred  upon  it  by  the  Constitution.     "We  hold  it  to  be  an  .incontrovertible  prin- 
ciple that  the  Government  of  the  United  States  onay,  by  means  of  physical  force, 
exercised  through  its  official  agents,  execute  on  every  foot  of  American  soil  the  powers 
and  functions  that  belong  to  it."     Ex  parte  Siebold,  100  U.  S.,  371,  395;  U.  S.  v. 
Neagle,  135  U.  S.,  1,  60;  Logan  v.  U.  S.,  144,  U.  S.,  263,  294;  in  re  Waite,  81  Fed. 
Rep.,  359;  U.  S.  v.  Debs,  164,  U.  S.  724;  U.  S.  v.  Cassidy,  67  Fed.  Rep.,  698. 

An  officer  who,  in  the  performance  of  what  he  conceives  to  be  his  official  duties, 
transcends  his  authority,  and  invades  private  rights,  is  answerable  therefor  to  the 
Government  under  whose  appointment  he  acts,  and  to  individuals  injured  by  his 
action;  but  where  there  is  no  criminal  intent,  he  is  not  liable  to  answer  the  criminal 
process  of  another  Government.  In  re  Lewis,  83  Fed.  Rep.,  159;  in  re  Fair  et  al.  100, 
ibid.  149. 

An  officer  of  the  Army  of  the  United  States  whilst  serving  in  the  enemy's  country 
during  the  rebellion  was  not  liable  to  an  action  in  the  courts  of  that  country  for  inju- 


794  MILITARY    LAWS    OK    THE    UNITED    STATES. 

agSSt  "state  n     2018<  ^n  case  °*  an  insurrection  in  any  State  against  the 
36Fs6 1*  vYp9424:  government  thereof,  it  shall  be  lawful  for  the  President, 
V^'P  ^ c<  39>  on  application  of  the  legislature  of  such  State,  or  of  the 
sec.  529"  B.S.  executive,  when  the  legislature  can  not  be  convened,  to  call 
forth  such  number  of  the  militia  of  any  other  State  or 
States,  which  m&y  be  applied  for,  as  he  deems  sufficient  to 
suppress  such  insurrection;  or,  on  like  application,  to  em- 
ploy, for  the  same  purposes,  such  part  of  the  land  or  nuvul 
forces  of  the  United  States  as  he  deems  necessary.1 
to^u?S£ts10to     2019-  Whenever,  in  the  judgment  of  the  President,  it 
disperse.  becomes  necessary  to  use  the  military  forces  under  this 

ries  resulting  from  his  military  orders  or  acts;  nor  could  he  be  required  by  a  civil 
tribunal  to  justify  or  explain  them  upon  any  allegation  of  the  injured  party  thai  they 
were  not  justified  by  military  necessity.  He  was  subject  to  the  laws  of  war,  anil 
amenable  only  to  his  own  Government.  Dorr  v.  Johnson,  100  U.  S.,  158;  Luther  v. 
Borden,  7  Howard,  1,  46. 

As  a  necessary  incident  of  the  power  to  declare  and  prosecute  war,  the  Federal 
Government  has  a  right  to  transport  troops  through  and  over  the  territory  of  any 
State  of  the  Union.  Crandall  v.  Nevada,  6  Wall. ,  35.  See  also  XVI  Opin.  Att.  Gen. , 
162;  XVII  ibid.,  242,  333;  XIX  ibid.,  293,  and  note  to  par.  2072, post. 

1  Under  article  4,  section  4,  of  the  Constitution,  the  Army  may  be  employed  to 
protect  a  State  from  "invasion"  or  "domestic  violence"  only  by  order  of  the  Presi- 
dent, made  "on  application  of  the  legislature,  or  of  theexecutive  when  the  legislat  me 
can  not  be  convened."  A  military  commander,  of  whatever  rank  or  command,  can 
have  no  authority,  except  by  the  order  thus  made  of  the  President,  to  furnish  troops 
to  a  governor  or  other  functionary  of  a  State,  to  aid  him  in  making  arrests  or  estab- 
lishing law  and  order.  Dig.  Opin.  J.  A.  G.,  par.  483. 

The  proviso  of  the  Constitution,  "when  the  legislature  can  not  be  convened," 
may  be  said  to  mean  when  it  is  not  in  session,  or  can  not,  by  the  State  law,  be  assem- 
bled forthwith  or  in  time  to  provide  for  the  emergency.  .  When  it  is  in  session,  or 
can  legally  and  at  once  be  called  together,  it  will  not  be  lawful  for  the  President  to 
employ  the  army  on  the  application  merely  of  the  governor.  Ibid.,  par.  484. 

VVhere  calls  are  made  upon  the  President,  under  section  4,  article  4,  of  the  Consti- 
tution, by  two  persons,  each  claiming  to  be  governor  of  the  same  State,  to  protect 
the  State  against  domestic  violence,  it  of  necessity  devolves  upon  the  President  to 
determine,  before  giving  the  required  aid,  which  of  such  persons  is  the  lawful  incum- 
bent of  the  office.  XIV  Opin.  Att  Gen.,  391;  VII  ibid.,  8;  Prize  Cases,  2  Black,  97; 
Dodge  r.  Woolsey,  18  Howard,  373;  Ex  parte  Milligan,  4  Wallace,  129. 

A  military  force  employed  according  to  article  4,  section  4.  of  the  Constitution,  is 
to  remain  under  the  direction  and  orders  of  the  President  as  Commander  in  Chief 
and  his  military  subordinates;  it  can  not  be  placed  under  the  direct  orders  or  exclu- 
sive disposition  of  the  governor  of  the  State.  Dig.  Opin.  J.  A.  G.,  par.  485. 

In  all  cases  of  civil  disorders  or  domestic  violence  it  is  the  duty  of  the  Army  to 
preserve  an  attitude  of  indifference  and  inaction  till  ordered  to  aet  by  the  President, 
by  the  authority  of  the  Constitution  or  of  section  2150,  5297,  or  5i^»s,  Revised  Statutes, 
or  other  public  statute.  An  officer  or  soldier  may,  indeed,  interfere  to  arrest  a  per- 
son in  the  act  of  committing  a  crime,  or  to  prevent  a  breach  of  the  peace  in  his  pres- 
ence, but  this  he  does  as  a  citizen  and  not  in  his  military  capacity.  Any  combined 
effort  by  the  military,  as  such,  to  make  arrests  or  otherwise  prevent  breaches  of  the 
peace  or  violations  of  law  in  civil  canes,  except  by  the  order  of  the  President  or  the 
requirement  of  a  United  States  official  authorized  to  require  their  services  on  a  posse 
comitatus,  must  necessarily  be  illegal.  In  a  case  of  civil  disturbance  in  violation  of 
the  laws  of  a  State,  a  military  commander  can  not  volunteer  to  intervene  with  -his 
command  without  incurring  a  personal  responsibility  for  his  acts.  In  the  absence  of 
the  requisite  orders  he  may  not  even  inarch  or  array  his  command  for  the  purpose 
of  exerting  a  moral  effect  or  any  effect  in  terrorem;  such  a  demonstration,  indeed, 
could  only  compromise  the  authority  of  the  United  States,  while  insulting  the  sover- 
eignty of  the  State.  Ibid.,  par.  488. 

See  also  General  Orders,  No.  26,- Adjutant-General's  Office,  of  1894  (A.  R.,  487),  for 
instructions  as  to  the  use  of  the  military  force  in  support  of  the  civil  authority. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  795 

title,  the  President  shall  forthwith,  by  proclamation,  com-  25J^ly229^  ^  c- 
mand  the  insurgents  to  disperse  and  retire  peaceably  to  ^^  6300  B  s 
their  respective  abodes,  within  a  limited  time.1 

2020.  Whenever  the  United  States  are  invaded,  or  are  in    orders  of  Pres- 
imminent  danger  of  invasion  from  any  foreign  nation  or  forth  mmtianin 
Indian  tribe,  or  of  rebellion  against  the  authority  of  the  ™c8e  °f  invasion 
Government  of  the  United  States,  it  shall  be  lawful  for 

the  President  to  call  forth  such  number  of  the  militia  of 

the  State  or  States,  most  convenient  to  the  place  of  danger,  phiia.,  259.se>    ' 

or  scene  of  action,  as  he  may  deem  necessary  to  repel  such    lsec-1642'R-s- 

invasion,  or  to  suppress  such  rebellion,  and  to  issue  his 

orders  for  that  purpose  to  such  officers  of  the  militia  as  he 

may  think  proper.2 

2021.  When  the  militia  of  more  than  one  State  is  called    Militia,  how 
into  the  actual  service  of  the  United  States  by  the  Pre«i»    /Syi7,w82,c. 
dent,  he  shall  apportion  them  among  such  States  according  597!  s> 

Sec.l643,R.S. 

to  representative  population. 


2022.  The  militia,  when  called  into  the  actual  service  of  ci|?S}  . 
the  United  States  for  the  suppression  of  rebellion  against  ^l^2^11^'^ 
and  resistance  to  the  laws  of  the  United  States,  shall  bef^1'^1!6^ 
subject  to  the  same  rules  and  articles  of  war  as  the  regular  28£ec  1644  B  s 
troops  of  the  United  States. 

1  See  XVII  Opin.  Att.  Gen.,  333.  Section  2  of  the  act  of  May  4,  1880  (21  Stat.  L., 
113),  contained  the  requirement  "that  no  money  appropriated  in  this  act  is  appro- 
priated or  shall  be  paid  for  the  subsistence,  equipment,  transportation,  or  compensa- 
tion of  any  portion  of  the  Army  of  the  United  States  to  be  used  as  a  police  force  to 
keep  the  peace  at  the  polls  at  any  election  held  within  any  State:  Provided,  That 
nothing  in  this  provision  shall  be  construed  to  prevent  the  use  of  troops  to  protect 
against  domestic  violence  in  each  of  the  States  on  application  of  the  legislature  thereof 
or  of  the  executive  when  the  legislature  can  not  be  convened." 

>2The  act  of  February  28,  1795  (1  Stat.  L.,  424),  authorizing  the  President,  under 
certain  circumstances,  to  call  out  the  militia,  is  constitutional,  and  the  President  is 
the  final  judge  of  the  emergency  justifying  such  a  call.  Martin  v.  Mott,  12  Wheat., 
19.  By  this  act  the  power  of  deciding  whether  the  exigency  had  arisen  upon  which 
the  Government  of  the  United  States  is  bound  to  interfere  is  given  to  the  President. 
He  is  to  act  upon  the  application  of  the  legislature,  or  of  the  executive,  and  conse- 
quently he  must  determine  what  body  of  men  constitute  the  legislature,  and  who  is 
the  governor  before  he  can  act.  The  fact  that  both  parties  claim  the  right  to  the 
government  can  not  alter  the  case,  for  both  can  not  be  entitled  to  it.  If  there  is  an 
armed  conflict,  like  the  one  of  which  we  are  speaking,  it  is  a  case  of  domestic  vio- 
lence, and  one  of  the  parties  must  be  in  insurrection  against  the  lawful  government. 
And  the  President  must,  of  necessity,  decide  which  is  the  government,  and  which 
party  is  unlawfully  arraye'd  against  it,  before  he  can  perform  the  duty  imposed  upon 
him  by  the  act  of  Congress.  Luther  v.  Borden,  7  How.,  I,  II. 

In  the  case  of  Houston  v.  Moore  (5  Wheat.,  1),  it  was  decided  that  although  a 
militiaman  who  refused  to  obey  the  orders  of  the  President  calling  him  into  the 
public  service  was  not,  in  the  sense  of  the  act  of  February  28,  1795,  "employed  in 
the  service  of  the  United  States,"  so  as  to  be  subject  to  the  Rules  and  Articles  of 
War,  yet  that  he  was  liable  to  be  tried  for  the  offense  under  the  fifth  section  of  the 
same  act,  by  court-martial  called  under  the  authority  of  the  United  States.  The 
great  doubt  in  that  case  was  whether  the  delinquent  was  liable  to  be  tried  for  the 
offense  by  a  court-martial  organized  under  State  authority.  Martin  v.  Mott,  12 
Wheat.,  19,  34. 


796  MILITARY    LAWS    OF   THE    UNITED    STATES. 


EMPLOYMENT   OF   TROOPS   ON    INDIAN    RESERVATIONS. 


Par. 


2023.  Eemoval  of  trespassers. 

2024.  Penalty  for  return. 

2025.  Removal  from  reservation. 


Par. 


2026.  Employment  of  military  force. 

2027.  Detention  of  arrested  persons. 

2028.  Arrest  of  absconding  Indians. 


of 


m 


2023-  The  superintendent  of  Indian  affairs,  and  the  In- 
«oans.  reserva  dian  agents  and  subagents,  shall  have  authority  to  remove 
w?S?$t'v*tp.  f  rom  tne  Indian  country  l  all  persons  found  therein  con- 
?3sec.  2147,  B.S.  trarj  to  law;  and  the  President  is  authorized  to  direct  the 

military  force  to  be  employed  in  such  removal. 

penalty  for  re-  2024.  If  any  person  who  has  been  removed  from  the 
12^2*  Vn6'  p.  Indian  country  shall  thereafter  at  any  time  return  or  be 
^sec.  2i48,B.s.  f°und  within  the  Indian  country,  he  shall  be  liable  to  a 

penalty  of  one  thousand  dollars.1 

refeer?a°tioLfrom     2025.  The  Commissioner  of  Indian  Affairs  is  authorized 

IK™  Vv.1?!?  p!  an(*  required,  with  the  approval  of  the  Secretary  of  the 

33s'ec.  2149,  u.s.  Interior,  to  remove  from  any  tribal  reservation  any  person 

being  therein  without  authority  of  law,  or  whose  presence, 

within  the  limits  of  the  reservation  may,  in  the  judgment 

of  the  Commissioner,  be  detrimental  to  the  peace  and  wel- 

fare of  the  Indians;  and  may  employ  for  the  purpose  such 

force  as  may  be  necessary  to  enable  the  agent  to  effect  the 

removal  of  such  person. 

onSFiSry^n  2026-  The  military  forces  of  the  United  States  may  be 
persons  vioiatinf  employed  in  such  manner  and  under  such  regulations  as 
the  law.  £ne  President  may  direct2— 

i6iUsse2i°,'233v'.4'.  First.  In  the  apprehension  of  every  person  who  may  be 
p'sec'.  2150,  B.S.  m  the  Indian  country  in  violation  of  law;  and  in  convey- 
ing him  immediately  from  the  Indian  country,  by  the  near- 
est convenient  and  safe  route,  to  the  civil  authority  of  the 
Territory  or  judicial  district  in  which  such  person  shall  be 
found  to  be  proceeded  against  in  due  course  of  law; 

Second.  In  the  examination  and  seizure  of  stores,  pack- 
ages, and  boats,  authorized  by  law; 

Third.  In  preventing  the  introduction  of  persons  and 
property  into  the  Indian  country  contrary  to  law;  which 
persons  and  property  shall  be  proceeded  against  according 
to  law; 

1  The  definition  of  the  term  "  Indian  country"  contained  in  section  1  of  the  act  of 
June  30,  1834  (4  Stat.  L.,  729),  though  not  incorporated  in  the  Revised  Statutes,  and 
though  repealed  simultaneously  with  their  enactment,  may  be  referred  to  in  order 
to  determine  what  is  meant  by  the  term  when  used  in  statutes;  and  it  applies  to  all 
the  country  to  which  the  Indian  title  has  not  been  extinguished  within  the  limits  of 
the  United  States,  whether  within  a  reservation  or  not,  and  whether  acquired  before 
or  since  the  passage  of  the  act  or  not.  Ex  parte  Crow  Dog,  109  U.  S.  ,  556. 

2See  U.  S.  v.  Boyd,  83  Fed.  Rep.,  547;  U.  S.  v.  Crook,  5  Dillon,  453,  467. 


MILITARY    LAWS    OF    THE    UNITED   STATES. 


797 


Fourth.  And  also  in  destroying  and  breaking  up  any 
distillery  for  manufacturing  ardent  spirits  set  up  or  con- 
tinued within  the  Indian  country. 

2027.  No  person  apprehended  by  military  force  under 
the  preceding  section  shall  be  detained  longer  than  five 
days  after  arrest  and  before  removal.     All  officers  and 
soldiers  who  may  have  any  such  person  in  custody  shall 
treat  him  with  all  the  humanity  which  the  circumstances 
will  permit.1 

2028.  The  superintendents,  agents,  and  sub-agents  shall 
endeavor  to  procure  the  arrest  and  trial  of  all 
accused  of  committing  any  crime,  offense,  or  misdemeanor, 
and  of  all  other  persons  who  may  have  committed  crimes 
or  offenses  within  any  State  or  Territory,  and  have  fled 
into  the  Indian  country,  either  by  demanding  the  same 
of  the  chiefs  of  the  proper  tribe,  or  by  such  other  means 
as  the  President  may  authorize.     The  President  may  direct 
the  military  force  of  the  United  States  to  be  employed  in 
the  apprehension  of  such  Indians,  and  also  in  preventing 
or  terminating  hostilities  between  any  of  the  Indian  tribes.2 


by  the 


Sec.  23,  ibid. 
Sec.2151,B.S. 


>  s-  19>  v-  4>  P- 
Sec-  2i52,B.s. 


SUSPENSION    OF   INTERCOURSE. 


Par. 
2029. 

2030. 
2031. 
2032. 
2033. 
2034. 
2035. 
2036. 
2037. 
2038. 
2039. 
2040. 


Suspension  of  commercial  inter- 
course. 

The  same  in  loyal  States. 

Extent  of  prohibition. 

The  same,  licenses  to  trade. 

Appointment  of  customs  officers. 

Trading  without  license. 

Investigation  of  frauds. 

Confiscation  of  property. 

Procedure  in  prosecutions. 

Property  taken  in  inland  waters. 

Procedure  in  admiralty. 

Prohibition  on  transportation  of 
goods. 


Par. 

2041.  Prohibition  on  trade  in  captured 

property. 

2042.  Change  in  port  of  entry. 

2043.  Removal  of  custom-house. 

2044.  Enforcement  of  preceding  sections. 

2045.  Districts  closed  to  entry. 

2046.  Vessels  in  addition  to  revenue  cut- 

ters. 

2047.  Forfeiture  of  vessels. 

2048.  Refusal  of  clearance. 

2049.  Bond  on  clearance. 

2050.  Liens  on  condemned  v< 


2029.  Whenever  the  President,  in  pursuance  of  the  pro- 
visions  of  this  Title,  has  called  forth  the  militia  to  suppress  tejSJ1i3-1861  c 
combinations  against  the  laws  of  the  United  States,  and  to  f^6' J  §  Vi? 
sause  the  laws  to  be  duly  executed,  and  the  insurgents  shall  Ps^'5301  B  s 

1  See,  also,  for  authority  to  use  military  force  in  connection  with  Indian  reserva- 
tions and  for  the  protection  of  Indians,  sections  2118,  2147,  2150,  2151,  and  2152, 
Revised  Statutes,  and  the  chapter  entitled  THE  INDIANS,  ETC. 

2  The  officer  who  makes  the  arrest  can  not  detain  before  removal  for  more  than  five 
days.     He  must  remove  or  discharge  the  prisoner,  or  is  liable  as  a  tort  feasor  for  false 
imprisonment,  but  may  rearrest.     While  in  military  custody  the  prisoner  is  a  civil 
and  not  a  military  prisoner,  and  can  not  be  compelled  to  labor.     The  custodian  is 
liable  as  a  tort  feasor  for  so  compelling  him.     In  re  John  A.  Carr,  3  Sawyer,  316; 
Waters  v.  Campbell,  5  ibid.,  17. 


798  MILITARY    LAWS    OF   THE    UNITED   STATES. 

have  failed  to  disperse  by  the  time  directed  by  the  Presi- 
dent, and  when  the  insurgents  claim  to  act  under  the 
authority  of  any  State  or  States,  and  such  claim  is  not  dis- 
claimed or  repudiated  by  the  persons  exercising  the  func- 
tions of  government  in  such  State  or  States,  or  in  the  part 
or  parts  thereof  in  which  such  combination  exists,  and  such 
insurrection  is  not  suppressed  by  such  State  or  States,  or 
whenever  the  inhabitants  of  any  State  or  part  thereof  are 
at  any  time  found  by  the  President  to  be  in  insurrection 
against  the  United  States,  the  President  may,  by  procla- 
mation, declare  that  the  inhabitants  of  such  State,  or  of 
any  section  or  part  thereof  where  such  insurrection  exists, 
are  in  a  state  of  insurrection  against  the  United  States; 
and  thereupon  all  commercial  intercourse  by  and  between 
the  same  and  the  citizens  thereof  and  the  citizens  of  the 
rest  of  the  United  States  shall  cease  and  be  unlawful  so 
long  as  such  condition  of  hostility  shall  continue;  and  all 
goods  and  chattels,  wares  and  merchandise,  coming  from 
such  State  or  section  into  the  other  parts  of  the  United 
States,  or  proceeding  from  other  parts  of  the  United  States 
to  such  State  or  section,  by  land  or  water,  shall,  together 
with  the  vessel  or  vehicle  conveying  the  same,  or  conveying 
persons  to  or  from  such  State  or  section,  be  forfeited  to 
the  United  States.1 

ju/y^S^c'  2030>  Whenever  any  part  of  a  State  not  declared  to  be 
225,8.  5,V.  is' p.  jn  insurrection  is  under  the  control  of  insurgents,  or  is  in 

sec.5302,B.s.  dangerous  proximity  to  places  under  their  control,  all  com- 
mercial intercourse  therein  and  therewith  shall  be  subject 
to  the  prohibitions  and  conditions  of  the  preceding  section 
for  such  time  and  to  such  extent  as  shall  become  necessary 
to  protect  the  public  interests,  and  be  directed  by  the  Sec- 
retary of  the  Treasury,  with  the  approval  of  the  President. 

TO  whom  pro-     2031.  The  provisions  of  this  Title  in  relation  to  commer- 

hibition  shall  ex- 
tend, eiai  intercourse  shall  apply  to  all  commercial  intercourse 

Sec.  4,  ibid.  r  J.  .  . 

Sec.5303,u.s.  by  and  between  persons  residing  or  being  within  districts 
within  the  lines  of  national  military  occupation  in  the 
States  or  parts  of  States  declared  in  insurrection,  whether 
with  each  other  or  with  persons  residing  or  being  within 
districts  declared  in  insurrection  and  not  within  those  lines; 
and  all  persons  within  the  United  States,  not  native  or 
naturalized  citizens  thereof,  shall  be  subject  to  the  same 

'The  Reform,  2  Wall.,  258;  ibid.,  3  Wall.,  617;  U.  S.  v.  Weed,  5  Wall.,  62;  The 
Hampton,  5  Wall.,  372;  The  Ouachita  Cotton,  6  Wall.,  521;  The  Venice,  2  Wall.,  258; 
Cutner  r.  U.  S.,  17  Wall.,  517. 


MILITARY    LAWS    OF   THE    UNITED   STATES.  799 

prohibitions,  in  all  commercial  intercourse  with  inhabitants 
of  States  or  parts  of  States  declared  in  insurrection,  as 
citizens  of  States  not  declared  to  be  in  insurrection. 

2032.  The  President  may,  in  his  discretion,  license  and 
permit  commercial  intercourse  with  any  part  of  such  State 
or  section,  the  inhabitants  of  which  are  so  declared  in  a  3  g 
state  of  insurrection,  so  far  as  may  be  necessary  to  author- 

ize  supplying  the  necessities  of  loyal  persons  residing  in  sec.  5364,  B.S. 
insurrectionary  States,  within  the  lines  of  actual  occupa- 
tion by  the  military  forces  of  the  United  States,  as  indi- 
cated by  published  order  of  the  commanding  general  of 
the  department  or  district  so  occupied;  and,  also,  so  far  as 
may  be  necessary  to  authorize  persons  residing  within  such 
lines  to  bring  or  send  to  market  in  the  loyal  States  any 
products  which  they  shall  have  produced  with  their  own 
laborer  the  labor  of  freedmen,  or  others  employed  and  paid 
by  them,  pursuant  to  rules  relating  thereto,  which  may  be 
established  under  proper  authority.  And  no  goods,  wares, 
or  merchandise  shall  be  taken  into  a  State  declared  in 
insurrection,  or  transported  therein,  except  to  and  from 
such  places  and  to  such  monthly  amounts  as  shall  have 
been  previously  agreed  upon,  in  writing,  by  the  command- 
ing general  of  the  department  in  which  such  places  are 
situated,  and  an  officer  designated  by  the  Secretary  of  the 
Treasury  for  that  purpose.  Such  commercial  intercourse 
shall  be  in  such  articles  and  for  such  time  and  by  such 
persons  as  the  President,  in  his  discretion,  may  think  most 
conducive  to  the  public  interest;  and,  so  far  as  by  him 
licensed,  shall  be  conducted  and  carried  on  only  in  pur- 
suance of  rules  and  regulations  prescribed  by  the  Secretary 
of  the  Treasury.1 

2033.  The  Secretary  of  the  Treasury  may  appoint  such 
officers  at  places  where  officers  of  the  customs  are  not 
authorized  by  law  as  may  be  needed  to  carry  into 

such  licenses,  rules,  and  regulations.     In  all  cases  where  gj« s- 28 v- 13  P- 
officers  of  the  customs,  or  other  salaried  officers,  are  ap-    Sec. 5305,  R.S. 
pointed  by  him  to  carry  into  effect  such  licenses,  rules,  and 
regulations,  such  officer  shall  be  entitled  to  receive  one 
thousand  dollars  a  year  for  his  services,  in  addition  to  his 
salary  or  compensation  under  any  other  law.     But  the  ag- 
gregate compensation  of  any  such  officer  shall  not  exceed 
the  sum  of  five  thousand  dollars  in  any  one  year. 

lrThe  Sea  Lion,  5  Wall.,  630;  The  Ouachita  Cotton,  6  Wall.,  521;  CoppelH-.  Hall,  7 
Wall.,  542;  McKee  v.  U.  S.,  8  Wall.,  163;  U.  S.  v.  Lane,  8  Wall.,  185. 


800  MILITARY    LAWS    OF    THE    UNITED    STATES. 


™ch~     2034.  Every  officer  of  the  United  States,  civil,  military, 
225Usyio'  v8i3  '  p  or  nava^  an(l  every  sutler,  soldier,  marine,  or  other  person, 


3?Sec.5306,K.s.  wno  ta^es  or  causes  to  be  taken  into  a  State  declared  to 
be  in  insurrection,  or  to  any  other  point  to  be  thence  taken 
into  such  State,  or  who  transports  or  sells,  or  otherwise 
disposes  of  therein,  any  goods,  wares,  or  merchandise 
whatsoever,  except  in  pursuance  of  license  and  authority 
of  the  President,  as  provided  in  this  title,  or  who  makes 
any  false  statement  or  representation  upon  which  liccnso 
and  authority  is  granted  for  such  transportation,  sale,  or 
other  disposition,  or  who,  under  any  license  or  authority 
obtained,  willfully  and  knowingly  transports,  sells,  or  other- 
wise disposes  of  any  other  goods,  wares,  or  merchandise 
than  such  as  are  in  good  faith  so  licensed  and  authorized, 
or  who  willfully  and  knowingly  transports,  sells,  or  dis- 
poses of  the  same,  or  any  portion  thereof,  in  violation  of 
the  terms  of  such  license  or  authority,  or  of  any  rule  or 
regulation  prescribed  by  the  Secretary  of  the  Treasury 
concerning  the  same,  or  who  is  guilt}^  of  any  act  of  embez- 
zlement, of  willful  misappropriation  of  public  or  private 
money  or  property,  of  keeping  false  accounts,  or  of  will- 
fully making  any  false  returns,  shall  be  deemed  guilty  of 
a  misdemeanor,  and  shall  be  fined  not  more  than  five  thou- 
sand dollars,  and  imprisoned  in  the  penitentiary  not  more 
than  three  years.  Violations  of  this  section  shall  be  cog- 
nizable before  any  court,  civil  or  military,  competent  to 
try  the  same. 
todoSrtSS  2035-  Ii:  sha11  be  the  duty  of  the  Secretary  of  the  Treas- 

Sec?5307,R.s.  U1T?  from  time  to  time,  to  institute  such  investigations  as 
may  be  necessary  to  detect  and  prevent  frauds  and  abuses 
in  any  trade  or  transactions  which  may  be  licensed  between 
inhabitants  of  loyal  States  and  of  States  in  insurrection. 
And  the  agents  making  such  investigations  shall  have 
power  to  compel  the  attendance  of  witnesses,  and  to  make 
examinations  on  oath. 

confiscation  of     2036.  Whenever   during   any  insurrection    against   the 
ployed  L^id^f  Government  of  the  United  States,  after  the  President  shall 

Aug.  6,  ]86i,c.  have  declared  by  proclamation  that  the  laws  of  the  United 
319.  States  are  opposed,  and  the  execution  thereof  obstructed. 

Sec.  5308,  R.  S.  ,  ,.        *.L  £    ,  ,      ,  ,  ,       ,, 

by  combinations  too  powerful  to  be  suppressed  by  the  ordi- 
nary course  of  judicial  proceedings,  or  by  the  power  vested 
in  the  marshals  by  law,  any  person,  or  his  agent,  attor- 
ney, or  employe,  purchases  or  acquires,  sells  or  gives,  any 
property  of  whatsoever  kind  or  description,  with  intent  to 
use  or  employ  the  same,  or  suffers  the  same  to  be  used  or 


MILITARY    LAWS    OF    THE    UNITED    STATES.  801 

employed  in  aiding,  abetting,  or  promoting  such  insurrec- 
tion or  resistance  to  the  laws,  or  any  person  engaged  therein; 
or  being  the  owner  of  any  such  property,  knowingly  uses 
or  employs,  or  consents  to  such  use  or  employment  of  the 
same,  all  such  property  shall  be  lawful  subject  of  prize 
and  capture  wherever  found;  and  it  shall  be  the  duty  of 
the  President  to  cause  the  same  to  be  seized,  confiscated, 
and  condemned.1 

2037.  Such  prizes  and  capture  shall  be  condemned  in  the  where  hid !ugs' 
district  or  circuit  court  of  the  United  States  having  jUTO-ap^^V1^^ 
diction  of  the  amount,  or  in  admiralty  in  any  district  in  c^.^wfp^l&s! 
which  the  same  [may]  be  seized,  or  into  which  they  may  be    Sec-6309>B-s- 
taken  and  proceedings  first  instituted. 

2038.  No  property  seized  or  taken  upon  any  of  the  inland  onfffa^dVate?? 
waters  of  the  United  States  by  the  naval  forces  thereof  9JU}J2'  X18%  c- 

ZZO,    S.     /,    V.   Id,  p. 

shall  be  regarded  as  maritime  prize;  but  all  property  so  37£ec5310  ^^ 
seized  or  taken  shall  be  promptly  delivered  to  the  proper 
officers  of  the  courts. 

2039.  The  Attorney-General,  or  the  attorney  of  the  U  nited  ilJ?J1a?n£elS." 
States  far  any  judicial  district  in  which  such  property  may  Stljjj^d6  1861  c 
at  the  time  be,  may  institute  the  proceedings  of  condemna-  ^s- 3-  v- 12»  P- 
tion,  and  in  such  case  they  shall  be  wholly  for  the  benefit    sec.53ii,R.s. 
of  the  United  States;  or  any  person  may  file  an  informa- 
tion with  such  attorney,  in  which  case  the  proceedings 

shall  be  for  the  use  of  such  informer  and  the  United  States 
in  equal  parts.2 

2040.  The  Secretary  of  the  Treasury  is  authorized  to  pro- 
hibit  and  prevent  the  transportation  in  any  vessel,  or  upon 

any  railroad,  turnpike,  or  other  road  or  means  of  trans-  01  M&y  20» l8®?,  c. 

ol,    S.   o,    V.    U,   p. 

portation  within  the  United  States,  of  any  property,  what-  40|-ec  5312  K  g 
ever  may  be  the  ostensible  destination  of  the  same,  in  all 
cases  where  there  are  satisfactory  reasons  to  believe  that 
such  property  is  intended  for  any  place  in  the  possession 
or  under  the  control  of  insurgents  against  the  United  States, 
or  that  there  is  imminent  danger  that  such  property  will 
fall  into  the  possession  or  under  the  control  of  such  insur- 
gents; and  he  is  further  authorized,  in  all  cases  where  he 
deems  it  expedient  so  to  do,  to  require  reasonable  security 
to  be  given  that  property  shall  not  be  transported  to  any 
place  under  insurrectionary  control,  and  shall  not,  in  any 
way,  be  used  to  give  aid  or  comfort  to  such  insurgents; 

1Mrs.  Alexander's  Cotton,  2  Wall.,  404;  Union  Ins.  Co.  v.  U.  S.,  6  Wall.,  759;  Arm- 
strong's  Foundry,  6  Wall.,  766;  Morris's  Cotton,  8  Wall.,  507;  U.  S.  v.  Shares  of  Capital 
8tock,5Blatch.,23l. 

2  Francis?;.  U.  S.,  5  Wall.,  338;  Confiscation  Cases,  7  Wall.,  454;  Millers  U.  S.,  11 
Wall.,  268;  Tyler  v.  Defrees,  11  Wall.,  331. 


22924—08 51 


802  MILITARY    LAWS    OF    THE    UNITED    STATES. 

and  he  may  establish  all  such  general  or  special  regulations 
as  may  be  necessary  or  proper  to  carry  into  effect  the  pur- 
poses of  this  section;  and  if  any  property  is  transported  in 
violation  of  this  act,  or  of  any  regulation  of  the  Secretary 
of  the  Treasury,  established  in  pursuance  thereof,  or  if  any 
attempt  shall  be  made  so  to  transport  any,  it  shall  be 
forfeited.1 

wo™  tradei0i£     2041'  A11  persons  in  the  military  or  naval  service  of  the 
aba^done<?propJ  United  States  are  prohibited  from  buying  or  selling, trading, 
erjuiy  2, 1864,  c.  or  in  anv  wa^  dealing  in  captured  or  abandoned  property, 
326,  s.  10,  v.  13,  p.  whereby  they  shall  receive  or  expect  any  profit,  benefit,  or 
sec. 5318,  B. s.  advantage  to  themselves,  or  any  other  person,  directly  or 
indirectly  connected  with  them;  and  it  shall  be  the  duty 
of  such  person  whenever  such  property  comes  into  his  pos- 
session or  custody,  or  within  his  control,  to  give  notice 
thereof  to  some  agent,  appointed  by  virtue  of  this  Title, 
and  to  turn  the  same  over  to  such  agent  without  delay. 
Any  officer  of  the  United  States,  civil,  military,  or  naval, 
or  any  sutler,  soldier,  or  marine,  or  other  person  who 
shall  violate  any  provision  of  this  section,  shall  be'deemed 
guilty  of  a  misdemeanor,  and  shall  be  fined  not  more  than 
five  thousand  dollars,  and  imprisoned  in  the  penitentiary 
not  more  than  three  years.     Violations  of  this  section 
shall  be  cognizable  before  any  court,  civil  or  military, 
competent  to  try  the  same. 

of°ehnat?yeiSf?asre  2042>  Whenever  the  President  shall  deem  it  impracti- 
°fjuiTi3ri86i°c'  ca^e?  ^7  reason  of  unlawful  combinations  of  persons  in 
l.'  opposition  to  the  laws  of  the  United  States,  to  collect  the 
duties  on  imports  in  the  ordinary  way,  at  any  port  of  entry 
in  any  collection  district,  he  may  cause  such  duties  to  be 
collected  at  any  port  of  delivery  in  the  district  until  such 
obstruction  ceases;  in  such  case  the  surveyor  at  such  port 
of  delivery  shall  have  the  powers  and  be  subject  to  all  the 
obligations  of  a  collector  at  a  port  of  entry.  The  Secretary 
of  the  Treasury,  with  the  approval  of  the  President,  shall 
also  appoint  such  weighers,  gaugers,  measurers,  inspectors, 
appraisers,  and  clerks  as  he  may  deem  necessary,  for  the 
faithful  execution  of  the  revenue  laws  at  such  port  of 
delivery,  and  shall  establish  the  limits  within  which  such 
port  of  delivery  is  constituted  a  port  of  entry.  And  all  the 
provisions  of  law  regulating  the  issue  of  marine  papers, 
the  coasting  trade,  the  warehousing  of  imports,  and  the 
collection  of  duties,  shall  apply  to  the  ports  of  entry  thus 
constituted,  in  the  same  manner  as  they  do  to  ports  of 
entry  established  by  law. 

1  Gay's  Gold,  13  Wall.,  358. 


MILITARY    LAWS    OF    THE    UNITED   STATES.  803 


2043.  Whenever,  at  any  port  of  entry,  the.  duties  on  im- 

ports  can  not,  in  the  judgment  of  the  President,  be  collected  25|ec-  2>  *id-'  p- 

in  the  ordinary  way,  or  by  the  course  provided  in  the  pre-  ^sV^is'  p' 

ceding  section,  by  reason  of  the  cause  mentioned  therein,  46|ec.53i5,B.s. 

he  may  direct  that  the  custom-house  for  the  district  be 

established  in  any  secure  place  within  the  district,  either 

on  land  or  on  board  any  vessel  in  the  district,  or  at  sea  near 

the  coast;  and  in  such  case  the  collector  shall  reside  at 

such  place,  or  on  shipboard,  as  the  case  ma}^  be,  and  there 

detain  all  vessels  and  cargoes  arriving  within  or  approach- 

ing the  district,  until  the  duties  imposed  bj  law  on  such 

vessels  and  their  cargoes  are   paid  in  cash.     But  if  the 

owner  or  consignee  of  the  cargo  on  board  any  vessel  thus 

detained,  or  the  master  of  the  vessel,  desires  to  enter  a  port 

of  entry  in  any  other  district  where  no  such  obstructions 

to  the  execution  of  the  laws  exist,  the  master  may  be  per- 

mitted so  to  change  the  destination  of  the  vessel  and  cargo 

in  his  manifest;  whereupon  the  collector  shall  deliver  him 

a  written  permit  to  proceed  to  the  port  so  designated.     And 

the  Secretary  of  the  Treasury,  with  the  approval  of  the 

President,  shall  make  proper  regulations  for  the  enforce- 

ment on  shipboard  of  such  provisions  of  the  laws  regu- 

lating the  assessment  and  collection   of  duties  as  in  his 

judgment  may  be  necessary  and  practicable. 

2044.  It  shall  be  unlawful  to  take  anv  vessel  or  cargo    Enforcement 

fe     of  preceding  sec- 

detained  under  the  preceding  section  from  the  custody  of  fl«jg- 

the  proper  officers  of  the  customs,  unless  by  process  of  some  3>  |3>        P' 

court  of  the  United  States;  and  in  case  of  any  attempt 

otherwise  to  take  such  vessel  or  cargo  by  any  force,  or  com- 

bination, or  assemblage  of  persons,  too  great  to  be  overcome 

by  the  officers  of  the  customs,  the  President,  or  such  person 

as  he  shall  have  empowered  for  that  purpose,  may  employ 

such  part  of  the  Army  or  Navy  or  militia  of  the  United 

States,  or  such  force  of  citizen  volunteers  as  may  be  neces- 

sary, to  prevent  the  removal  of  such  vessel  or  cargo,  and 

to  protect  the  officers  of  the  customs  in  retaining  the  cus- 

tody thereof. 


2045.  Whenever,  in  any  collection  district,  the  duties  on  clEgg^irt^ 
imports  can  not,  in  the  judgment  of  the  President,  be  col-  ^-^^  s 
lected  in  the  ordinary  way,  nor  in  the  manner  provided  by 
the  three  preceding  sections,  by  reason  of  the  cause  men- 
tioned in  section  fifty-three  hundred  and  fourteen  [Rev. 
Stat.],1  the  President  may  close  the  port  of  entry  in  that 
district;  and  shall  in  such  case  give  notice  thereof  b}^  proc- 


1  Paragraph  2042,  ante. 


804  MILITARY    LAWS    OF    THE    UNITED   STATES. 

lamation.  And  thereupon  all  right  of  importation,  ware- 
housing, and  other  privileges  incident  to  ports  of  entry 
shall  cease  and  be  discontinued  at  such  port  so  closed  until 
it  is  opened  by  the  order  of  the  President  on  the  cessation 
of  such  obstructions.  Ever}^  vessel  from  beyond  the  United 
States,  or  having  on  board  any  merchandise  liable  to  duty, 
which  attempts  to  enter  any  port  which  has  been  closed 
under  this  section,  shall,  with  her  tackle,  apparel,  furni- 
ture, and  cargo,  be  forfeited. 

ditionetoinreve-  2046>  ^n  tne  execution  of  laws  providing  for  the  col- 
^ec^on  °^  duties  on  imports  and  tonnage,  the  President, 
ln  Edition  to  the  revenue  cutters  in  service,  may  employ 
in  aid  thereof  such  other  suitable  vessels  as  may,  in  his 
judgment,  be  required. 

2047>  From  and  af ter  fifteen  days  after  the  issuing  of  the 
as  Pr°vided  in  section  fifty-three  hundred 
St?&3'  an(^  one  [Rev-  Stat.],1  any  vessel  belonging  in  whole  or  in 

Sec.53i9,B.s.  part  to  any  citizen  or  inhabitant  of  such  State  or  part  of 
a  State  whose  inhabitants  are  so  declared  in  a  state  of 
insurrection,  found  at  sea,  or  in  an}^  port  of  the  rest  of  the 
United  States,  shall  be  forfeited.2 

ci?aranuc!tove°s-      2048>  The  Secretary  of  the  Treasury  is  authorized  to 

lus  ecatednmVerh  re^use  a  clearance  to  any  vessel  or  other  vehicle  laden  with 

^May^o  1862  c  merchandise,  destined  for  a  foreign  or  domestic  port,  when- 

si^s.  i,  v.  12,  p.  ever  ne  snall  have  satisfactory  reason  to  believe  that  such 

Sec-53%20'K-s- merchandise,  or  any  part  thereof,   whatever  may  be  its 

ostensible  destination,  is  intended  for  ports  in  possession 

or  under  control  of  insurgents  against  the  United  States; 

and  if  any  vessel  for  which  a  clearance  or  permit  has  been 

refused  by  the  Secretary  of  the  Treasury,  or  by  his  order, 

shall  depart  or  attempt  to  depart  for  a  foreign  or  domestic 

port  without  being  duly  cleared  or  permitted,  such  vessel, 

with  her  tackle,  apparel,  furniture,  and  cargo,  shall  be 

forfeited. 

Bond  upon      2049.  Whenever  a  permit  or  clearance  is  granted  for 
sec.  2,  ibid,      either  a  foreign  or  domestic  port,  it  shall  be  lawful  for  the 

Sec.  53*21,  B.S.  r. 

collector  of  the  customs  granting  the  same,  if  he  deems  it 
necessary,  under  the  circumstances  of  the  case,  to  require 
a  bond  to  be  executed  by  the  master  or  the  owner  of  the 
vessel,  in  a  penalty  equal  to  the  value  of  the  cargo,  and 
with  sureties  to*  the  satisfaction  of  such  collector,  that  the 
cargo  shall  be  delivered  at  the  destination  for  which  it  is 
cleared  or  permitted,  and  that  no  part  thereof  shall  be  used 

Paragraph  2029,  ante.  2The  Schooner  Keeling,  Blatch.  Pr.  Cas.,  92. 


MILITARY    LAWS    OF    THE    UNITED    STATES. 


805 


See.  0822,  B.S. 


in  affording-  aid  or  comfort  to  any  person  or  parties  in 
insurrection  against  the  authority  of  the  United  States. 

2050.  In  all  cases  wherein  any  vessel,  or  other  property,  demnld  veSsn' 
is  condemned  in  any  proceeding  by  virtue  of  any  laws 
relating  to  insurrection  or  rebellion,  the  court  rendering 
judgment  of  condemnation  shall,  notwithstanding  such 
condemnation,  and  before  awarding  such  vessel,  or  other 
property,  or  the  proceeds  thereof,  to  the  United  States,  or 
to  any  informer,  first  provide  for  the  payment,  out  of  the 
proceeds  of  such  vessel,  or  other  property,  of  any  bona- 
fide  claims  which  shall  be  filed  by  any  loyal  citizen  of  the 
United  States,  or  of  any  foreign  state  or  power  at  peace 
and  amity  with  the  United  States,  intervening  in  such  pro- 
ceeding, and  which  shall  be  duly  established  by  evidence 
as  a  valid  claim  against  such  vessel,  or  other  property, 
under  the  laws  of  the  United  States  or  any  State  thereof 
not  declared  to  be  in  insurrection.  No  such  claim  shall  be 
allowed  in  any  case  where  the  claimant  has  knowingly 
participated  in  the  illegal  use  of  such  ship,  vessel,  or  other 
property.  This  section  shall  extend  to  such  claims  only  as 
might  have  been  enforced  specifically  against  such  vessel, 
or  other  property,  in  any  State  not  declared  to  be  in  insur- 
rection, wherein  such  claim  arose.1 


CIVIL  RIGHTS. 


Par. 

2059.  Marshals  to  obey  precepts. 

2060.  District  attorneys,  fees. 

2061.  Execution  of  process,  fees. 

2062.  Speedy  trial. 

2063.  Aid  of  military  force. 

2064.  Peonage  abolished  in  New  Mexico. 

2065.  The  same,  enforcement. 


Par. 

2051.  Equal  rights  under  the  law. 

2052.  Property  rights  of  citizens. 

2053.  Civil  action  for  deprivation  of  rights. 

2054.  Conspiracy. 

2055.  Action  to  prevent  conspiracy. 

2056.  District  attorney  to  prosecute. 

2057.  Commissioners. 

2058  Execution  of  warrants. 


2051.  All  persons  within  the  jurisdiction  of  the  United 
States  shall  have  the  same  right  in  every  State  and  Terri- 
tory  to  make  and  enforce  contracts,  to  sue,  be  parties,  give  J44j1tasr'>v*it' 
evidence,  and  to  the  full  and  equal  benefit  of  all  laws  andP-|^-1977  B  g> 
proceedings  for  the  security  of  persons  and  property  as  is 
enjoyed  by  white  citizens,  and  shall  be  subject  to  like  pun- 
ishment, pains,  penalties,  taxes,  licenses,  and  exactions  of 
eveiy  kind,  and  to  no  other. 


'The  Hampton,  5  Wall.,  372. 


806  MILITARY    LAWS    OF    THE    UNITED   STATES. 

2052-  A11  citizens  of  the  United  States  shall  have  the 


prope?tdypersonal  same  "g^t,  in  every  State  and  Territory,  as  is  enjoyed  by 
3ifsp£?:i4?p.'27:  white  citizens  thereof  to  inherit,  purchase,  lease,  sell,  hold, 
Sec.  1978,  R.S.  anj  convev  rea|  an(j  personal  property. 

deCpVHvaationfSf     2053«  Every  person  who,  under  color  of  any  statute, 

ri^;201871  c  ordinance,  regulation,  custom,  or  usage,  of  any  State  or 

22se'c1.'i971^Pi.1|.'^err^ory9  subjects,  or  causes  to  be  subjected,  any  citizen  of 

the  United  States  or  other  person  within  the  jurisdiction 

thereof  to  the  deprivation  of  any  rights,  privileges,  or  im- 

munities secured  by  the  Constitution  and  laws,  shall  be 

liable  to  the  party  injured  in  an  action  at  law,  suit  in  equity, 

or  other  proper  proceeding  for  redress. 

juiny83M86i,c.      2054-  First-  If  two  or  more  persons  in  any  State  or  Ter- 

APrV'202,'  i87i2^c.;  ritory  conspire  to  prevent,  by  force,  intimidation,  or  threat, 

MarAT'isVi'1*!8111^  Person  from  accepting  or  holding  any  office,  trust,  or 

336.  s'  2>  v'  18)  P'  place  of  confidence  under  the  United  States,  or  from  dis- 

Sec*1980'K*s*  charging  any  duties  thereof  ;  or  to  induce  by  like  means 

any  officer  of  the  United  States  to  leave  any  State,  district, 

or  place,  where  his  duties  as  an  officer  are  required  to  be 

performed,  or  to  injure  him  in  his  person  or  property  on 

account  of  his  lawful  discharge  of  the  duties  of  his  office, 

or  while  engaged  in  the  lawful  discharge  thereof,  or  to 

injure  his  property  so  as  to  molest,  interrupt,  hinder,  or 

impede  him  in  the  discharge  of  his  official  duties; 

Second.  If  two  or  more  persons  in  any  State  or  Territory 
conspire  to  deter,  -by  force,  intimidation,  or  threat,  any 
party  or  witness  in  any  court  of  the  United  States  from 
attending  such  court,  or  from  testifying  to  any  matter 
pending  therein,  freely,  fully,  and  truthfully,  or  to  injure 
such  party  or  witness  in  his  person  or  property  on  account 
of  his  having  so  attended  or  testified,  or  to  influence  the 
verdict,  presentment,  or  indictment  of  any  grand  or  petit 
juror  in  any  such  court,  or  to  injure  such  juror  in  his  per- 
son or  property  on  account  of  any  verdict,  presentment,  or 
indictment  lawfully  assented  to  by  him,  or  of  his  being  or 
having  been  such  juror;  or  if  two  or  more  persons  conspire 
for  the  purpose  of  impeding,  hindering,  obstructing,  or 
defeating,  in  any  manner,  the  due  course  of  justice  in  any 
State  or  Territory,  with  intent  to  deny  to  any  citizen  the 
equal  protection  of  the  laws,  or  to  injure  him  or  his  prop- 
erty for  lawfully  enforcing,  or  attempting  to  enforce,  the 
right  of  any  person,  or  class  of  persons,  to  the  equal  pro- 
tection of  the  laws  ; 

Third.  If  two  or  more  persons  in  any  State  or  Territory 
conspire,  or  go  in  disguise  on  the  highway  or  on  the  prem- 


MILITARY    LAWS    OF    THE    UNITED    STATES.  807 

ises  of  another,  for  the  purpose  of  depriving,  either  directly 
or  indirectly,  any  person  or  class  of  persons  of  the  equal 
protection  of  the  laws,  or  of  equal  privileges  and  immunities 
under  the  laws;  or  for  the  purpose  of  preventing  or  hinder- 
ing the  constituted  authorities  of  any  State  or  Territory 
from  giving  or  securing  to  all  persons  within  such  State  or 
Territory  the  equal  protection  of  the  laws;  or  if  two  or 
more  persons  conspire  to  prevent  by  force,  intimidation, 
or  threat,  any  citizen  who  is  lawfully  entitled  to  vote,  from 
giving  his  support  or  advocacy  in  a  legal  manner,  toward 
or  in  favor  of  the  election  of  any  lawfully  qualified  person 
as  an  elector  for  President  or  Vice-President,  or  as  a  mem- 
ber of  Congress  of  the  United  States ;  or  to  injure  any 
citizen  in  person  or  property  on  account  of  such  support 
or  advocacy;  in  any  case  of  conspiracy  set  forth  in  this 
section,  if  one  or  more  persons  engaged  therein  do,  or  cause 
to  be  done,  any  act  in  furtherance  of  the  object  of  such 
conspiracy,  whereby  another  is  injured  in  his  person  or 
proper t}^,  or  deprived  of  having  and  exercising  any  right 
or  privilege  of  a  citizen  of  the  United  States,  the  party  so 
injured  or  deprived  may  have  an  action  for  the  recovery 
of  damages,  occasioned  by  such  injuiy  or  deprivation, 
against  any  one  or  more  of  the  conspirators. 

2055.  Every  person  who,  having  knowledge  that  any  of  ie^ctton prevent 
the  wrongs  conspired  to  be  done,  and  mentioned  in  the  c°Ap?!r2o?  ISTI,  c. 
preceding  section,  are  about  to  be  committed,  and  having 
power  to  prevent  or  aid  in  preventing  the  commission  of 
the  same,  neglects  or  refuses  so  to  do,  if  such  wrongful 
act  be  committed,  shall  be  liable  to  the  party  injured  or 
his  legal  representatives,  for  all  damages  caused  by  such 
wrongful  act,  which  such  person  by  reasonable  diligence 
could  have  prevented;  and  such  damages  may  be  recov- 
ered in  an  action  on  the  case;  'and  any  number  of  persons 
guilty  of  such  wrongful  neglect  or  refusal  may  be  joined 
as  defendants  in  the  action;  and  if  the  death  of  any  party 
be  caused  by  any  such  wrongful  act  and  neglect,  tne  legal 
representatives  of  the  deceased  shall  have  such  action 
therefor,  and  may  recover  not  exceeding  five  thousand 
dollars  damages  therein,  for  the  benefit  of  the  widow  of 
the  deceased,  if  there  be  one,  and  if  there  be  no  widow, 
then  for  the  benefit  of  the  next  of  kin  of  the  deceased. 
But  no  action  under  the  provisions  of  this  section  shall 
be  sustained  which  is  not  commenced  within  one  year 
after  the  cause  of  action  has  accrued. 


808  MILITARY    LAWS    OF   THE    UNITED   STATES. 


2056-  The  district  attorneys,  marshals,  and  deputy  mar- 
eCAper.  9,  1866,  c.  snaH  tne  commissioners   appointed    by  the  circuit  and 
Is';  Mayli,1i87o,^err^or^a^  coul'ts,  with  power  to  arrest,  imprison,  or  bail 
P.  142.  s'  9>  v>  16>  offenders,  and  every  other  officer  who  is  especially  em- 
Sec.i982,K.s.  powered  by  the  President,  are  authorized  and  required,  at 
the  expense  of  the  United  States,  to  institute  prosecutions 
against  all   persons  violating  any  of  the  provisions  of 
/  chapter  seven  of  the  Title  "  CRIMES,"  and  to  cause  such 

persons  to  be  arrested,  and  imprisoned  or  bailed,  for  trial 
before  the  court  of  the  United  States  or  the  Territorial 
court  having  cognizance  of  the  offense. 

Commission-     2057.  The  circuit  courts  of  the  United  States  and  the 

i3fspr4,9V.18i4!'  pi  district  courts  of  the  Territories,  from  time  to  time,  shall 

c?;iJ?,as.89,'  v18i6|  increase  the  number  of  commissioners,  so  as  to  afford  a 

p  Sec2.'  1988,  R.S.  speedy  and  convenient  means  for  the  arrest  and  examina- 

tion of  persons  charged  with  the  crimes  referred  to  in  the 

preceding  section  ;  and  such  commissioners  are  authorized 

and  required  to  exercise  all  the  powers  and  duties  con- 

ferred on  them  herein  with  regard  to  such  offenses  in  like 

manner  as  they  are  authorized  by  law  to  exercise  with 

regard  to  other  offenses  against  the  laws  of  the  United 

States. 

po!ntepeSonsato     2058.  The  commissioners  authorized  to  be  appointed  by 

rants3  etc6  war  the  preceding  section  are  empowered,  within  their  respec- 

3iAspr5  9v.18w,'  pi  tive  counties,  to  appoint,  in  writing,  under  their  hands, 

c8:ii4,al  10,'  v8i6|  one  or  more  suitable  persons,  from  time  to  time,  who  shall 

p'sec.'  1984,  u.s.  execute  all  such  warrants  or  other  process  as  the  commis- 

sioners may  issue  in  the  lawful  performance  of  their  duties, 

and  the  persons  so  appointed  shall  have  authority  to  sum- 

mon and  call  to  their  aid  the  bystanders  or  posse  comitatus 

of  the  proper  county,  or  such  portion  of  the  land  or  naval 

forces  of  the  United  States,  or  of  the  militia,  as  may  be 

necessary  to  the  performance  of  the  duty  with  which  they 

are  charged;  and  such  warrants  shall  run  and  be  executed 

anywhere  in  the  State  or  Territory  within  which  they  are 

issued. 

oAapr£?epts°     2059-  Every  marshal  and  deputy  marshal  shall  obey  and 
ctc-  execute  all  warrants  or  other  process,  when  directed  to 

3if  P.r5,9v18i4,'  £  hi01?  issued  under  the  provisions  hereof. 

Sec.  1985,  R'.S.  28;  May  31,  1870,  c.  114,  s.  10,  v.  16,  p.  142. 

attornseyf  et?rict     2060>  Tne  district  attorneys,  marshals,  their  deputies, 
Apr.  9,'  1866,  c.  and  the  clerks  of  the  courts  of  the  United  States  and  Ter- 

ol,  S.  7,  V.  14,  p. 


,         , 

nays3i2  v8i6  c  ritorial  courts  shall  be  paid  for  their  services,  in  cases 

14iec  1986  B  s  under  the  foregoing  provisions,  the  same  fees  as  are  allowed 

to  them  for   like  services  in  other  cases;  and  where  the 


MILITARY    LAWS    OF    THE    UNITED    STATES.  809 

proceedings  are  before  a  commissioner  he  shall  be  entitled 
to  a  fee  of  ten  dollars  for  his  services  in  each  case,  inclusive 
of  all  services  incident  to  the  arrest  and  examination. 

2061.  Every  person  appointed  to  execute  process  under  po?ntedru)USexe- 
section  nineteen  hundred  and  eighty-four  [Rev.  Stat.]  *  shall  ^pf.Ti&xfc: 
be  entitled  to  a  fee  of  five  dollars  for  each  party  he  may  Say  V.'isVo,'2?! 
arrest  and  take  before  the  commissioner,  with  such  other  \\%' s- 12)  v- 16>  p- 
fees  as  may  be  deemed  reasonable  by  the  commissioner  for  Sec- 1987' B- s- 
any  additional  services  necessarily  performed  by  him,  such 

as  attending  at  the  examination,  keeping  the  prisoner  in 
custody,  and  providing  him  with  food  and  lodging  during 
his  detention,  and  until  the  final  determination  of  the  com- 
missioner; such  fees  to  be  made  up  in  conformity  with  the 
fees  usually  charged  by  the  officers  of  the  courts  of  justice 
within  the  proper  district  or  county,  as  near  as  may  be 
practicable,  and  paid  out  of  the  Treasury  of  the  United 
States  on  the  certificate  of  the  judge  of  the  district  within 
which  the  arrest  is  made,  and  to  be  recoverable  from  the 
defendant  as  part  of  the  judgment  in  case  of  conviction. 

2062.  Whenever  the  President  has  reason  to  believe  that    |Peredy  trial.  ^ 
offenses  have  been  or  are  likely  to  be  committed  against  the  3^-8',il4' £•''!?• 

•     «  a  a  rrv    i  *  SCC»  Iwoo,  K.  a. 

provisions  of  chapter  seven  of  the  Title  CRIMES,  within 
any  judicial  district,  it  shall  be  lawful  for  him,  in  his  discre- 
tion, to  direct  the  judge,  marshal,  and  district  attorney  of 
such  district  to  attend  at  such  place  within  the  district, 
and  for  such  time,  as  he  may  designate,  for  the  purpose  of 
the  more  speedy  arrest  and  trial  of  persons  so  charged, 
and  it  shall  be  the  duty  of  every  judge  or  other  officer, 
when  any  such  requisition  is  received  by  him,  to  attend  at 
the  place  and  for  the  time  therein  designated. 

2063.  It  shall  be  lawful  for  the  President  of  the  United  ta^ida°^hen™£ 
States,  or  such  person  as  he  may  empower  for  that  pur-  f°Apr'  s  isee  c 
pose,  to  employ  such  part  of  the  land  or  naval  forces  of  Say93i'1i87o'2c; 
the  United  States,  or  of  the  militia,  as  may  be  necessary  to  J^; s- 13)  v-  ]6>  p- 
aid  in  the  execution  of  judicial  process  issued  under  any  of  Sec* 1989' B* s* 
the  preceding  provisions,  or  as  shall  be  necessary  to  prevent 

the  violation  and  enforce  the  due  execution  of  the  provi- 
sions of  this  Title.2 

2064.  The  holding  of  any  person  to  service  or  labor  under  is^n&ge  abol~ 
the  system  known  as  peonage  is  abolished  and  forever  pro-  l8^lT\\l8fl'  £ 
hibited  in  the  Territory  of  New  Mexico,  or  in  any  other  M^c  1990  B  Si 
Territory  or  State  of  the  United  States;  and  all  acts,  laws, 

1  Paragraph  2058,  ante. 

2  This  power  is  not  repealed  or  abridged  by  the  posse  comitatus  act  (act  of  June  18, 
1878,  20  Stat.  L.,  152).     XIX  Opin.  Att.  Gen.,  570. 


810  MILITARY    LAWS    OF   THE    UNITED    STATES. 

resolutions,  orders,  regulations,  or  usages  of  the  Territory 
of  New  Mexico,  or  of  any  other  Territory  or  State,  which 
have  heretofore  established,  maintained,  or  enforced,  or 
by  virtue  of  which  any  attempt  shall  hereafter  be  made  to 
establish,  maintain,  or  enforce,  directly  or  indirectly,  the 
voluntary  or  involuntary  service  or  labor  of  any  persons 
as  peons,  in  liquidation  of  any  debt  or  obligation,  or  other- 
wise, are  declared  null  and  void. 

tio°neghon|seen:  2065«  Every  person  in  the  military  or  civil  service  in 
f°Mar.'2,  186?  c  ^ne  Territory  of  New  Mexico  shall  aid  in  the  enforcement 
the  preceding  section. 

THE    ELECTIVE    FRANCHISE. 

2066-  No  officer  ot>  the  Army  or  Navy  of  the  United 
States  shall  prescribe  or  fix  or  attempt  to  prescribe  or  fix 
N  Feb.  25,  1865,  c.  by  proclamation,  order,  or  otherwise  the  qualifications  of 
43?.s'  l'  v'  13'  p  voters  in  any  State,  or  in  any  manner  interfere  with  the 
Sec.  2003,  K.  s.  freedom  of  any  election  in  any  State  or  with  the  exercise 
of  the  free  right  of  suffrage  in  any  State. 

Pr?vfoeusCOc°ond°-     2067>  A11  citizens  of  tne  United  States  who  are  other- 
uaked  by  law  to  vote  at  any  election  by  the  people 
anv  State,    Territory,    district,  county,   city,  parish, 
14s'ec  2004  R  s  township,  school   district,    municipality,    or  other  terri- 
torial subdivision  shall  be  entitled  and  allowed  to  vote  at 
all  such  elections  without  distinction  of  race,  color,  or 
previous  condition  of    servitude,  any  constitution,   law, 
custom,  usage,  or  regulation  of  any  State  or  Territory  or 
\       by  or  under  its  authority  to  the  contrary  notwithstand- 
ing.1 

THE    PUBLIC    HEALTH. 


2068-  Tlie  quarantines  and  other  restraints  established 
servedby  united  ^v  the  ^ealth  laws  of  any  State  respecting  any  vessels 
states  officers,  arrjvmg  m  or  bounci  to  any  port  or  district  thereof  shall 
i2Fse  i|  vVpJeiS;  be  duly  observed  by  the  officers  of  the  customs  revenue  of 
sec.  4792,  B.s.  faQ  United  States,  by  the  masters  and  crews  of  the  several 
revenue  cutters,  and  by  the  military  officers  commanding 
in  any  fort  or  station  upon  the  seacoast;  and  all  such  offi- 
cers of  the  United  States  shall  faithfully  siid  in  the  execu- 
tion of  such  quarantines  and  health  laws  according  to  their 
respective  powers  and  within  their  respective  precincts, 

1  Sections  2002  and  2005-2031,  inclusive,  of  the  Ke  vised  Statutes  were  repealed  by 
the  act  of  February  8,  1894  (28  Stat.  L.,  36).  2  Abb.  U.  S.,  120;  McKay  v.  Camp- 
bell, 1  Saw.,  374;  U.  S.  v.  Reese  et  al.,  92  U.  S.,  214;  U.  S.  v.  Cruikshank  et  al.,  92 
U.  S.,  542. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  811 

and  as  they  shall  be  directed  from  time  to  time  by  the 
Secretary  of  the  Treasury.  But  nothing  in  this  Title  shall 
enable  any  State  to  collect  a  duty  of  tonnage  or  impost 
without  the  consent  of  Congress.1 

THE    PUBLIC    LANDS. 

2069.  The  President  is  authorized  to  employ  so  much  of 
the  land  and  naval  forces  of  the  United  States  as  may  be 
necessary  effectually  to  prevent  the  felling,  cutting  down,    Sec-  2460>B-S- 
or  other  destruction  of  the  timber  of  the  United  States  in 

Florida^  and  to  prevent  the  transportation  or  carrying 
away  any  such  timber  as  may  be  already  felled  or  cut 
down;  and  to  take  such  other  and  further  measures  as  may 
be  deemed  advisable  for  the  preservation  of  the  timber  of 
the  United  States  in  Florida. 

2070.  The  President  is  hereby  authorized  to  take  such    I.I*cl1os"re  of 

public  lands. 

measures  as  shall  be  necessary  to  remove  and  destroy  any  5  ^g25'  ^ s- 
unlawful  inclosures  of  any  of  said  [public]  lands,  and  to 
employ  civil  or  military  force  as  may  be  necessary  for 
that  purpose.2     Sec.  5.  act  of  February  25,  1885  (23  Stat. 
Z.,  322). 

2071.  That  if  any  person  or  persons  shall,  after  the  pass-  tn|e^°rsal  °f 
ing  of  this  act,  take  possession  of,  or  make  a  settlement  on  lg^  *.  2M&T^ 
any  lands  ceded  or  secured  to  the  United  States,  by  any 

treaty  made  with  a  foreign  nation,  or  by  a  cession  from 
any  State  to  the  United  States,  which  lands  shall  not  have 
been  previously  sold,  ceded,  or  leased  by  the  United  States, 
or  the  claim  to  which  lands,  by  such  person  or  persons, 
shall  not  have  been  previously  recognized  and  confirmed 
by  the  United  States;  or  if  any  person  or  persons  shall 
cause  such  lands  to  be  thus  occupied,  taken  possession  of, 
or  settled;  or  shall  survey,  or  attempt  to  survey,  or  cause 
to  be  surveyed,  any  such  lands;  or  designate  any  bound- 
aries thereon,  by  marking  trees,  or  otherwise,  until  thereto 
duly  authorized  by  law ;  such  offender  or  offenders,  shall 
forfeit  all  his  or  their  right,  title,  and  claim,  if  any  he  hath, 
or  they  have,  of  whatsoever  nature  or  kind  the  same  shall 
or  may  be,  to  the  lands  aforesaid,  which  he  or  they  shall 
have  taken  possession  of,  or  settled,  or  cause  to  be  occu- 

1  Gibbons  v.  Ogden,  9  Wh.,  1;  Passenger  Cases,  7  How.,  406. 

2 This  statute  appears  as  section  5  of  the  act  of  February  25,  1885  (23  Stat.  L.,  322), 
entitled  "An  aot  to  prevent  unlawful  occupancy  of  the  public  lands."  See  Campbell 
v.  U.  S.,  66  Fed.  Rep.,  101;  XVIII,  Opin.  Att.  Gen.,  434.  There  is  no  implied  license 
to  use  for  pasture  purposes  public  lands  reserved  for  the  preservation  of  forests  to 
the  destruction  or  injury  of  such  forests.  U.  S.  v.  Tygh  Valley  Land  and  Live  Stock 
Co.,  76  Fed.  Rep.,  693. 


812  MILITARY    LAWS    OF    THE    UNITED    STATES. 

pied,  taken  possession  of,  or  settled,  or  which  he  or  they 
shall  haye  surveyed,  or  attempt  to  survey,  or  cause  to  be 
surveyed,  or  the  boundaries  thereof  he  or  they  shall  have 
designated,  or  cause  to  be  designated,  by  marking  trees  or 
otherwise.  And  it  shall  moreover  be  lawful  for  the  Presi- 
dent of  the  United  States,  to  direct  the  marshal,  or  officer 
acting  as  marshal,  in  the  manner  hereinafter  directed,  and 
also  to  take  such  other  measures,  and  to  employ  such  mili- 
tary force  as  he  may  judge  necessary  and  proper,  to  remove 
from  lands  ceded,  or  secured  to  the  United  States,  by  treaty, 
or  cession  as  aforesaid,  any  person  or  persons  who  shall 
hereafter  take  possession  of  the  same,  or  make,  or  attempt 
to  make,  a  settlement  thereon,  until  thereunto  authorized 
by  law.  *  *  *  Sec.  1,  act  of  March  3,  1807  (2  Stat.  L.  , 

US), 

OBSTRUCTING   THE   MAILS. 

th^maihplnaf  '  2072-  AnJ  person  who  shall  knowingly  and  willfully  ob- 

tyjune  s,  1872,  c.  struct  or  retard  the  passage  of  the  mail,  or  any  carriage, 

33|s.24i,v.i7,p  horse,  driver,  or  carrier  carrying  the  same,  shall,  for  every 

sec.  3995,B.s.  suc]1  Offen8e?  ke  punishable  by  a  fine  of  not  more  than  one 

hundred  dollars.1 

CONTRACTS    AND    COMBINATIONS   IN    RESTRAINT    OF   TRADE. 

the^St'es^inre1-  2073.  Every  contract,  combination  in  the  form  of  trust 
etca!megaitrade>  or  otherwise,  or  conspiracy,  in  restraint  of  trade  or  com- 
of  merce  among  the  several  States,  or  with  foreign  nations, 
v.  is  ^reby  declared  to  be  illegal.  Every  person  who  shall 
26,  p.  209.  make  any  such  contract  or  engage  in  any  such  combination 

or  conspiracy,  shall  be  deemed  guilty  of  a  misdemeanor, 
penalty.  and,  on  conviction  thereof,  shall  be  punished  by  fine  not 
exceeding  five  thousand  dollars,  or  by  imprisonment  not 
exceeding  one  year,  or  by  both  said  punishments,  in  the 
discretion  of  the  court. 

tem6  tin0  "to  mo^     ^EC*  ^"  ^very  Person  wno  shall  monopolize,  or  attempt 

nuiFtolof  misde'  ^°  mon°P°^ze^  or  combine  or  conspire  with  any  other  per- 

meanor.  son  or  persons,  to  monopolize  any  part  of  the  trade  or  com- 

merce among  the  several  States,  or  with  foreign  nations, 

shall  be  deemed  guilty  of  a  misdemeanor,  and,  on  con  vie  - 

Penaity.         ^ion  thereof,  shall  be  punished  by  fine  not  exceeding  five 


1  The  entire  strength  of  the  nation  may  be  used  to  enforce,  in  any  part  of  the  land, 
the  full  and  free  exercise  of  all  national  powers  and  the  security  of  all  rights  intrusted 
by  the  Constitution  to  its  care.  The  strong  arm  of  the  National  Government  may  be 
put  forth  to  brush  away  all  obstructions  to  the  freedom  of  interstate  commerce  or  the 
transportation  of  the  mails.  If  the  emergency  arise,  the  Army  of  the  nation  and  all 
its  militia  are  at  the  service  of  the  nation  to  compel  obedience  to  its  laws.  In  re 
Debs,  158  U.  S.,  564,  582;  In  re  Neagle,  135  U.  S.,  1;  Ex  parte  Siebold,  100  U.  S., 
371,  395;  U.  S.  v.  Kirby,  7  Wall.,  482. 


ir 


MILITARY    LAWS    OF   THE    UNITED   STATES.  813 

thousand  dollars,  or  by  imprisonment  not  exceeding  one 
year,  or  by  both  said  punishments,  in  the  discretion  of  the 
court. 

SEC.  3.  Every  contract,  combination  in  form  of  trust  o^T^JStorleB  or 
otherwise,  or  conspiracy,  in  restraint  of  trade  or  commerce 
in  any  Territory  of  the  United  States  or  of  the  District  of 
Columbia,  or  in  restraint  of  trade  or  commerce  between 
any  such  Territory  and  another,  or  between  any  such  Ter- 
ritory or  Territories  and  any  State  or  States  or  the  District 
of  Columbia,  or  with  foreign  nations,  or  between  the  Dis- 
trict of  Columbia  and  any  State  or  States  or  foreign  nations, 
is  hereby  declared  illegal.  Every  person  who  shall  make 
any  such  contract  or  engage  in  any  such  combination 
conspiracy,  shall  be  deemed  guilty  of  a  misdemeanor,  and, 
on  conviction  thereof,  shall  be  punished  by  fine  not  exceed- 
ing five  thousand  dollars,  or  by  imprisonment  not  exceeding 
one  year,  or  by  both  said  punishments,  in  the  discretion 
of  the  court. 

SEC.  4.  The  several  circuit  courts  of  the  United  States    Jurisdiction  of 

.  .    ,.      .  United    States 

are  nerebv  invested  with  lunsdiction  to  prevent  and  re-  circuit  courts. 

Pro  secuting 

strain  violations  of  this  act;  and  it  shall  be  the  duty  of  the  officers. 
several  district  attorneys  of  the  United  States,  in  their 
respective  districts,  under  the  direction  of  the  Attorney- 
General,  to  institute  proceedings  in  equity  to  prevent  and 
restrain   such  violations.     Such  proceedings  may  be  by    Procedure. 
way  of  petition  setting  forth  the  case  and  praying  that 
such  violation  shall  be  enjoined  or  otherwise  prohibited. 
When  the  parties  complained  of  shall  have  been  duly  noti- 
fied of  such  petition  the  court  shall  proceed,  as  soon  as 
may  be,  to  the  hearing  and  determination  of  the -case;  and    Hearing,  etc. 
pending  such  petition,  and  before  final  decree,  the  court 
may  at  an}T  time  make  such  temporary  restraining  order 
or  prohibition  as  shall  be  deemed  just  in  the  premises. 

SEC.  5.  Whenever  it  shall  appear  to  the  court  before  Process. 
which  any  proceeding  under  section  four  of  this  act  may 
be  pending  that  the  ends  of  justice  require  that  other 
parties  should  be  brought  before  the  court,  the  court  may 
cause  them  to  be  summoned,  whether  they  reside  in  the 
district  in  which  the  court  is  held  or  not;  and  subpoenas 
to  that  end  may  be  served  in  any  district  by  the  marshal 
thereof. 

SEC.  6.  Any  property  owned  under  any  contract  or  by 
any  combination,  or  pursuant  to  an}^  conspiracy  (and  being sit 
the  subject  thereof)  mentioned  in  section  one  of  this  act, 
and  being  in  the  course  of  transportation  from  one  State 


814  MILITARY    LAWS    OF    THE    UNITED    STATES. 

seizure!  aniuon-  to  another,  or  to  a  foreign  country,  shall  be  forfeited  to 

damnation.        foQ  United  States,  and  may  be  seized  and  condemned  by 

like  proceedings  as  those  provided  by  law  for  the  for- 

feiture, seizure,  and  condemnation  of  property  imported 

into  the  United  States  contrary  to  law. 

Damages.  SEC>  7.  Any  person  who  shall  be  injured  in  his  business 

or  property  by  any  other  person  or  corporation  by  reason 

Litigation.      of  anything  forbidden  or  declared  to  be  unlawful  by  this 

act  may  sue  therefor  in  any  circuit  court  of  the  United 

States  in  the  district  in  which  the  defendant  resides  or  is 

found,  without  respect  to  the  amount  in  controversy,  and 

Recovery.       shall  recover  three  fold  the  damages  by  him  sustained, 

and  the  costs  of  suit,  including  a  reasonable  attorney's  fee. 

SEC.  8.  That  the  word  "person,"  or  "persons,  "wherever 

used  in  this  act  shall  be  deemed  to  include  corporations 

and  associations  existing  under  or  authorized  by  the  laws 

of  either  the  United  States,  the  laws  of  any  of  the  Territo- 

ries, the  laws  of  any  State,  or  the  laws  of  any  foreign  coun- 

try.    Act  of  July  2,  1890  (26  Stat.  Z.,  209). 

NORTHERN   PACIFIC    RAILROAD. 

Northern   Pa-     2074.  That  said  Northern  Pacific  Railroad,  or  any  part 

cific  Railroad.  J    L. 

July  2,  1864,  s.  thereof,  shall  be  a  post  route  and  a  military  road,  subject 
to  the  use  of  the  United  States,  for  postal,  military,  naval, 
and  all  other  Government  service,  and  also  subject  to  such 
regulations  as  Congress  may  impose  restricting  the  charges 
for  such  government  transportation.  Sec.  11,  act  of  July 

2,  1864  (1^  Stat.  Z.,  370). 
« 

THE   UNION   AND   CENTRAL   PACIFIC   RAILROADS. 


2075>  ^hat  the  grants  aforesaid  are  made  upon  condition 
ras!  6°  July  ii862  that  said  company  shall  pay  said  bonds  at  maturity,  and 
v.  12,  p.  493.         shall  keep  said  railroad  and  telegraph  line  in  repair  and 
use,  and  shall  at  all  times  transmit  dispatches  over  said 
telegraph  line,  and  transport  mails,  troops,  and  munitions 
of  war,  supplies,  and  public  stores  upon  said  railroad  for 
the  Government,  whenever  required  to  do  so  by  any  de- 
partment thereof,  and  that  the  Government  shall  at  all 
times  have  the  preference  in  the  use  of  the  same  for  all  the 
purposes  aforesaid.     Sec.  6,  act  of  July  11,  1862  (12  Stat. 


THE    ATLANTIC    AND   PACIFIC    RAILROAD. 

2076>  That  said  Atlantic  and  Pacific  Railroad,  or  any 
r°*dii  July  27  Part  tnereo^  shall  be  a  post  route  and  military  road,  sub- 
is6*5,  v.i4,  P.  297.'  ject  to  the  USe  of  the  United  States  for  postal,  military, 


MILITARY    LAWS    OF    THE    UNITED    STATES.  815 

naval,  and  all  other  Government  service,  and  also  subject 
to  such  regulations  as  Congress  may  impose  restricting  the 
charges  for  such  Government  transportation.  Sec.  11,  act 
of  July  07,  1866  (H  Stat.  L.,  297). 

2077.  That  the  Southern   Pacific  Railroad,  a  company  p^  southern 
incorporated  under  the  laws  of  the  State  of  California,  is 

hereby  authorized  to  connect  with  the  said  Atlantic  and 
Pacific  Railroad,  formed  under  this  act,  at  such  point  near 
the  boundary  line  of  the  State  of  California  as  they  shall 
deem  most  suitable  for  a  railroad  line  to  San  Francisco, 
and  shall  have  a  uniform  gauge  and  rate  of  freight  or  fare 
with  said  road;  and  in  consideration  thereof,  to  aid  in  its 
construction,  shall  have  similar  grants  of  land,  subject  to 
all  the  conditions  and  limitations  herein  provided,  and 
shall  be  required  to  construct  its  road  on  the  like  regula- 
tions, as  to  time  and  manner,  with  the  Atlantic  and  Pacific 
Railroad  herein  provided  for.  Sec.  18,  act  of  July  27, 
1866  (14  Stat.  L.,299). 

ENFORCEMENT   OF   LAW   IN   THE    HAWAIIAN   ISLANDS. 

2078.  That  the  governor  shall  be  responsible  for  the 

faithful  execution  of  the  laws  of  the  United  States  and  of  gJJ8ailan  Is' 
the  Territory  of  Hawaii  within  the  said  Territory,  and  19^ ^7'31A£riJ£' 
whenever  it  becomes  necessary  he  may  call  upon  the  com- 
manders of  the  military  and  naval  forces  of  the  United 
States  in  the  Territory  of  Hawaii,  or  summon  the  posse 
comitatus,  or  call  out  the  militia  of  the  Territory  to  pre- 
vent or  suppress  lawless  violence,  invasion,  insurrection, 
or  rebellion  in  said  Territory,  and  he  may,  in  case  of  rebel- 
lion or  invasion,  or  imminent  danger  thereof,  when  the 
public  safety  requires  it,  suspend  the  privilege  of  the  writ 
of  habeas  corpus,  or  place  the  Territory,  or  any  part 
thereof,  under  martial  law  until  communication  can  be  had 
with  the  President  and  his  decision  thereon  made  known. 
Sec.  67,  act  of  April  30,  1900  (31  Stat.  L.,  153). 


816  MILITARY    LAWS    OF    THE    UNITED    STATES. 


Par. 


NEUTRALITY.1 


Par. 


2085.  Enforcement  of    foregoing    provi- 

sions. 

2086.  Compelling  foreign  vessels  to  de- 

part. 

2087.  Armed   vessels   to  give    bond    on 

clearance. 

2088.  Detention  by  collectors  of  customs. 

2089.  Construction  of  this  title. 


2079.  Accepting  a  foreign  commission. 

2080.  Enlisting  in  foreign  service. 

2081.  Arming  vessels  against  people  at 

peace  with  the  United  States. 

2082.  Arming  vessels  to  cruise  against  cit- 

izens of  the  United  States. 
2088.  Augmenting  force  of  foreign  vessels 

of  war. 

2084.  Military  expeditions  against  people 
at  peace  with  the  United  States. 

foreign  coimSis*     2079>  Every  citizen  of  the  United  States  who,  within  the 
siApr  20  1818  c  territory   or  jurisdiction  thereof,  accepts  and  exercises  a 
^Se^'sali^U  commission  to  serve  a  foreign  prince,  state,  colony,  dis- 
trict, or  people,  in  war,  by    land  or  by  sea,  against  any 
prince,  state,  colony,  district,  or  people  with  whom  the 
United  States  are  at  peace,  shall  be  deemed  guilty  of  a  high 
misdemeanor,  and  shall  be  fined  not  more  than  two  thou- 
sand dollars  and  imprisoned  not  more  than  three  years.2 

1  The  neutrality  act  has  been  uniformly  treated,  by  the  Executive  Departments  and 
by  judges  of  the  United  States  courts,  as  embracing  warlike  enterprises  set  on  foot  in 
this  country  against  a  friendly  power  at  peace  with  all  the  world.     U.  S.  r.  Sullivan, 
9  N.  Y.  Leg.  Obs.,  257. 

Neutrality,  strictly  speaking,  consists  in  abstinence  from  any  participation  in  a  pub- 
lic, private,  or  civil  war,  and  in  impartiality  of  conduct  toward  both  parties;  but  the 
maintenance  unbroken  of  peaceful  relations  between  two  powers  when  the  domestic 
peace  of  one  of  them  is  disturbed  is  not  neutrality  in  the  sense  in  which  the  word  is 
used  when  the  disturbance  has  acquired  such  head  as  to  have  demanded  the  recognition 
of  belligerency;  and,  as  mere  matter  of  municipal  administration,  no  nation  can 
permit  unauthorized  acts  of  war  within  its  territory  in  infraction  of  its  sovereignty, 
while  good  faith  toward  friendly  nations  requires  their  prevention.  The  Three 
Friends,  166  U.  S.,  1. 

The  organization,  in  one  country  or  State,  of  combinations  to  aid  or  abet  rebellion 
in  another,  or  in  any  other  way  to  act  on  its  political  institutions,  is  a  violation  of 
national  amity  and  comity,  and  an  act  of  semihostile  interference  with  the  affairs  of 
other  peoples.  *  *  *  But  there  is  no  municipal  law  to  forbid  and  punish  such 
combinations,  either  in  the  United  States  or  Great  Britain.  VIII  Opin.  Att.  Gen. ,  216. 

The  policy  of  this  country  is,  and  ever  has  been,  a  perfect  neutrality  and  nonin- 
terference in  the  quarrels  of  other  nations.  Ill  Opin.  Att.  Gen.,  739. 

The  act  of  April  30,  1818,  like  that  of  June  5, 1794,  was  intended  to  secure,  beyond 
all  risk  of  violation,  the  neutrality  and  pacific  policy  which  they  consecrate  as  our 
fundamental  law.  Ibid.,  741. 

In  the  absence  of  express  authority  from  Congress,  an  officer  of  the  Army  can  not 
accept  remuneration  from  a  foreign  power,  in  return  for  military  or  other  public 
service  rendered,  without  a  violation  of  Art.  I,  sec.  9,  par.  7,  of  the  Constitution. (a) 
Nor  can  such  an  officer  (in  the  absence  of  such  authority)  properly  be  granted  a 
leave  of  absence  for  the  purpose  of  rendering  foreign  service,  even  without  compen- 
sation, since  such  a  proceeding  would  be  contrary  to  the  spirit  and  intent  of  the  laws 
relating  to  the  Army,  which  clearly  comtemplate  that  the  services  of  its  officers  shall 
be  rendered  to  the  United  States.  Dig.  Opin.  J.  A.  G.,  par.  1375. 

2  The  enlistment  of  seamen  or  others  for  marine  service  on  Mexican  steamers  in 
New  York,  they  not  being  Mexicans  transiently  within  the  United  States,  is  a  clear 
violation  of  this  section,  and  the  persons  enlisted,  as  well  as  the  officers  enlisting 
them,  are  liable  to  the  penalties  thereby  incurred.     IV  Opin.  Att.  Gen.,  336. 

This  section  applies  to  foreign  consuls  raising  troops  in  the  United  States  for  the 
military  service  of  Great  Britain.  VII  ibid.,  367.  It  does  not  apply  to  those  who  go 

a  See  U.  S.  v.  Landers,  2  Otto.,  79;  XIII  Opin.  Att.  Gen.,  199. 


MILITARY    LAWS    OF   THE    UNITED    STATES.  817 


2080.  Every  person  who,  within  the  territory  or  juris- 

diction  of-  the  United  States,  enlists  or  enters  himself,  or  Jj,QC-2<  md->  P- 

hires  or  retains  another  person  to  enlist  or  enter  himself,    Sec.5282,u.s. 

or  to  go  beyond  the  limits  or  jurisdiction  of  the  United 

States  with  intent  to  be  enlisted  or  entered  in  the  service 

of  any  foreign  prince,  state,  colony,  district,  or  people,  as 

a  soldier,  or  as  a  marine  or  seaman,  on  board  of  any  vessel 

of  war,  letter  of  marque,  or  privateer,  shall  be  deemed 

guilty  of  high  misdemeanbr,  and  shall  be  fined  not  more 

than    one    thousand   dollars,  and    imprisoned   not    more 

than  three  years.1 

2081.  Every  person  who,  within  the  limits  of  the  United 

n,  -t  n,  -,  peace   with  the 

States,  fits  out  and  arms,  or  attempts  to  tit  out  and  arm,  united  states. 

or  procures  to  be  fitted  out  and  armed,  or  knowingly  is    lie'.  5283,18.8. 

concerned  in  the  furnishing,  fitting  out,  or  arming,  of  any 

vessel,  with  intent  that  such  vessel  shall  be  employed  in 

the  service  of  any  foreign  prince  or  state,  or  of  any  colony, 

district,  or  people,  to  cruise  or  commit  hostilities  against 

the  subjects,  citizens,  or  property  of  any  foreign  prince  or 

state,  or  of  any  colony,  district,  or  people,  with  whom  the 

United  States  are  at  peace,  or  who  issues  or  delivers  a 

commission  within  the  territory  or  jurisdiction  of  the  United 

States,  for  any  vessel,  to  the  intent  that  she  may  be  so  em- 

ployed, shall  be  deemed  guilty  of  a  high  misdemeanor,  and 

shall  be  fined  not  more  than  ten  thousand  dollars  and  im- 

prisoned not  more  than  three  years.     And  every  such  ves- 

sel, with  her  tackle,  apparel,  and  furniture,  together  with 

all  materials,  arms,  ammunition,  and  stores  which  may 

have  been  procured  for  the  building  and  equipment  thereof, 

shall  be  forfeited;  one-half  to  the  use  of  the  informer  and 

the  other  half  to  the  use  of  the  United  States.2 

abroad  for  foreign,  enlistment,  or  to  those  who  transport  such  persons.  U.  S.  v. 
Kazinski,  2  Sprague,  7.  The  enlistment  must  be  made  within  the  territory  of  the 
United  States,  and  the  section  does  not  apply  to  one  who  goes  abroad  with  intent 
there  to  enlist.  Ibid.  The  words  "soldier"  and  "enlist"  as  used  in  this  section 
are  to  be  understood  in  their  technical  sense.  Ibid.;  U.  S.  v.  O'Brien,  75  Fed.  Rep., 
900. 

1  See  note  to  section  2079,  p.  816. 

2  To  constitute  an  offense  under  this  section,  the  vessel  must  be  fitted  out  and 
armed  with  the  specific  intent.  '  U.  S.  v.  Skinner,  1  Brun.  Coll.  Cases.     It  is  not  nec- 
essary that  the  vessel  should  be  armed  or  manned  for  the  purpose  of  committing 
hostilities,  before  she  leaves  the  United  States,  if  it  is  the  intention  that  she  shall  be 
so  fitted  subsequently  (The  City  of  Mexico,  28  F.  R.,  148)  .  or  if  the  separate  parts  of 
the  expedition  are  to  be  united'on  the  high  seas.     U.  S.  v.  The  Mary  N.  Hogan,  18 
Fed.  Rep.,  529,  and  20  ibid.,  50;  The  Carondelet,  37  Fed.  Rep.,  799;  The  Lancaster, 
85  ibid.,  760;  U.  S.  v.  Quincy,  6  Peters,  445. 

The  status  of  the  insurgent  party  will  be  regarded  by  the  courts  as  it  is  regarded 
by  the  political  or  executive  departments  of  the  United  States  at  the  time  of  the  com- 
mission of  the  alleged  offense.  Gelston  v.  Hoyt,  3  Wheat.,  246,  324;  U.  S.  v.  Palmer, 
ibid.,  610,  625;  Kennett  v.  Chambers,  14  How.,  38;  Wharton,  Int.  Law  Dig.  §§551, 

22924—08  -  52 


818  MILITARY    LAWS    OF   THE    UNITED    STATES. 


2082'  Every  citizen  of  the  United  States  who,  without 
unftldSstathe  the  limits  thereof,  fits  out  and  arms,  or  attempts  to  fit  out 
ieclt'284?B.s.  an(^  arm?  or  procures  to  be  fitted  out  and  armed,  or  know- 
ingly aids  or  is  concerned  in  furnishing,  fitting  out,  or 
arming  any  private  vessel  of  war,  or  privateer,  with  intent 
that  such  vessel  shall  be  employed  to  cruise  or  commit 
hostilities  upon  the  citizens  of  the  United  States  or  their 
property,  or  who  takes  the  command  of  or  enters  on  board 
of  any  such  vessel  for  such  intent,  or  who  purchases  any 
interest  in  any  such  vessel,  with  a  view  to  share  in  the 
profits  thereof,  shall  be  deemed  guilty  of  a  high  misde- 
meanor, and  fined  not  more  than  ten  thousand  dollars  and 
imprisoned  not  more  than  ten  years.  And  the  trial  for 
such  offense,  if  committed  without  the  limits  of  the  United 
States,  shall  be  in  the  district  in  which  the  offender  shall 
be  apprehended  or  first  brought. 

fo^egSefoJeigI     2083>  Every  person  who,  within  the  territory  or  juris- 

V15c!  ?f  S£'     diction  of  the  United  States,  increases  or  augments,  or 

Sec.5285,  R.S.  procures  to  be  increased  or  augmented,  or  knowingly  is 

552;  U.  S.  v.  Trumbull,  48  F.  R.,  99,  104.  The  word  "people,"  as  used  in  this  sec- 
tion, is  "one  of  the  denominations  applied  by  the  act  of  Congress  to  a  foreign  power." 
U.  S.  v.  Quincy,  6  Pet.,  445. 

I  know  of  no  law  or  regulation  which  forbids  any  person,  or  government,  whether 
the  political  designation  be  real  or  assumed,  from  purchasing  arms  from  the  citizens 
of  the  United  States  and  shipping  them  at  the  risk  of  the  purchaser.  X  Opin.  Att. 
Gen.,  452.  The  sending  of  munitions  of  war  from  a  neutral  country  to  a  belligerent 
port  for  sale,  as  articles  of  commerce  ,  is  unlawful  only  as  subjecting  such  property 
to  capture.  The  Santissima  Trinidad,  7  Wheat.,  283;  The  City  of  Mexico,  24  F.  R., 
924.  It  is  the  right  of  a  belligerent  to  purchase  goods  and  instruments  of  war  in  a 
neutral  nation,  but  it  may  be  denied  by  a  law  passed  for  such  purpose.  X  Opin. 
Att.  Gen.,  61. 

The  provisions  of  this  section  do  not  apply  to  a  vessel  which  receives  arms  and 
munition  of  war  in  this  country,  as  cargo  merely,  with  intent  to  carry  them  to  a 
party  of  insurgents  in  a  foreign  country,  but  not  with  the  intent  that  they  shall  con- 
stitute any  part  of  the  fittings  or  furnishings  of  the  vessel  herself.  U.  S.  v.  The 
Itata,  56  F.  R.,  608;  U.  S.  v.  2,000  Cases  of  Rifles,  ibid.  A  vessel  is  not  liable  to  for- 
feiture under  this  section,  nor  is  she  liable  to  condemnation  as  piratical,  on  the 
ground  that  she  is  in  the  employ  of  an  insurgent  party  which  has  not  been  recog- 
nized by  the  United  States  as  having  belligerent  rights.  U.  S.  v.  The  Itata,  56  F.  R., 
608;  U.  S.  v.  Weed,  5  Wall.,  62;  The  Watchful,  6  Wall.,  91. 

In  the  case  of  the  Horsa,  Wiborg  v.  U.  S.,  163  U.  S.  632,  decided  on  appeal  in  the 
Supreme  Court  of  the  United  States  on  May  25,  1896,  it  was  held  "  that  any  combi- 
nation of  men  organized  to  go  to  Cuba  to  make  war  upon  its  government,  provided 
with  'arms  and  ammunition,  constitutes  a  military  expedition.  It  is  not  necessary 
that  the  men  shall  be  drilled,  put  in  uniform  (  or  prepared  for  efficient  service,  nor 
that  they  shall  have  been  organized  as  or  according  to  the  tactics  or  rules  which 
relate  to  what  is  known  as  infantry,  cavalry,  or  artillery.  It  is  sufficient  that  they 
shall  have  combined  and  organized  here  to  go  there  and  make  war  on  a  foreign 
government,  and  to  have  provided  themselves  with  the  means  of  doing  so.  Whether 
such  provision,  as  by  arming,  etc.,  is  necessary  need  not  to  be  decided  in  this  case. 
Nor  is  it  important  that  they  intended  to  make  war  as  an  independent  body  or  in 
connection  with  others.  Where  men  go  without  such  combination  and  organization 
to  enlist  as  individuals  in  a  foreign  army,  they  do  not  constitute  such  military  expe- 
dition, and  the  fact  that  the  vessel  carrying  them  might  carry  arms  as  merchandise 
would  not  be  important."  See  also  The  Estrella,  4  Wh.,  298;  The  Gran  Para,  7 
Wh.,  471;  The  Santa  Maria,  7  Wh.,  490;  The  Monte  Allegre,  7  Wh.,  520;  U.  S.  v. 
Reyburn,  6  Pet,.  352;  U.  S.  v.  Quincy,  6  Pet.,  445;  Wiborg  v.  U.  S.,  163,  U.  S.  632. 


MILITARY    LAWS    OF   THE    UNITED    STATES.  819 

concerned  in  increasing  or  augmenting,  the  force  of  any 
ship  of  war,  cruiser,  or  other  armed  vessel,  which  at  the 
time  of  her  arrival  within  the  United  States  was  a  ship  of 
war,  or  cruiser,  or  armed  vessel,  in  the  service  of  any  for- 
eign prince  or  state,  or  of  any  colony,  district,  or  people, 
or  belonging  to  the  subjects  or  citizens  of  any  such  prince 
or  state,  colony,  district,  or  people,  the  same  being  at  war 
with  any  foreign  prince  or  state,  or  of  any  colony,  district, 
or  people,  with  whom  the  United  States  are  at  peace,  by 
adding  to  the  number  of  the  guns  of  such  vessel,  or  by 
changing  those  on  board  of  her  for  guns  of  a  larger  cali- 
ber, or  by  adding  thereto  any  equipment  solely  applicable 
to  war,  shall  be  deemed  guilty  of  a  high  misdemeanor,  and 
shall  be  fined  not  more  than  one  thousand  dollars  and  be 
imprisoned  not  more  than  one  year.1 

2084.  Every  person  who,  within  the  territory  or  juris- 
diction  of  the  United  States,  begins,  or  sets  on  foot, 
provides  or  prepares  the  means  for,  any  military  expedi-  stggs-  6  md^  p 
tion  or  enterprise,  to  be  carried  on  from  thence  against  the  44|ec.5286,  B .s. 
territory  or  dominions  of  any  foreign  prince  or  state,  or 
of  any  colony,  district,  or  people,  with  whom  the  United 
States  are  at  peace,  shall  be  deemed  guilty  of  a  high  mis- 
demeanor, and  shall  be  fined  not  exceeding  three  thousand 
dollars,  and  imprisoned  not  more  than  three  years.2 

1  The  repair  of  Mexican  war  steamers  in  the  port  of  New  York,  together  with  the 
augmenting  their  force  by  adding  to  the  number  of  their  guns,  or  by  changing  those 
originally  on  board  for  those  of  larger  caliber,  or  by  the  addition  of  any  equipment 
solely  applicable  to  war,  is  a  violation  of  this  section.  But  the  repair  of  their  bot- 
toms or  copper,  etc. ,  does  not  constitute  any  increase  or  augmentation  of  force  within 
the  meaning  of  the  act,  and  the  steamers  are  not  liable  to  seizure  by  any  judicial  proc- 
ess under  it.  IV  Opin.  Att.  Gen.,  336. 

The  taking  on  of  a  crew  of  American  citizens,  or  of  aliens  domiciled  in  the  United 
States  would  constitute  a  violation  of  this  section.  The  Alerta,  9  Cranch,  359. 

'2  When  a  party  of  insurgents,  already  organized  and  carrying  on  war  against  the 
government  of  a  foreign  country,  send  a  vessel  to  procure  arms  and  ammunition  in 
the  United  States,  the  act  of  purchasing  such  arms  and  ammunition  and  placing 
them  aboard  the  vessel  is  not  within  the  scope  of  this  section,  which  prescribes  a  pen- 
alty for  every  person  who,  within  the  limits  of  the  United  States,  begins  or  sets  on 
foot,  or  prepares  or  provides  the  means  for  any  military  expedition  or  enterprise  "  to 
be  carried  on  from  thence."  Such  expeditions  and  enterprises  must  originate  within 
the  jurisdiction  of  the  United  States,  and  the  terms  of  the  statute  do  not  apply  to  an 
expedition  originating  within  the  territory  of  a  foreign  state.  U.  S.  v.  Trumbull,  48 
Fed.  Kep.,  99.  For  liability  of  the  officers  of  the  ship,  see  U.  S.  v.  Rand,  17  ibid., 
142.  See,  also,  Wiborg  v.  U.  S.,  163  U.  S.,  632;  U.  S.  v.  Ybanez,  53  Fed.  Rep.,  536; 
U.  S.  v.  Pena,  69  ibid.,  983;  U.  S.  v:  Hughes,  70  ibid.,  972;  U.  S.  v.  Hart,  74  ibid., 
724;  U.  S.  v  Nunez,  82  ibid.,  599;  U.  S.  v.  Murphy,  84  ibid.,  609. 

The  transportation  of  goods  for  commercial  purposes  only,  and  the  carriage  of  per- 
sons separately,  though  their  individual  design  may  be  to  enlist  in  a  foreign  strife, 
are  not  prohibited  by  our  law,  if  the  transportation  is  without  any  features  of  a  mili- 
tary character.  Indications  of  a  military  operation  or  of  a  military  expedition  are 
concert  and  unity  of  action,  organization  of  men  to  act  together,  the  presence  of 
weapons,  and  some  form  of  command  or  leadership.  When  these  exist  and  are 
known  to  the  persons  engaged  in  the  transportation,  all  who  knowingly  aid  in  such 
transportation  for  military  purposes  are  liable  under  section  5286  of  the  Revised  Stat- 
utes. U.  S.  v.  Nufiez  et  al.,  82  Fed.  Rep.,  599. 


820  MILITARY    LAWS    OF   THE    UNITED    STATES. 

2085<  Tne  district  courts  shall  take  cognizance  of  all 


Vise°cn8  a>id  complaints,  by  whomsoever  instituted,  in  cases  of  captures 
sofv^VSo  c'  ma(ie  within  the  waters  of  the  United  States,  or  within  a 
Sec.  5287,  R.  s.  marine  league  of  the  coasts  or  shores  thereof.  In  every 
case  in  which  a  vessel  is  fitted  out  and  armed,  or  attempted 
to  be  fitted  out  and  armed,  or  in  which  the  force  of  any 
vessel  of  war,  cruiser,  or  other  armed  vessel  is  increased  or 
augmented,  or  in  which  any  military  expedition  or  enter- 
prise is  begun  or  set  on  foot,  contrary  to  the  provisions 
and  prohibitions  of  this  Title;  and  in  every  case  of  the  cap- 
ture of  a  vessel  within  the  jurisdiction  or  protection  of 
the  United  States  as  before  defined;  and  in  every  case  in 
which  any  process  issuing  out  of  any  court  of  the  United 
States  is  disobeyed  or  resisted  by  any  person  having  the 
custody  of  any  vessel  of  war,  cruiser,  or  other  armed  vessel 
of  any  foreign  prince  or  state,  or  of  any  colony,  district,  or 
people,  or  of  any  subjects  or  citizens  of  any  foreign  prince 
or  state,  or  of  any  colony,  district,  or  people,  it  shall  be 
lawful  for  the  President,  or  such  other  person  as  he  shall 
have  empowered  for  that  purpose,  to  employ  such  part  of 
the  land  or  naval  forces  of  the  United  States,  or  of  the 
militia  thereof,  for  the  purpose  of  taking  possession  of 
and  detaining  any  such  vessel,  with  her  prizes,  if  any,  in 
order  to  the  execution  of  the  prohibitions  and  penalties  of 
this  Title,  and  to  the  restoring  of  such  prizes  in  the  cases 
in  which  restoration  shall  be  adjudged;  and  also  for  the 
purpose  of  preventing  the  carrying  on  of  any  such  expe- 
dition or  enterprise  from  the  territories  or  jurisdiction  of 
the  United  States  against  the  territories  or  dominions  of 
any  foreign  prince  or  state,  or  of  any  colony,  district,  or 
people,  with  whom  the  United  States  are  at  peace. 
°to  2086>  ^  sna^  ke  lawful  f°r  tne  President,  or  such  person 
c  as  he  shall  empower  for  that  purpose,  to  employ  such  part 
t'°f  the  land  or  naval  forces  of  the  United  States,  or  of  the 

s. 

militia  thereof,  as  shall  be  necessary  to  compel  any  foreign 
vessel  to  depart  the  United  States  in  all  cases  in  which,  by 
the  laws  of  nations  or  the  treaties  of  the  United  States, 
she  ought  not  to  remain  within  the  United  States. 
on  2087.  The  owners  or  consignees  of  every  armed  vessel 
sailmg  out  of  the  ports  of  the  United  States,  belonging 
Sec.5289,K.s.  wholly  or  in  part  to  citizens  thereof,  shall,  before  clearing 
out  the  same,  give  bond  to  the  United  States,  with  sufficient 
sureties,  in  double  the  amount  of  the  value  of  the  vessel 
and  cargo  on  board,  including  her  armament,  conditioned 
that  the  vessel  shall  not  be  employed  by  such  owners  to 


MILITARY    LAWS    OF    THE    UNITED    STATES. 


821 


CuSy- 


cruise  or  commit  hostilities  against  the  subjects,  citizens, 
or  property  of  any  foreign  prince  or  state,  or  of  any  col- 
ony, district,  or  people  with  whom  the  United  States  are 
at  peace.1 

2088.  The  several  collectors  of  the  customs  shall  detain 

any  vessel  manifestly  built  for  warlike  purposes,  and  about  t0Apr.2o,  isis,  c. 
to  depart  the  United  States,  the  cargo  of  which  principally  ^cVs&ofR.s. 
consists  of  arms  and  munitions  of  war,  when  the  number  of 
men  shipped  on  board,  or  other  circumstances,  render  it 
probable  that  such  vessel  is  intended  to  be  employed  by 
the  owners  to  cruise  or  commit  hostilities  upon  the  sub- 
jects, citizens,  or  property  of  any  foreign  prince  or  state,  or 
of  any  colony,  district,  or  people  with  whom  the  United 
States  are  at  peace,  until  the  decision  of  the  President  is 
had  thereon,  or  until  the  owner  gives  such  bond  and  secu- 
rity as  is  required  of  the  owners  of  armed  vessels  by  the 
preceding  section. 

2089.  The  provisions  of  this  Title  shall  not  be  construed 
to  extend  to  any  subject  or  citizen  of  any  foreign  prince, 
state,  colony,  district,  or  people  who  is  transiently  within 
the  United  States,  and  enlists  or  enters  himself  on  board 
of  any  vessel  of  war,  letter  of  marque,  or  privateer,  which 
at  the  time  of  its  arrival  within  the  United  States  was  fitted 
and  equipped  as  such,  or  hires  or  retains  another  subject  or 
citizen  of  the  same  foreign  prince,  state,  colony,  district, 
or  people,  who  is  transiently  within  the  United  States,  to 
enlist  or  enter  himself  to  serve  such  foreign  prince,  state, 
colony,  district,  or  people,  on  board  such  vessel  of  war, 
letter  of  marque,  or  privateer,  if  the  United  States  shall 
then  be  at  peace  with  such  foreign  prince,  state,  colony, 
district,  or  people.     Nor  shall  they  be  construed  to  prevent 
the  prosecution  or  punishment  of  treason,  or  of  any  piracy 
defined  by  the  laws  of  the  United  States. 


Sec>  5291»B-S- 


Par. 

2090.  Protection  of  accused. 

2091.  Powers  of  receiving  agent. 


EXTRADITION. 


Par. 


2092.  Penalty  for  opposing  agent. 

2093.  Extradition  to  occupied  territory. 


°f 


2090.  Whenever  any  person  is  delivered  by  an}T  foreign 
government  to  an  agent  of  the  United  States,  for  the  pur-  14  p 

pose  of  being  brought  within  the  United  States  and  tried  ^^  5275,B  s. 

lThe  law  does  not  prohibit  armed  vessels  belonging  to  citizens  of  the  United  States 
from  sailing  out  of  our  ports;  it  only  requires  the  owners  to  give  security  that  such 
vessels  shall  not  be  employed  by  them  to  commit  hostilities  against  foreign  powers 
at  peace  with  the  United  States.  U.  S.  v.  Quincy,  5  Pet.,  445. 


822  MILITARY    LAWS    OF    THE    yglTED   STATES. 

for  any  crime  of  which  he  is  duly  accused,  the  President 
shall  have  power  to  take  all  necessary  measures  for  the 
transportation  and  safe-keeping  of  such  accused  person, 
and  for  his  security  against  lawless  violence,  until  the  final 
conclusion  of  his  trial  for  the  crimes  or  offenses  specified 
in  the  warrant  of  extradition,  and  until  his  final  discharge 
from  custody  or  imprisonment  for  or  on  account  of  such 
crimes  or  offenses,  and  for  a  reasonable  time  thereafter, 
and  may  employ  such  portion  of  the  land  or  naval  forces 
of  the  United  States,  or  of  the  militia  thereof,  as  may 
be  necessary  for  the  safe-keeping  and  protection  of  the 
accused. 

recei^ng°offtSd-     2091.  Any  person  duly  appointed  as  agent  to  receive,  in 
a7orde!^|oevderbn^  behalf  of  the  United  States,  the  delivery,  by  a' foreign 
m|ec!  2,  ibid.,  p.  government,  of  any  person  accused  of  crime  committed 
^'ec.  5276,R.s.  within  the  jurisdiction  of  the  United  States,  and  to  con- 
vey him  to  the  place  of  his  trial,  shall  have  all  the  powers 
of  a  marshal  of  the  United  States,  in  the  several  districts 
through  which  it  may  be  necessary  for  him  to  pass  with 
such  prisoner,  so  far  as  such  power  is  requisite  for  the 
prisoner's  safe-keeping. 

poSlfen^ete"  2092.  Every  person  who  knowingly  and  willfully  ob- 
iecil'277j'B.s.  structs,  resists,  or  opposes  such  agent  in  the  execution  of 
his  duties,  or  who  rescues  or  attempts  to  rescue  such  pris- 
oner, whether  in  the  custody  of  the  agent  or  of  any  officer 
or  person  to  whom  his  custody  has  lawfully  been  com- 
mitted, shall  be  punishable  by  a  fine  of  not  more  than  one 
thousand  dollars,  and  by  imprisonment  for  not  more  than 
one  year. 

occupie^ferrito0  2093.  Whenever  any  foreign  countiy  or  territory,  or  any 
ryjune  6  1900  v  Part  thereof,  is  occupied  by  or  under  the  control  of  the 
31,  p.  666.  United  States,  any  person  who  shall  violate,  or  who  has 

violated,  the  criminal  laws  in  force  therein,  by  the  com- 
mission of  any  of  the  following  offenses,  namely:  Murder 
and  assault  with  intent  to  commit  murder;  counterfeiting 
or  altering  money,  or  uttering  or  bringing  into  circulation 
counterfeit  or  altered  money;  counterfeiting  certificates 
or  coupons  of  public  indebtedness,  bank  notes,  or  other 
instruments  of  public  credit,  and  the  utterance  or  circula- 
tion of  the  same;  forgery  or  altering,  and  uttering  what 
is  forged  or  altered;  embezzlement  or  criminal  malversa- 
tion of  the  public  funds,  committed  by  public  officers, 
employees,  or  depositaries;  larceny  or  embezzlement  of  an 
amount  not  less  than  one  hundred  dollars  in  value;  rob- 


MILITARY   LAWS    OF   THE    UNITED    STATES.  823 

bery;  burglary,  defined  to  be  the  breaking  and  entering 
by  nighttime  into  the  house  of  another  person  with  intent 
to  commit  a  felony  therein;  and  the  act  of  breaking  and 
entering  the  house  or  building  of  another,  whether  in  the 
da}^  or  nighttime,  with  the  intent  to  commit  a  felony 
therein;  the  act  of  entering,  or  of  breaking  and  entering 
the  offices  of  the  Government  and  public  authorities,  or 
the  offices  of  banks,  banking  houses,  savings  banks,  trust 
companies,  insurance  or  other  companies,  with  the  intent 
to  commit  a  felon}T  therein;  perjury  or  the  subornation  of 
perjury;  rape;  arson;  piracy  by  the  law  of  nations;  mur- 
der, assault  with  intent  to  kill,  and  manslaughter,  commit- 
ted on  the  high  seas,  on  board  a  ship  owned  by  or  in  con- 
trol of  citizens  or  residents  of  such  foreign  countiy  or 
territory  and  not  under  the  flag  of  the  United  States,  or  of 
some  other  government;  malicious  destruction  of  or 
attempt  to  destroy  railways,  trams,  vessels,  bridges,  dwell- 
ings, public  edifices  or  other  buildings,  when  the  act  en- 
dangers human  life,  and  who  shall  depart  or  flee,  or  who 
has  departed  or  fled,  from  justice  therein  to  the  United 
States,  any  Territory  thereof,  or  to  the  District  of  Colum- 
bia, shall,  when  found  therein,  be  liable  to  arrest  and  de- 
tention by  the  authorities  of  the  United  States,  and  on 
the  written  request  or  requisition  of  the  military  governor 
or  other  chief  executive  officer  in  control  of  such  foreign 
country  or  territory  shall  be  returned  and  surrendered  as 
hereinafter  provided  to  such  authorities  for  trial  under  the 
laws  in  force  in  the  place  where  such  offense  was  commit- 
ted. All  the  provisions  of  sections  fifty-two  hundred  and 
seventy  to  fifty-two  hundred  and  seventy-seven  of  this 
Title,  so  far  as  applicable,  shall  govern  proceedings  author- 
ized by  this  proviso:  Provided  further,  That  such  proceed- 
ings shall  be  had  before  a  judge  of  the  courts  of  the  United 
States  only,  who  shall  hold  such  person  on  evidence  estab- 
lishing probable  cause  that  he  is  guilty  of  the  offense 
charged:  And  provided  further,  That  no  return  or  surren- 
der shall  be  made  of  any  person  charged  with  the  commis- 
sion of  any  offense  of  a  political  nature.  If  so  held  such 
person  shall  be  returned  and  surrendered  to  the  authorities 
in  control  of  such  foreign  country  or  territory  on  the  order 
of  the  Secretary  of  State  of  the  United  States,  and  such 
authorities  shall  secure  to  such  a  person  a  fair  and  impar- 
tial trial.1— Act  of  June  6, 1900  (31  Stat.  Z.,  656.) 

foregoing  enactment  constitutes  a  proviso  to  section  5270,  Revised  Statutes. 


824 


MILITARY    LAWS    OF    THE    UNITED    STATES. 


GUANO   ISLANDS. 


Par. 

2094.  Claim  of  United  States  to  islands. 

2095.  Notice  of  discovery  and  proofs  to 

be  furnished. 

2096.  Completion    of    proof    in   case  of 

death  of  discoverer. 

2097.  Exclusive  privileges  of  discoverer. 


Par. 

2098.  Restrictions  upon  exportation. 

2099.  Regulation  of  guano  trade. 

2100.  Criminal  jurisdiction. 

2101.  Employment   of   land   and   naval 

forces. 

2102.  Right  to  abandon  island. 


Claim  of  United 
States  to  islands. 


2094.  Whenever  any  citizen  of  the  United  States  dis- 
MofvyjutS  covers' a  deposit  of  guano  on  any  island,  rock,  or  key,  not 
n|ec.657o,  B.S.  w^mn  the  lawf  ul  jurisdiction  of  any  other  government, 

and  not  occupied  by  the  citizens  of  any  other  government, 
and  takes  peaceable  possession  thereof,  and  occupies  the 
same,  such  island,  rock,  or  ke}7  may,  at  the  discretion  of 
the  President,  be  considered  as  appertaining  to  the  United 
States. 

2095.  The  discoverer  shall,  as  soon  as  practicable,  give 
to" be  fur-  notice,  verified  by  affidavit,  to  the  Department  of  State,  of 

Secd557i  B  s  suc^  Discovery,  occupation,  and  possession,  describing  the 
island,  rock,  or  key,  and  the  latitude  and  longitude  thereof, 
as  near  as  may  be,  and  showing  that  such  possession  was 
taken  in  the  name  of  the  United  States;  and  shall  furnish 
satisfactory  evidence  to  the  State  Department  that  such 
island,  rock,  or  key  was  not,  at  the  time  of  the  discovery 
thereof,  or  of  the  taking  possession  and  occupation  thereof 
by  the  claimants,  in  the  possession  or  occupation  of  any 
other  government  or  of  the  citizens  of  any  other  govern- 
ment, before  the  same  shall  be  considered  as  appertaining 
to  the  United  States. 

2096.  If  the  discoverer  dies  before  perfecting  proof  of 
of  discov-  discovery  or  fully  complying  with  the  provisions  of  the 

Apr.  2, 1872,  c.  preceding  section,  his  widow,  heir,  executor,  or  adminis- 
kec.6672;  B.S.  trator  shall  be  entitled  to  the  benefits  of  such  discovery, 
upon  complying  with  the  provisions  of  this  Title;  but  noth- 
ing herein  contained  shall  be  held  to  impair  any  rights  of 
discovery  or  any  assignment  by  a  discoverer  heretofore 
recognized  by  the  United  States. 

nel^of^scov-     2097-  Tlie  discoverer,  or  his  assigns,  being  citizens  of 

erAug  is  1856  c  ^ne  United  States,  may  be  allowed,  at  the  pleasure  of  Con- 

164,  s.  2,  v.  11,  p.  gress?  the  exclusive  right  of  occupying  such  island,  rocks, 

Sec.6573, B.S.  or  ^eys  for  the  purpose  of  obtaining  guano,     *    •*     * 

and  may  be  allowed  to  charge  and  receive  for  every  ton 

thereof  delivered  alongside  a  vessel,  in  proper  tubs,  within 

reach  of  ship's  tackle,  a  sum  not  exceeding  eight  dollars 

per  ton  for  the  best  quality,  or  four  dollars  for  every  ton 

taken  while  in  its  native  place  of  deposit. 


completion  of 

roof  in  case  of 


81,  s.l 
Sec 


MILITARY    LAWS    OF    THE    UNITED    STATES.  825 


2098.  No  guano  shall  be  taken  from  any  such  island, 
rock,  or  key,  except  for  the  use  of  the  citizens  of  the 
United  States  or  of  persons  resident  therein.     The  dis- 
coverer,  or  his  widow,  heir,  executor,  administrator,  or  J^^JJ 
assigns,  shall  enter  into  bond,  in  such  penalty  and  with  48^ec>  6574?B  >SB 
such  sureties  as  may  be  required  by  the  President,  to 

deliver  the  guano  to  citizens  of  the  United  States,  for  the 
purpose  of  being  used  therein,  and  to  none  others,  and  at 
the  price  prescribed,  and  to  provide  all  necessary  facili- 
ties for  that  purpose  within  a  time  to  be  fixed  in  the  bond; 
This  section  shall,  however,  be  suspended  in 
relation  to  all  persons  who  have  complied  with  the  provi- 
sions of  this  Title,  for  five  years  from  and  after  the  four- 
teenth day  of  July,  eighteen  hundred  and  seventy-two.1 

2099.  The   introduction  of    guano   from   such   islands,  g^^^  ot 
rocks,  or  keys,  shall  be  regulated  as  in  the  coasting  trade  j^^gfv^'p; 
between  different  parts  of  the  United  States,  and  the  same  12|e<%  5575  K  g 
laws  shall  govern  the  vessels  concerned  therein. 

2100.  All  acts  done,  and  offenses  or  crimes  committed,  di£tr^inal  juris" 
on  any  such  island,  rock,  or  key,  by  persons  who  may 

land  thereon,  or  in  the  waters  adjacent  thereto,  shall  be 
deemed  committed  on  the  high  seas,  on  board  a  merchant 
ship  or  vessel  belonging  to  the  United  States;  and  shall  be 
punished  according  to  the  laws  of  the  United  States  relat- 
ing to  such  ships  or  vessels  and  offenses  on  the  high  seas, 
which  laws  for  the  purpose  aforesaid  are  extended  over 
such  islands,  rocks,  and  keys. 

2101.  The  President  is  authorized,  at  his  discretion,  to  . 

I  lana  and  naval 

employ  the  land  and  naval  forces  of  the  United  States  to  fog^?-5  md 
protect  the  rights  of  the  discoverer  or  his  widow,  heir,    sec.5577,R.s. 
executor,  administrator,  or  assigns. 

2102.  Nothing  in  this  Title  contained  shall  be  construed 
as  obliging  the  United  States  to  retain  possession  of  the 
islands,  rocks,  or  keys,  after  the  guano  shall  have  been 
removed  from  the  same. 

RESTRICTION   UPON   THE   USE    OF   MILITARY   FORCE. 


2103.  From  and  after  the  passage  of  this  act  it  shall 
be  lawful  to  employ  any  part  of  the  Army  of  the  United  june  is 

States,  as  a  posse  comitatus,  or  otherwise,  for  the  purpose  1878  v-  20f  p-  152> 
of  executing  the  laws,  except  in  such  cases  and  under  such 
circumstances  as  such  employment  of  said  force  may  be 
expressly  authorized  by  the  Constitution  or  by  act  of  Con- 

1  This  section  was  suspended  for  five  years  by  the  act  of  March  15,  1878  (20  Stat.  L., 
30),  and  for  a  further  period  of  five  years  by  the  act  of  April  14,  1884  (23  Stat.  L.,  11). 


826  MILITARY    LAWS    OF    THE    UNITED    STATES. 

gress;  and  no  money  appropriated  by  this  act  shall  be 
used  to  pay  any  of  the  expenses  incurred  in  the  employ- 
ment of  any  troops  in  violation  of  this  section.1  Sec.  15, 
act  of  June  18,  1878  (80  Stat.  Z., 


llt  is  provided  in  section  15  of  the  act  of  June  18,  1878,  chapter  263,  that  "From 
and  after  the  passage  of  this  act  it  shall  not  be  lawful  to  employ  any  part  of  the 
Army  of  the  United  States,  as  a  posse  comitatus,  or  otherwise,  for  the  purpose  of 
executing  the  laws,  except  in  such  cases  and  under  such  circumstances  as  such 
employment  of  said  force  may  be  expressly  authorized  by  the  Constitution  or  by  act 
of  Congress.  In  view  of  this  legislation,  held  as  follows: 

That  inasmuch  as  it  was  not  expressly  authorized  by  any  act  of  Congress  that 
United  States  marshals  should  be  empowered  to  summon  the  military  to  serve  on  a 
posse  comitatus  (but  this  was  authorized  only  indirectly  and  impliedly  by  the  pro- 
vision of  the  act  of  September  24,  1789,  incorporated  in  section  787  of  the  Revised 
Statutes),  (a)  the  Army  could  not,  under  the  existing  law,  legally  act  on  the  posse 
comitatus  of  a  marshal  or  deputy  marshal  of  the  United  States.  (6)  Dig.  Opin  J. 
A.  G.,  162,  par.  6.  See  also  Ibid.,  ed.  1901,  par.  487. 

That  in  the  absence  of  such  an  "unlawful  combination"  as  is  contemplated  by 
section  5298,  Revised  Statutes,  the  President  would  not  be  authorized  to  employ  a 
military  force  to  assist  inspectors  of  customs  in  seizing  smuggled  property  or  arrest- 
ing persons  concerned  in  violations  of  the  revenue  laws,  such  an  employment  not 
being  expressly  authorized  by  any  statute. 

That  whenever  a  marshal  or  deputy  marshal  was  prevented  from  making  due  serv- 
ice of  judicial  process,  for  the  arrest  of  persons  or  otherwise,  by  the  forcible  resist- 
ance or  opposition  of  an  unlawful  combination  or  assemblage  of  persons,  the  President 
was  expressly  authorized  by  section  5298,  Revised  Statutes,  to  employ  such  part  of 
the  Army  as  he  might  deem  necessary  to  secure  the  due  service  of  such  process  and 
execute  the  laws;  first,  however,  in  any  such  case  (as  in  any  case  arising  under  sec- 
tions 5297  and  5299)  making  proclamation  as  required  by  section  5300. 

That,  notwithstanding  the  legislation  of  June  18,  1878,  the  President  was  author- 
ized to  employ  the  military  to  arrest  and  prevent  persons  engaging  in  introducing 
liquor  into  the  Indian  country  contrary  to  law,  as  also  to  arrest  persons  being  other- 
wise in  the  Indian  country  in  violation  of  law,(c)  or  to  make  the  arrest  therein  of 
Indians  charged  with  the  commission  of  crime,  such  employment  being  expressly 
authorized  by  sections  2150  and  2152,  Revised  Statutes. 

That  the  President  was  authorized  by  section  2150,  Revised  Statutes,  to  remove 
by  military  force,  after  a  reasonable  notice  to  quit  certain  persons  commorant  upon 
an  Indian  reservation  contrary  to  the  terms  of  a  treaty  between  the  United  States 
and  the  tribe  occupying  the  reservation,  an<jl  who  therefore  were  there  "in  violation 
of  law"  in  the  sense  of  that  section,  (d) 

That  the  provision  of  June  18,  1878,  was  not  to  be  construed  as  interfering  with 
the  authority  and  duty  of  the  President  to  employ  a  necessary  military  force  for  the 
removal  of  trespassers  from  a  military  reservation,  such  employment  not  being, 
properly  speaking,  "for  the  purpose  of  executing  the  laws,"  but  a  mere  protecting, 
by  the  executive  department,  of  public  property  in  its  military  charge,  (e)  Dig. 
Opin.  J.  A.  G.,  162,  par.  6. 

In  the  absence  of  any  express  provision  contained  in  the  acts  authorizing  the 
President  to  make  reservations  of  forest  lands  (acts  of  September  25  and  October  1, 
1890,  and  March  3,  1891,  s.  24)  by  which  he  is  expressly  empowered  to  use  the  Army 

a  VI  Opin.  Att.  Gen.,  471;  letter  of  Attorney-General  Evarts  to  the  United  States  marshal  for  the 
northern  district  of  Florida,  Attorney-General's  Office,  August  20,  1868;  general  instructions  to  United 
States  marshals  from  Attorney-General  Taft,  published  in  General  Orders  96,  Headquarters  of  Army, 
1876;  also  opinion  cited  in  next  note. 

6  See,  to  a  similar  effect,  opinion  of  the  Attorney-General  of  October  10,  1878  (XVI  Opin.,  162);  also 
XIX  Opin.,  293. 

cBut  note  that,  in  view  of  the  provisions  of  section  2151,  Revised  Statutes,  an  officer  of  the  Army 
who  detains  a  person  arrested  under  section  2150  longer  than  five  days  before  "  conveying  him  to  the 
civil  authority,"  or  subjects  him  when  in  arrest  to  unreasonably  harsh  treatment,  renders  himself 
liable  to  an  action  in  damages  for  false  imprisonment.  In  re  Carr,  3  Sawyer,  316;  Waters  v.  Campbell, 
5  ibid.,  17. 

dSee  XIV  Opin.  Att.  Gen.,  451;  20  ibid.,  245;  and  note  the  proclamation  of  the  President  published  in 
General  Orders  16,  Headquarters  of  Army,  1880,  relating  to  the  intrusion  of  unauthorized  persons 
upon  the  "  Indian  territory  "  and  declaring  that  the  Army  would  be  employed  to  effectuate  their 
removal  if  necessary, 

e"Due  caution  should  be  observed,  however,  that  in  executing  this  duty  there  be  no  unnecessary 
or  wanton  harm  done  to  persons  or  property."  IX  Opin.  Att.  Gen.,  476. 


MILITARY   LAWS    OF   THE    UNITED    STATES.  827 

TREASON. 

2104.  Every  person  owing  allegiance  to  the  United  States    JJJJ^gJJ  1790  c. 
who  levies  war  against  them,  or  adheres  to  their  enemies,  ^1.  £  yjj^ 
giving  them  aid  and  comfort  within  the  United  States  or  \^- 1>8>  PP-  '479> 
elsewhere,  is  guilty  of  treason.1  Sec.  688i,B.s. 

2105.  Every  person  guilty  of  treason  shall  suffer  d«atb;; 
or,  at  the  discretion  of  the  court,  shall  be  imprisoned  at 
hard  labor  not  less  than  five  years,  and  fined  not  less  than 
ten  thousand  dollars,  to  be  levied  on  and  collected  out  of 
any  or  all  of  his  property,  real  and  personal,  of  which  he 
was  the  owner  at  the  time  .of  committing  such  treason,  any 
sale  or  conveyance  to  the  contrary  notwithstanding;  and 
every  person  so  convicted  of  treason  shall,  moreover,  be 
incapable  of  holding  any  office  under  the  United  States.2 

2106.  Every  person  owing  allegiance  to  the  United  States  trS^011    of 
and  having  knowledge  of  the  commission  of  any  treason  9  ^P^^C. 
against  them,  who  conceals,  and  does  not,  as  soon  as  may  geV'S5Vwhltb97~ 
be,  disclose  and  make  known  the  same  to  the  President  or  £  °SeSfl  i^y^d? 
to  some  judge  of  the  United  States,  or  to  the  governor,  ^L&ndSi  wood? 
or  to  some  judge  or  justice  of  a  particular  State,  is  guilty  47|ec.  6333,B.S. 
of  misprision  of  treason,  and  shall  be  imprisoned  not  more 

than  seven  years,  and  fined  not  more  than  one  thousand 
dollars. 

2107.  Every  person  who  incites,  sets  on  foot,  assists,  or^g^1^0^^ 
engages  in  any  rebellion  or  insurrection  against  the  author-  jjjjj  or  insurrec- 
ity  of  the  United  States,  or  the  laws  thereof,  or  gives  ^  a^  JVifJ 
or  comfort  thereto,  shall  be  punished  by  imprisonment  not  59|ec  6334  R  g 
more  than  ten  years,  or  by  a  fine  of  not  more  than  ten 
thousand  dollars,  or  by  both  of  such  punishments;  and 

shall,  moreover,  be  incapable  of  holding  any  office  under 
the  United  States. 

2108.  Every  citizen  of  the  United  States,  whether  actually  ^Jj^*1  c^g 
resident  or  abiding  within  the  same,  or  in  any  foreign  coun-  Jjgjg1  Govern- 
try,  who,  without  the  permission  or  authority  of  the  Gov- 1  ^  ^™y c- 
ernment,  directly  or  indirectly,  commences  or  carries  on  'sec.o885,B.s. 

in  execution  of  such  statutes,  held  that  the  President  would  not  be  authorized  to 
employ,  as  a  posse  comitatus  or  otherwise,  the  military  forces  to  aid  in  enforcing  the 
regulations  established  by  the  Secretary  of  the  Interior  for  the  care  and  management 
of  such  lands.  Such  employment,  if  permitted,  would  render  the  troops  trespassers 
and  liable  to  civil  .suits  and  prosecutions.  Ibid.,  165,  par.  9. 

bearing  v.  U.  S.,  3  N.  &  H.,  165. 

2U.  S.  v.  The  Insurgents,  2  Ball.,  385;  U.  S.  v.  Mitchell,  2  Ball.,  348;  U.  S.  v.  Vil- 
lato,  2  Ball.,  370;  Ex  parte  Bolman  and  Swartwout,  4  Or.,  75;  U.  S.  v.  Pryor,  3  Wash., 
234;  U.  Sv.  Hanway,  2  Wall.  Jr.  C.  C.,  139;  1  Burr's  Trial,  14-16;  2  Burr's  Trial,  402, 
405,  417;  U.  S.  v.  Hoxie,  1  Paine,  265;  U.  S.  v.  Greathouse,  2  Abb.  C.  C.,  364;  Confis- 
cation Cases,  20  Wall.,  92;  Wallack  et  al.  v.  Van  Eiswick,  92  U.  S.,  202;  Windsors 
McVeigh,  93  U.  S.,  274. 


828  MILITARY    LAWS    OF    THE    UNITED    STATES. 

any  verbal  or  written  correspondence  or  intercourse  with 
any  foreign  government,  or  any  officer  or  agent  thereof, 
with  an  intent  to  influence  the  measures  or  conduct  of  any 
foreign  government  or  of  any  officer  or  agent  thereof,  in 
relation  to  any  disputes  or  controversies  with  the  United 
States,  or  to  defeat  the  measures  of  the  Government  of  the 
United  States;  and  every  person,  being  a  citizen  of,  or 
resident  within,  the  United  States,  and  not  duly  author- 
ized, who  counsels,  advises,  or  assists  in  any  such  corre- 
spondence, with  such  intent,  shall  be  punished  by  a  fine  of 
not  more  than  five  thousand  dollars,  and  by  imprisonment 
during  a  term  not  less  than  six  months,  nor  more  than 
three  years;  but  nothing  in  this  section  shall  be  construed 
to  abridge  the  right  of  a  citizen  to  apply,  himself  or  his 
agent,  to  any  foreign  government,  or  the  agents  thereof, 
for  redress  of  any  injury  which  he  may  have  sustained  from 
such  government,  or  any  of  its  agents  or  subjects. 
s  frmjitious  °on      2109.  If  two  or  more  persons  in  any  State  or  Territory 
^juiy si,  186M-  conspire  to  overthrow,  put  down,  or  destroy  by  force  the 
2<?s'22v  i7*pis' 'Government  of  the  United  States,  or  to  levy  war  against 
LanXe  18P Vaif  ^em?  or  ^°  oppose  by  force  the  authority  thereof;,  or  by 
16|'ec  6336  B  s  ^orce  *o  prevent,  hinder,  or  delay  the  execution  of  any  law  of 
the  United  States;  or  by  force  to  seize,  take,  or  possess  any 
property  of  the  United  States  contrary  to  the  authority 
thereof;  each  of  them  shall  be  punished  by  a  fine  of  not 
less  than  five  hundred  dollars  and  not  more  than  five  thou- 
sand dollars,  or  by  imprisonment,  with  or  without  hard 
labor,  for  a  period  not  less  than  six  months,  nor  more  than 
six  years,  or  by  both  such  fine  and  imprisonment. 
di?i?rortlBSi8ors     2110.  Every   person   who   recruits    soldiers  or   sailors 
^serve^ against  within  the   United  States  to  engage  in   armed   hostility 
stAu8'  6  1861  c  a£ainst  the  same,  or  who  opens  within  the  United  States  a 
56,^  s.  i,  V.  12,'  p.  recruiting  station  for  the  enlistment  of  such  soldiers  or  sail- 
sec.  5337, B.s.  ors,  to  serve  in  any  manner  in  armed  hostility  against  the 
United  States,  shall  be  fined  not  less  than  two  hundred  dol- 
lars, nor  more  than  one  thousand  dollars,  and  imprisoned 
not  less  than  one  year,  nor  more  than  five  years. 

seroagSnstthe     2111.  Every  soldier  or  sailor  enlisted  or  engaged  within 
Useced2SSSs'     ^6  United  States,  with  intent  to  serve  in  armed  hostility 
Sec.  5338,B.s.  against  the  same,  shall  be  punished  by  a  fine  of  one  hun- 
dred dollars,  and  by  imprisonment  not  less  than  one  yeai 
nor  more  than  three  years. 


MILITAKY    LAWS    OF   THE    UNITED    STATES.  829 

THE   LAW   OF   WAR1 — MILITARY  OCCUPATION. 

2112.  Spain  relinquishes  all  claim  of  sovereignty  over 
the  island  of  Cuba,  and  as  the  island  is,  upon  its  evacua-  }fyntsyp^ne 
tion  by  Spain,  to  be  occupied  by  the  United  States,  the  tery  occupation. 

1  The  law  of  war. — The  law  of  war  is,  in  brief,  the  law  of  military  government  and 
authority  as  exercised  in  time  of  war,  foreign  or  civil.  Its  usual  field  is  the  territory 
of  a  conquered  country  in  the  occupation  of  a  hostile  army;  it  is  sometimes  extended, 
however,  though  generally  in  a  milder  form,  to  localities  under  "martial  law."  It 
is  properly  a  part  of  the  law  of  nations,  though  its  application  may  be  materially 
varied  by  the  circumstances  of  the  country  or  the  people  brought  under  its  sway. 
Dig.  Opin.  J.  A.  G.,  par.  1567. 

Rule  of  noninter course. — It  is  a  fundamental  principle  of  the  law  of  war  that  during 
a  state  of  war  all  commercial  intercourse  between  the  belligerents  is  interdicted  and 
made  illegal  except  when  and  where  it  may  be  expressly  authorized  by  the  Govern- 
ment. During  the  late  civil  war,  which,  as  respects  the  application  in  general  of  the 
laws  and  usages  of  war,  was  assimilated  to  a  foreign  war,  (a)  all  trade  and  intercourse 
with  the  enemy,  except  so  far  as  permitted  by  the  President  under  authority  from 
Congress  (or  in  rare  cases  by  a  commanding  general  in  the  field  representing  the 
President),  was  necessarily  suspended. (6) 

As  to  the  principal  forms  of  violation  of  the  law  of  nonintercourse  and  other  viola- 
tions of  the  laws  of  war,  made  the  subject  of  trial  by  military  commission  during 
the  late  war,  see  the  title  "Military  Commissions"  in  the  chapter  entitled  MILITARY 
TRIBUNALS. 

Held  (January,  1865)  that  a  system  of  correspondence  which  had  been  concerted 
and  maintained  between  Northern  and  Southern  newspapers  by  means  of  an  inter- 
change of  published  communications  entitled  "Personals,"  was  an  evasion  of  the 
rule  interdicting  intercourse  with  the  enemy  in  time  of  war,  and,  not  being  within 
the  regulations  established  for  correspondence  by  letter  between  the  lines  by  flag  of 
truce,  should  not,  however  innocent  might  be  many  or  most  of  the  communications, 
be  sanctioned  by  the  Government,  but  that  the  proprietors  of  the  Northern  news- 
papers concerned  should  be  notified  that  unless  ths  practice  was  discontinued  they 
would  be  liable  to  be  proceeded  against  for  promoting  correspondence  with  the  enemy 
in  violation  of  the  laws  of  war  or  of  the  special  act  of  February  25, 1863.  (c)  —  (12  Stat. 
L.,  696.)  Dig.  Opin.  J.  A.  G.,  par.  1574. 

Offenses  against  the  law  of  nonintercourse  between  the  belligerents  in  time  of  war 
are  no  less  such  when  committed  by  foreigners  than  when  committed  by  citizens. 
Thus  where  certain  persons  made  their  way  early  in  the  late  war  from  Scotland  to 
South  Carolina,  engaged  for  a  considerable  period  in  the  manufacture  of  treasury 
notes  for  the  Confederate  authorities,  and  at  the  end  of  their  employment  came 
secretly  and  without  authority  into  our  lines  with  the  design  of  returning  to  their 
homes,  held  that,  though  British  subjects,  they  had  identified  themselves  with  the 
cause  of  the  enemy,  and  were  properly  amenable  to  trial  for  the  offense  of  penetrat- 
ing our  military  lines  in  violation  of  the  laws  of  war. (d)  Ibid.,  par.  1570. 

Newspapers. — There  can  be  no  doubt  as  to  the  authority  of  the  commander  of  an 

a  See  Prize  Cases,  2  Black,  666-669;  Dow  v.  Johnson,  10  Otto,  164;  Brown  v.  Hiatt,  1  Dillon,  372;  Phil- 
lips v.  Hatch,  ibid.,  571;  Sanderson  v.  Morgan,  39  N.  Y.,  231;  Perkins  v.  Rogers,  35  Ind.,  124;  Leathers  v. 
Com.  Ins.  Co.,  2  Bush,  639;  Hedges  v.  Price,  2  W.  Va.,192. 

b  The  Ouachita  Cotton,  6  Wallace,  521;  Cappell  v.  Hill,  7 ibid.,  542, 554;  McKee v.  United  States,  8  ibid., 
163;  United  States  v.  Grossmayer,  9  ibid.,  72;  Montgomery  v.  United  States,  15  ibid.,  395;  Hamilton  v. 
Dillin,  21  ibid, ,73;  Mitchell  v.  United  States,  ibid., 359:  Matthews  v.  McStea,  1  Otto,  7;  Dow?'.  Johnson, 
10  ibid.,  164;  Kershaw  v.  Kelsey,  100  Mass.,  561;  Lieber's  Instructions,  G.  O.,  100,  War  Dept.,  1863,  par.  86. 
Besides  the  suspension  incident  to  the  state  of  war,  a  suspension  of  commercial  intercourse  with  the 
enemy  was  specially  directed  by  act  of  Congress  of  July  13,  1861,  and  proclaimed  by  the  President  on 
August  16,  1861.  By  authority  conferred  by  the  same  statute  general  regulations,  concerning  com- 
mercial intercourse  with  and  in  the  States  declared  in  insurrection,  were  approved  by  the  President, 
January  26,  1864,  and  published  in  G.  O.,53,  Department  of  the  Gulf,  of  April  29,  1864.' 

cSee  General  Orders,  No.  10,  Department  of  the  East,  1865. 

d  Where  a  party  arrested  in  attempting  without  authority  to  cross  the  Potomac  for  the  purpose  of 
holding  communication  with  persons  in  the  enemy's  country  was  ordered  by  the  department  com- 
mander—his offense  having  been  committed  in  a  district  in  military  occupation— to  be  placed  under 
military  surveillance  and  to  furnish  a  bond  with  sufficient  sureties,  obliging  him  not  to  attempt  again 
during  the  war  to  join  or  hold  intercourse  with  the  enemy,  held  that  such  proceeding  was  warranted 
by  the  laws  and  customs  of  war.  Dig.  Opin.  J.  A.  G.,  par.  1571. 

.  Two  soldiers  of  the  United  States  Army  having  been  seized  and  delivered  across  the  lines  to  the 
enemy,  by  a  party  of  civilians,  in  a  portion  of  one  of  the  insurrectionary  States  in  the  occupation  of 
the  Federal  forces,  an  equal  number  of  the  citizens  of  the  district  were  ordered  by  the  commanding 
general  to  be  arrested  and  held  till  the  offenders,  who  meanwhile  had  taken  refuge  with  the  enemy, 
should  be  surrendered  for  trial.  Held  that  such  an  act  of  retaliation  was  warranted  by  the  laws  and 
usages  of  tvar.  Ibid.,  par.  1572. 


830  MILITAEY    LAWS    OF    THE    UNITED    STATES. 


Dec^io*1  United  States  will,  so  long  as  such  occupation  shall  last, 
1898,  v.  so.  1754.  assume  and  discharge  the  obligations  that  may,  under  inter- 
national law,  result  from  the  fact  of  its  occupation  for  the 

army,  in  occupation  and  government  of  the  enemy's  country,  to  suppress  a  newspaper 
or  other  publication  deemed  by  him  to  be  injurious  to  the  public  interests  in  exciting 
opposition  to  the  dominant  authority  or  encouraging  the  support  of  the  enemy's  cause 
on  the  part  of  the  inhabitants.  A  newspaper  may  be  a  powerful  agent  for  such  a 
purpose,  and  when  it  is  so  it  may,  under  the  laws  of  war,  as  legally  be  silenced  as 
may  a  fort  or  battery  of  the  enemy  in  the  field.  Ibid.,  par.  1573. 

Contributions.  —  Contributions  of  money  exacted  from  the  enemy  by  competent 
military  authority,  being  justified  by  the  law  of  war  and  conquest,  (a)  held  that  a  tax 
of  five  dollars  per  bale,  levied  (in  1864)  by  the  military  commander  at  New  Orleans, 
General  Canby,  upon  cotton  brought  into  that  city  and  applied  to  hospital,  sanitary, 
and  charitable  purposes,  was  authorized  under  the  discretionary  power  with  which 
such  a  commander  was  properly  invested  in  time  of  war.  (6)  Ibid.,  par.  1575. 

Military  occupation.  —  It  is  a  principle  of  the  law  of  war  that  the  municipal  laws  of 
a  conquered  country  continue  in  force  during  the  military  occupation  by  the  con- 
queror, except  in  so  far  as  the  same  may  necessarily  be  suspended  or  their  operation 
be  affected  by  his  acts.(c)  So  where  a  testator  had  executed  in  Vicksburg,  Miss., 
after  its  capture  and  during  its  occupation  by  our  forces,  a  will  devising  real  estate, 
but  such  will,  in  not  being  attested  by  the  required  number  of  witnesses,  was  invalid 
under  the  State  law  held,  that,  as  this  law  was  in  no  respect  modified  upon  the  cap- 
ture, the  devisee  under  the  will,  however  loyal,  could  not  properly  be  invested  by 
military  authority  with  the  legal  title  to  such  estate  against  the  heirs  at  law.  Dig. 
Opin.  J.  A.  G.,  par.  1576. 

Courts  in  occupied  territory.  —  It  is  authorized  by  the  laws  of  war  for  a  military  offi- 
cer commanding  in  time  of  war  in  a  region  in  military  occupation,  and  where  the 
ordinary  courts  are  closed  by  the  exigencies  of  the  war,  to  appoint  a  special  court  or 
judge  for  the  determination  of  cases  not  properly  cognizable  by  the  ordinary  mili- 
tary tribunals.  In  the  civil  war  such  courts  were  not  unfrequently  constituted  and 
were  commonly  designated  provost  courts.  Such  courts  had  no  jurisdiction  of  purely 
military  offenses  (i.  e.,  offenses  which  the  Articles  of  War  make  cognizable  by  court- 
martial),  and  were  therefore  not  properly  authorized  to  impose  forfeitures  of  pay  or 
other  strictly  military  punishments  upon  officers  or  soldiers  of  the  Army.  These 
courts  were  in  general  resorted  to  as  substitutes  for  the  ordinary  police  courts  of 
cities,  and  their  jurisdiction  was  in  general  confined  to  cases  of  breaches  of  the  peace 
and  of  violation  of  such  civil  ordinances  or  military  regulations  as  might  be  in  force 
for  the  government  of  the  locality.  Some  of  these  courts,  however,  took  cognizance, 
in  the  course  of  their  existence,  of  cases  of  very  considerable  importance,  civil  as 
well  as  criminal,  (d)  Ibid.,  par.  1577. 

aLewis  v.  McGuire,  3  Bush,  202;  Clark  v.  Dick,  1  Dillon,  8.  And  see  Major-General  Scott's  order  (G. 
O.,  395,  Hdqrs.  of  Army,  1847)  levying  assessments  upon  Mexican  communities  for  the  support  of  the 
military  government  and  occupation. 

6  See  Hamilton  v.  Dillin,  21  Wallace,  73.  The  taking  possession,  by  the  order  of  the  commander  of 
the  military  department  at  New  Orleans,  for  the  use  of  the  military  service  in  the  prosecution  of  the 
war,  of  moneys  belonging  to  the  enemies  on  deposit  in  the  banks  of  that  city,  while  occupied  (in  1863) 
by  our  Army,  held  an  act  justified  by  the  strict  law  of  war.  Dig.  Opin.  J.  A.  G.,  par.  1575.  See  New 
Orleans  v.  Steamboat  Co.,  20  Wallace,  394;  Witherspoon  v.  Farmers'  Bk.,  2  Duvall,  497.  But  in  Plant- 
ers' Bk.  v.  Union  Bk.,  16  Wallace,  483,  this  particular  order  was  held  to  have  been  an  exceeding  of 
authority,  not  because  unauthorized  by  the  law  of  war,  but  for  the  reason  that  a  previous  commander  — 
General  Butler—  by  his  proclamation  on  first  occupying  the  city,  of  May  1,  1862,  had  pledged  the  Gov- 
ernment to  the  holding  inviolate  of  all  rights  of  property.  And  see  The  Venice,  2  Wallace,  258. 

c  "  By  the  well-recognized  principles  of  international  law  the  mere  military  occupation  of  a  country 
by  a  belligerent  power  or  a  conqueror  does  not  ipso  facto  displace  the  municipal  laws.  Such  con- 
queror or  belligerent  occupier  may  suspend  or  supersede  them  for  the  time  being,  but  in  the  absence 
of  orders  to  that  effect  they  remain  in  force."  Wingfield  v.  Crosby,  5  Cold.,  246.  "Supreme  military 
authority  in  a  city  is  not  incompatible  with  the  existence  and  authority  of  courts  of  civfl  jurisdiction 
and  procedure  "  Pepin  v  Lachenmeyer,  45  N.  Y.,  27.  And  see  Kimball  v.  Taylor,  2  Woods,  37;  Rut- 
ledge  v.  Fogg,  3  Cold.,  554;  Hefferman  v.  Porter,  6  ibid.,  391;  Murrell  v.  Jones,  40  Miss.,  566;  Dow  v. 
Johnson,  post.  But  where  the  courts  of  a  hostile  country  are  left  open  by  the  conqueror  it  is  only  the 
citizens  of  such  country  that  are  subject  to  their  jurisdiction;  the  officers  and  soldiers  of  the  occupy- 
ing army  are  in  no  manner  amenable  to  the  same.  This  principle  has  recently  been  illustrated  by 
the  Supreme  Court  in  the  cases  of  Coleman  v.  Tennessee,  7  Otto,  509;  Dow  v.  Johnson,  10  Otto,  158,  166. 

d  While  the  majority  of  these  special  tribunals  were  confined  to  the  exercise  of  such  functions  as 
are  commonly  devolved  upon  police  or  justices'  courts,  their  authprity,  when  empowered  for  the 
purpose  by  a  competent  military  commander,  to  take  cognizance  of  important  civil  actions  has  been 
affirmed  by  the  Supreme  Court  of  the  United  States  in  the  case  of  Mechs.  and  Traders'  Bk.  v.  Union 
Bk.,22  Wallace,  276,  in  which  a  "provost  court."  established  at  New  Orleans  by  an  order  of  the  depart- 
ment commander,  of  May  1,  1862,  was  held  to  be  a  lawful  tribunal,  and  a  judgment  rendered  by 
it  in  action  for  the  recovery  of  $130,000,  money  borrowed  by  one  bank  from  another,  was  recognized 


MILITARY    LAWS    OF    THE    UNITED    STATES.  831 

protection  of  life  and  property.     Article  7,  Treaty  with 
Spain  of  December  10,  1898  (30  Stat.  L. 


as  legal.  [See  this  case  also  in  25  La.  An.,  387.]  [For  orders  establishing  such  tribunals,  see  Dig. 
Opin.  J.  A.  G.,  par.  1577,  note  1.] 

So,  the  authority  of  the  "provisional  court  of  Louisiana"  (which  succeeded  the  "provost  court" 
last  indicated  and  was  established  by  the  President  in  an  Executive  order  of  Oct.  20,  1862)  to  deter- 
mine a  cause  in  admiralty  was  affirmed  by  the  United  States  Supreme  Court  in  The  Grapeshot,  9 
Wallace,  129,  and  later  its  jurisdiction  in  a  civil  action  on  a  mortgage  debt  was  recognized  by  that 
tribunal  in  Burke  v.  Miltenberger,  19  Wallace,<519.  [And  see  the  same  case,  as  Burke  v.  Tregree,  in  22 
La.  An.,  629.]  The  authority  of  the  same  court  to  take  cognizance  of  a  case  of  murder  and  one  of 
arson  (as  also  of  civil  controversies)  was  maintained  in  an  elaborate  opinion  of  its  judge,  Hon. 
C.  A.  Peabody  (in  1865),  in  the  cases  of  the  United  States  v.  Reiter  &  Louis,  reported  in  13  Am.  Law 
Reg.,  534. 

The  civil  jurisdiction  of  a  similar  war  court  —  the  "commission"  established  by  the  department 
commander  in  Memphis,  in  ises^was  similarly  recognized  in  Hefferman  v.  Porter,  6  Cold.,  391.  And 
as  to  the  full  authority  of  this  tribunal  as  a  substitute  for  the  ordinary  civil  courts  of  the  locality,  see 
also  State  v.  Stillman,  7  Cold.,  341.  [But  see,  contra,  Walsh  v.  Porter,  12  Heisk.,  401.] 

In  the  cases  thus  sustaining  the  action  of  special  tribunals  during  the  late  war  the  courts  in  general 
refer  to  the  earlier  and  leading  case  of  Leitensdorfer  v.  Webb,  20  Howard,  176,  in  which  was  affirmed 
the  authority  of  the  courts  established  in  1846  in  New  Mexico  as  a  part  of  the  system  of  civil  govern- 
ment instituted  by  General  Kearney,  the  military  commandant.  [With  this  case  consult  also  United 
States  v.  Rice,  4  Wheaton,  254;  Cross  v.  Harrison,  16  Howard,  164.] 

The  reasoning  upon  which  the  above-cited  later  rulings  is  based  is  :  That  the  authority  to  create 
courts  with  a  civil  as  well  as  a  criminal  jurisdiction  in  a  conquered  country  in  military  occupation 
attaches  to  the  dominant  power  by  the  law  of  war  and  of  nations  as  an  incident  to  the  power  to 
establish  a  military  government;  that  it  is  not  only  the  right,  but  the  duty,  of  the  conqueror  to  insti- 
tute such  courts  "for  the  security  of  persons  and  property  and  for  the  administration  of  justice;" 
and  that,  when  during  the  late  war  such  courts  were  created  by  commanding  generals  —  such  as  the 
commanders  of  separate  departments  or  armies—  the  order  of  the  commander  was  to  be  presumed  to 
be  the  order  and  act  of  the  President. 


CHAPTER  XL. 


PENSIONS. 


Par. 
2113-2115. 

2116-2136. 
2137-2147. 
2148-2150. 
2151-2154. 
2155-2156. 
2157-2166. 
2167-2174. 

2175-2177. 

2178-2185. 

2186-2188. 
2189-2201. 


The  Commissioner  of  Pen- 
sions; duties. 

The  general  pension  law. 

Widows  and  children. 

Dependent  relatives. 

Dependent  pension  law. 

Pensions  to  army  nurses. 

Mexican  war  pensions. 

Pensions  for  Indian  wars, 
1832-1842. 

Pensions  under  special  acts. 

Commencement  of  pensions; 
arrears  of  pension. 

Increase  of  pensions. 

Declaration  and  evidence  in 
pension  cases. 


Par. 

2202.  Removal  of  limitation. 
2203-2211.  Attorneys'  fees. 
2212-2231.  Payment  of  pensions. 
2232-2234.  Accrued  and  unclaimed  pen- 
sions. 

2235-2236.  Assignments. 
2237-2246.  Examining  boards. 

2247.  Inspection  of  agencies. 

2248.  Suspension  of  pensions;  restriction 

on;  pensions  a  vested  right. 
2249-2252.  Investigations. 
2253-2256.  Criminal  offenses. 
2257-2262.  Miscellaneous  provisions. 


THE    COMMISSIONER   OF   PENSIONS. 


Par. 

2113.  The  Commissioner  of  Pensions. 

2114.  Duties  of  the  Commissioner. 


Par. 

2115.  The  Deputy  Commissioner  of  Pen- 
sions. 


commissioner     2113.  There  shall  be  in  the  Department  of  the  Interior 

of  Pensions.  .  .    ._.  .,-11 

Sec.  470,  B.  s.  a  Commissioner  of  Pensions,  who  shall  be  appointed  by 
the  President,  by  and  with  the  advice  and  consent  of  the 
Senate,  and  shall  be  entitled  to  receive  a  salary  of  four 
thousand  dollars  a  year. 

Duties  of  the     2114.  The   Commissioner   of  Pensions   shall   perform, 
C  s™c?i1i°njlr's.  under  the  direction  of  the  Secretary  of  the  Interior,  such 
duties  in  the  execution  of  the  various  pension  and  bounty- 
land  laws  as  may  be  prescribed  by  the  President. 

2115-  There  sha11  be  in  the  Department  of  the  Interior 
234,^9,'  v8  17,  p!a  Deputy  Commissioner  of  Pensions,  who  shall  be  ap- 
57|'ec.  472,  B.  s.  pointed  by  the  President,  by  and  with  the  advice  and  con- 
sent of  the  Senate,  who  shall  be  charged  with  such  duties 
in  the  Pension  Bureau  as  may  be  prescribed  by  the  Secre- 
tary of  the  Interior,  or  may  be  required  by  law,  and  in 
832 


°om~ 


MILITARY    LAWS    OF   THE   UNITED   STATES. 


835 


case  of  death,  resignation,  absence,  or  sickness  of  the 
Commissioner,  his  duties  shall  devolve  upon  the  Deputy 
Commissioner,  until  a  successor  is  appointed  or  such  ab- 
sence or  sickness  ceases.  The  Deputy  Commissioner  shall 
be  entitled  to  receive  an  annual  salary  of  twenty -five  hun- 
dred dollars. 

THE   GENERAL   PENSION   LAW. 


Par. 

2126.  Total  blindness. 

2127.  Increase  of  pension. 

2128.  Loss  of  leg  at  hip  joint. 

2129.  Loss  of  arm  at  shoulder  joint. 

2130.  Loss  of  arm  or  leg;  increase. 

2131.  Loss  of  hand  or  foot. 

2132.  Total  or  partial  deafness. 

2133.  Loss  of  both  hands;  increase. 

2134.  Rate  for  incapacity  requiring  con- 

stant attendance. 

2135.  Rate  for  incapacity  requiring  fre- 

quent attendance. 

2136.  Division  of  eighteen-dollar  rate. 


pensions. 

Mar.  3, 1873,  c. 
234,  s.  1,  v.  17,  pp. 

Sec.  4692,  B.S. 


Par. 

2116.  Who  entitled. 

2117.  Classes  enumerated. 

2118.  Pensions  to  be  for  wounds,  injuries, 

etc.,  received  in  line  of  duty. 

2119.  Rates  of  pension. 

2120.  Pensions  according  to  rank. 

2121.  Pensions  for    permanent    specific 

disabilities  prior  to  June  4,  1872. 

2122.  The  same,  subsequent  to  June  4, 

1872. 

2123.  Loss  of  both  hands,  feet,  or  eyes. 

2124.  Loss  of  one  hand  and  one  foot. 

2125.  Loss  of  both  hands,  feet,  or  eyes. 

2116.  Every  person  specified  in  the  several  classes  enu- 
merated in  the  following  section,  who  has  been,  since  the 
fourth  day  of  March,  eighteen  hundred  and  sixty-one,  or 
who  is  hereafter  disabled  under  the  conditions   therein 
stated,  shall,  upon  making  due  proof  of  the  fact,  accord- 
ing to  such  forms  and  regulations  as  are  or  may  be  pro- 
vided in  pursuance  of  law,  be  placed  on  the  list  of  invalid 
pensioners  of  the  United  States,  and  be  entitled  to  receive, 
for  a  total  disability,  or  a   permanent  specific  disability, 
such  pension  as  is  hereinafter  provided  in  such  cases;  and 
for  an  inferior  disability,  except  in  cases  of  permanent 
specific  disability,  for  which  the  rate  of  pension  is  expressly 
provided,  an  amount  proportionate  to  that  provided  for 
total  disability;  and  such  pension  shall  commence  as  here- 
inafter provided,  and  continue  during  the  existence  of  the 
disability.1 

2117.  The  persons  entitled  as  beneficiaries  under  the  pre- 
ceding section  are  as  follows: 

First.  Any  officer  of  the  Army,  including  regulars,  vol- 
unteers, and  militia,  or  any  officer  in  the  Navy  or  Marine  J£^ 
Corps,  or  any  enlisted  man,  however  employed,  in  the  mili- 
tary or  naval  service  of  the  United  States,  or  in  its  Marine 

aThe  act  of  March  3,  1883,  23  Stat.  L.,  362,  contains  the  requirements  that  "  all 
applicants  for  pension  shall  be  presumed  to  have  had  no  disability  at  the  time  of  enlist- 
ment, but  such  presumption  may  be  rebutted." 

22924—08 53 


Classes  enu 
merated. 


Ibid. 

Sec.  4693,B.S. 


834  MILITARY    LAWS    OF    THE    UNITED    STATES. 

Corps,  whether  regularly  mustered  or  not,  disabled  by 
reason  of  any  wound  or  injury  received,  or  disease  con- 
tracted, while  in  the  service  of  the  United  States  and  in 
the  line  of  duty. 

serving*  on  |un-  Second.  Any  master  serving  on  a  gunboat,  or  any  pilot, 
boat,  etc.  engineer,  sailor,  or  other  person  not  regularly  mustered, 
serving  upon  any  gunboat  or  war  vessel  of  the  United 
States,  disabled  by  any  wound  or  injury  received,  or  other- 
wise incapacitated  while  in  the  line  of  duty,  for  procuring 
his  subsistence  by  manual  labor. 

Third.  Any  person  not  an  enlisted  soldier  in  the  Army, 
serving  for  the  time  being  as  a  member  of  the  militia  of 
any  State,  under  orders  of  an  officer  of  the  United  States, 
or  who  volunteered  for  the  time  being  to  serve  with  any 
regularly  organized  military  or  naval  force  of  the  United 
States,  or  who  otherwise  volunteered  and  rendered  service 
in  any  engagement  with  rebels  or  Indians,  disabled  in  con- 
sequence of  wounds  or  injury  received  in  the  line  of  duty 
in  such  temporary  service.  But  no  claim  of  a  State  militia- 
man, or  nonenlisted  person,  on  account  of  disability  from 
wounds,  or  injury  received  in  battle  with  rebels  or  Indians, 
while  temporarily  rendering  service,  shall  be  valid  unless 
prosecuted  to  a  successful  issue  prior  to  the  fourth  day  of 
July,  eighteen  hundred  and  seventy-four. 

Fourth.  Any  acting  assistant  or  contract  surgeon  disabled 
by  any  wound  or  injury  received  or  disease  contracted  in 
the  line  of  duty  while  actually  performing  the  duties  of 
assistant  surgeon  or  acting  assistant  surgeon  with  any 
military  force  in  the  field,  or  in  transitu,  or  in  hospital. 

Fifth.  Any  provost-marshal,  deputy  provost-marshal,  or 
enrolling  officer  disabled,  by  reason  of  any  wound  or  injury 
received  in  the  discharge  of  his  dut}^  to  procure  a  subsist- 
ence by  manual  labor. 

woundlreceived     ^118%  ^°  Person  sna^  De  entitled  to  a  pension  by  reason 
trarteToni  c°in  °^  wouncls  or  in]ury  received  or  disease  contracted  in  the 
"negf d£ty, etc. service  of  the  United  States  subsequent  to  the  twenty- 
sec.  4694,  B.S.  seventh  day  of  July,  eighteen  hundred  and  sixty-eight, 
unless  the  person  who  was  wounded,  or  injured,  or  con- 
tracted the  disease  was  in  the  line  of  duty,  and,  if  in  the 
military  service,  was  at  the  time  actually  in  the  field,  or  on 
the  march,  or  at  some  post,  fort,  or  garrison,  or  en  route, 
by  direction  of  competent  authority,  to  some  post,  fort,  or 
garrison;  or,  if  in  the  naval  service,  was  at  the  time  borne 
on  the  books  of  some  ship  or  other  vessel  of  the  United 
States,  at  sea  or  in  harbor,  actually  in  commission,  or  was 


MILITARY    LAWS    OF   THE    UNITED   STATES.  835 

at  some  naval  station,  or  on  his  way,  by  direction  of  com- 
petent authority,  to  the  United  States  or  to  some  other 
vessel  or  naval  station  or  hospital.  ( 

2119.  The  pension  for  total  disability  shall  be  as  follows,    Rates  of  pen- 

_         ,.  TT  i      11       /T>  f   i  •    i        sion  for  total  dis- 

namely:  For  lieutenant-colonel  and  all  officers  or  higher  ability, 
rank  in  the  militaiy  service  and  in  the  Marine  Corps,  and  567. 
for  captain,  and  all  officers  of  higher  rank,  commander, 
sugeon,  paymaster,  and  chief  engineer,  respectively  rank- 
ing with  commander  by  law,  lieutenant  commanding  and 
master  commanding,  in  the  naval  service,  thirty  dollars  per 
month;  for  major  in  the  military  service  and  in  the  Marine 
Corps,  and  lieutenant,  surgeon,  paymaster,  and  chief  engi- 
neer, respectively  ranking  with  lieutenant  by  law,  and 
passed  assistant  surgeon  in  the  naval  service,  twenty -five 
dollars  per  month;  for  captain  in  the  military  service  and 
in  the  Marine  Corps,  chaplain  in  the  Army,  and  provost- 
marshal,  professor  of  mathematics,  master,  assistant  sur- 
geon, assistant  paymaster,  and  chaplain  in  the  naval 
service,  twenty  dollars  per  month;  for  first  lieutenant  in 
the  military  service  and  in  the  Marine  Corps,  acting 
assistant  or  contract  surgeon,  and  deputy  provost-marshal, 
seventeen  dollars  per  month;  for  second  lieutenant  in  the 
military  service  and  in  the  Marine  Corps,  first  assistant 
engineer,  ensign,  and  pilot  in  the  naval  service,  and 
enrolling  officer,  fifteen  dollars  per  month ;  for  cadet  mid- 
shipman, passed  midshipman,  midshipmen,  clerks  of  admi- 
rals and  paymasters  and  of  other  officer  commanding 
vessels,  second  and  third  assistant  engineer,  master's  mate, 
and  all  warrant  officers  in  the  naval  service,  ten  dollars  per 
month;  and  for  all  other  persons  whose  rank  or  office  is 
not  mentioned  in  this  section,  eight  dollars  per  month;  and 
the  masters,  pilots,  engineers,  sailors,  and  crews  upon  the 
gunboats  and  war  vessels  shall  be  entitled  to  receive  the 
pension  allowed  herein  to  those  of  like  rank  in  the  naval 
service.1 

2120.  Every  commissioned  officer  of  the  Army,  Navy,  or    Pension  ac- 

i\T      •        /^  in  •  i  -i         i  i  •  cording  to  rank. 

Marine  Corps  shall  receive  such  and  only  such  pension  as    ibid. 

^p«  -ifi*Mi  R  s 
is  provided  in  the  preceding  section  for  the  rank  he  held 

at  the  time  he  received  the  injury  or  contracted  the  disease 
which  resulted  in  the  disability,  on  account  of  which  he 
may  be  entitled  to  a  pension ;  and  any  commission  or  Presi- 
dential appointment,  regularly  issued  to  such  person,  shall 
be  taken  to  determine  his  rank  from  and  after  the  date,  as 

1  By  section  4692,  Revised  Statutes  (paragraph  2116,  ante),  an  inferior  disability 
shall  be  rated  in  proportion  to  that  for  total  disability. 


836  MILITAEY    LAWS    OF   THE    UNITED    STATES. 

given  in  the  body  of  the  commission  or  appointment  con- 
ferring said  rank:  Provided,  That  a  vacancy  existed  in  the 
rank  thereb}7  conferred;  that  the  person  commissioned  was 
not  disabled  for  military  duty,  and  that  he  did  not  willfully 
neglect  or  refuse  to  be  mustered. 

permanent  lSl  2121>  For  tne  period  commencing  July  fourth  eighteen 
prio?  to  jSS1?  hundred  and  sixty-four,  and  ending  June  third,  eighteen 
18slc  3  md  p  hundred  and  seventy-two,  those  persons  entitled  to  a  less 
^leb.  28, 1877,  c.  Pensi°n  than  hereinafter  mentioned,  who  shall  have  lost 
?s.  k°th  ^eet  i*1  the  military  or  naval  service  and  in  the  line 
of  duty,  shall  be  entitled  to  a  pension  of  twenty  dollars 
per  month;  for  the  same  period  those  persons  who,  under 
like  circumstances,  shall  have  lost  both  hands *  or  the  sight 
of  both  eyes,  shall  be  entitled  to  a  pension  of  twenty-five 
dollars  per  month;  and  for  the  period  commencing  March 
third,  eighteen  hundred  and  sixty -five,  and  ending  June 
third,  eighteen  hundred  and  seventy-two,  those  persons 
who  under  like  circumstances  shall  have  lost  one  hand  and 
one  foot,  shall  be  entitled  to  a  pension  of  twenty  dollars 
per  month;  and  for  the  period  commencing  June  sixth, 
eighteen  hundred  and  sixty -six,  and  ending  June  third, 
eighteen  hundred  and  seventy-two,  those  persons  who 
under  like  circumstances  shall  have  lost  one  hand  or  one 
foot,  shall  be  entitled  to  a  pension  of  fifteen  dollars  per 
month;  and  for  the  period  commencing  June  sixth,  eighteen 
hundred  and  sixty-six,  and  ending  June  third,  eighteen 
hundred  and  seventy-two,  those  persons  entitled  to  a  less 
pension  than  hereinafter  mentioned,  who  by  reason  of  injury 
received  or  disease  contracted  in  the  military  or  naval  serv 
ice  of  the  United  States  and  in  the  line  of  duty,  shall  have 
been  permanently  and  totally  disabled  in  both  hands,  or 
who  shall  have  lost  the  sight  of  one  eye,  the  other  having 
been  previously  lost,  or  who  shall  have  been  otherwise  so 
totally  and  permanently  disabled  as  to  render  them  utterly 
helpless,  or  so  nearly  so  as  to  require  regular  personal  aid 
and  attendance  of  another  person,  shall  be  entitled  to  a 
pension  of  twenty-five  dollars  per  month;  and  for  the  same 
period  those  who  under  like  circumstances  shall  have  been 
totally  and  permanently  disabled  in  both  feet,  or  in  one 
hand  and  one  foot,  or  otherwise  so  disabled  as  to  be  inca- 
pacitated for  the  performance  of  any  manual  labor,  but 
not  so  much  as  to  require  regular  personal  aid  and  atten- 
tion, shall  be  entitled  to  a  pension  of  twenty  dollars  per 
month;  and  for  the  same  period  all  persons  who  under  like 
circumstances  shall  have  been  totally  and  permanently  dis- 


MILITARY    LAWS    OF   THE    UNITED    STATES.  837 

abled  in  one  hand,  or  one  foot,  or  otherwise  so  disabled  as 
to  render  their  inability  to  perform  manual  labor  equiva- 
lent to  the  loss  of  a  hand  or  foot,  shall  be  entitled  to  a 
pension  of  fifteen  dollars  per  month. 

2122.  From  and  after  June  fourth,  eighteen  hundred  permanent  spe- 
and  seventy-two,  all  persons  entitled  }jy  law  to  a  less  pe 
sion  than  hereinafter  specified,  who,  while  in  the  military  234*  s 
or  naval  service  of  the  United  States,  and  in  line  of  duty, 
shall  have  lost  the  sight  of  both  eyes,  or  shall  have  lost  the  ^  Vis  *?\'s  c" 
sight  of  one  eye,  the  sight  of  the  other  having  been  pre-  Sec-46™,  B-s- 
viously  lost,  or  shall  have  lost  both  hands,  or  shall  have 
lost  both  feet,  or  been  permanently  and  totally  disabled 
in  the  same,  or  otherwise  so  permanently  and  totally  dis- 
abled as  to  render  them  utterly  helpless,  or  so  nearly  so 
as  to  require  the  regular  personal  aid  and  attendance  of 
another  person,  shall  be  entitled  to  a  pension  of  thirty-one 
dollars  and  twenty -five  cents  per  month;1  and  all  persons 
who,  under  like  circumstances,  shall  have  lost  one  hand 
and  one  foot,  or  been  totally  and  permanently  disabled  in 
the  same,  or  otherwise  so  disabled  as  to  be  incapacitated 
for  performing  any  manual  labor,  but  not  so  much  as  to 
require  regular  personal  aid  and  attendance,  shall  be  enti- 
tled to  a  pension  of  twenty-four  dollars  per  month;  and 
all  persons  who,  under  like  circumstances,  shall  have  lost 
one  hand,  or  one  foot,  or  been  totally  and  permanently  dis- 
abled in  the  same,  or  otherwise  so  disabled  as  to  render 
their  incapacity  to  perform  manual  labor  equivalent  to  the 
loss  of  a  hand  or  foot,  shall  be  entitled  to  a  pension  of 
eighteen  dollars  per  month:2  Provided,  That  all  persons 
who,  under  like  circumstances,  have  lost  a  leg  above  the 
knee,  and  in  consequence  thereof  are  so  disabled  that  they 
can  not  use  artificial  limbs,  shall  be  rated  in  th'e  second 
class  and  receive  twenty-four  dollars  per  month  from  and 
after  June  fourth,  eighteen  hundred  and  seventy-two;  and 
all  persons  who,  under  like  circumstances,  shall  have  lost 
the  hearing  of  both  ears,  shall  be  entitled  to  a  pension  of 
thirteen  dollars  per  month  from  the  same  date  : 3  Provided, 
That  the  pension  for  a  disability  therein  mentioned  to  be 

1  Increased  to  fifty  dollars  by  the  act  of  June  18,  1874  (18  Stat.  L.,  78),  and  to 
seventy-two  dollars  by  the  act  of  June  17,  1878  (20  ibid.,  144),  and  June  16,  1880 
(21  ibid.,  281),  and  to  one  hundred  dollars  in  certain  cases  (loss  of  both  hands)  by 
the  act  of  February  12,  1889  (25  ibid.,  659),  paragraphs  2123,  2125,  and  2127,  post. 

"Increased  by  the  act  of  February  28,  1877  (19  Stat.  L.,  264),  and  to  twenty-four 
and  thirty  dollars  per  month  by  the  act  of  March  3,  1883  (22  ibid.,  453),  and  to 
thirty-six  and  forty-five  dollars  per  month  by  the  act  of  August  4,  1886  (24  ibid.,  220), 
paragraphs  2124,  2130,  and  2131,  post. 

8  Increased  to  thirty  dollars  by  the  act  of  August  27,  1888  (25  Stat.  L.,  449),  para- 
graph 2132,  post. 


838  MILITABY   LAWS    OF   THE    UNITED   STATES. 

proportionately  divided  for  any  degree  of  disability  estab- 
lished for  which  section  forty-six  hundred  and  ninety -five 
makes  no  provision.  Act  of  August  4,  1886  (24  Stat.  Z., 


^increase  of  2123.  That  section  4,  of  the  act  approved  March  3, 1873, 
i8Jpn7818'1874>v'  *>e  so  amended  that  all  persons  who,  while  in  the  military 
service  of  the  United  States  and  in  the  line  of  duty,  shall 
have  been  so  permanently  and  totally  disabled  as  to  require 
the  regular  personal  aid  and  attendance  of  another  person 
by  the  loss  of  the  sight  of  both  eyes,  or  by  the  loss  of  the 
sight  of  one  eye,  the  sight  of  the  other  having  been  pre- 
viously lost,  or  by  the  loss  of  both  hands,  or  by  the  loss 
of  both  feet,  or  by  an  injury  resulting  in  total  and  perma- 
nent helplessness,  shall  be  entitled  to  a  pension  of  $50 1 
per  month;  arid  this  shall  be  in  lieu  of  a  pension  of  $31.25 
per  month  granted  to  such  person  by  said  section.  Act 
of  June  18,  181 '4  (18  Stat.  Z.,  78). 
Restriction.  The  increase  of  pension  shall  not  be  granted  by  reason 

June  18, 1874,  v.  .     .       .        ,  .  .„     ,          ,          T, 

is,  p. 78.  of  any  injuries  herein  specified  unless  the  same  have  re- 

sulted in  permanent  helplessness   requiring  the    regular 
personal  aid  and  attendance  of  another  person.     Ibid. 
io£eSfSio°nneShlSd     2124-  A11  persons  who,  while  in  the  military  or  naval 
anpebn28f  1877  v  service  of  the  United  States,  and  in  the  line  of  duty,  shall 
19,  p.  264.  have  lost  one  hand  and  one  foot,  or  been  totally  and  perma- 

nently disabled  in  both,  shall  be  entitled  to  a  pension  for 
each  of  such  disabilities,  and  at  such  a  rate  as  is  provided 
for  by  the  provisions  of  the  existing  laws  for  each  disabil- 
ity: Provided,  That  this  act  shall  not  be  so  construed  as 
to  reduce  pensions  in  any  case.  Act  of  February  28,  1877 
(19  Stat.  Z.,264). 

ioP8CsnSo0fnboft°h     2125>  On  anc*  a^ter  ^e  passage  of  this  act,  all  soldiers 
hands,  feet,  or  an(j  sajlOrs  who  have  lost  either  both  their  hands  or  both 
a/p^"1/'1878'^  their  feet  or  the  sight  of  both  eyes  in  the  service  of  the 
United  States,  shall  receive,  in  lieu  of  all  pensions  now 
paid  them  by  the  Government  of  the  United  States,  and 
there  shall  be  paid  to  them,  in  the  same  manner  as  pen- 
sions are  now  paid  to  such  persons,  the  sum  of  seventy- 
two  dollars  per  month.     Act  of  June  17,  1878  (W  Stat.  L. , 

w- 

For  total  blind-     2126.  That  the  act  of  June  seventeenth,  eighteen  hun- 

20Mar484' 18?9'  v'  ^rec^  an(^  seventy-eight,  entitled  ' c An  act  to  increase  the 

pensions  of  certain  soldiers  and  sailors  who  have  lost  both 

1  Increased  to  seventy-two  dollars  per  month  by  the  act  of  June  16,  1880  (31  Stat. 
L.,  281).  This  act  became  operative  on  June  4,  1874.  Sec.  2,  act  of  June  18,  1874 
(18  Stat.  L.,  78). 

I 


MILITARY    LAWS    OF    THE    UNITED    STATES.  839 

their  hands  or  both  their  feet,  or  the  sight  of  both  eyes,  iii 
the  service  of  the  country,"  be  so  construed  as  to  include 
all  soldiers  and  sailors  who  have  become  totally  blind  from 
causes  occurring  in  the  service  of  the  United  States.  Act 
of  March  3,  1879  (20  Stat.  Z.,  %84). 

2127.  All  soldiers  and  sailors  who  are  now  receiving  a  peIn^Jease  of 
pension  of  fifty  dollars  per  month,  under  the  provisions  of  2i^2si'  1880'  v' 
an  act  entitled  "An  act  to  increase  the  pension  of  soldiers 

and  sailors  who  have  been  totally  disabled,"  approved  June 
eighteenth,  eighteen  hundred  and  seventy-four,  shall  re- 
ceive, in  lieu  of  all  pensions  now  paid  them  by  the  Gov- 
ernment of  the  United  States,  and  there  shall  be  paid  them 
in  the  same  manner  as  pensions  are  now  paid  to  such  per- 
sons, the  sum  of  seventy-two  dollars  per  month.1  Act  of 
June  16,  1880  (21  Stat.  Z.,  281). 

2128.  All  pensioners  now  on  the  pension  rolls,  or  who  le^athipVointof 
may  hereafter  be  placed  thereon,  for  amputation  of  either  20Mpar483'  1879'  v* 
leg  at  the  hip  joint,  shall  receive  a  pension  at  the  rate  of 
thirty-seven  dollars  and  fifty  cents  per  month  from  the 

date  of  the  approval  of  this  act.  Act  of  March  3,  1879 
(20  Stat.  L.,483). 


2129.  All  soldiers   and  sailors  of  the  United  States  who^oss  of  .arm  at 
have  had  an  arm  taken  off  at  the  shoulder  joint,  caused  by  23Mar437'  1885'  v' 
injuries  received  in  the  service  of  their  country  while  in 

the  line  of  duty,  and  who  are  now  receiving  pensions,  shall 
have  their  pensions  increased  to  the  same  amount  that  the 
law  now  gives  to  soldiers  and  sailors  who  have  lost  a  leg 
at  the  hip  joint;  and  this  act  shall  apply  to  all  who  shall 
be  hereafter  placed  on  the  pension  roll.  Act  of  March  3, 
1885  (23  Stat.  Z.,  437). 

2130.  From  and  after  the  passage  of  this  act  all  persons  pennon6  of6  soi- 
on  the  pension  roll,  and  all  persons  hereafter  granted  a  whohave  lost  an 
pension,  who,  while  in  the  military  or  naval  service  of  the  armorieginserv- 
United  States,  and  in  the  line  of  duty,  shall  have  lost  one  22^453'  1883>  v' 
hand  or  one  foot,  or  been  totally  or  permanently  disabled 

in  the  same,  or  otherwise  so  disabled  as  to  render  their 

incapacity  to  perform  manual  labor  equivalent  to  the  loss 

of  a  hand  or  a  foot,  shall  receive  a  pension  of  twenty-four 

dollars  per  month;  that  all  persons  now  on  the  pension 

roll,  and  all  persons  hereafter  granted  a  pension,  who  in 

like  manner  shall  have  lost  either  an  arm  at  or  above  theab^|se5>bf0^r™ 

elbow,  or  a  leg  at  or  above  the  knee,  or  shall  have  beenj£fe(fbove  the 

Section  2  of  the  act  of  June  16,  1880  (21  Stat.  L.,  281),  contained  the  requirement 
that  persons  therein  entitled  to  increase  of  pension  should  be  paid  the  difference 
between  the  sums  above  mentioned  from  June  17,  1878,  to  June  16,  1880. 


840  MILITARY    LAWS    OF   THE    UNITED    STATES. 

otherwise  so  disabled  as  to  be  incapacitated  for  performing 
any  manual  labor,  but  not  so  much  as  to  require  regular 
personal  aid  and  attendance,  shall  receive  a  pension  of 
thirty  dollars  per  month :  Provided^  That  nothing  contained 
in  this  act  shall  be  construed  to  repeal  section  forty-six 
hundred  and  ninety-nine  of  the  Revised  Statutes  of  the 
United  States,  or  to  change  the  rate  of  eighteen  dollars  per 
month  therein  mentioned  to  be  proportionately  divided  for 
any  degree  of  disability  established  for  which  section  forty- 
six  hundred  and  ninety -five  makes  no  provision.1  Act  of 
March  3,  1883  (22  Stat.  L.,  453). 

crS)ed0ns>    in      2131.  From  and  after  the  passage  of  this  act  all  persons 
^Lossofhandoron  faQ  pension  rolls,  and  all  persons  hereafter  granted  a 
24Apg22o  1886' v'  Pension,  who,  while  in  the  military  or  naval  service  of 
the  United  States,  and  in  line  of  duty,  shall  have  lost  one 
hand  or  one  foot,  or  been  totally  disabled  in  the  same,  shall 
receive  a  pension  of  thirty  dollars  a  month;  that  all  per- 
sons now  on  the  pension  rolls,  and  all  persons  hereafter 
or^bove  enx>\r  £ran^e(^  a  Pensi°n5  who  in   like  manner  shall   have  lost 
Leneeat  or  above  e^ner  an  arm  a^  or  above  the  elbow  or  a  leg  at  or  above 
the  knee,2  or  been  totally  disabled  in  the  same,  shall  receive 
a  pension  of  thirty-six  dollars  per  month;  and  that  all 
persons  now  on  the  pension  rolls,  and  all  persons  hereafter 
should er  ™  at  granted   a  pension,  who  in   like  manner  shall  have  lost 
MP-  either  an  arm  at  the  shoulder  joint  or  a  leg  at  the  hip  joint, 

or  so  near  the  joint  as  to  prevent  the  use  of  an  artificial 
limb,  shall  receive  a  pension  at  the  rate. of  forty-five  dol- 
p  R9iS5M  Snot46re- ^ars  Per  month:  Provided,  That  nothing  contained  in  this 
pealed.  acj.  sha}}  ke  construed  to  repeal  section  forty-six  hundred 

and  ninety-nine1  of  the  Revised  Statutes  of  the  United 
States,  or  to  change  the  rate  of  eighteen  dollars  per  month 
therein  mentioned  to  be  proportionately  divided  for  any 
degree  of  disability  established  for  which  section  f  ort}r-six 
hundred  and  ninety-five  makes  no  provision.  Act  of 
August  4,  1886  (24  Stat.  L.,  220). 

nJf-nc£Ledaf"  2132.  From  and  after  the  passage  of  this  act  all  persons 
25Apg449?>  1888>Y'  on  the  Pensi°n  r°Us  °f  tne  United  States,  or  who  may 
hereafter  be  thereon,  drawing  pensions  on  account  of  loss 
of  hearing,  shall  be  entitled  to  receive,  in  lieu  of  the 
amount  now  paid  in  case  of  such  disability,  the  sum  of 
thirty  dollars,  in  cases  of  total  deafness,  and  such  pro- 
portion thereof  in  cases  of  partial  deafness  as  the  Secre- 
tary of  the  Interior  may  deem  equitable;  the  amount  paid 

1  Paragraph  2136,  post. 


MILITAEY   LAWS    OF   THE    UNITED    STATES.  841 

to  be  determined  by  the  degree  of  disability  existing  in 
each  case.  Act  of  August  27,  1888  (25  Stat.  Z.,  449). 

2133.  From  and  after  the  passage  of  this  act  all  persons  l 
who,  in  the  military  or  naval  service  of  the  United 

and  in  the  line  of  duty,  have  lost  both  hands,  shall  be  enti-  25'  p-  659- 
tied  to  a  pension  of  one  hundred  dollars  per  month.     Act 
of  February  12,  1889  (25  Stat.  Z.,  669). 

2134.  All  soldiers,  sailors,  and  marines  who  have  since  taiiyChetpiesssoi- 
the  sixteenth  day  of  June,  eighteen  hundred  and  eighty,  diMjre4C>1890  v. 
or  who  may  hereafter  become  so  totally  and  permanently  26vP'2}f  p.  281. 
helpless  from  injuries  received  or  disease  contracted  in  the 

service  and  line  of  duty  as  to  require  the  regular  personal 
aid  and  attendance  of  another  person,  or  who,  if  otherwise 
entitled,  were  excluded  from  the  provisions  of  "An  act  to 
increase  pensions  of  certain  pensioned  soldiers  and  sailors 
who  are  utterly  helpless  from  injuries  received  or  disease 
contracted  while  in  the  United  States  service,"  approved 
June  sixteenth,  eighteen  hundred  and  eighty,  shall  be  enti- 
tled to  receive  a  pension  at  the  rate  of  seventy-two  dollars 
per  month  from  the  date  of  the  passage  of  this  act  or  of 
the  certificate  of  the  examining  surgeon  or  board  of  sur- 
geons showing  such  degree  of  disability  made  subsequent 
to  the  passage  of  this  act.  Act  of  March  4,  1890  (26  Stat. 
Z,  16). 

2135.  Soldiers  and  sailors  who  are  shown  to  be  totally  ta§yt 
incapacitated  for  performing  manual  labor  bv  reason  of  frequ' 
injuries  received  or  disease  contracted  in  the  service  of  ai^-y  14  1892  v 
the   United   States   and   in   line  of  duty,   and   who   are27»p-149- 
thereby  disabled  to  such  a  degree  as  to  require  frequent 

and  periodical,  though  not  regular  and  constant,  personal 
aid  and  attendance  of  another  person,  shall  be  entitled  to 
receive  a  pension  of  fifty  dollars  per  month  from  and  after 
the  date  of  the  certificate  of  the  examining  surgeon  or 
board  of  examining  surgeons  showing  such  degree  of  disa- 
bility, and  made  subsequent  to  the  passage"  of  this  act. 
Act  of  July  14,  1892  (27  Stat.  Z.,  149). 

2136.  The  rate  of  eighteen  dollars  per  month  may  be  pro-  di^eanbm|y  not 
portionately  divided  for  any  degree  of  disability  established  ^!Jf<?re  pr° 
for  which  section  forty  -six  hundred  and  ninety-five  makes  234^5'  vi?8?7  569* 
no  provision.  1  s'ec.ieW,  B.S.' 


acts  of  March  3,  1883  (22  Stat.  L.,  453),  and  August  4,  1886  (24  Ibid.,  220), 
paragraphs  2130  and  2131,  ante. 


842 


MILITARY    LAWS    OF    THE    UNITED    STATES. 


WIDOWS    AND    CHILDREN. 


Par. 

2137.  Widows  and  children. 

2138.  Increase  of  pension  for  same. 

2139.  The  same. 

2140.  Claim  agent  not  recognized. 

2141.  To  commence  at  death  of  husband. 

2142.  Proof  of  marriage,  Indians  and  col- 

ored soldiers. 

2143.  Proof  of  marriage  in  general. 


Par. 

2144.  Abandonment      of     children     by 

widow. 

2145.  Dependent  widow  and  minor  child- 

ren. 

2146.  Widow  not  to  receive  pension  for 

same  period  as  husband. 

2147.  Restriction  on  widow's  pension. 


2137.  If  any  person  embraced  within  the  provisions  of 
and  sections  forty  -six  hundred  and  ninety  -two1  and  forty-six 
22Apg345.1882'  v'  nundred  and  ninety-three1  has  died  since  the  fourth  day  of 
Sec.  4702,R.s.  March,  eighteen  hundred  and  sixty  -one,  or  hereafter  dies, 
by  reason  of  any  wound,  injury,  or  disease  which  under 
the  conditions  and  limitations  of  such  sections  would  have 
entitled  him  to  an  invalid  pension  had  he  been  disabled,  his 
widow,  or  if  there  be  no  widow,  or  in  case  of  her  death 
without  payment  to  her  of  any  part  of  the  pension  herein- 
after mentioned,  his  child  or  children  under  sixteen  years 
of  age,  shall  be  entitled  to  receive  the  same  pension  as  the 
husband  or  father  would  have  been  entitled  to  had  he  been 
totally  disabled,  to  commence  from  the  death  of  the  hus- 
band or  father,  to  continue  to  the  widow  during  her  widow- 
hood, and  to  his  child  or  children  until  they  severally  attain 
the  age  of  sixteen  years,  and  no  longer;  and  if  the  widow 
remarry,  the  child  or  children  shall  be  entitled  from  the 
date  of  remarriage,  except  when  such  widow  has  continued 
to  draw  the  pension  money  after  her  remarriage,  in  contra- 
vention of  law,  and  such  child  or  children  have  resided 
with  and  been  supported  by  her,  their  pension  will  com- 
mence at  the  date  to  which  the  widow  was  last  paid.2  Act 
of  August  7,  1888  (%2  Stat.  Z.,  Slfi). 

w""  2138>  The  pensions  of  widows  shall  be  increased  from 
sec  4708  R  s  anc^  after  the  twenty-fifth  day  of  July,  eighteen  hundred 
and  sixty-six,  at  the  rate  of  two  dollars  per  month  for  each 
child  under  the  age  of  sixteen  years  of  the  husband  on  ac- 
count of  whose  death  the  claim  has  been,  or  shall  be,  granted. 
And  in  every  case  in  which  the  deceased  husband  has  left, 
or  shall  leave,  no  widow,  or  where  hte  widow  has  died  or 
married  again,  or  where  she  has  been  deprived  of  her  pen- 
sion under  the  provisions  of  the  pension  law,  the  pension 


et 


Paragraphs  2116  and  2117,  ante. 
2  Amended  by  act  of  March  19,  1886  (24  Stat.  L.,  5). 
(21  Stat.  L.,  170),  and  June  7,  1888  (25  Stat.  L.,  173). 


See  also  acts  of  June  9,  1880 


MILITARY    LAWS    OF   THE    UNITED    STATES.  843 

granted  to  such  child  or  children  shall  be  increased  to  the 
same  amount  per  month  that  would  be  allowed  under  the 
foregoing  provisions  to  the  widow  if  living  and  entitled  to 
a  pension:  Provided,  That  the  additional  pension  herein 
granted  to  the  widow  on  account  of  the  child  or  children 
of  the  husband  by  a  former  wife  shall  be  paid  to  her  only 
for  such  period  of  her  widowhood  as  she  has  been,  or  shall 
be,  charged  with  the  maintenance  of  such  child  or  children; 
for  any  period  during  which  she  has  not  been,  or  she  shall 
not  be,  so  charged  it  shall  be  granted  and  paid  to  the 
guardian  of  such  child  or  children :  Provided  further,  That 
a  widow  or  guardian  to  whom  increase  of  pension  has  been, 
or  shall  hereafter  be,  granted  on  account  of  minor  children 
shall  not  be  deprived  thereof  by  reason  of  their  being  main- 
tained in  whole  or  in  part  at  the  expense  of  a  State  or  the 
public  in  any  educational  institution  or  in  any  institution 
organized  for  the  care  of  soldiers'  orphans. 

2139.  From  and  after  the  passage  of  this  act  the  rate  of  pen^l  towid- 
pension  for  widows,  minor  children,  and  dependent  rela-  entsSiatfvee^end 
tivefe  now  on  the  pension  roll,  or  hereafter  to  be  placed  on  24Ma5 19>  1886' v- 
the  pension  roll,  and  entitled  to  receive  a  less  rate  than 
hereinafter  provided,  shall  be  twelve  dollars  per  month; 

and  nothing  herein  shall  be  construed  to  affect  the  existing 
allowance  of  two  dollars  per  month  for  each  child  under 
the  age  of  sixteen  years:  Provided,  That  this  act  shall 
apply  only  to  widows  who  were  married  to  the  deceased 
soldier  or  sailor  prior  to  its  passage  and  to  those  who  may 
hereafter  marry  prior  to  or  during  the  service  of  the  soldier 
or  sailor.  And  all  acts  or  parts  of  acts  inconsistent  with 
the  provisions  of  this  act  are  hereby  repealed.1  Section  1, 
act  of  March  19,  1886  (24  Stat.  L.,  5). 

2140.  No  claim  agent  or  attorney  shall  be  recognized  in  no^timbe  ^fg}18 
the  adjudication  of  claims  under  this  act,  nor  shall  anyni||^2  ibid 
such  person  be  entitled  to  receive  any  compensation  what- 
ever for  services  or  pretended  services  in  making  applica- 
tions thereunder.     Sec.  2,  ibid. 

2141.  All  pensions  which  have  been,  or  which  m&y  here-  si<^gd°toS>   da?e 
after  be,  granted  under  the  general  laws  regulating  pen-  hrSandeath   °f 
sions  to  widows  in  consequence  of  death  occurring  from  a  25Jpnm' 1888>  v' 
cause  which  originated  in  the  service  since  the  fourth  day 

of  March,  eighteen  hundred  and  sixty -one,  shall  commence 
from  the  date  of  death  of  the  husband.  Act  of  June  7, 
1888(25  Stat.  L.,  173}. 

l  See  in  this  connection  paragraph  2145,  post;  section  3,  act  of  May  9,  1900  (31  Stat. 
I*,  171). 


844  MILITARY    LAWS    OF    THE    UNITED    STATES. 

oredaSdBindiMi"     2142>  ^he  widows  of  colored  and  Indian  soldiers   and 


sail°rs  who  have  died,  or  shall  hereafter  die,  by  reason  of 
wounds  or  injuries  received,  or  casualty  received,  or  dis- 
ease contracted,  in  the  military  or  naval  service  of  the 
United  States,  and  in  the  line  of  duty,  shall  be  entitled  to 
receive  the  pension  provided  by  law  without  other  evidence 
of  marriage  than  satisfactory  proof  that  the  parties  were 
joined  in  marriage  by  some  ceremony  deemed  by  them 
obligatory,  or  habitually  recognized  each  other  as  man  and 
wife,  and  were  so  recognized  by  their  neighbors,  and  lived 
together  as  such  up  to  the  date  of  enlistment,  when  such 
soldier  or  sailor  died  in  the  service,  or,  if  otherwise,  to 
date  of  death;  and  the  children  born  of  any  marriage  so 
proved  shall  be  deemed  and  held  to  be  lawful  children  of 
such  soldier  or  sailor,  but  this  section  shall  not  be  appli- 
cable to  any  claims  on  account  of  persons  who  enlist  after 
the  third  day  of  March,  one  thousand  eight  hundred  and 
seventy-three. 

Marriages    to     2143.  Marriages,  except  such  as  are  mentioned  in  sec- 

marriages  unf  er  tion  forty-seven  hundred  and  five  of  the  Revised  Statutes, 

lasec.e2j'Aug.  7,  shall  be  proven  in   pension   cases  to  be  legal  marriages 

882,  v.22,  p.  345.  accor(jing  to  ^e  }aw  of  j^e  p}ace  where  the  parties  resided 

at  the  time  of  marriage  or  at  the  time  when  the  right  to 
pension  accrued;  and  the  open  and  notorious  adulterous 
cohabitation  of  a  widow  who  is  a  pensioner  shall  operate 
to  terminate  her  pension  from  the  commencement  of  such 
cohabitation.  Sec.  2,  act  of  August  7,  1888  (22  Stat.  Z., 


Abandonment,     2144.  If  any  person  has  died,   or  shall  hereafter  die, 

etc.,  by  widow.     .  .  ,  .   ,     ,  ,  .,    ,  . 

sec.4706,  R.s.  leaving  a  widow  entitled  to  a  pension  by  reason  of  his 
death,  and  a  child  or  children  under  sixteen  years  of  age 
by  such  widow,  and  it  shall  be  duly  certified  under  seal 
by  any  court  having  probate  jurisdiction,  that  satisfactory 
evidence  has  been  produced  before  such  court,  upon  due 
notice  to  the  widow,  that  she  has  abandoned  the  care  of 
such  child  or  children,  or  that  she  is  an  unsuitable  person, 
by  reason  of  immoral  conduct,  to  have  the  custody  of  the 
same,  on  presentation  of  satisfactory  evidence  thereof  to 
the  Commissioner  of  Pensions,  no  pension  shall  be  allowed 
to  such  widow  until  such  child  or  children  shall  have 
attained  the  age  of  sixteen  years,  any  provisions  of  law  to 
the  contrary  notwithstanding;  and  the  said  child  or  chil- 
dren shall  be  pensioned  in  the  same  manner,  and  from  the 
same  date,  as  if  no  widow  had  survived  such  person,  and 
such  pension  shall  be  paid  to  the  guardian  of  such  child  or 


MILITARY    LAWS    OF    THE    UNITED    STATES.  845 

children;  but  if  in  any  case  payment  of  pension  shall  have 
been  made  to  the  widow,  the  pension  to  the  child  or  chil- 
dren shall  commence  from  the  date  to  which  her  pension 
has  been  paid. 

2145.  If  any  officer  or  enlisted  man  who  served  ninety    Dependent 
days  or  more  in  the  Army  or  Navy  of  the  United  States  nor  children. 
during  the  late  war  of  the  rebellion,  and  who  was  honor- 
ably discharged,  has  died,  or  shall  hereafter  die,  leaving  a 

widow  without  other  means  of  support  than  her  daily  labor,    widow. 

and  an  actual  net  incom  e  not  exceeding  two  hundred  and  fifty 

dollars  per  year,  or  minor  children  under  the  age  of  sixteen    Minor  cMi- 

years,  such  widow  shall,  upon  due  proof  of  her  husband's 

death,  without  proving  his  death  to  be  the  result  of  his  army    Proof  of  hus- 

J  0.  n  £  ±u      J    i         .,  ,UJ  band's  death. 

service,  be  placed  on  the  pension  roll  from  the  date  of  the 

application  therefor  under  this  act,  at  the  rate  of  eight 

dollars  per  month  during  her  widowhood,  and  shall  also    Rate  during 

be  paid  two  dollars  per  month  for  each  child  of  such  officer 

or  enlisted  man  under  sixteen  years  of  age,  and  in  case  of    Rate  for  each 

,1        ,       ,,  .  _-    ,, J         .  ,  '    .  ,., -,         minor  child. 

the  death  or  remarriage  of  the  widow,  leaving  a  child  or    Death  or  re- 
children  of  such  officer  or  enlisted  man  under  the  age  of  ^rnage  of  wld~ 
sixteen  years,  such  pension  shall  be  paid  such  child  or  2,  ^.Yi.Vm.' s' 
children  until  the  age  of  sixteen:  Provided,  That  in  case    provisos. 
a  minor  child  is  insane,  idiotic,  or  otherwise  permanently 
helpless,  the  pension  shall  continue  during  the  life  of  said    continuing 

.  .f ,  ,       .  .     i      /.  T         •  !•  pension  to  minor 

child,  or  during  the  period  of  such  disability,  and  this  pro-  child  during  Per- 

,     ,,  .  manent  disa- 

viso  shall  apply  to  all  pensions   heretofore  granted   orbmty. 
hereafter  to  be  granted  under  this  or  anv  former  statute,    Application  to 

.    *  J,  '  all  pensions. 

and  such  pensions  shall  commence  from  the  date  of  appli-    commence- 
cation  therefor,  after  the  passage  of  this  act:  And  provided™ 
further.  That  said  widow  shall  have  married  said  soldier   Limit  as  to  time 

of  marriage. 

prior  to  the  passage  of  the  said  act  of  June  27,  1890.  * 
Sec.  3,  act  of  May  9,  1900  (31  Stat.  Z.,  171). 

2146.  No  pension  shall  be  granted  to  a  widow  for  the    f^S5*1011- 
same  time  that  her  husband  received  one. 

2147.  Hereafter  no  pension  under  any  law  of  the  United    Restriction  on 
States  shall  be  granted,  allowed,  or  paid  to  the  widow  of  Skna^ridSwi! 
a  soldier,  sailor,  officer,  naval  or  military,  marine,  marine  3ofpari379.18"' v' 
officer,  or  any  other  male  person   entitled  to  a  pension 

under  any  law  of  the  United  States,  unless  it  shall  be 
proved  and  established  that  the  marriage  of  such  widow 
to  the  soldier,  sailor,  officer,  marine,  or  other  person  on 
account  of  whose  service  the  pension  is  asked,  was  duly 
and  legally  contracted  and  entered  into  prior  to  the  pas- 
sage of  this  act,  or  unless  such  wife  shall  have  lived  and 
cohabited  with  such  soldier,  sailor,  officer,  marine,  marine 


846  MILITARY    LAWS    OF    THE    UNITED    STATES. 

officer,  or  other  person  continuously  from  the  date  of  the 
marriage  to  the  date  of  his  death,  or  unless  the  marriage 
shall  take  place  hereafter  and  prior  to  or  during  the  mili- 
tary or  naval  service  of  the  soldier,  sailor,  officer,  marine, 
or  other  person  on  account  of  whose  service  the  pension 
is  asked  or  claimed.  This  proviso  shall  not  apply  to  or 
affect  the  widow  of  any  soldier,  sailor,  marine,  officer,  or 
marine  officer  serving  or  who  has  served  in  the  war 
between  the  United  States  and  the  Kingdom  of  Spain. 

In  all  cases  the  questions  o'f  desertion,  entrance  into  a 
home,  necessitous  circumstances,  and  of  good  moral  char- 
acter shall  be  ascertained  and  determined  by  the  Commis- 
sioner of  Pensions  under  such  rules  and  regulations  as  he 
shall  prescribe,  and  the  treasurers  or  governors  of  the 
several  soldiers'  and  sailors'  homes  shall  be  advised  of  such 
action  from  time  to  time. l  Act  of  March  3, 1899  (30  Stat. 
L.,  1379). 


DEPENDENT    RELATIVES. 


Par. 


2148.  Succession  of  dependent  relatives. 

2149.  Remarriage  of  widow. 


Par. 


2150.  Dependent  parents. 


dep"nCden°nreia-  2148.  If  any  person  embraced  within  the  provisions  of 
^Mar  3  1873  s  sec^ions  forty-six  hundred  and  ninety-two  and  forty-six 
^Sec.^o^R.'s.  hundred  and  ninety-three  has  died  since  the  fourth  day  of 
March,  eighteen  hundred  and  sixty-one,  or  shall  hereafter 
die,  by  reason  of  any  wound,  injury,  casualty,  or  disease, 
which,  under  the  conditions  and  limitations  of  such  sec- 
tions, would  have  entitled  him  to  an  invalid  pension,  and 
has  not  left  or  shall  not  leave  a  widow  or  legitimate  child, 
but  has  left  or  shall  leave  other  relative  or  relatives  who 
were  dependent  upon  him  for  support,  in  whole  or  in  part, 
at  the  date  of  his  death,  such  relative  or  relatives  shall  be 
entitled,  in  the  following  order  of  precedence,  to  receive 
the  same  pension  as  such  person  would  have  been  entitled 
to  had  he  been  totally  disabled,  to  commence  from  the  death 
of  such  person,  namely:  First,  the  mother;  secondly,  the 
father;  thirdly,  orphan  brothers  and  sisters  under  sixteen 

^or  the  remainder  of  this  statute  see  the  Title  "The  Dependent  Pension  Law," 
paragraphs  2151  to  2154,  post.  For  a  restriction  on  attorneys'  fees  in  claims  to  pen- 
sion under  this  act,  see  section  4,  act  of  June  27, 1890  (26  Stat.  L.,  181).  This  section 
replaces  section  3,  act  of  June  27,  1890,  and  is  amendatory  thereof;  it  also  excepts 
all  cases  falling  within  its  scope  from  the  operation  of  the  act  of  June  7,  1888  (25  Stat. 
L.,  173),  paragraph  2141,  ante.  See  also  the  act  of  March  3,  1901  (31  Stat.  L.,  1445), 
par.  2149,  post. 


MILITARY   LAWS    OF   THE   UNITED   STATES.  847 

years  of  age,  who  shall  be  pensioned  jointly:  Provided, 
That  where  orphan  children  of  the  same  parent  have  differ- 
ent guardians,  or  a  portion  of  them  only  are  under  guard- 
ianship, the  share  of  the  joint  pension  to  which  each  ward 
shall  be  entitled  shall  be  paid  to  the  guardian  of  such 
ward:  Provided,  That  if  in  any  case  said  person  shall  have 
left  father  and  mother  who  were  dependent  upon  him, 
then,  on  the  death  of  the  mother,  the  father  shall  become 
entitled  to  the  pension,  commencing  from  and  after  the 
death  of  the  mother;  and  upon  the  death  of  the  mother 
and  father,  or  upon  the  death  of  the  father  and  the  remar- 
riage of  the  mother,  the  dependent  brothers  and  sisters 
under  sixteen  years  of  age  shall  jointly  become  entitled 
to  such  pension  until  they  attain  the  age  of  sixteen  years, 
respectively,  commencing  from  the  death  or  remarriage 
of  the  party  who  had  the  prior  right  to  the  pension: 
Provided,  That  a  mother  shall  be  assumed  to  have  been 
dependent  upon  her  son  within  the  meaning  of  this  sec- 
tion if,  at  the  date  of  his  death,  she  had  no  other  adequate 
means  of  support  than  the  ordinary  proceeds  of  her  own 
manual  labor  and  the  contributions  of  said  son  or  of  any 
other  persons  not  legally  bound  to  aid  in  her  support;  and 
if,  by  actual  contributions,  or  in  any  other  way,  the  son 
had  recognized  his  obligations  to  aid  in  support  of  his 
mother,  or  was  by  law  bound  to  such  support,  and  that  a 
father  or  minor  brother  or  sister  shall,  in  like  manner  and 
under  like  conditions,  be  assumed  to  have  been  dependent, 
except  that  the  income  which  was  derived  or  derivable 
from  his  actual  or  possible  manual  labor  shall  be  taken 
into  account  in  estimating  a  father's  means  of  independent 
support:  Provided  further,  That  the  pension  allowed  to 
any  person  on  account  of  his  or  her  dependence,  as  here- 
inbefore provided,  shall  not  be  paid  for  any  period  during 
which  it  shall  not  be  necessary  as  a  means  of  adequate 
subsistence. 

2149.  The  remarriage  of  any  widow,  dependent  mother,    Remarriage  of 
or  dependent  sister  entitled  to  pension  shall  not  bar  her    Mar.  3,1 901,  v. 
right    to   such   pension   to   the   date  of  her  remarriage,    sec.4708,B.s. 
whether  an  application  therefor  was  filed  before  or  after 
such  marriage;    but  on  the  remarriage  of  any   widow, 
dependent  mother,  or  dependent  sister  having  a  pension, 
such  pension  shall  cease:    Provided,  however,   That  any 
widow  who  was  the  lawful  wife  of  any  officer  or  enlisted 
man  in  the  Army,  Navy,  or  Marine  Corps  of  the  United 
States,  during  the  period  of  his  service  in  any  war,  and 


848  MILITARY    LAWS    OF    THE    UNITED    STATES. 

whose  name  was  placed  or  shall  hereafter  be  placed  on  the 
pension  roll  because  of  her  husband's  death  as  the  result 
of  wound  or  injury  received  or  disease  contracted  in  such 
military  or  naval  service,  and  whose  name  has  been  or 
shall  hereafter  be  dropped  from  said  pension  roll  by 
reason  of  her  marriage  to  another  person  who  has  since 
died  or  shall  hereafter  die,  or  from  whom  she  has  been 
heretofore  or  shall  be  hereafter  divorced,  upon  her  own 
application  and  without  fault  on  her  part,  and  if*  she  is 
without  means  of  support  other  than  her  daily  labor  as 
denned  by  the  acts  of  June  twenty  -seventh,  eighteen 
hundred  and  ninety,  and  May  ninth,  nineteen  hundred, 
shall  be  entitled  to  have  her  name  again  placed  on  the  pen- 
sion roll  at  the  rate  now  provided  for  widows  by  the  acts 
of  July  fourteenth,  eighteen  hundred  and  sixty-two,  March 
third,  eighteen  hundred  and  seventy-three,  and  March 
nineteenth,  eighteen  hundred  and  eigthy-six,  such  pension 
to  commence  from  the  date  of  the  filing  of  her  application 
in  the  Pension  Bureau  after  the  approval  of  this  act:  And 
provided  further,  That  where  such  widow  is  already  in 
receipt  of  a  pension  from  the  United  States  she  shall  not 
be  entitled  to  restoration  under  this  act:  And  provided 
further,  That  where  the  pension  of  said  widow  on  her  sec- 
ond or  subsequent  marriage  has  accrued  to  a  helpless  or 
idiotic  child,  or  a  child  or  children  under  the  age  of  sixteen 
years,  she  shall  not  be  entitled  to  restoration  under  this  act 
unless  said  helpless  or  idiotic  child,  or  child  or  children 
under  sixteen  years  of  age,  be  then  a  member  or  members 
of  her  family  and  cared  for  by  her,  and  upon  the  restora- 
tion of  said  widow  the  payment  of  pension  to  said  child  or 
children  shall  cease.  Act  of  March  3,  1901  (31  Stat.  Z., 


sec.  2,  ibid.  No  claim  agent  or  other  person  shall  be  entitled  to  receive 
any  compensation  for  services  in  making  application  for 
pension  under  this  act.  Section  #,  ibid. 

Disability,  etc.,      2150.  In  considering  the  pension  claims  of  dependent 

taS^Sil^ereand  parents,  the  fact  of  the  soldier's  death  by  reason  of  any 

iliiSen^nddl^01111^'  iniulT>  casualty,  or  disease,  which,  under  the  con- 

pendent  parents,  ditions  and  limitations  of  existing  laws,  would  have  enti- 

Sfent8  arentl"  ^e(^  ^im  *°  an  inva^  pension,  and  the  fact  that  the  soldier 

left  no  widow  or  minor  children  having  been  shown  as 

Evidence     re-  i  -i 

qtj£ne'  27  1890  re<luired  *by  law,  it  shall  be  necessary  only  to  show  by  com- 

v.  26,  p.  182.     '  petent  and  sufficient  evidence  that  such  parent  or  parents 

are  without  other  present  means  of  support  than  their  own 

manual  labor  or  the  contributions  of  others  not  legally 


MILITARY    LAWS    OF    THE    UNITED    STATES. 


849 


bound   for  their  support:    Provided,    That  all  pensions    commence- 

•  in  ment   and   eon- 

allowed  to  dependent  parents  under  this  act  shall  commence  tmuance  of  pen- 
from  the  date  of  the  filing  of  the  application  hereunder, 
and  shall  continue  no  longer  than  the  existence   of  the 
dependence.    Sec.  1,  act  of  June  27, 1890  (26  Stat.  L. ,  182). 


THE   DEPENDENT   PENSION   LAW. 


Par. 

2153.  Fees  of  attorneys. 

2154.  Commencement  of  pension. 


>rtionate 


Par. 

2151.  Pension  to  dependent  soldiers. 

2152.  Missouri  militia  included. 

2151.  All  persons  who  served  ninety  days  or  more  in  the 
military  or  naval  service  of  the  United  States  during 
late  war  of  the  rebellion  and  who  have  been  honorably  dis-  wareof  rebellion! 
charged  therefrom,  and  who  are  now  or  who  may  here-  s^^fo.1900'  v> 
after  be  suffering  from  a  mental  or  physical  disability,  or 
disabilities  of  a  permanent  character,  not  the  result  of  their 
own  vicious  habits,  which  incapacitates  them  from  the  per- 
formance of  manual  labor  in  such  a  degree  as  to  render 
them  unable  to  earn  a  support,  shall,  upon  making  due    Due  proof,  etc. 
proof  of  the  fact  according  to  such  rules  and  regulations 
as  the  Secretary  of  the  Interior  may  provide,  be  placed 
upon  the  list  of  invalid  pensioners  of  the  United  States, 
and  be  entitled  to  receive  a  pension  not  exceeding  twelve  mJJam^m^Sj 
dollars  per  month,  and  not  less  than  six  dollars  per  month,    Proporti 
proportioned  to  the  degree  of  inability  to  earn  a  support  ;inability- 
and  in  determining  such  inability,  each  and  every  infirmity 
shall  be  duly  considered,  and  the  aggregate  of  the  disabil- 
ities shown  be  rated,  and  such  pension  shall  commence  from    com  m  ence- 

7  r  ment    and   con- 

the  date  of  the  filing  of  the  application  in  the  Pension  Office,  tinuance. 
after  the  passage  of  this  act  upon  proof  that  the  disability 
then  existed,  and  shall  continue  during  the  existence  of  the 
same:  Provided,  That  persons  who  are  now  receiving  pen- 
sions under  existing  laws,  or  whose  claims  are  pending  in 
the  Bureau  of  Pensions,  may,  by  application  to  the  Com- 
missioner of  Pensions,  in  such  form  as  he  may  prescribe, 
showing  themselves  entitled  thereto,  receive  the  benefits 

of  this  act;  and  nothing  herein  contained  shall  be  so  con-    Pensioners  en- 
titled under  this 

strued  as  to  prevent  any  pensioner  thereunder  from  prose- 
cuting his  claim  and  receiving  his  pension  under  any  other  *ner  benefits. 
general  or  special  act:  Provided,  however,  That  no  person 
shall  receive  more  than  one  pension  for  the  same  period: 
And  provided  further,  That  rank  in  the  service  shall  not  nosteJoics!dered 
be  considered  in  applications  filed  under  this  act.1     Sec.  2, 
act  of  May  9,  1900  (31  Stat.  L.,  170). 


section  replaces  section  2,  act  of  June  27,  1890  (26  Stat.  L.,  182). 
22924—08 54 


850  MILITARY    LAWS    OF    THE    UNITED    STATES. 

ti  Missouri  miii-     2152.  The  provisions  of  the  act  of  June  twenty-seventh, 
j.  R.  NO.  is,  eighteen   hundred  and  ninety,  are   hereby  extended  to 

Feb.  15,  1895,  v.  .       ,      •,        , 

28,  p.  970.  include  the  officers  and  privates  of  the  Missouri  State  mili- 

tia and  the  Provisional  Missouri  militia  who  served  ninety 
days  during  the  late  war  of  the  rebellion,  and  were  honor- 
ably discharged,  and  to  the  widows  and  minor  children  of 
such  persons.  The  provisions  of  this  act  shall  include  all 
such  persons  now  on  the  pension  rolls,  or  who  may  here- 
after apply  to  be  admitted  thereto.  Joint  Resolution  No. 
13,  February  15,  1895  (28  Stat.  L.,  970). 

ne^efeor?rosaecSt-     2153-  That  no  agent,  attorney,  or  other  person  engaged 

iniec!avSk      i°  preparing,  presenting,  or  prosecuting  any  claim  under 

the  provisions  of  this  act  shall,  directly  or  indirectly,  con- 

tract for,  demand,  receive,  or  retain  for  such  services  in 

preparing,  presenting,  or  prosecuting  such  claim  a  sum 

Maximum  fee.  greater  than  ten  dollars,  which  sum  shall  be  payable  only 

upon  the  order  of  the  Commissioner  of  Pensions  by  the 

pension  agent  making  payment  of  the  pension  allowed, 

wrongfui°nwith-  and  any  person  who  shall  violate  any  of  the  provisions  of 

m°e1anof.amisde"tllis  section,  or  who  shall  wrongfully  withhold  from  a  pen- 

sioner or  claimant  the  whole  or  any  part  of  a  pension  or 

claim  allowed  or  due  such  pensioner  or  claimant  under  this 

act,  shall  be  deemed  guilty  of  a  misdemeanor,  and  upon 

conviction  thereof  shall,  for  each  and  every  such  offense, 

Penalty.         be  fined  not  exceeding  five  hundred  dollars  or  be  impris- 

oned at  hard  labor  not  exceeding  two  years,  or  both,  in 

the  discretion  of  the  court.     Sec.  4,  act  of  June  27,  1890 

(26  Stat.  L.,  183). 

m£n°t  rf?eei£ion!  2154>  Whenever  a  claim  for  pension  under  the  act  of 
29?par456>  18%t  v'  June  twenty-seventh,  eighteen  hundred  and  ninety,  has 
been,  or  shall  hereafter  be,  rejected,  suspended,  or  dis- 
missed, and  a  new  application  shall  have  been,  or  shall 
hereafter  be,  filed,  and  a  pension  has  been,  or  shall  here- 
after be,  allowed  in  such  claim,  such  pension  shall  date 
from  the  time  of  filing  the  first  application,  provided  the 
evidence  in  the  case  shall  show  a  pensionable  disability  to 
have  existed,  or  to  exist,  at  the  time  of  filing  such  appli- 
cation, anything  in  any  law  or  ruling  of  the  Department 
to  the  contrary  notwithstanding.1  Act  of  March  6,  1896, 
(29  Stat.  L.,  45). 

PENSIONS   TO   ARMY   NURSES. 


women  employed  by  the  Surgeon-General  of 
27Apg348'  1892'  v'  ^e  Army  as  nurses,  under  contract  or  otherwise,  during 

1  For  the  section  of  the  Dependent  Pension  Law  in  relation  to  dependent  widows 
and  minor  children,  see  paragraph  2145,  ante. 


MILITARY    LAWS    OF    THE    UNITED    STATES. 


851 


Rate. 


the  late  war  of  the  rebellion,  or  who  were  employed  as 
nurses  during  such  period  by  authority  which  is  recog- 
nized by  the  War  Department,  and  who  rendered  actual 
service  as  nurses  in  attendance  upon  the  sick  or  wounded 
in  any  regimental,  post,  camp,  or  general  hospital  of  the 
armies  of  the  United  States  for  a  period  of  six  months  or 
more,  and  who  were  honorably  relieved  from  such  service, 
and  who  are  now  or  may  hereafter  be  unable  to  earn  a 
support,  shall,  upon  making  due  proof  of  the  fact  accord- 
ing to  such  rules  and  regulations  as  the  Secretary  of  the 
Interior  may  provide;  be  placed  upon  the  list  of  pen- 
sioners of  the  United  States  and  be  entitled  to  receive  a 
pension  of  twelve  dollars  per  month,  and  such  pension 
shall  commence  from  the  date  of  filing  of  the  application 
in  the  Pension  Office  after  the  passage  of  this  act:  Pro- 
vided, That  no  person  shall  receive  more  than  one  pension 
for  the  same  period.  Act  of  August  5,  1892  (27  8tat. 
Z.,  348). 

2156.  No  fee,  compensation,  or  allowance  shall  be  paide^ofeetoasent. 
to,  received,  or  accepted  by  any  agent,  attorney,  or  other 
person  instrumental  in  the  prosecution  of  any  claim  f  or 
pension  under  this  act;  and  any  person  who  may  make 
any  claim  upon  any  applicant  for  any  fee,  compensation, 
or  allowance  shall  be  guilty  of  a  misdemeanor,  and  upon 
conviction  shall  be  fined  not  exceeding  five  hundred  dol- 
lars or  imprisoned  at  hard  labor  not  exceeding  one  year, 
or  both,  in  the  discretion  of  the  court;  and  it  shall  be  the 
duty  of  the  Interior  and  War  Departments  to  render  all 
proper  aid  to  applicants  under  this  act.  Sec.  #,  ibid. 


Sec.  2,  tWd. 


MEXICAN   WAK  PENSIONS. 


Par. 

2162.  Pension  laws  applicable. 

2163.  Removal  of  disability. 

2164.  The  same,  restriction. 

2165.  Increased  rate. 

2166.  Extended  to  all  survivors. 


Par. 

2157.  Who  entitled. 

2158.  Widows  and  children. 

2159.  Extension  of  benefits. 

2160.  Rate. 

2161.  Regulations   by  Secretary  of    In- 

terior. 


2157.  Any  officer,  noncommissioned  officer,  musician,  or 
private,  whether  of  the  Regular  Army  or  Volunteers,  dis-  1846  c 

abled  by  reason  of  iniury  received  or  disease  contracted  16ts>  7k7bn 

^  <  o6c»4«oUj 

while  in  the  line  of  duty  in  actual  service  in  the  war  with 
Mexico,  or  in  going  to  or  returning  from  the  same,  who 
received  an  honorable  discharge,  shall  be  entitled  to  a 
pension  proportionate  to  his  disability,  not  exceeding  for 


852  MILITAEY    LAWS    OF    THE    UNITED    STATES. 

total  disability  half  the  pay  of  his  rank  at  the  date  at  which 
he  received  the  wound  or  contracted  the  disease  which 
resulted  in  such  disability.  But  no  pension  shall  exceed 
half  the  pay  of  a  lieutenant-colonel. 

children8  and  2158.  If  any  officer  or  other  person  referred  to  in  the 
234? sfii)  v.8i7,'  p!  preceding  section  has  died  or  shall  hereafter  die  by  reason 
51ec.478i,B.8.  °f  anj  injury  received  or  disease  contracted  under  the  cir- 
cumstances therein  set  forth,  his  widow  shall  be  entitled 
to  receive  the  same  pension  as  the  husband  would  have 
been  entitled  to  hatl  he  been  totally  disabled;  and  in  case 
of  her  death  or  remarriage,  the  child  or  children  of  such 
officer  or  other  person  referred  to  in  the  preceding  section, 
while  under  the  age  of  sixteen  years,  shall  be  entitled  to 
receive  the  pension.  ,  But  the  rate  of  pension  prescribed 
by  this  and  the  preceding  section  shall  be  varied  after  the 
twenty-fifth  day  of  July,  eighteen  hundred  and  sixty  six, 
in  accordance  with  the  provisions  of  section  four  thousand 
seven  hundred  and  twelve  of  this  Title. 

benSfteSi°n  °f  2159t  The  Secretary  of  the  Interior  be,  and  he  is  hereby, 
i  v^2?  3?i7' s'  authorized  and  directed  to  place  on  the  pension  roll  the 
names  of  the  surviving  officers  and  enlisted  men,  including 
marines,  militia,  and  volunteers,  of  the  military  and  naval 
services  of  the  United  States,  who,  being  duly  enlisted, 
actually  served  sixty  days  with  the  Army  or  Navy  of  the 
United  States  in  Mexico,  or  on  the  coasts  or  frontier 
thereof,  or  en  route  thereto,  in  the  war  with  that  nation, 
or  were  actually  engaged  in  a  battle  in  said  war,  and  were 
honorably  discharged,  and  to  such  other  officers  and  sol- 
diers and  sailors  as  may  have  been  personally  named  in 
any  resolution  of  Congress  for  any  specific  service  in  said 
war,  and  the  surviving  widow  of  such  officers  and  enlisted 
widows'  men:  Provided,  That  such  widows  have  not  remarried: 
Provided,  That  every  such  officer,  enlisted  man,  or  widow 
who  is  or  may  become  sixty-two  years  of  age,  or  who  is 
Disabilities.  Or  may  become  subject  to  any  disability  or  dependency 
equivalent  to  some  cause  prescribed  or  recognized  by  the 
pension  laws  of  the  United  States  as  a  sufficient  reason  for 
the  allowance  of  a  pension,  shall  be  entitled  to  the  benefit-; 

ex  °f  tnig  acfc?  but  ^  sna^  not  ke  ^Id  to  mclude  anJ  person 
not  within  the  rule  of  age  or  disability  or  dependence 
herein  defined,  or  who  incurred  such  disability  while  in 
any  manner  voluntarily  engaged  in  or  aiding  or  abetting 
the  late  rebellion  against  the  authority  of  the  United 
States.  Act  of  January  29,  1887  (24  Stat.  L.,  371). 
2160.  Pensions  under  section  one  of  this  act  shall  be  at 


MILITARY    LAWS    OF    THE    UNITED    STATES.  853 

the  rate  of  eight  dollars  per  month,1  and  payable  only 
from  and  after  the  passage  of  this  act,  for  and  during  the 
natural  lives  of  the  persons  entitled  thereto,  or  during 
the  continuance  of  the  disability  for  which  the  same  shall 
be  granted:  Provided,  That  section  one  of  this  act  shall  ^ct on  exist- 
not  apply  to  an}^  person  who  is  receiving  a  pension  at  the  ^f^^SS' 
rate  of  eight  dollars  per  month  or  more,  nor  to  any  person 
receiving  a  pension  of  less  than  eight  dollars  per  month, 
except  for  the  difference  between  the  pension  now  received 
(if  less  than  eight  dollars  per  month)  and  eight  dollars  per 
month.2  Sec.  8,  ibid. 

2161.  Before  the  name  of  any  person  shall  be  placed  on    secretary    of 
the  pension  roll  under  this  act,  proof  shall  be  made,  under  prescribe  rules, 
such  rules  and  regulations  as  the  Secretary  of  the  Interior 

may  prescribe,  of  the  right  of  the  applicant  to  a  pension; 
and  any  person  who  shall  falsely  and  corruptly  take  any 
oath  required  under  this  act  shall  be  deemed  guilty  of 
perjury;  and  the  Secretary  of  the  Interior  shall  cause  to 
be  stricken  from  the  pension  roll  the  name  of  any  person 
whenever  it  shall  be  made  to  appear  by  proof  satisfactory 
to  him  that  such  name  was  put  upon  such  roll  through 
false  and  fraudulent  representations,  and  that  such  per- 
son is  not  entitled  to  a  pension  under  this  act.  The  loss  Sec- 3.  #«• 
of  the  certificate  of  discharge  shall  not  deprive  any  person 
of  the  benefits  of  this  act,  but  other  record  evidence  of 
enlistment  and  service  and  of  an  honorable  discharge  may  be 
deemed  sufficient:  Provided,  That  when  any  person  has  Proviso. 
been  granted  a  land  warrant,  under  any  act  of  Congress,  to  be  primafade 

£  j  £  •        -      <LI  •/  -,i    TIT      •         evidence  of  serv- 

for  and  on  account  of  service  in  the  said  war  with  Mexico,  ice. 
such  grant  shall  be  prim-a  facie  evidence  of  his  service  and 
honorable  discharge,  but  such  evidence  shall  not  be  con- 
clusive, and  may  be  rebutted  by  evidence  that  such  land 
warrant  was  improperly  granted.     Sec.  3,  ibid. 

2162.  The   pension  laws  now  in  force  which  are   not    Pension   laws 

.,  .  <••.  j       •>*     .1  •  i          i  i         made  applicable. 

inconsistent  or  in  conflict  with  this  act  are  hereby  made  a    sec.  4,  ma. 
part  of  this  act,  so  far  as  they  may  be  applicable  thereto. 
Sec.  h  ibid. 

2163.  Section  forty-seven  hundred  and  sixteen  of  the  p  ^9s-ns 
Revised  Statutes  is  hereby  repealed  so  far  as  the  sameP^  5  md 
relates  to  this  act  or  to  pensioners  under  this  act.     Sec.  5, 

ibid. 

1  By  the  acts  of  January  5,  1893  (27  Stat  L.,  413),  and  April  23, 1900  (31  ibid.,  137), 
paragraphs  2165  and  2166  post,  this  rate  was  increased  to  twelve  dollars  per  month 
under  certain  conditions  therein  set  forth. 

2  Increased  to  twelve  dollars  per  month  in  certain  cases  by  acts  of  January  5,  1893 
(27  Stat.  L.,  413),  and  April  23,  1900  (31  Stat.  L.,  137),  paragraphs  2165  and  2166 
post. 


854 


MILITARY    LAWS    OF    THE    UNITED    STATES. 


27,  p.  413. 


2164-  The   provisions   of   this   act    shall   not  apply  to 
'  any  Person  while  under  the  political  disabilities  imposed 
by  the  fourteenth  amendment  to  the  Constitution  of  the 
United  States.     Sec.  6,  ibid. 

2165'  The  Secretary  of  the  Interior  is  hereby  authorized 
£0  increase  the  pension  of  every  pensioner  who  is  now  on 
the  rolls  at  eight  dollars  per  month  on  account  of  services 
in  the  Mexican  War  and  who  is  wholly  disabled  for  man- 
ual labor,  and  is  in  such  destitute  circumstances  that  eight 
dollars  per  month  are  insufficient  to  provide  him  the  nec- 
essaries of  life,  to  twelve  dollars  per  month.  Act  of  Jan- 
uary 5,  1893  (27  Slat.  Z.,  413). 

aiiEsXu?£vo?s.  to  2166.  The  benefits  of  the  act  entitled  "  An  act  granting 
v.  3i,rp.  it'?.1900'  increase  of  pension  to  soldiers  of  the  Mexican  war  in  cer- 
tain cases,"  approved  January  fifth,  eighteen  hundred 
and  ninety-three,1  be,  and  they  are  hereby,  extended  to  all 
survivors  of  the  Mexican  war  who  are  pensionable  under 
existing  Mexican  war  service  pension  laws,  and  who  have 
become  or  may  hereafter  become  wholly  disabled  for 
manual  labor,  and  in  such  destitute  circumstances  that 
eight  dollars  per  month  are  insufficient  to  provide  them 
the  necessaries  of  life,  irrespective  of  the  date  of  the 
granting  of  the  said  service  pension.  Act  of  April  23, 
1900(31  Stat.  Z.,  137). 

PENSIONS   FOR  INDIAN   WARS,  1832-1  842.  * 


Par. 

2167.  Who  entitled. 

2168.  Rate. 

2169.  Proof. 

2170.  Restriction  on  application. 


Par. 


2171.  Pension  laws  applicable. 

2172.  Removal  of  disability. 

2173.  Widows. 

2174.  Citizenship. 


PriSrdioni84lars  2167-  The  Secretary  of  the  Interior  is  hereby  author- 
servicein8  forized  and  directed  to  place  on  the  pension  roll  the  names 
27Jply28i' 1892>  v'  °f  ^e  surviving  officers  and  enlisted  men,  including  ma- 
rines, militia,  and  volunteers  of  the  military  and  naval 
service  of  the  United  States,  who  served  for  thirty  days 
in  the  Black  Hawk  war,  the  Creek  war,  the  Cherokee  dis- 
turbances, or  the  Florida  war  with  the  Seminole  Indians, 
embracing  a  period  from  eighteen  hundred  and  thirty-two 
to  eighteen  hundred  and  forty-two,  inclusive,  and  were 
honorably  discharged,  and  such  other  officers,  soldiers, 
and  sailors  as  may  have  been  personally  named  in  any 
resolution  of  Congress,  for  any  specific  service  in  said 
Indian  wars,  although  their  term  of  service  may  have  been 
less  than  thirty  days,  and  the  surviving  widows  of  such 


Widows. 


MILITARY    LAWS    OF   THE    UNITED   STATES.  855 

officers  and  enlisted  men:  Provided,  That  such  widows    Remarriage, 
have  not  remarried:  Provided  further,  That  this  act  shall 
not  apply  to  any  person  not  a  citizen  of  the  United  States,  citizens!18 
Act  of  July  27,  1892  (27  Stat.  Z.,  281). 

2168.  Pensions  under  this  act  shall  be  at  the  rate  of    §££2,  ibid, 
eight  dollars  per  month,  and  payable  from  and  after  the 
passage  of  this  act,  for  and  during  the  natural  lives  of  the 
persons  entitled  thereto.     Sec.  2,  ibid. 

2169.  Before  the  name  of  any  person  shall  be  placed  on    Proof' 
the  pension  roll  under  this  act,  proof  shall  be  made,  under 
such  rules  and  regulations  as  the  Secretary  of  the  Interior 
may  prescribe,  of  the  right  of  the  applicant  to  a  pension; 

and  any  person  who  shall  falsely  and  corruptly  take  any  fa£| 
oath  required  under  this  act  shall  be  deemed  guilty  of  etgec.  3,  ibid. 
perjur3r;  and  the  Secretary  of  the  Interior  shall  cause  to 
be  stricken  from  the  pension  roll  the  name  of  any  person 
whenever  it  shall  be  made  to  appear  by  proof  satisfactory 
to  him  that  such  name  was  put  upon  such  roll  through 
false  and  fraudulent  representations,  and  that  such  person 
is  not  entitled  to  a  pension  under  this  act.     The  loss  of  the  Charge0fcertifl- 
certificate  of  discharge  shall  not  deprive  any  person  of  the  cate  not  a  bar' 
benefits  of  this  act,  but  other  evidence  of  service  per- 
formed and  of  an  honorable  discharge  may  be  deemed 
sufficient.     Sec.  3,  ibid. 

2170.  This  act  shall  not  apply  to  any  person  who  is  re-  ceS*££5Sio£ 
ceiving  a  pension  at  the  rate  of  eight  dollars  per  month  or  er|ec  4  ibid 
more,  nor  to  any  person  receiving  a  pension  of  less  than 

eight  dollars  per  month,  except  for  the  difference  between 
the  pension  now  received  (if  less  than  eight  dollars  per 
month)  and  eight  dollars  per  month.  Sec.  4-)  ibid. 

2171.  The  pension  laws  now  in  force,  which  are  not  in-  &  p^S?e  laws 
consistent  or  in  conflict  with  this  act,  are  hereby  made  a    Sec-  5> ibid- 
part  of  this  act,  so  far  as  they  may  be  applicable  thereto.1 

Sec.  5,  ibid. 

1  Revolutionary  pensions. — For  statutes  granting  pensions  for  services  in  the  war  of  the 
Revolution,  see  the  acts  of  April  10,  1806  (2  Stat.  L.,  376),  April  25, 1812  (2  Stat.  L., 
719),  March  18,  1818  (3  Stat.  L.,  410),  May  15,  1820  (3  Stat.  L.,  597),  February  4, 
1822  (3  Stat.  L.,  650),  March  1,  1823  (3  Stat.  L.,  787),  May  15,  1828  (4  Stat.  L.,  269), 
May  31,  1830  (4  Stat.  L.,  426),  June  7,  1832  (4  Stat.  L.,  529),  July  14,  1832  (4  Stat. 
L.,  529),  February  19,  1833  (4  Stat.  L.,  612),  July  4,  1836  (5  Stat.  L.,  128),  March  3, 
1837  ( 5  Stat.  L.,  187),  February 2, 1848  (9  Stat.  L.,  210),  July  29, 1848  (9  Stat.  L., 266), 
February  3,  1853  (10  Stat.  L.,  154),  February  28,  1855  (10  Stat.  L.,  616),  March  9, 
1878  (20  Stat.  L.,  29),  March  19,  1886  (24  Stat.  L.,  5),  and  sections  4716  and  4743, 
Revised  Statutes. 

War  of  1812. — For  statutes  granting  pensions  for  services  in  the  war  of  1812  see  the 
acts  of  January  11,  1812  (2  Stat.  L.,  673),  February  6,  1812  (2  Stat.  L.,  677),  August 
2,  1813  (3  Stat.  L.,  74),  April  16,  1816  (3  Stat.  L.,  286),  April  4,  1842  (5  Stat.  L.,  473), 
March  9,  1878  (20  Stat.  L.,  27),  March  19,  1886  (24  Stat:  L.,  5),  and  sections  4712, 
4713,  4732,  4737,  4738,  4739,  and  4740,  Revised  Statutes. 


856  MILITARY    LAWS    OF   THE    UNITED    STATES. 


>  Section  forty-seven  hundred  and  sixteen  of  the 
Revised  Statutes  is  hereby  repealed,  so  far  as  the  same 
relates  to  this  act  or  to  pensioners  under  this  act.  Sec. 
6,  ibid. 

chMrdenW0f  pe1^  2173-  The  widows  and  children  under  sixteen  years  of 
i8i2eandf  Indian  a£e  °^  ^e  officers,  noncommissioned  officers,  musicians, 
WFeb.  14,  1871,  c.  and  privates  of  the  regulars,  militia,  and  volunteers  of  the 
"fe^&I-M&k  war  °f  one  thousand  eight  hundred  and  twelve  and  the 
various  Indian  wars  since  one  thousand  seven  hundred  and 
ninety  who  remained  at  the  date  of  their  death  in  the  mili- 
tary service  of  the  United  States,  or  who  received  an  honor- 
able discharge  and  have  died  or  shall  hereafter  die  of  injury 
received  or  disease  contracted  in  the  service  and  in  the  line 
of  duty  shall  be  entitled  to  receive  half  the  monthly  pay  to 
which  the  deceased  was  entitled  at  the  time  he  received  the 
injury  or  contracted  the  disease  which  resulted  in  his  death. 
But  no  half  -pay  pension  shall  exceed  the  half  pay  of  a  lieu- 
tenant-colonel, and  such  half  -pay  pension  shall  be  varied 
after  the  twenty-fifth  day  of  July,  one  thousand  eight  hun- 
dred and  sixty  -six,  in  accordance  with  the  provisions  of 
section  four  thousand  seven  hundred  and  twelve  of  this 
title. 

FebZ3ni892;  v.  2174<  The  Commissioner  of  Pensions  is  hereby  author- 
27,  p.  429.  jzed  and  directed  to  accept  as  sufficient  proof  of  the  citi- 
zenship of  an  applicant  for  pension  under  the  act  of  July 
twenty-seventh,  eighteen  hundred  and  ninety-two,  the  fact 
that  said  applicant  at  the  date  of  the  application  was  an 
actual  and  bona  fide  resident  of  the  United  States.  Act  of 
February  3,  1892  (27  Stat.  Z.,  j&9). 

PENSIONS   ON   SPECIAL   ACTS. 

si<?nte5Siizpedn~     2175<  AH  persons  entitled  to  pensions  under  special  acts 
18Jpn6*6'1874'  v-  fixing  the  rate  of  such  pensions,  and  now  receiving  or 
entitled  to  receive  a  less  pension  than  that  allowed  by  the 
general  pension  laws  under  like  circumstances,  are,  in  lieu 
of  their  present  rate  of  pension,  hereby  declared  to  be 
entitled  to  the  benefits  and  subject  to  the  limitations  of  the 
general  pension  laws  entitled  uAn  act  to  revise,  consoli- 
date, and  amend  the  laws  relating  to  pensions,"  approved 
March  third,  eighteen  hundred  and  seventy-three;  and  that 
ed^yspecfafact  *kis  act  go  into  effect  f  rom  and  after  its  passage:  Provided, 
not  reduced.      That  this  act  shall  not  be  construed  to  reduce  any  pension 
granted  by  special  act.     Act  of  June  6,  1874  (18  Stat.  L.  ,  61). 
spHonactadof     2176>  When  the  rate,  commencement,  and  duration  of  a 
.s.  Pensi°n  allowed  by  special  act  are  fixed  by  such  act,  they 


MILITARY    LAWS    OF    THE    UNITED    STATES. 


857 


shall  not  be  subject  to  be  varied  by  the  provisions  and 
limitations  of  the  general  pension  laws,  but  when  not  thus 
fixed  the  rate  and  continuance  of  the  pension  shall  be  sub- 
ject to  variation  in  accordance  with  the  general  laws,  and 
its  commencement  shall  date  from  the  passage  of  the  spe- 
cial act,  and  the  Commissioner  of  Pensions  shall,  upon 
satisfactory  evidence  that  fraud  was  perpetrated  in  obtain- 
ing such  special  act,  suspend  payment  thereupon  until 
the  propriety  of  repealing  the  same  can  be  considered  by 
Congress.  See  act  of  June  6,  187 b  (18  Stat.  Z.,  61). 

2177.  No  person  who  is  now  receiving  or  shall  hereafter 
receive  a  pension  under  a  special  act  shall  be  entitled  to  j£* 
receive  in  addition  thereto  a  pension  under  the  general  UJ 
law  unless  the  special  act  expressly  states  that  the  pension1882''?-176- 
granted  thereby  is  in  addition  to  the  pension  which  said 
person  is  entitled  to  receive  under  the  general  law.     Sec.  5, 
act  of  July  25,  1882  (22  Stat.  Z.,  176). 


COMMENCEMENT   OF  PENSION — ARREARS  OF   PENSION. 


Par. 


2178,  2179.  Commencement. 

2180.  Rate  of  arrears. 

2181.  Date  of  commencement. 

2182.  Accrument  of  pension. 


Par. 

2183.  Arrears  of  pension. 

2184.  No  fees  in  arrear  cases. 

2185.  Commencement   of    pensions 

prior  wars. 


for 


Rate. 


2178.  All  pensions  which  have  been  granted  under  them£°tmmence- 
general  laws  regulating   pensions,  or  may  hereafter  be  igf/gVa/p11'^1 
granted,  in  consequence  of  death  from  a  cause  which  origi- 
nated in  the  United  States  service  during  the  continuance 

of  the  late  war  of  the  rebellion  or  in  consequence  of 
wounds,  injuries,  or  disease  received  or  contracted  in  said 
service  during  said  war  of  the  rebellion,  shall  commence 
from  the  date  of  the  death  or  discharge  from  said  service 
of  the  person  on  whose  account  the  claim  has  been  or  shall 
hereafter  be  granted,  or  from  the  termination  of  the  right 
of  the  party  having  prior  title  to  such  pension :  Provided, 
The  rate  of  pension  for  the  intervening  time  for  which 
arrears  of  pension  are  hereby  granted  shall  be  the  same  per 
month  for  which  the  pension  was  originally  granted.1  Sec. 
1,  act  of  January  25,  1879  (20  Stat.  Z.,  265). 

2179.  Section  one  of  the  act  of  January  twenty-fifth,    ^^879,  v. 
eighteen  hundred  and  seventy-nine,  granting  arrears  of  ^  P-  *™- 

'Section  2  of  the  act  of  January  25,  1879  (20  Stat.  L.,  265),  authorizes  the  Secre- 
tary of  the  Interior  to  "adopt  such  rules  and  regulations  for  the  payment  of  the 
arrears  of  pensions  hereby  granted  as  will  be  necessary  to  cause  to  be  paid  to  such 
pensioners,  or,  if  the  pensioners  shall  have  died,  to  the  person  or  persons  entitled  to 
the  same,  all  such  arrears  of  pension  as  the  pensioner  may  be,  or  would  have  been, 
entitled  to  under  this  act." 


'858  MILITARY    LAWS    OF    THE    UNITED   STATES. 

pensions  shall  be  construed  to  extend  to  and  include  pen- 
sions on  account  of  soldiers  who  were  enlisted  or  drafted 
for  the  service  in  the  war  of  the  rebellion,  but  died  or 
incurred  disability  from  a  cause  originating  after  the  cessa- 
tion of  hostilities  and  before  being  mustered  out:  Pro- 
vided, That  in  no  case  shall  arrears  of  pensions  be  allowed 
and  paid  from  a  time  prior  to  the  date  of  actual  disability. 
Act  of  March  3,  1879  (20  Stat.  Z.,  470). 

2180.  The  rate  at  which  the  arrears  of  invalid  pensions 
shall  be  allowed  and  computed  in  the  cases  which  have 
been  or  shall  hereafter  be  allowed  shall  be  graded  accord- 
ing to  the  degree  of  the  pensioner's  disability  from  time 
to  time  and  the  provisions  of  the  pension  laws  in  force 
over  the  period  for  which  the  arrears  shall  be  computed. 
Act  of  March  3,  1879  (20  Stat.  Z.,  470). 

mencementc°m  2181.  All  pensions  which  have  been  or  which  may  here- 
sec.  2,  ibid,  after  be  granted  in  consequence  of  death  occurring  from 
a  cause  which  originated  in  the  service  since  the  fourth 
day  of  March,  eighteen  hundred  and  sixty-one,  or  in  con- 
sequence of  wounds  or  injuries  received  or  disease  con- 
tracted since  that  date,  shall  commence  from  the  death  or 
discharge  of  the  person  on  whose  account  the  claim  has 
been  or  is  hereafter  granted  if  the  disability  occurred  prior 
to  discharge,  and  if  such  disability  occurred  after  the  dis- 
charge then  from  the  date  of  actual  disability  or  from  the 
termination  of  the  right  of  party  having  prior  title  to  such 
Limitation,  pension  i  Provided,  The  application  for  such  pension  has 
been  or  is  hereafter  filed  with  the  Commissioner  of  Pen- 
sions prior  to  the  first  day  of  July,  eighteen  hundred  and 
eighty,  otherwise  the  pension  shall  commence  from  the 
date  of  filing  the  application;  but  the  limitation  herein 
prescribed  shall  not  apply  to  claims  by  or  in  behalf  of 
insane  persons  and  children  under  sixteen  years  of  age. 
Sec.  2,  ibid. 

dewm!d  P0enhsa™     2182.  In  construing  the  preceding  section,1  the  right  of 

aCMared3,  1873,  s.  persons  entitled  to  pensions  shall  be  recognized  as  accru- 

16sec.477fe,^?s.  m£  a^  ^ne  date  therein  stated  for  the  commencement  of 

such  pension,  and  the  right  of  a  dependent  father  or 

dependent  brother  to  pension  shall  not  in  any  case  be  held 

to  have  accrued  prior  to  the  sixth  day  of  June,  eighteen 

hundred  and  sixty-six;  and  the  right  of  all  other  classes 

of  claimants,  if  applying  on  account  of  the  death  of  a  per- 

1  The  section  above  referred  to  is  section  4709  of  the  Revised  Statutes,  which  was 
expressly  repealed  by  the  act  of  March  3,  1879  (20  Stat.  L.,  469). 


MILITARY   LAWS    OF   THE    UNITED   STATES.  859 

son  who  was  regularly  mustered  into  the  service  or  regu- 
larly employed  in  the  Navy  or  upon  the  gunboats  or  war 
vessels  of  the  United  States,  shall  not  be  held  to  have 
accrued  prior  to  the  fourteenth  day  of  July,  eighteen  hun- 
dred and  sixty-two;  if  applying  on  account  of  a  chaplain 
of  the  Army,  their  right  shall  not  be  held  to  have  accrued 
prior  to  the  ninth  day  of  April,  eighteen  hundred  and 
sixty-four;  if  applying  on  account  of  an  enlisted  soldier 
who  was  not  mustered,  or  a  nonenlisted  man  in  temporary 
service,  their  right  shall  not  be  held  to  have  accrued  prior 
to  the  fourth  day  of  July,  eighteen  hundred  and  sixty- 
four;  if  applying  on  account  of  an  acting  assistant  or  con- 
tract surgeon,  their  right  shall  not  be  held  to  have  accrued 
prior  to  the  third  day  of  March,  eighteen  hundred  and 
sixty-five;  if  applying  on  account  of  persons  enlisted  as 
teamsters,  wagoners,  artificers,  hospital  stewards,  or  far- 
riers, their  right  shall  not  be  held  to  have  accrued  prior  to 
the  sixth  day  of  June,  eighteen  hundred  and  sixty-six; 
and  the  right  of  all  classes  of  claimants  applying  on  account 
of  a  provost  marshal,  deputy  provost  marshal,  or  enrolling 
officer  shall  not  be  held  to  have  accrued  prior  to  the 
twenty-fifth  day  of  July,  eighteen  hundred  and  sixty-six. 
But  the  right  of  a  widow  or  dependent  mother  who  mar- 
ried prior  and  did  not  apply  till  subsequent  to  the  twenty- 
seventh  day  of  July,  eighteen  hundred  and  sixty-eight, 
shall  not  be  held  to  have  accrued  prior  to  that  date. 

2183.  It  shall  be  the  duty  of  the  Commissioner  of  Pen-    Arrears  of  pen- 
sions, upon  any  application  by  letter  or  otherwise  by  or  on   sec.  4711,  B.  s. 
behalf   of   any  pensioner  entitled  to  arrears  of  pension 

under  section  forty-seven  hundred  and  nine,1  or  if  any  such 
pensioner  has  died,  upon  a  similar  application  by  or  on 
behalf  of  any  person  entitled  to  receive  the  accrued  pen- 
sion due  such  pensioner  at  his  death,  to  pay  or  cause  to  be 
paid  to  such  pensioner,  or  other  person,  all  such  arrears 
of  pension  as  the  pensioner  may  be  entitled  to,  or,  if  dead, 
would  have  been  entitled  to  under  the  provisions  of  that 
section  had  he  survived;  and  no  claim  agent  or  other  per- 
son shall  be  entitled  to  receive  any  compensation  for  serv- 
ices in  making  application  for  arrears  of  pension. 

2184.  No  fee  shall  be  demanded,  received,  or  allowed  in    NO  fees  in  ar- 
any  claim  for  arrears  of  pension,  or  arrears  of  increase  Sisel  °f  pen 

of  pension  allowed  by  any  act  of  Congress  passed  sub- 4,  v^Js.Vi^4' s' 

1  The  section  above  referred  to  is  section  4709  of  the  Revised  Statutes,  which  was 
expressly  repealed  by  the  act  of  March  3,  1879  (20  Stat.  L.,  469). 


860 


MILITARY    LAWS    OF   THE    UNITED   STATES. 


sequent  to  the  date  of  the  allowance  of  the  original  claims 
in  which  such  arrears  of  pension  or  of  increase  of  pension 
may  be  allowed.1     Sec.  4,  act  of  July  4,  1884  (23  Stat. 
L.,99). 

mentS^sioM  2185'  In  a11  cases  in  wm'ch  the  cause  of  disability  or 
death  originated  in  the  service  prior  to  the  fourth  day  of 
March,  eighteen  hundred  and  sixty-one,  and  an  applica- 
tion for  pension  shall  not  have  been  filed  within  three 
years  from  the  discharge  or  death  of  the  person  on  whose 
account  the  claim  is  made,  or  within  three  years  of  the 
termination  of  a  pension  previously  granted  on  account  of 
the  service  and  death  of  the  same  person,  the  pension  shall 
commence  from  the  date  of  filing  by  the  party  prosecuting 
the  claim  the  last  paper  requisite  to  establish  the  same. 
But  no  claim  allowed  prior  to  the  sixth  day  of  June,  eight- 
een hundred  and  sixty-six,  shall  be  affected  by  anything 
herein  contained. 


INCREASE   OF   PENSIONS. 


Par. 

2186.  Increase  of  pensions. 

2187.  Minimum  rate  to  be  six  dollars. 


Par. 


2188.  No  fee  for  increase  claims;  penalty 
for  taking  illegal  fee;  pending 
contracts. 


Increase  of  pen- 
sions. 

234,  s.4,  V.  17',p! 


2186.  Except  in  cases  of  permanent  specific  disabilities, 
no  increase  of  pension  shall  be  allowed  to  commence  prior 
is  p  78  ^°  ^e  ^a^e  °^  ^ne  examming  surgeon's  certificate  estab- 
Sec.4698i,B.s.  lishing  the  same  made  under  the  pending  claim  for  increase; 
and  in  this,  as  well  as  all  other  cases,  the  certificate  of  an 
examining  surgeon,  or  of  a  board  of  examining  surgeons, 
shall  be  subject  to  the  approval  of  the  Commissioner  of 
Pensions. 

six  dollars  a     2187.  From  and  after  the  passage  of  this  act,  all  pen- 
minimum?ate, e  sioners  now  on  the  rolls,  who  are  pensioned  at  less  than 
28?par704.1895'  v>  six  dollars  per  month,  for  any  degree  of  pensionable  disa- 
bility, shall  have  their  pensions  increased  to  six  dollars 
per  month;  and  that  hereafter,  whenever  any  applicant 
for  pension  would,  under  existing  rates,  be  entitled  to  less 
NO  prior  effect,  than  six  dollars  for  any  single  disability,  or  several  com- 
bined disabilities,  such  pensioner  shall  be  rated  at  not  less 
than  six  dollars  per  month:  Provided  also,  That  the  pro- 
visions hereof  shall  not  be  held  to  cover  any  pensionable 
period  prior  to  the  passage  of  this  act,  nor  authorize  a 
rerating  of  any  claims  for  any  part  of  such  period,  nor 


lfrhis  statute  replaces  section  4  of  the  act  of  January  25,  1879  (20  Stat.  L.,  265). 


MILITARY   LAWS   OF   THE   UNITED   STATES. 


861 


prevent  the  allowance  of  lower  rates  than  six  dollars  per 
month,  according  to  the  existing  practice  in  the  Pension 
Office  in  pending  cases  covering  any  pensionable  period 
prior  to  the  passage  of  this  act.  Act  of  March  2, 1895  (28 
Stat.  Z.,  704). 
2188.  Hereafter  no  agent  or  attorney  shall  demand,  re-  Fee  for  increase, 

J  '  etc., claims.  Pen- 

ceive,  or  be  allowed  anv  compensation  under  existing  law  aity  for  taking  n- 

,    .       j.  <•  >        legal  fee.    Pend- 

exceeding  two  dollars  in  any  claim  tor  increase  or  pension  ing  contracts. 
on  account  of  the  increase  of  the  disability  for  which  the  26,  p.  io&2. 
pension  has  been  allowed,  or  for  services  rendered  in 
securing  the  passage  of  any  special  act  of  Congress  grant- 
ing a  pension  or  an  increase  of  pension  in  any  case  that 
has  been  presented  at  the  Pension  Office  or  is  allowable 
under  the  general  pension  laws:  And  provided  further, 
That  any  agent,  attorney,  or  other  person  instrumental  in 
prosecuting  any  claim  for  increase  of  pension  on  account  of 
the  increase  of  disability  for  which  pension  was  allowed, 
or  who  has  rendered  services  in  procuring  the  passage  of 
any  special  act  of  Congress  granting  a  pension  or  an 
increase  of  pension  in  any  case  that  has  been  presented  at 
the  Pension  Office  or  is  allowable  under  the  general  pen- 
sion laws,  who  shall  directly  or  indirectly  contract  for, 
demand,  receive,  or  retain  any  compensation  for  such  serv- 
ices, except  as  hereinbefore  provided,  shall  be  deemed 
guilty  of  a  misdemeanor,  and  upon  conviction  thereof 
shall,  for  each  and  every  such  offense,  be  fined  not  exceed- 
ing five  hundred  dollars  or  imprisoned,  not  exceeding  two 
years  or  both,  in  the  discretion  of  the  court:  Provided, 
however,  That  the  foregoing  provisions  in  relation  to  fees 
of  agents  or  attorneys  shall  not  apply  to  any  case  now 
pending  where  there  is  an  existing  lawful  contract  express 
or  implied.  Act  of  March  3,  1891  (26  Stat  Z.,  1082). 

DECLARATIONS  AND  EVIDENCE   IN   PENSION  CASES. 


Par. 

2189.  Declarations,  oaths,  etc. 

2190,  2191.  The  same,  oaths. 

2192.  Declarations  in  foreign  countries. 

2193.  Blank  forms  and  instructions  to  be 

furnished. 

2194.  Curing  defective  declarations. 

2195.  Proof  of  death. 


Par. 

2196.  Presumptions  as  to  nondisability  at 

enlistment. 

2197.  Same  as  to  absentees. 

2198.  Period  of  service,  how  reckoned. 

2199.  Proof  of  marriage. 

2200.  Legitimacy  of  children. 

2201.  Certain  soldiers  not  to  be  deemed 

deserters. 


2189.  Declarations1  of  pension  claimants  shall  be  made  b 
before  a  court  of  record,  or  before  some  officer  thereof  18||c^, 
having  custody  of  its  seal,  or  before  some  officer  who,  under 


862 


MILITARY    LAWS    OF   THE    UNITED   STATES. 


be? or 
ized  officer. 


the  laws  of  his  State,  city,  or  county,  has  authority  to  ad- 
minister oaths  for  general  purposes;  and  said  officers  are 
hereby  fully  authorized  and  empowered  to  administer  and 
certify  any  oath  or  affirmation  relating  to  any  pension  or 
application  therefor:  Provided,  That  where  such  declara- 
tion or  other  papers  are  executed  before  an  officer  author- 
ized as  above  but  not  required  by  the  laws  of  his  State  to 
have  and  use  a  seal  to  authenticate  his  official  acts,  he 
shall  file  in  the  Pension  Bureau  a  certificate  of  his  official 
character,  showing  his  official  signature  and  term  of  office, 
certified  by  a  clerk  of  a  court  of  record  or  other  proper 
officer  of  the  State  as  to  the  genuineness  thereof;  and  when 
said  certificate  has  been  filed  in  the  Bureau  of  Pensions  his 
own  certificate  will  be  recognized  during  his  term  of  office.1 
Sec.  1,  act  of  July  26,  1892  (27  Stat.  L.,  272}. 
oaths  in  pen-  2190.  Any  and  all  affidavits  and  declarations  to  be  here- 

sion,  etc.,  cases. 

after  made  or  used  in  any  pension  or  bounty  cases,  or  in 
claims  against  the  Government  for  back  pay  or  arrears  or 
increase  of  pension,  or  for  quarterly  vouchers,  may  be 
taken  by  any  officer  authorized  to  administer  oaths  for 
general  purposes  in  the  State,  city,  or  county  where  said 
officer  resides.  If  such  officer  has  a  seal  and  uses  it  upon 
certification,  such  paper,  no  certificate  of  a  county  clerk  or  prothono- 

etc.,  by   county  J 

clerk,  etc.i8Qo  ^  tary  or  clerk  of  a  court  shall  be  necessary;  but  when  no 
26,  p.  209.  seal  is  used  by  the  officer  taking  such  affidavit,  then  a 

clerk  of  a  court  of  record  or  a  county  or  city  clerk  shall 
affix  his  official  seal  thereto  and  shall  certify  to  the  signa- 
ture and  official  character  of  said  officer.2  Act  of  July  1, 
1890(26  Stat.  L.,209). 

siolaca!esn  Pen-     2191.  The  act  approved  July  first,  eighteen  hundred  and 

ninety,  entitled  "An  act  in  relation  to  oaths  in  pension 

and  other  cases,"  be,  and  the  same  is  hereby,  amended  and 

construed  to    mean    that    when   declarations,    affidavits, 

and  other  papers  are  verified  by  justices  of  the  peace  and 

other  officers  duly  authorized  by  law  to  administer  oaths 

for  general  persons,  but  not  required  by  law  to  have  seals, 

certificate  of  the  official  character,  signature,  and  term  of  service  of 

ter,  etc.  such  justice  or  other  officer  shall  be  certified  by  the  clerk 

1890,  v.  28, p. em  of  the  county  or  court  of  record  or  other  proper  officer, 

*mder  the  seal  of  such  county  or  court  or  public  officer,  in 

1  The  act  of  June  13,  1898  (30  Stat  L.,  448,  462),  contains  a  provision  exempting 
"  papers  necessary  to  be  used  for  the  collection  01  claims  from  the  United  States  for 
pensions,  back  pay,  bounty,  or  for  property  lost  in  the  military  or  naval  service" 
from  the  operation  of  the  statute  requiring  powers  of  attorney  to  be  stamped  in 
accordance  with  the  requirements  of  that  enactment. 

2  Replaced  in  part  by  the  act  of  July  26,  1892  (27  Stat.  L.,  272),  paragraph  2189, 
ante. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  863 

the  department  or  bureau  in  which  such  papers  are  to  be 
used;  and  one  such  certificate  duly  filed  in  such  depart-  one  sufficient, 
ment  or  bureau,  or  with  any  pension  agent,  shall  be  suffi- 
cient as  to  all  verifications  of  such  officer  during  his  official 
term,  and  all  papers  heretobefore  or  hereafter  filed  shall 
be  subject.1  Joint  resolution  No,  Jft,  September  1,  1890 
(26  Stat.  L.,679). 

2192.  The  Commissioner  of  Pensions  may  accept  decla- 
rations  and  other  papers  of  claimants  residing  in  foreign 
countries  made  before  a  United  States  minister  or  consul1892'  v.  27,  p.  272. 
or  other  consular  officer,  or  before  some  officer  of  the 
country  duly  authorized  to  administer  oaths  for  general 
purposes,  and  whose  official  character  and  signature  shall 
be  duly  authenticated  by  the  certificate  of  a  United  States 
minister  or  consul,  or  other  consular  officer;  and  declara^  Deciarationsof 

Indians. 

tions  in  claims  of  Indians  may  be  made  before  a  United 
States  Indian  agent.     Sec:  8,  act  of  July  26, 1892  (27  Stat. 


2193.  The   Commissioner  of   Pensions,    on  application    Commissioner 

to  furnish  print- 
being  made  to  him  in  person,  or  by  letter,  by  any  claimant  ed    instructions 

r  J  J        J  free  of  charge. 

or  applicant  for  pension,  bounty -land,  or  other  allowance    •*"&&*••  s.  22,  p. 
required  by  law  to  be   adjusted  or  paid  by  the  Pension    Sec.4748,R.s. 
Office,  shall  furnish  such  person,  free  of  all  expense,  all 
such  printed  instructions  and  forms  as  may  be  necessary  in 
establishing  and  obtaining  said  claim;  and  on  the  issuing 
of  a  certificate  of  pension  or  of  a  bounty-land  warrant,  he 
shall  forthwith  notify  the  claimant  or  applicant,  and  also 
the  agent  or  attorney  in  the  case,  if  there  be  one,  that  such 
certificate  has  been  issued,  or  allowance  made,  and  the  date 
and  amount  thereof.2 

2194.  Any  and  all  declarations  and  affidavits  now  on  file  ive 'decorations! 
in  the  Pension  Bureau  which  are  considered  informal  by  etgec.  3(  Juiy  2e, 
reason  of  not  having  been  executed  in  conformity  to  the 1892' v<  27' p* 272> 
laws  heretofore  in  force  covering  such,  and  in  which  it  is 

shown  or  may  be  hereafter  shown  by  proper  evidence  that 
the  same  were  executed  by  and  before  an  officer  who  was 
duly  authorized  to  administer  oaths  for  general  purposes 
at  said  date  of  execution,  shall  be  accepted  as  formal  as 
from  date  of  filing  such  declarations  or  affidavits.  Sec.  3, 
act  of  July  26,  1892  (27  Stat.  Z.,  272). 

Replaced  in  part  by  the  act  of  July  26,  1892  (27  Stat.  L.,  272),  paragraph  2189, 
ante. 

2  Section  4717  of  the  Revised  Statutes,  which  established  a  period  of  limitation  in 
the  prosecution  of  claims  for  pension,  was  expressly  repealed  by  the  act  of  January 
25, 1889  (20  Stat.  L.,  265),  paragraph  2202, post.  There  is  now  no  limitation,  in  point 
of  time,  in  the  prosecution  of  pension  claims. 


864  MILITARY    LAWS    OF   THE    UNITED    STATES. 


2195.  ^u  considering  claims  filed  under  the  pension  laws, 
29,  p.  57.  £ne  death  of  an  enlisted  man  or  officer  shall  be  considered 

as  sufficient!}7  proved  if  satisfactory  evidence  is  produced 
establishing  the  fact  of  the  continued  and  unexplained 
absence  of  such  enlisted  man  or  officer  from  his  home  and 
family  for  a  period  of  seven  -years,  during  which  period 
no  intelligence  of  his  existence  shall  have  been  received. 
And  any  pension  granted  under  this  act  shall  cease  upon 
proof  that  such  officer  or  enlisted  man  is  still  living.  Act 
of  March  IS,  1896  (29  Stat.  L.,  57). 

as  toTsabFmV™  2196.  AU  applicants  for  pensions  shall  be  presumed  to 
enMarm3ni885  v  ^ave  na(l  no  disability  at  the  time  of  enlistment;  but  such 
23,  p.  SGI.  presumption  may  be  rebutted.  Act  of  March  3,  1885  (23 

Stat.  L.,361). 

se^M&S.         2197.  Officers  absent  on  sick  leave,  and  enlisted  men 

see.  4?oo,R.s.  absent  on  sjck  furlough,  or  on  veteran  furlough  with  the 

organization  to  which  they  belong,  shall  be  regarded  in 

the  administration  of  the  pension  laws  in  the  same  manner 

as  if  they  were  in  the  field  or  hospital. 

ice^how*  Scon      2198.  The  period  of  service  of  all  persons  entitled  to  the 

8tsecd7  mi      benefits  of  the  pension  laws,  or  on  account  of  whose  death 

Sec.  4701,  K.S.  anv  persOn  may  become  entitled  to  a  pension,  shall  be  con- 

strued to  extend  to  the  time  of  disbanding  the  organization 

to  which  such  persons  belonged,  or  until  their  actual  dis- 

charge for  other  cause  than  the  expiration  of  the  service 

of  such  organization. 

riage0*  °f  mar      2199.  Marriages,  except  such  as  are  mentioned  in  section 

22?p*846.1882>  v'  forty-seven  hundred  and  five  of  the  Revised  Statutes,  shall 

be  proven  in  pension  cases  to  be  legal  marriages  according 

to  the  law  of  the  place  where  the  parties  resided  at  the 

time  of  marriage,  or  at  the  time  when  the  right  to  pension 

accrued;  and  the  open  and  notorious  adulterous  cohabita- 

tion of  a  widow  who  is  a  pensioner  shall  operate  to  term- 

inate her  pension  from  the  commencement  of  such  cohab- 

itation.    Act  of  August  7,  1888  (22  Stat.  Z.,  346). 

what  children     2200.  In  the  administration  of  the  pension  laws,  children 

deemed  legiti- 

08ee  '4704  R  s  ^orn  before  the  marriage  of  their  parents,  if  acknowledged 
by  the  father  before  or  after  the  marriage,  shall  be  deemed 
legitimate. 
certain  sol-     2201.  No  soldier  or  sailor  shall  be  taken  or  held  to  be  a 

diers  and  sailors       ,  ,  .  _T  ,        .,   .  .   .,    ,,  ., 

not  to  be  deemed  a  deserter  trom  the  Army  or  JNavy  who  laitniully  served 

July  19,'  1867,  c.  according  to  his  enlistment  until  the  nineteenth  day  of 

Sec'.  4749,  E.  s.  April,  eighteen  hundred  and  sixty-five,  and  who,  without 

proper  authority  or  leave  first  obtained,  quit  his  command 

or  refused  to  serve  after  that  date;  but  nothing  herein 

contained  shall  operate  as  a  remission  of  any  forfeiture 


MILITARY    LAWS    OF    THE    UNITED    STATES.  865 

incurred  by  any  such  soldier  or  sailor  of  his  pension;  but 
this  section  shall  be  construed  solely  as  a  removal  of  any 
disability  such  soldier  or  sailor  may  have  incurred  by  the 
loss  of  his  citizenship  in  consequence  of  his  desertion. 

REMOVAL   OF   LIMITATION. 

2202.  That  section  forty-seven  hundred  and  seventeen  of  pr^^tion  $ 
the  Revised  Statutes  of  the  United  States,  which  provides  ?eemo£?d. clalms 
that  ' '  no  claim  for  pension  not  prosecuted  to  a  successful  18fg  |* , 
issue  within  five  years  from  the  date  of  filing  the  same 
shall  be  admitted  without  record  evidence  from  the  War  or 
Navy  Department  of  the  injury  or  the  disease  which  resulted 
in  the  disability  or  death  of  the  person  on  whose  account 
the  claim  is  made:  Provided,  That  in  any  case  in  which  the 
limitation  prescribed  by  this  section  bars  the  further  prose- 
cution of  the  claim,  the  claimant  may  present,  through  the 
Pension  Office,  to  the  Adjutant-General  of  the  Army  or  the 
Surgeon-General  of  the  Navy,  evidence  that  the  disease  or 
injury  which  resulted  in  the  disability  or  death  of  the 
person  on  whose  account  the  claim  is  made  originated  in 
the  service  and  in  the  line  of  duty,  and  if  such  evidence  is 
deemed  satisfactory  by  the  officer  to  whom  it  may  be  sub- 
mitted, he  shall  cause  a  record  of  the  fact  so  proved  to  be 
made,  and  a  copy  of  the  same  to  be  transmitted  to  the 
Commissioner  of  Pensions,  and  the  bar  to  the  prosecution 
of  the  claim  shall  thereby  be  removed,"  be,  and  the  same  is 
hereby,  repealed. 1  Sec.  3,  act  of  January  <25, 1879  (20  Stat. 
L.,%65). 

FEES.2 


Par. 

2207.  Regulations  to  be  prescribed. 

2208.  Rejection  of  contracts  for  fees. 

2209.  Repeal  of  prior  statute  respecting 

fees. 

2210.  Sections  4768,  4769,  and  4786,  Re- 

vised Statutes,  made  applicable. 

2211.  False  affidavits;  penalty. 


Par. 

2203.  Fees  for  prosecution  of  claims. 

2204.  Agreement  to    be    filed;    form  of 

agreement. 

2205.  Amount  paid  to  be  deducted  from 

fee. 

2206.  Penalty  for  violation  of  statute  re- 

specting fees. 

2203.  No  agent  or  attorney  or  other  person  shall  demand 
or  receive  any  other  compensation  for  his  services  in  pros- in^  clai"ms- 

1  Section  4721,  Revised  Statutes,  prescribes  a  limitation  upon  the  operation  of  sec- 
tions 4709  and  4710,  and  4717,  the  former  of  which  were  repealed  by  the  act  of  March 
3,  1879  (20  Stat.  L.,  469),  and  the  latter  by  section  3  of  the  act  of  January  25,  1879 
(20  Stat.  L.,  265). 

2  For  other  statutory  restrictions  in  respect  to  the  allowance  of  attorneys'  fees  in 
pension  cases,  see  section  4  of  the  act  of  July  4,  1884  (23  Stat.  L.,  99),  par.  2184, 
ante;  section  2,  act  of  March  19,  1886  (24  ibid.,  5),  paragraph  2139,  ante;  section  4, 
act  of  June  27,  1890  (26  ibid.,   182),  paragraph  2153,  ante;  March  3,  1891  (26  ibid., 
1082),  paragraph  2188,  ante;  section  2,  act  of  August  5,  1892  (27  ibid.,  349),  para- 
graph 2156,  ante. 

22924—08 55 


866  MILITARY    LAWS    OF   THE    UNITED   STATES. 

i8M,Cv.323f p!?9?'  ecuting  a  claim  for  pension  or  bounty  land  than  such  as 
sec.4786,k.s.  the  Commissioner  of  Pensions  shall  direct  to  be  paid  to 
him,  not  exceeding  twenty-five   dollars;   nor  shall  such 
agent,  attorney,  or  other  person  demand  or  receive  such 
compensation,  in  whole  or  in  part,  until  such  pension  or 
Proviso.          bounty-land  claim  shall  be  allowed:  Provided,  That  in  all 
claims  allowed  since  June  twentieth,   eighteen  hundred 
and  seventy-eight,  where  it  shall  appear  to  the  satisfaction 
tne  Commissioner  of  Pensions  that  the  fee  of  ten  dol- 
>  or  an3r  Part  thereof,  has  not  been  paid,  he  shall  cause 
the  same  to  be  deducted  from  the  pension,  and  the  pension 
agent  to  pay  the  same  to  the  recognized  attorney. 
amoguSt?fefeefto     2204-  Tne  agent  or  attorney  of  record  in  the  prosecution 
besece(4,  July  4,  °^  the  case  may  cause  to  be  filed  with  the  Commissioner  of 
^'JiHiftSs.  Pensions,  duplicate  articles  of  agreement,  without  addi- 
tional cost  to  the  claimant,  setting  forth  the  fee  agreed 
upon  by  the  parties,  which  agreement  shall  be  executed  in 
the  presence  of  and  certified  by  some  officer  competent  to 
administer  oaths.     In  all  cases  where  application  is  made 
faSu?|intoasefi?e^or  Pensi°n  or  bounty  land,  and  no  agreement  is  filed  with 
agreement.        the  Commissioner  as  herein  provided,  the  fee  shall  be  ten 
dollars  and  no  more.     And  such  articles  of  agreement  as 
may  hereafter  be  filed  with  the  Commissioner  of  Pensions 
Articles  of  are  not  authorized,  nor  will  they  be  recognized  except  in 

agreement,  etc.,  .    .       ,  _    / 

recognized  in  claims  for  original  pensions,  claims  for  increase  of  pension 

certain  claims  ' 

only.  on  account  of  a  new  disability,  in  claims  for  restoration 

where  a  pensioner's  name  has  been  or  may  hereafter  be 
dropped  from  the  pension  rolls  on  testimony  taken  by  a 
special  examiner,  showing  that  the  disability  or  cause  of 
death,  on  account  of  which  the  pension  was  allowed,  did 
not  originate  in  the  line  of  duty,  and  in  cases  of  dependent 
relatives  whose  names  have  been  or  may  hereafter  be, 
dropped  from  the  rolls  on  like  testimony,  upon  the  ground 
of  nondependence,  and  in  such  other  cases  of  difficulty 
and  trouble  as  the  Commissioner  of  Pensions  may  see  fit  to 
recognize  them:  Provided,  That  no  greater  fee  than  ten 

land? eS  b°unty  dollars  shall  be  demanded,  received,  or  allowed  in  any  claim 
for  pension  or  bounty  land  granted  by  special  act  of  Con- 
gress, nor  in  any  claim  for  increase  of  pension  on  account 
of  the  increase  of  the  disability  for  which  the  pension  had 
been  allowed:  And  provided  further,  That  no  fee  shall  be 

foNo^e|aiowed  Demanded,  received,  or  allowed  in  any  claim  for  arrears  of 

pension,  etc.  pension  or  arrears  of  increase  of  pension  allowed  by  any 
act  of  Congress  passed  subsequent  to  the  date  of  the 
allowance  of  the  original  claims  in  which  such  arrears  of 


m' 


MILITAEY   LAWS    OF   THE   UNITED   STATES.  867 

pension,  or  of  increase  of  pension,  may  be  allowed.1  Sec. 
4,  act  of  July  4,  1884  (23  Stat.  Z.,  99). 

The  articles  of  agreement  herein  provided  for  shall  be  in 
substance  as  follows,  to  wit: 

ARTICLES  OF  AGREEMENT. 

Whereas   I,  -  — ,  late  a  -         -  in  company 

— ,  of  the  -        -  regiment  of  -        -  volunteers,  war 

of  eighteen  hundred  and  sixty-one  (or,  if  the  service  be 

different,  here  state  the  same),  having  made  application  for 

pension  under  the  laws  of  the  United  States: 

Now,  this  agreement  witnesseth,  that  for  and  in  consid- 
eration of  services  done  and  to  be  done  in  the  premises,  I 
hereby  agree  to  allow  my  attorney,  -  — ,  of 

— ,  the  fee  of  -  -  dollars,  which  shall  include  all 
amounts  to  be  paid  for  any  service  in  furtherance  of  said 
claim;  and  said  fee  shall  not  be  demanded  by  or  payable 
to  my  said  attorney  (or  attorneys),  in  whole  or  in  part,  ex- 
cept in  case  of  the  granting  of  my  pension  by  the  Commis- 
sioner of  Pensions;  and  then  the  same  shall  be  paid  to  him 
(or  them)  in  accordance  with  the  provisions  of  sections  forty- 
seven  hundred  and  sixty-eight  and  forty-seven  hundred  and 
sixty-nine  of  the  Revised  Statutes. 

(Claimant's  signature.) 
(Two  witnesses'  signatures.) 

STATE  OF ) 

County  of -  \ 

Be  it  known  that  on  this,  the  —     —  day  of ,  anno 

Domini  eighteen  hundred  and  eighty  -  — ,  personally  ap- 
peared the  above-named  -  — ,  who,  after  having 
had  read  over  to  -  — ,  in  the  hearing  and  presence  of  the 
two  attesting  witnesses,  the  contents  of  the  foregoing  arti- 
cles of  agreement,  voluntarily  signed  and  acknowledged 

the  same  to  be free  act  and  deed. 

(Official  signature.) 

And  now,  to  wit,  this  —  —  day  of  -  — ,  anno  Domini 
eighteen  hundred  and  eighty ,  I  (or  we)  accept  the  pro- 
visions contained  in  the  foregoing  articles  of  agreement, 
and  will,  to  the  best  of  my  (or  our)  ability,  endeavor  faith- 
fully to  represent  the  interest  of  the  claimant  in  the  prem- 
ises. 

Witness  my  (or  our)  hand,  the  day  and  year  first  above 
written. 

(Signature  of  attorney.) 

^his  section  replaces  section  4  of  the  act  of  January  25,  1879  (20  Stat.  L.,  265). 


868  MILITARY    LAWS    OF   THE    UNITED   STATES. 

STATE  OF  -       -  ) 
County  of—      —  I 

Personally  came  -  ,  whom  I  know  to  be  the 

person  he  represents  himself  to  be,  and  who,  having  signed 
above  acceptance  of  agreement,  acknowledged  the  same  to 

be free  act  and  deed. 

(Official  signature.) 

Amount  paid  2205.  And  if  in  the  adjudication  of  any  claim  for  pension 
ducted  from  fee.  jn  which  such  articles  of  agreement  have  been,  or  may  here- 
after be,  filed,  it  shall  appear  that  the  claimant  had,  prior 
to  the  execution  thereof,  paid  to  the  attorney  any  sum  for 
his  services  in  such  claim,  and  the  amount  so  paid  is  not 
stipulated  therein,  then  every  such  claim  shall  be  adjudi- 
cated in  the  same  manner  as  though  no  articles  of  agree- 
ment had  been  filed,  deducting  from  the  fee  of  ten  dollars 
allowed  by  law  such  sum  as  claimant  shall  show  that  he 
has  paid  to  his  said  attorney.  Ibid. 

Penalty  for     2206.  Any  agent  or  attorney  or  other  person  instrumental 

violation  of  act .  . .  ,    .        „     ' 

relating  to  fees  in  prosecuting  any  claim  for  pension  or  bounty  land,  who 

or  compensation.    ,  *\,  ,.         .,  .     ,.         .,  .  „         ,  , 

shall  directly  or  indirectly  contract  for,  demand  or  receive  or 
retain  any  greater  compensation  for  his  services  or  instru- 
mentality in  prosecuting  a  claim  for  pension  or  bounty  land 
than  is  herein  provided,  or  for  payment  thereof  at  any  other 
time  or  in  any  other  manner  than  is  herein  provided,  or 
who  shall  wrongfully  withhold  from  a  pensioner  or  claimant 
the  whole  or  any  part  of  the  pension  or  claim  allowed  and 
due  such  pensioner  or  claimant,  or  the  land  warrant  issued 
to  any  such  claimant,  shall  be  deemed  guilty  of  a  misde- 
meanor, and  upon  conviction  thereof  shall  for  every  such 
offense  be  fined  not  exceeding  five  hundred  dollars,  or 
imprisoned  at  hard  labor  not  exceeding  two  years,  or  both, 
in  the  discretion  of  the  court.  Ibid. 
secretary  of  2207.  That  the  Secretary  of  the  Interior  may  prescribe 

Interior  to  pre-       ,  ,  ,      .  ,,  ., .     '       ,, 

scribe  rules  forrules  and  regulations  governing  the  recognition  of  agents, 

government     of     .  ,.  ,    . 

agents,  etc.,  in  attorneys,  or  other  persons  representing  claimants  betore 

prosecution  of ,  .    _  „          , 

claims.  his  Department,  and  may  require  of  such  persons,  agents, 

'    £  J.  •      J  \- 

and  attorneys,  before  being  recognized  as  representatives 
of  claimants,  that  they  shall  show  that  they  are  of  good 
moral  character  and  in  good  repute,  possessed  of  the  nec- 
essary qualifications  to  enable  them  to  render  such  claim- 
ants valuable  service,  and  otherwise  competent  to  advise 
and  assist  such  claimants  in  the  presentation  of  their  claims 
and  such  Secretary  may,  after  notice  and  opportunity  for  a 
hearing,  suspend  or  exclude  from  further  practice  before 


MILITARY   LAWS    OF   THE    UNITED    STATES.  869 

his  Department  any  such  person,  agent,  or  attorney  shown 
to  be  incompetent,  disreputable,  or  who  refuses  to  comply 
with  the  said  rules  and  regulations,  or  who  shall  with 
intent  to  defraud  in  any  manner  deceive,  mislead,  or 
threaten  any  claimant,  or  prospective  claimant,  by  word, 
circular,  letter,  or  by  advertisement.  Sec.  5,  ibid. 

2208.  The  Commissioner  shall  have  power,  subject  to    commissioner 

J         .       of  Pensions  may 

review  by  the  Secretary,  to  reject  or  refuse  to  recognize  reject  contracts 
any  contract  for  fees   herein  provided  for  whenever  it    sec.6,iMd. 
shall  be  made  to  appear  that  any  undue  advantage  has 
been  taken  of  the  claimant  in  respect  to  such  contract. 
Sec.  6,  ibid. 

2209.  That  the  act  entitled  "An  act  relating  to  ^^  in^gSmoiiSr 
agents  and  attorneys  in  pension  cases,"  approved  June  actuating  to,' 
twentieth,  eighteen  hundred  and  seventy-eight,  is  hereby  ^^ 1884>  v- 
repealed :  Provided,  however,  That  the  rights  of  the  parties 

shall  not  be  abridged  or  affected  as  to  contracts  in  pending 
cases,  as  provided  for  in  said  act;  but  such  contracts  shall 
be  deemed  to  be  and  remain  in  full  force  and  virtue,  and 
shall  be  recognized  as  contemplated  by  said  act.  Act  of 
July  4,  1884  (83  Stat.  L.,  99). 

2210.  That    sections    forty-seven    hundred    and    sixty-    sections  4768, 

47bi7t    find      47oo, 

eight,1  forty-seven  hundred  and  sixty-nine,2  and  forty- 
seven  hundred  and  eighty-six 3  of  the  Revised  Statutes  are 
hereby  made  applicable  also  to  all  cases  hereafter  filed  1884« v-  28.  ?•*"•' 
with  the  Commissioner  of  Pensions,  and  to  all  cases  so 
filed  since  June  twentieth,  eighteen  hundred  and  seventy- 
eight,  and  which  have  not  been  heretofore  allowed,  except 
as  hereinafter  provided.  Sec.  2,  act  of  July  4,  1884  (23 
Stat.  L.,  99). 

2211.  Every  person  who  knowingly  or  willfully  makes  fa£|naltJffida\St 
or  aids,  or  assists  in  the  making,  or  in  any  wise  procures  ^Sellers1 "dating 
the  making  or  presentation  of  any  false  or  fraudulent  affi-  30Jply7^  1898>  v< 
davit,  declaration,  certificate,  voucher,  or  paper  or  writing    sec.  4746,u.s. 
purporting  to  be  such,  concerning  any  claim  for  pension 

or  payment  thereof,  or  pertaining  to  any  other  matter 
within  the  jurisdiction  of  the  Commissioner  of  Pensions  or 
of  the  Secretary  of  the  Interior,  or  who  knowingly  or 
willfully  makes  or  causes  to  be  made,  or  aids  or  assists  in 
the  making,  or  presents  or  causes  to  be  presented  at  any 
pension  agency  any  power  of  attorney  or  other  paper 
required  as  a  voucher  in  drawing  a  pension,  which  paper 

Paragraph  2220,  post. 

2  Paragraph  2221,  post. 

3  See  act  of  July  4,  1884  (23  Stat.  L.  99),  paragraphs  2209  ante. 


870 


MILITARY    LAWS    OF   THE    UNITED    STATES. 


bears  a  date  subsequent  to  that  upon  which  it  was  actually 
signed  or  acknowledged  by  the  pensioner,  and  every  per- 
certlficate  ft°rSon  be^ore  whom  any  declaration,  affidavit,  voucher,  or 
vouchersfetc.  °  or  other  paper  or  writing  to  be  used  in  aid  of  the  prosecu- 
tion of  any  claim  for  pension  or  bounty  land  or  payment 
thereof  purports  to  have  been  executed  who  shall  know- 
ingly certify  that  the  declarant,  affiant,  or  witness  named 
in  such  declaration,  affidavit,  voucher,  or  other  paper  or 
writing  personally  appeared  before  him  and  was  sworn 
thereto,  or  acknowledged  the  execution  thereof,  when,  in 
fact,  such  declarant,  affiant,  or  witness  did  not  personally 
appear  before  him  or  was  not  sworn  thereto,  or  did  not 
acknowledge  the  execution  thereof,  shall  be  punished  by  a 
fine  not  exceeding  five  hundred  dollars,  or  by  imprison- 
ment for  a  term  of  not  more  than  five  years.  Act  of  July 
7,  1898  (30  Stat.  Z.,  718). 


PAYMENT   OF   PENSIONS. 


Par. 

2212.  Pension  agents. 

2213.  The  same;  bonds. 

2214.  Agencies  to  be  grouped;  quarterly 

payments  to  be  made. 

2215.  Blanks,  vouchers. 

2216.  Vouchers  sent  to  pensioners. 

2217.  Checks  drawn  to  order   of    pen- 

sioners. 

2218.  Oaths  administered  free  by  certain 

officers  of  the  United  States. 

2219.  The  same;  fourth-class  postmasters. 

2220.  Payment  of  pension  certificates. 

2221.  Fees  to  be  deducted. 

2222.  Mailing  checks,  presumptive  evi- 

dence of  payment. 


Par. 

2223.  Death  of  pensioner  without  widow 

or  child. 

2224.  Pensions  under  disabilities. 

2225.  Insane  pensioners. 

2226.  Indian  pensioners,  may  be  paid  in 

silver. 

2227.  Disloyalty  a  bar. 

2228,2229.  The    same;   removal  of  dis- 
ability. 

2230.  Desertion  of  wife. 

2231.  Pensions  in  foreign  countries  not 

payable  to  attorney. 


Pension  agents, 
appointment 
and  term  of  of- 
fice. 

Apr.  5,  1869,  c. 
10,  ss.  I,  2,  v.  16, 
pp.  6,  7. 

Sec.4778,K.S. 


Bond  of  pen- 
sion agents. 

Feb.  6, 1867,  c. 
32,  v.  14,  p.  391. 

Sec.4779,K.S. 


2212.  The  President  is  authorized  to  appoint,  by  and 
with  the  advice  and  consent  of   the  Senate,  all   pension 
agents,  who  shall  hold  their  respective  offices  for  the  term 
of  four  years,  unless  sooner  removed   or   suspended,  as 
provided  by  law,  and  until  their  successors  are  appointed 
and  qualified. 

2213.  All  pension  agents  shall  give  bond,  with  good  and 
sufficient  sureties,  for  such  amount  and  in  such  form  as 
the  Secretary  of  the  Interior  may  approve.1 


1  The  act  of  June  30,  1890  (26  Stat.  L.,  187),  contained  the  requirement  that  ''in 
case  of  the  sickness  or  unavoidable  absence  of  any  pension  agent  from  his  office,  he 
may,  with  the  approval  of  the  Secretary  of  the  Interior,  authorize  the  chief  clerk,  or 
some  other  clerk  employed  therein,  to  act  in  his  place,  to  sign  official  checks,  and  to 


MILITAKY    LAWS    OF   THE    UNITED    STATE8.  871 


2214.  The  Secretary  of  the  Interior  is  hereby  author- 

ized  and  directed  to  arrange  the  various  agencies  for  the  grgecp\  Mar.  3, 
payment  of  pensions  in  three  groups  as  he  may  think  18Q^arterfypTy- 
proper,  and  may  from  time  to  time  change  any  agency  ments  to  groups- 
from  one  group  to  another  as  he  may  deem  convenient  for 
the   transaction   of    the   public   business.     *     *     *    The 
Secretary  of  the  Interior  is  hereby  fully  authorized  to  cause 
payments  of  pensions  to  be  made  for  the  fractional  parts 
of  quarters  created  by  such  change,  so   as   to   properly 
adjust  all  payments  as  herein  provided.     Section  forty- 
seven  hundred  and  sixty-four  of  the  Revised  Statutes  is 
hereby  so  amended  as  to  conform  to  the  changes  in  the 
time  of  payments  provided  herein,  and  is  made  applicable 
thereto.     Sec.  2,  act  of  March  3,  1891  (25  Stat.  Z.,  1082). 

2215.  The  Secretary  of  the  Interior  shall  cause  suitable  y^chersjn0^ 
blanks  for  the  vouchers  mentioned  in  section  forty  -seven  ticj^d  s  5 
hundred  and  sixty  -four2  to  be  printed  and  distributed  to    Sec.4767,B.s. 
the  agents  for  the  payment  of  pensions,  upon  which  he 

shall  cause  a  note  to  be  printed  informing  pensioners  of  the 
fact  that  hereafter  no  pension  will  be  paid,  except  upon 
the  vouchers  issued  as  herein  directed. 

2216.  Within  fifteen    days  immediately  preceding  the 
fourth  day  of  March,  June,  September,  and  December  in 

each  year,  the  several  agents  for  the  payment  of  pensions  ^"Jy  -f'J8™>  c> 

shall  prepare  a  quarterly  voucher  for  every  person  whose  19|^c  4^64  R  g 

pension  is  payable  at  his  agency,  and  transmit  the  same  by 

mail,  directed  to  the  address  of  the  pensioner  named  in 

such  voucher,  who,  on  or  after  the  fourth  day  of  March, 

June,  September,  and  December  next  succeeding  the  date 

of  such  voucher,  may  execute  and  return  the  same  to  the 

agency  at  which  it  was  prepared,  and  at  which  the  pension 

of  such  person  is  due  and  payable. 

2217.  Upon  the  receipt  of  such  voucher,  properly  exe-    check  to  be 
cuted,  and  the  identity  of  the  pensioner  being  established  each  pensioner. 

,  i    •        ,i  .1       i   i         ,1        rt  •     -lMd.,S.2,p.l94. 

and  proved  in  the  manner  prescribed  by  the  Secretary  of    sec.  4765,  B.S. 
the  Interior,  the  agent  for  the  payment  of  pensions  shall 
immediately  draw  his  check  on  the  proper  assistant  treas- 
urer or  designated  depositary  of  the  United  States  for  the 

discharge  all  the  other  duties  required  by  law  of  such  pension  agent;  and,  with  like 
approval,  any  pension  agent  may  designate  and  authorize  a  clerk  to  sign  the  name 
of  the  pension  agent  to  official  checks.  The  official  bond  given  by  the  principal  of 
the  office  shall  be  held  to  cover  and  apply  to  the  acts  of  the  person  appointed  to  act 
in  his  place  in  such  cases,  and  a  new  bond  shall  be  required  from  all  pension  agents 
now  in  office.  Such  acting  officer  shall,  moreover,  for  the  time  being,  be  subject  to 
all  the  liabilities  and  penalties  prescribed  by  law  for  the  official  misconduct,  in  like 
cases,  of  the  pension  agent  for  whom  he  acts." 
2  Paragraph  2216,  post. 


872  MILITARY    LAWS    OF   THE    UNITED    STATES. 

amount  due    such  pensioner,  payable  to   his  order,  and 
transmit  the  same  by  mail,  directed  to  the  address  of  the 
pensioner  entitled  thereto;    but  any   pensioner   may  be 
required,  if  thought  proper  by  the  Commissioner  of  Pen- 
sions, to  appear  personally  and  receive  his  pension. 
mfnfsSrld  byao1-     2218.  Hereafter  all  United  States  officers  now  authorized 
ficjuner7,ei888,  v.  ^°  administer  oaths  are  hereby  required  and  directed  to 
'  administer  any  and  all  oaths  required  to  be  made  by  pen- 
sioners and  their  witnesses,  in  the  execution  of  their  vouch- 
ers for  their  pensions  free  of  charge. J     Act  of  June  7, 1888 
(25  Stat.  Z.,  174),  and  March  1,  1889  (25  Stat.  Z.,  78%). 

2219.  Hereafter,  in  addition  to  the  officers  now  authorized 
oaths  etcistert°  administer  oaths  in  such  cases,  fourth-class  postmasters 
v  2s|p.499'  1894>  °^  the  United  States  are  hereby  required,  empowered,  and 
authorized  to  administer  any  and  all  oaths  required  to  be 
made  by  pensioners  and  their  witnesses  in  the  execution 
of  their  vouchers  with  like  effect  and  force  as  officers  hav- 
ing a  seal;  and  such  postmaster  shall  affix  the  stamp  of  his 
office  to  his  signature  to  such  vouchers,  and  he  is  author- 
Fees,  ized  to  charge  and  receive  for  each  voucher  not  exceeding 
twenty-five  cents,  to  be  paid  by  the  pensioner.     Act  of 
August  23,  1894  (88  Stat.  Z.,  4#9). 

penesi£?aand  fee*     2220.  The  Commissioner  of  Pensions  shall  forward  the 
°f !$*riy'»  p.  certificate  of  pensions,  granted  in  any  case,  to  the  agent 
19|'ec.4768,  R.s.  f or  paying  pensions  where  such  certificate  is  made  payable, 
and  at  the  same  time  forward  therewith  one  of  the  articles 
of  agreement  filed  in  the  case  and  approved  by  the  Com- 
missioner, setting  forth  the  fee  agreed  upon  between  the 
claimant  and  the  attorney  or  agent,  and  where  no  agree- 
ment is  on  file,  as  hereinbefore  provided,  he  shall  direct 
that  a  fee  of  ten  dollars  only  be  paid  the  agent  or  attorney. 
toPdedu<?t  atteonr-     2221.  It  shall  be  the  duty  of  the  agent  paying  such  pen- 
nejb?jeess'io      si°n  to  deduct  from  the  amount  due  the  pensioner  the 
Sec. 4769,  R.S.  amount  of  fee  so  agreed  upon  or  directed  by  the  Commis- 
sioner to  be  paid  where  no  agreement  is  filed  and  approved, 
and  to  forward  or  cause  to  be  forwarded  to  the  agent  or 
attorney  of  record  named  in  such  agreement,  or,  in  case 
there  is  no  agreement,  to  the  agent  prosecuting  the  case 
the  amount  of  the  proper  fee,  deducting  therefrom  the  sum 
of  thirty  cents,  in  payment  of  his  services  in  forwarding 
the  same. 

Section  6  of  the  act  of  July  8,  1870  (16  Stat.  L.,  194;  section  4784,  Revised 
Statutes),  was  expressly  repealed  by  the  act  of  March  23,  1896  (29  Stat.  L.,  74),  and 
oaths  to  pensioners  in  connection  with  their  vouchers  can  no  longer  be  administered 
by  pension  agents. 


MILITARY    LAWS    OF   THE    UNITED    STATES.  873 


2222.  Hereafter  a  check  or  checks  drawn  by  a  pension 
agent  in  payment  of  pension  due,  and  mailed  by  him  to  the  ceJJSJ£ 
address  of  the  pensioner,  shall  constitute  payment  within  v-  26-  p-  187- 
the  meaning  of  section  forty  -seven  hundred  and  sixty-five, 
Revised  Statutes,  in  the  event  of  the  death  of  a  pensioner 
subsequent  to  the  mailing  and  before  the  receipt  of  said 
check;  and  the  amount  which  may  have  accrued  on  the 
pension  of  any  pensioner  subsequent  to  the  last  quarterly 
payment  on  account  thereof  and  prior  to  the  death  of  such 
pensioner  shall  in  the  case  of  a  husband  be  paid  to  his  widow, 

or  if  there  be  no  widow  to  his  surviving  minor  children 
or  the  guardian  thereof,  and  in  the  case  of  a  widow  to  her 
minor  children.  Act  of  June  30,  1890  (26  Stat.  Z.,  187). 

2223.  Hereafter  whenever  a  pension    certificate    shall  si5Sfh  ielvinng 
have  been  issued   and  the  pensioner   mentioned   therein  mln^chnd.110 
dies   before  payment  shall  have  been  made,  leaving  no  26f  p?ij?;  1890)  v- 
widow  and  no  surviving  minor  children,  the  accrued  pen-    Sec.4765,R.  s. 
sion  due  on  said  certificate  to  the  date  of  the  death  of  said 
pensioner  may,  in  the  discretion  of  the  Secretary  of  the 
Interior,  be  paid  to  the  legal  representatives  of  said  pen- 

sioner.    Act  of  June  30,  1890  (26  Stat.  L.,  187). 

2224.  Hereafter  no  pension  shall  be  paid  to  any  person  derlegaTSbn- 
other  than  the  pensioner  entitled  thereto,  nor  otherwise  lU|^g  8  1882  v 
than  according  to  the  provisions  of  this  title;1  and  no  war- 

rant,  power  of  attorney,  or  other  paper  executed  or  pur- 
porting to  be  executed  by  any  pensioner  to  any  attorney, 
claim  agent,  broker,  or  other  person  shall  be  recognized  by 
any  agent  for  the  payment  of  pensions,  nor  shall  any  pen- 
sion be  paid  thereon;  but  the  payment  to  persons  labor- 
ing under  legal  disabilities  may  be  made  to  the  guardians 
of  such  persons  in  the  manner  herein  prescribed,  and  pen- 
sions  payable  to  persons  in  foreign  countries  may  be  made  tries- 
according  to  the  provisions  of  existing  laws.2  Act  of 
August  8,  1882  (22  Stat.  Z.,  374). 

2225.  In  case  of  an  insane  invalid  pensioner  having 
guardian,  but  having  a  wife  or  children  dependent  upon 
him  (the  wife  being  a  woman  of  good  character),  the  Com- 
missioner of  Pensions  is  hereby  authorized,  in  his  discre- 
tion, to  cause  the  pension  to  be  paid  to  the  wife,  upon  her 
properly  executed  vouchers,  or  in  case  there  is  no  wife,  to 

1  Title  LVII,  Revised  Statutes. 

2  The  act  of  March  1,  1893  (27  Stat.  L.,  523),  contained  the  requirement  that 
'from  and  after  July  1,  1893,  no  pension  shall  be  paid  to  a  nonresident,  who  is  not 

a  citizen  of  the  United  States,  except  for  actual  disabilities  incurred  in  the  service." 
This  statute  was  expressly  repealed  by  the  act  of  March  2,  1895  (28  Stat.  L.,  703). 


874  MILITARY    LAWS    OF    THE    UNITED    STATES. 

the  guardian  of  the  children,  upon  the  properly  executed 
voucher  of  such  guardian,  and  in  like  manner  to  cause  the 
pension  of  invalid  pensioners  who  are  or  may  hereafter  be 
imprisoned  as  punishment  for  oft'enses  against  the  laws  to 
be  paid  while  so  imprisoned  to  their  wives  or  the  guardians 
of  their  children.  Ibid. 
Indian  pen-  2226.  And  pensions  to  Indian  pensioners  residing  in  the 

sioners;    pay-  .f  . -,    . 

ments  m  stand-  Indian  Territory  may  be  paid  in  person  by  the  pension 
agent,  upon  a  suitable  voucher,  at  some  convenient  point 
in  said  Territory,  which,  together  with  the  form  and  man- 
payments  inner  of  identification  of  the  pensioners,  may  be  prescribed 

cash,    when  J 

made.  by  the  Secretary  of  the  Interior;   such  payments  to  be 

made  in  standard  silver,  at  least  once  in  each  current  year. 
And  payments  in  person  shall  be  made  to  the  pensioner, 
in  cash,  by  the  pension  agent  whenever  in  the  discretion 
of  the  Commissioner  of  Pensions  such,  personal  payment 
shall  be  by  him  deemed  necessary  or  proper  to  secure  to 
the  pensioner  his  rights;  and  the  necessary  and  actual 
Expenses  of  expenses  of  such  pension  agent  in  making  such  payments 
shall  be  paid  by  the  Secretary  of  the  Interior  upon  prop- 
erly executed  vouchers,  out  of  the  contingent  fund  appro- 
priated for  the  use  of  the  Pension  Office.  Ibid.  *  *  * 
ba?top^nsion.  &  2227>  No  money  on  account  of  pension  shall  be  paid  to 
sec.  4716, K.S.  anv  person?  or  ^0  the  widow,  children,  or  heirs  of  any 
deceased  person,  who  in  any  manner  voluntarily  engaged 
in  or  aided  or  abetted  the  late  rebellion  against  the  author- 
ity of  the  United  States.1 

a  ^^SivS     2228-  The  law2  prohibiting  the  payment  of  any  money 

inMa?ai3  Cai877- on  account  of  pension  to  any  person,  or  to  the  widow,  chil- 

2?Up  34o1892'  v' aren?  or  heirs  of  any  deceased  person,  who  in  any  manner 

engaged  in  or  aided  or  abetted  the  late  rebellion  against 

the  authority  of  the  United  States,  shall  not  be  construed 

to  apply  to  such  persons  as  afterwards  voluntarily  enlisted 

in  either  the  Navy  or  Army  of  the  United  States,  and  who, 

while  in  such  service,  incurred  disability  from  a  wound  or 

injury  received  or  disease  contracted  in  the  line  of  duty.3 

Act  of  August  1,  1892  (27  Stat.  Z.,  340). 

1  In  addition  to  the  cases  referred  to  in  pars.  2228  and  2229,  the  requirements  of  sec- 
tion 4716  of  the  Revised  Statutes  have  been  repealed  in  part  by  the  following  enact- 
ments: Section  5,  act  of  January  29,  1887  (24  Stat.  L.,  371),  paragraphs  2159  to  2164, 
ante;  section  6,  act  of  July  27,  1892  (27  ibid.,  281),  paragraphs  2173  to  2167,  ante. 

2  Section  4716,  Revised  Statutes,  paragraph  2227,  ante. 

3  The  act  of  August  1,  1892  (27  Stat.  L.,  340),  replaces  the  act  of  March  3,  1877  (19 
ibid.,  403),  which  modified  section  4716,  Revised  Statutes,  in  its  application  to  the 
widows,  children,  and  heirs  of  those  persons  who  had  joined  in  the  rebellion  of  1861- 
1865  against  the  United  States,  but  who  had  subsequently  enlisted  in  the  Army  of  the 
United  States. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  875 


2229.  That  section  forty-seven  hundred  and  sixteen  of 

the  Revised  Statutes  be,  and  the  same  is  hereby,  repealed,  v-  J1'  p-  136- 
so  far  as  the  same  may  be  applicable  to  the  claims  to  pension 
of  dependent  parents  of  soldiers,  sailors,  and  marines  who 
served  in  the  Army  or  Navy  of  the  United  States  during 
the  war  with  Spain.  Act  of  April  18,  1900  (31  Stat.  L., 
136). 

2230.  In  case  a  resident  pensioner  of  the  United  States  vi™esame;  pr°- 
shall  for  a  period  of  over  six  months  desert  his'  lawful  so^mg.1899'  v' 
wife,  she  being  a  woman  of  good  moral  character  and  in    Sec'*766»B-s- 
necessitous  circumstances,  or,  if  he  have  no  lawful  wife, 

shall  desert  his  legitimate  minor  child  or  children  under 
sixteen  years  of  age,  or  his  permanently  helpless  and  de- 
pendent child,  the  Commissioner  of  Pensions  is  hereby 
directed,  upon  being  satisfied  by  competent  evidence  of 
such  desertion,  to  cause  one-half  of  the  pension  due  or  to 
become  due  said  pensioner  during  the  continuance  of  such 
desertion  to  be  paid  to  the  wife,  or  in  case  there  is  no 
wife,  to  the  legal  guardian  of  the  child  or  children:  Pro- 
vided further,  That  when  a  soldier  or  sailor  enters  into  a 
State  home  for  soldiers  or  sailors  as  an  inmate  thereof, 
one-half  of  his  pension  accruing  during  his  residence 
therein  shall  be  paid  to  his  wife,  she  being  a  woman  of 
good  moral  character  and  in  necessitous  circumstances,  or 
if  there  be  no  wife,  then  to  his  child  or  children  under 
sixteen  years  of  age,  or  his  permanently  helpless  and  de- 
pendent child,  if  any,  unless  such  wife  and  children  shall 
also  be  inmates  of  the  same  institution  or  of  some  home  pro- 
vided for  the  wives  and  children  of  soldiers  and  sailors: 
Provided  further,  That  if  any  such  pensioner  is  or  shall 
become  an  inmate  of  a  National  Soldiers'  Home  one-half 
of  the  pension  drawn  in  his  behalf  or  to  which  he  may 
become  entitled  during  his  residence  therein  shall  be  paid 
by  the  treasurer  of  that  institution  to  such  pensioner's 
wife,  she  being  in  necessitous  circumstances  and  a  woman 
of  good  moral  character,  or,  if  there  be  no  wife,  to  the 
legal  guardian  of  the  minor  child  or  children,  or  the  per- 
manently dependent  and  helpless  child  or  children  of  such 
pensioner,  on  the  order  of  the  Commissioner  of  Pensions.1 
Act  of  March  3,  1899  (30  Stat.  Z.,  1379). 

*  *•  *  •*  * 

1  For  the  proviso  of  this  statute  restricting  the  issue  of  pensions  to  widows,  see 
par.  2224,  ante. 

For  payment  of  pensions  to  inmates  of  the  Soldiers'  Home,  of  the  National  Home 
for  Disabled  Volunteer  Soldiers,  and  the  Government  Hospital  for  the  Insane,  see 
the  chapters  so  entitled. 


876  MILITARY    LAWS    OF    THE    UNITED   STATES. 


fo£  2231-  Hereafter  no  pensions  shall  be  paid  upon  power 
piohibpited!oners  of  attorney  from  pensioners  residing  in  foreign  countries.1 
3oS4'1898'v'  Act  of  March  14,  1898  (30  Stat.  L.,  276). 


ACCRUED   AND   UNCLAIMED   PENSIONS. 


Par. 


2232.  Accrued  pensions. 


X'Z6Z.  Accrued  pensions. 
2233.  Payment  of    accrued   pensions  at 
death  of  nensionfvr. 


Par. 


2234.  Unclaimed  pensions. 


death  of  pensioner. 

siotcscrued  pen"     2232-  If  any  pensioner  has  died  or  shall  hereafter  die;  or 
i873,Cv2i7*p^574:  ^  anv  Person  entitled  to  a  pension,  having  an  application 
Sec.i7i8,  R.S.  therefor  pending,  has  died  or  shall  hereafter  die,  his  widow, 
or  if  there  is  no  widow,  the  child  or  children  of  such  person, 
under  the  age  of  sixteen  years,  shall  be  entitled  to  receive 
the  accrued  pension  to  the  date  of  the  death  of  such  per- 
son.    Such  accrued  pension  shall  not  be  considered  as  a 
part  of  the  assets  of  the  estate  of  deceased,  nor  liable  to  be 
applied  to  the  payment  of  the  debts  of  said  estate  in  any 
case  whatever,  but  shall  inure  to  the  sole  and  exclusive 
benefit  of  the  widow  or  children;  and  if  no  widow  or  child 
survive,  no  payment  whatsoever  of  the  accrued  pension 
shall  be  made  or  allowed,  except  so  much  as  may  be  neces- 
sary to  reimburse  the  person  who  bore  the  expenses  of  the 
last  sickness  and  burial  of  the  decedent,  in  cases  where  he 
did  not  leave  sufficient  assets  to  meet  such  expenses.8 
crued^ensio^to     2233<  From  and  after  the  twenty-eighth  day  of  Septem- 
death  of  pension-  ber?  eighteen  hundred  and  ninety-two,  the  accrued  pension 
to  the  date  of  the  death  of  any  pensioner,  or  of  any  person 
entitled  to  a  pension  having  an  application  therefor  pend- 
ing, and  whether  a  certificate  therefor  shall  issue  prior  or 
subsequent  to  the  death  of  such  person,  shall,  in  the  case 
of  a  person  pensioned,  or  applying  for  pension,  on  account 
Marri2bui895'v  °^  his  disabilities  or  service,  be  paid,  first,  to  his  widow; 
28,  p.  %4.  second,  if  there  is  no  widow,  to  his  child  or  children  under 

the  age  of  sixteen  years  at  his  death;  third,  in  case  of  a 
widow,  to  her  minor  children  under  the  age  of  sixteen 


is  enactment  repeals  the  provision  of  section  4766,  Revised  Statutes,  as 
amended  by  the  act  of  August  8,  1882  (22  Stat.  L.,  374),  that  "pensions  payable  to 
persons  in  foreign  countries  may  be  made  according  to  the  provisions  of  existing 
laws"  (paragraph  2224,  ante],  and  brings  such  payments  within  the  requirements  of 
sections  4764,  4765,  and  4766  of  the  Revised  Statutes,  paragraphs  2216,  2217  and 
2224,  ante. 

2 The  act  of  June  3,  1884  (23  Stat.  L.,  35),  contains  the  requirement  "that  the  heirs 
or  legal  representatives  of  any  officer  whose  muster  into  the  service  has  been  or  shall 
be  amended  thereby  shall  be  entitled  to  receive  the  arrears  of  pay  due  such  officer, 
and  the  pension,  if  any,  authorized  by  law,  for  the  grade  into  which  such  officer  is 
mustered  under  its  provisions."  See  also  the  act  of  March  1, 1889  (25  Stat.  L.,  782). 


MILITARY    LAWS    OF    THE    UNITED    STATES.  877 

years  at  her  death.  Such  accrued  pension  shall  not  be  con-  esj^  M8ete  of 
sidered  a  part  of  the  assets  of  the  estate  of  such  deceased 
person,  nor  be  liable  for  the  payment  of  the  debts  of  said 
estate  in  any  case  whatsoever,  but  shall  inure  to  the  sole 
and  exclusive  benefit  of  the  widow  or  children.  And  if  no 
widow  or  child  survive  such  pensioner,  and  in  the  case  of sl< 
his  last  surviving  child  who  was  such  minor  at  his  death, 
and  in  case  of  a  dependent  mother,  father,  sister,  or  brother, 
no  payment  whatsoever  of  their  accrued  pension  shall  be 
made  or  allowed  except  so  much  as  may  be  necessary  to 
reimburse  the  person  who  bore  the  expense  of  their  last 
sickness  and  burial,  if  they  did  not  leave  sufficient  assets 
to  meet  such  expense.  And  the  mailing  of  a  pension 
check,  drawn  by  a  pension  agent  in  payment  of  a  pension 
due,  to  the  address  of  a  pensioner,  shall  constitute  pay- 
ment in  the  event  of  the  death  of  a  pensioner  subsequent 
to  the  execution  of  the  voucher  therefor.  And  all  prior 
laws  relating  to  the  payment  of  accrued  pension  are  hereby 
repealed.  Act  of  March  2,  1895  (28  Stat.  L.,  964). 

2234.  The  failure  of  any  pensioner  to  claim  his  or  her  g.unciaimed pen- 
pension  %f or  three  years  after  the  same  shall  have  become  ^sec.^June^is, 
due  shall  be  deemed  presumptive  evidence  that  such  pen-    Sec.«ife,R.s. 
sion  has  legally  terminated  by  reason  of  the  pensioner's 

death,  remarriage,  recovery  from  the  disability,  or  other- 
wise, and  the  pensioner's  name  shall  be  stricken  from  the 
list  of  pensioners,  subject  to  the  right  of  restoration  to  the 
same  on  a  new  application  by  the  pensioner,  or,  if  the  pen- 
sioner is  dead,  by  the  widow  or  minor  children  entitled  to 
receive  the  accrued  pension,  accompanied  by  evidence 
satisfactorily  accounting  for  the  failure  to  claim  such  pen- 
sion, and  by  medical  evidence  in  cases  of  invalids  who  were 
not  exempt  from  biennial  examinations  as  to  the  continu- 
ance of  the  disability. 

ASSIGNMENTS,  ETC. 

2235.  Any  pledge,  mortgage,  sale,  assignment,  or  trans-  tr^?Sferle<?fgpen- 
fer  of  any  right,  claim,  or  interest  in  any  pension  which  sigeCv°2idFeb  28 
has  been,  or  may  hereafter  be,  granted,  shall  be  void  and1883' v- 22, P- 432.' 
of  no  effect,  and  any  person  -who  shall  pledge,  or  receive 

as  a  pledge",  mortgage,  sale,  assignment  or  transfer  of  any 
right,  claim,  or  interest  in  any  pension,  or  pension  certifi- 
cate, which  has  been,  or  may  hereafter  be  granted  or  issued, 
or  who  shall  hold  the  same  as  collateral  security  for  any 
debt,  or  promise,  or  upon  any  pretext  of  such  security,  or 


878 


MILITARY,  LAWS    OF    THE    UNITED    STATES. 


Sec! 47*4?,' R.S.  promise,  shall  be  guilty  of  a  misdemeanor,  and  upon  con- 
viction thereof  shall  be  fined  in  a  sum  not  exceeding  one 
hundred  dollars  and  the  costs  of  the  prosecution;  and  any 
person  who  shall  retain  the  certificate  of  a  pensioner  and 
refuse  to  surrender  the  same  upon  the  demand  of  the  Com- 
missioner of  Pensions,  or  a  United  States  pension  agent, 
or  any  other  person,  authorized  by  the  Commissioner  of 
Pensions,  or  the  pensioner,  to  receive  the  same  shall,  be 
guilty  of  a  misdemeanor,  and  upon  conviction  thereof  shall 
be  fined  in  a  sum  not  exceeding  one  hundred  dollars  and 
the  costs  of  the  prosecution.  Sec.  2,  act  of  February  28, 
1883(88  Stat.  L.,  432). 

2236.  No  sum  of  money  due,  or  to  become  due,  to  any 
pensioner,  shall  be  liable  to  attachment,  levy,  or  seizure  by 

sec.4747,R.s.  or  un(jer  any  iegaj  or  equitable  process  whatever,  whether 
the  same  remains  with  the  Pension  Office,  or  any  officer  or 
agent  thereof,  or  is  in  course  of  transmission  to  the  pen- 
sioner entitled  thereto,  but  shall  inure  wholly  to  the  benefit 
of  such  pensioner. 

MEDICAL   EXAMINING   BOARDS. 


Pension  not  li- 
able to  attach- 
ment, etc. 

Ibid. 


Par. 

2237.  Appointment;  duties. 

2238.  Reports. 

2239.  Fees. 

2240.  Examinations 

2241.  Report  accessible  to  claimant. 

2242.  Medical  referee,  etc. 

2243.  Civil  examining  surgeons. 


Par. 

2244.  Expert  examinations. 

2245.  Nonresident  claimants. 

2246.  Special  examinations. 

2247.  Inspection  of  agencies  by  Commis- 

sioner of  Pensions,  etc. 

2248.  Suspension  of  pensions. 


2237>  ^he  Commissioner  of  Pensions  is  hereby  authorized 
point  surgeons,  ^o  appoint  surgeons  who,  under  his  control  and  direction 
shall  make  such  examination  of  pensioners  and  claimants 
for  pension  or  increased  pension  as  he  shall  require;  and 
Boards  of  sur-  he  shall  organize  boards  of  surgeons,  to  consist  of  three 
members  each,  at  such  points  in  each  State  as  he  shall  deem 
necessary,  and  all  examinations,  so  far  as  practicable,  shall 
be  made  by  the  boards,  and  no  examination  shall  be  made 
ofSsarCieonsb°ard  ^v  one  surgeon  excepting  under  such  circumstances  as 
make  it  impracticable  for  a  claimant  to  present  himself 


Proviso*. 


before  a  board:  Provided,  That  the  Commissioner  may, 
when  in  his  opinion  the  exigencies  of  the  service  require 
**?  organize  a  board  of  three  surgeons  who,  under  his  di- 
rection, shall  review  the  work  of  any  regularly  appointed 
board  or  surgeon  :  Provided  further,  That  all  examinations 


MILITARY    LAWS    OF    THE    UNITED    STATES.  879 

shall  be  thorough  and  searching,  and  the  certificate  contain 
a  full  description  of  the  physical  condition  of  the  claimant 
at  the  time,  which  shall  include  all  the  physical  and  rational 
signs  and  a  statement  of  all  structural  changes.  Sec.  4,  act 
of  July  25,  1882  (82  Stat.  L.,  175}. 

2238.  The  report  of  such  examining  surgeons  shall  spe-    §ec°2?i896  v. 
cifically  state  the  rating  which,  in  their  judgment,  the  ^  P- *79-' 
applicant  is  entitled  to.     Act  of  December  m,  1896  (29 

Stat.  L.,  479). 

2239.  The  fee  for  each  examination,  and  satisfactory  cer- 
tificate  thereof,  shall  be  two  dollars  to  each  member  when 
made  by  a  board,  and  two  dollars  when  made  by  one  sur- 
geon: Provided,  That  when  a  claimant  is  so  disabled  as 
not  to  be  able  to  present  himself  to  a  board  of  surgeons  for 
examination,  the  Commissioner  may  order  a  surgeon  to 
make  the  examination  at  the  claimant's  residence;  and  the 
fee  for  such  examination  shall  be  two  dollars,  in  addition 
to  the  payment  of  the  actual  traveling  expenses  of  the  sur- 
geon: Provided  further,  That  no  fee  shall  be  allowed  or    Proviso, 
paid  to  any  member  of  such  board  of  examining  surgeons 

who  does  not  actually  participate  in  such  examination  and 
sign  the  certificate  thereof.1  Sec.  4,  act  of  July  25,  1882 
(m  Stat.  L.,175). 

2240.  Each  member  of  each  examining  board  shall,  as    ?xam*nat,j?n8- 

Apr.  4,  1900,  v. 

now  authorized  by  law,  receive  the  sum  of  two  dollars  for  81«  P-  61- 
the  examination  of  each  applicant  whenever  five  or  a  less 
number  shall  be  examined  on  any  one  day,  and  one  dollar 
for  the  examination  of  each  additional  applicant  on  such 
day:  Provided,  That  if  twenty  or  more  applicants  appear 
on  one  day,  no  fewer  than  twenty  shall,  if  practicable,  be 
examined  on  said  day,  and  that  if  fewer  examinations  be 
then  made,  twenty  or  more  having  appeared,  then  there 
shall  be  paid  for  the  first  examinations  made  on  the  next 
examination  day  the  fee  of  one  dollar  only  until  twenty 
examinations  shall  have  been  made:  Provided  further,  That 
no  fees  shall  be  paid  to  any  member  of  an  examining  board 
unless  personally  present  arid  assisting  in  the  examination 
of  applicant.2  Act  of  April  4,  1900  (31  Stat.  L.,  61). 

1This  section  replaces,  in  part,  section  4775,  Revised  Statutes,  which  authorized  the 
appointment  of  boards  of  examining:  surgeons  and  prescribed  their  fees. 

2 A  similar  provision  will  be  found  in  the  acts  of  July  2,  1886  (24  Stat.  L.,  122); 
March  1,  1887  (24  Stat.  L.,  440);  June  7,  1888  (25  Stat.  L.,  174);  March  1,  1889  (25 
Stat.  L.,  782);  June 30, 1890  (26  Stat.  L.,  188);  March  3, 1891  (26  Stat.  L.,  1082);  July 
13, 1892  (27  Stat.  L.,  119);  March  1, 1893  (27  Stat.  L.,  524);  July  18,  1894  (28  Stat.  L., 
113) ;  March  2,  1895  (28  Stat.  L.,  403) ;  March  6,  1896  (29  Stat.  L.,  45);  Dec.  22,  1896 
(ibid.,  479);  March  1,  1898  (30  Stat.  L.,  276) ;  and  February  4, 1899  (ibid.,  820). 


880  MILITARY    LAWS    OF   THE    UNITED    STATES. 


224L  The  ^port  of  such  examining  surgeons  when  filed 
28^yiil:1894>v'  in  tne  Pension  Office  shall  be  open  to  the  examination  and 
inspection  of  the  claimant  or  his  attorney,  under  such  rea- 
sonable rules  and  regulations  as  the  Secretary  of  the  Inte- 
rior may  provide.    Act  of  July  18,  1894  (%8  Stat.  L.,113). 
Medical  referee     2242.  The  Secretary  of  the  Interior  is  authorized  to  ap- 

and  examining  ^ 

surgeon.  point  a  duly  qualified  surgeon  as  medical  referee  who, 

XoifUtj  s.  38,  p.          i  - 

577.  under  the  control  and  direction  of  the  Commissioner  of 

see.  4<  <«,  U.S.  ._          .  in! 

.Pensions,  shall  have  charge  of  the  examination  and  revi- 
sion of  the  reports  of  examining  surgeons,  and  such  other 
duties  touching  medical  and  surgical  questions  in  the  Pen- 
sion Office  as  the  interests  of  the  service  may  demand; 
and  his  salary  shall  be  two  thousand  five  hundred  dollars 
per  annum.  And  the  Secretary  of  the  Interior  is  further 
authorized  to  appoint  such  qualified  surgeons  (not  exceed- 
ing four)  as  the  exigencies  of  the  service  may  require,  who 
ma}^  perform  the  duties  of  examining  surgeons  when  so 
required,  and  who  shall  be  borne  upon  the  rolls  as  clerks  of 
the  fourth  class;  but  such  appointments  shall  not  increase 
the  clerical  force  of  said  Bureau. 

of^vnexamin-  2243>  ^ne  Commissioner  of  Pensions  is  empowered  to 
inf&SrgsOI35  appoint,  at  his  discretion,  civil  surgeons  to  make  the  pe- 
57|'ec  4777  R  s  ri°dical  examinations  of  pensioners  which  are  or  may  be 
required  by  law,  and  to  examine  applicants  for  pension, 
where  he  deems  an  examination  by  a  surgeon  appointed 
by  him  necessary;  and  the  fee  for  such  examinations,  and 
the  requisite  certificates  thereof  in  duplicate,  including 
postage  on  such  as  are  transmitted  to  pension  agents,  shall 
be  two  dollars,  which  shall  be  paid  by  the  agent  for  paying 
pensions  in  the  district  within  which  the  pensioner  or 
claimant  resides,  out  of  any  money  appropriated  for  the 
payment  of  pensions,  under  such  regulations  as  the  Com- 
missioner of  Pensions  may  prescribe. 

geox?sptortmake     2244.  The  Commissioner  may,  when  in  his  judgment  the 

exjauTy  2M8825;  v.  degree  of  disability  can  not  be  determined  truthfully  or 

22,  p.  176.  satisfactorily  excepting  by  expert  examination,  employ  an 

expert,  not  a  regularly  appointed  surgeon,  to  make  the 

examination  ;  and  the  fee  for  such  examination  shall  be  five 

Proviso.          dollars:  Provided,  That  the  fee  for  an  expert  examination 

Fees.  shall  not  be  paid  to  any  regularly  appointed  examining 

surgeon.     Act  of  July  25,  1892  (08  Stat.  L.,  176). 

2245.  The  fee  for  the  examination  of  claimants  who  re- 
'  882'  v'  side  out  of  tne  United  States  shall  not  exceed  ten  dollars, 
which  shall  be  paid,  upon  the  presentation  of  satisfactory 


MILITARY    LAWS    OF    THE    UNITED    STATES.  881 

vouchers,  out  of  the  appropriation  for  the  payment  of  the 
examining  surgeons,  and  through  the  United  States  con- 
sulate nearest  to  the  claimant's  place  of  residence.  Act  of 
July  25,  1882  (22  Stat.  Z.,  176). 

2246.  The  Commissioner  of  Pensions   shall   have   the    commissioner 

of  Pensions  may 

same  power  as  heretofore  to  order  special  examinations  order  special  ex- 

.  .       .     _  aminations. 

whenever,  in  his  ludgrnent,  the  same  may  be  necessary,    sec.  3.  June  21, 

.  .  ,  .  .     ,      1879,  V.  21,  p.  30. 

and  to  increase  or  reduce  the  pension  according  to  right 
and  justice;  but  in  no  case  shall  a  pension  be  withdrawn 
or  reduced  except  upon  notice  to  the  pensioner  and  a  hear- 
ing upon  sworn  testimony,  except  as  to  the  certificate  of 
the  examining  surgeon.1  Sec.  3,  act  of  June  81,  1879  (21 
Stat.  Z.,  30). 

2247.  The  Commissioner  of  Pensions  may,  when  in  his    inspection  of 
judgment  it  shall  be  deemed  necessary  or  proper,  visit  in^Aug!^|  i882,v. 
person,  for  the  purpose  of  examination  and  inspection,  or 

may  send  any  one  or  more  of  the  officers  of  his  bureau  for 
that  purpose,  any  one  of  the  pension  agencies  or  medical 
examining  boards  or  surgeons;  and  the  necessary  and 
actual  expenses  of  such  visits  shall  be  paid  by  the  Secretary 
of  the  Interior,  upon  properly  executed  vouchers,  out  of 
the  contingent  fund  of  said  bureau.  Act  of  August  8, 
1882  (22  Stat.  L.,  373). 

SUSPENSION   OF   PENSIONS  —  PENSION   A   VESTED   RIGHT. 


2248.  Any  pension  heretofore  or  that  may  hereafter  be 
granted  to  any  applicant  therefor  under  any  law  of  the 
United  States  authorizing  the  granting  and  payment  of  1893>  v-  28>  p-  18- 
pensions,  on  application  made  and  adjudicated  upon,  shall 
be  deemed  and  held  by  all  officers  of  the  United  States  to 
be  a  vested  right  in  the  grantee  to  that  extent  that  pay-  deemed0?  ested 
ment  thereof  shall  not  be  withheld  or  suspended  until,  nghts- 
after  due  notice  to  the  grantee  of  not  less  than  thirty  days, 
the  Commissioner  of  Pensions,  after  hearing  all  the  evi- 
dence, shall  decide  to  annul,  vacate,  modify,  or  set  aside 
the  decision  upon  which  such  pension  was  granted.  Such 
notice  to  grantee  must  contain  a  full  and  true  statement 
of  any  charges  or  allegations  upon  which  such  decision 
granting  such  pension  shall  be  sought  to  be  in  any  manner 
disturbed  or  modified.  Act  of  December  21,  1893  (28  Stat. 
L.,  18).  _ 

Sections  4771,  4772,  and  4773,  Revised  Statutes,  were  repealed  by  the  act  of  June 
21,  1879  (21  Stat.  L.,  30). 

22924—08,  -  56 


882 


MILITARY    LAWS    OF    THE    UNITED    STATES. 


INVESTIGATIONS. 


Par. 


2249.  Special  investigations;  oaths. 

2250.  The  same;  stenographers. 


Par. 


2251.  Administration  of  oaths. 

2252.  Subpoenas  to  witnesses;  fees. 


Investigation 
of  attempts  at 
fraud. 


2249.    The  Commissioner  of  Pensions  is  authorized  to 
Mar.  3,  1873,  c.  detail,  f  rom  time  to  time,  any  of  the  clerks  in  his  office  to 
284,  s.  30,  v.  17,  p.  investigate  any  suspected  attempts  to  defraud  the  United 
sec.  474,  K.  s.  States,  in  or  affecting  the  administration  of  any  law  rela- 
tive to  pensions,   and  to  aid  in  prosecuting  any  person 
implicated,  with  such  additional  compensation  as  is  cus- 
tomary in  cases  of  special  service.     Any  person  so  de- 
tailed shall  have   the   power  to  administer  oaths  in  the 
course  of  any  such  investigation. 

inS^estiS|ath?g  2250f  ^e  Commissioner  of  Pensions  is  authorized  to 
tranptsCattefraud"  Detail,  ^  rom  time  to  time,  clerks  or  persons  employed  in  his 
•jsTs^o'v8!?'  c'°ffice  to  make  special  examinations  into  the  merits  of  such 
^5'18|2e%  \?  y  pension  or  bounty  land  claims,  whether  pending  or  adjudi- 
17|ec.  4744  K.s.  catec^  as  ne  mav  deem  proper,  and  to  aid  in  the  prosecu- 
tion of  any  party  appearing  on  such  examinations  to  be 
guilty  of  fraud,  either  in  the  presentation  or  in  procuring 
the  allowance  of  such  claims;  and  any  person  so  detailed 
shall  have  power  to  administer  oaths  and  take  affidavits 
and  depositions  in  the  course  of  such  examinations,  and  to 
orally  examine  witnesses,  and  may  employ  a  stenographer, 
when  deemed  necessary  by  the  Commissioner  of  Pensions, 
in  important  cases,  such  stenographer  to  be  paid  by  such 
clerk  or  person,  and  the  amount  so  paid  to  be  allowed  in 
his  accounts.  Sec.  2,  act  of  July  25,  1882  (22  Stat.  Z.  ,  175). 
2251t  ^e  same  Power  to  administer  oaths  and  take  affi- 
oaths,  davits,  which  by  virtue  of  section  forty-seven  hundred  and 
losi'  f°rty-four  of  the  Revised  Statutes  is  conferred  upon  clerks 
detailed  by  the  Commissioner  of  Pensions  from  his  office 
to  investigate  suspected  attempts  at  fraud  on  the  Govern- 
ment through  and  by  virtue  of  the  pension  laws,  and  to 
aid  in  prosecuting  any  person  so  offending,  shall  be,  and 
is  hereby,  extended  to  all  special  examiners  or  additional 
special  examiners  employed  under  authority  of  Congress 
to  aid  in  the  same  purpose.  Sec.  3,  act  of  March  3,  1891 
(26  Stat.  Z.,  108$). 

wftneSenas    to     2252.  In  addition  to  the  authority  conferred  by  section 

i882Cv  V  plyi75  one  nundred  and  eighty-four,  title  four  of  the  Revised 

Statutes,  any  judge  or  clerk  of  any  court  of  the  United 

States  in  any  State,  District,  or  Territory  shall  have  power, 

upon  the  application  of  the  Commissioner  of  Pensions,  to 


i  v  26 


MILITARY    LAWS    OF    THE    UNITED    STATES.  883 

issue  a  subpoena  for  a  witness,  being  within  the  jurisdic- 
tion of  such  court,  to  appear,  at  a  time  and  place  in  the 
subpoena  stated,  before  any  officer  authorized  to  take  depo- 
sitions to  be  used  in  the  courts  of  the  United  States,  or 
before  any  officer,  clerk,  or  person  from  the  Pension  Bu- 
reau designated  or  detailed  to  investigate  or  examine  into 
the  merits  of  any  pension  claim  and  authorized  by  law  to 
administer  oaths  and  take  affidavits  in  such  investigation 
or  examination,  there  to  give  full  and  true  answers  to  such 
written  interrogatories  and  cross  interrogatories  as  may  be 
propounded,  or  to  be  orally  examined  and  cross-examined 
upon  the  subject  of  such  claim;  and  witnesses  subpoenaed fe^itnesses 
pursuant  to  this  and  the  preceding  section  shall  be  allowed 
the  same  compensation  as  is  allowed  witnesses  in  the  courts 
of  the  United  States,  and  paid  in  the  same  manner.  Sec. 
3,  act  of  July  25,  1882  (22  Stat.  Z.,  175]. 


CRIMINAL    OFFENSES. 


Par. 


2253.  Senators,  Kepresentatives,  etc.,  tak- 
ing compensation,  etc. 


Par. 

2254.  False  affidavits. 
2255-2256.  Embezzlement. 


2253.  No  Senator,  Representative,  or  Delegate,  after  his 
election  and  during  his  continuance  in  office,  and  no  head  united8  state  icf 
of  a  Department,  or  other  officer  or  clerk  in  the  employ  of  a  JJJfeii  1864  c 
the  Government,  shall  receive  or  agree  to  receive  any  com- 11|^- 1|,^.  123.^ 
pensation  whatever,  directly  or  indirectly,  for  any  services 
rendered,  or  to  be  rendered,  to  any  person,  either  by  him- 
self or  another,  in  relation  to  any  proceeding,  contract, 
claim,  controversy,  charge,  accusation,  arrest,  or  other 
matter  or  thing  in  which  the  United  States  is  a  party,  or 
directly  or  indirectly  interested,  before  any  Department, 
court-martial,  Bureau,  officer,  or  any  civil,  military,  or 
naval  commission  whatever.  Every  person  offending 
against  this  section  shall  be  deemed  guilty  of  a  misde- 
meanor, and  shall  be  imprisoned  not  more  than  two  years, 
and  fined  not  more  than  ten  thousand  dollars,  and  shall, 
moreover,  by  conviction  therefor,  be  rendered  forever 
thereafter  incapable  of  holding  any  office  of  honor,  trust, 
or  profit  under  the  Government  of  the  United  States. 

1  For  other  statutes  creating  criminal  offenses  in  connection  with  the  operation  of 
the  pension  laws,  see  section  4,  act  of  July  4,  1884  (23  Stat.  L.,  99),  par.  2206,  ante; 
section  2,  act  of  August  5,  1892  (27  Stat.  L.,  349),  par.  2156,  ante;  section  3,  act  of 
Jan.  29,  1887  (24  ibid.,  371),  par.  2161,  ante;  section  3,  act  of  June  27,  1890  (26  ibid., 
183),  par.  2153,  ante,  and  the  act  of  July  7,  1898  (30  ibid.,  718),  par.  2211,  ante. 


884  MILITARY    LAWS    OF    THE    UNITED    STATES, 


fa£enaffiJavit  2254>  Every  person  who  knowingly  or  willfully  makes 
vouche«fSc?ng  or  a^s  or  assists  m  the  making  or  in  any  wisa  procures 
3oJp!  720.  1898>  v'  ^e  making  or  presentation  of  any  false  or  fraudulent  affi- 
sec.  4746,n.s.  davi^  declaration,  certificate,  voucher,  or  paper  or  writing 
purporting  to  be  such  concerning  any  claim  for  pension, 
or  payment  thereof,  or  pertaining  to  any  other  matter 
within  the  jurisdiction  of  the  Commissioner  of  Pensions, 
or  the  Secretary  of  the  Interior,  or  who  knowingly  or 
willfully  makes  or  causes  to  be  made,  or  aids  or  assists  in 
the  making,  or  presents  or  causes  to  be  presented  at  any 
pension  agency  any  power  of  attorney  or  other  paper 
required  as  a  voucher  in  drawing  a  pension,  which  paper 
bears  a  date  subsequent  to  that  upon  which  it  was  actually 
signed  or  acknowledged  by  the  pensioner,  and  every  per- 
son before  whom  any  declaration,  affidavit,  voucher,  or 
other  paper  or  writing  to  be  used  in  aid  of  the  prosecu- 
tion of  any  claim  for  pension  or  bounty  land  or  payment 
thereof  purports  to  have  been  executed  who  shall  know- 
ingly certify  that  the  declarant,  affiant,  or  witness  named 
in  such  declaration,  affidavit,  voucher,  or  other  paper  or 
writing  personally  appeared  before  him  and  was  sworn 
thereto,  or  acknowledged  the  execution  thereof,  when,  in 
fact,  such  declarant,  affiant,  or  witness  did  not  personally 
appear  before  him  or  was  not  sworn  thereto,  or  did  not 
acknowledge  the  execution  thereof,  shall  be  punished  by 
a  fine  not  exceeding  five  hundred  dollars,  or  by  imprison- 
ment for  a  term  of  not  more  than  five  years. 

of^e^sfo^by  2255-  If  anJ  guardian  having,  the  charge  and  custody  of 
**se<%if486,R.s.  ^e  pension  of  his  ward  shall  embezzle  the  same  in  viola- 
tion of  his  trust,  or  fraudulently  convert  the  same  to  his 
own  use,  he  shall  be  punished  by  fine  not  exceeding  two 
thousand  dollars,  or  imprisonment  at  hard  labor  for  a  term 
not  exceeding  five  years,  or  both,  at  the  discretion  of  the 
court. 

Feb^mi89i  v      2256.  Every  guardian,  conservator,  curator,  committee, 

26,  p.  746.  tutor,  or  other  person  having  charge  and  custody  in  a 

fiduciary  capacity  of  the  pension  of  his  ward,  who  shall 

embezzle  the  same  in  violation  of  his  trust,  or  fraudu- 

£0^4783,  B.S.  lently  convert  the  same  to  his  own  use,  shall  be  punished 

by  fine  not  6xceeding  two  thousand  dollars  or  imprison- 

ment at  hard  labor  for  a  term  not  exceeding  five  years,  or 

both,  at  the  discretion  of  the  court.     Act  of  February  10, 

1891  (26  Stat.  L.,  746). 


MILITARY    LAWS    OF   THE    UNITED    STATES. 


885 


MISCELLANEOUS  PROVISIONS. 


Par. 


2261.  Military  pay  and  pension  prohib- 

ited. 

2262.  Pensions  of  civilian  employees. 


n^n  usance 
Sec<  *788,B.s. 


Par. 

2257.  But  one  pension  to  be  drawn  at  one 

time. 

2258.  Continuance  of  pension. 

2259.  Pensions  not  to  be  withheld. 

2260.  Pensions  of  officers  in  arrears  not 

to  be  withheld. 

2257.  Nothing  in  this  Title1  shall  be  so  construed  as  to  sio°nnay  «&£ 
allow  more  than  one  pension  at  the  same  time  to  the  same 
person,  or  to  persons  entitled  jointly;  but  any  pensioner 

who  shall  so  elect  may  surrender  his  certificate,  and  receive, 
in  lieu  thereof,  a  certificate  for  any  other  pension  to  which 
he  would  have  been  entitled  had  not  the  surrendered  cer- 
tificate been  issued.  But  all  payments  previously  made 
for  any  period  covered  by  the  new  certificate  shall  be 
deducted  from  the  amount  allowed  by  such  certificate.2 

2258.  All  pensioners  whose  names  are  now  on  the  pen- 
sion  roll  or  who  are  entitled  to  restoration  to  the  roll  under 
any  act  of  Congress,  shall  be  entitled  to  the  continuance 
of  such  pensions  under  the  provisions  and  limitations  of 
this  Title,  and  to  such  further  increase  of  pension  as  is 
herein  provided. 

2259.  The  provisions  of  law  which  allow  the  withholding  toPb?w\The?d0t 
of  the  compensation  of  any  person  who  is  in  arrears  shall  77Mva  5,2p.  si36'  c' 
not  be  construed  to  authorize  the  pension  of  any  pensioner    Sec*  *™4,R.s. 
of  the  United  States  to  be  withheld. 

2260.  Hereafter  no  pension  shall  be  allowed  or  paid  to 
any  officer,  noncommissioned  officer,  or  private  in  the 

Army,  Navy,  or  Marine  Corps  of  the  United  States,  either  26Mpario821891 
on  the  active  or  retired  list.3     Act  of  March  3,  1891  (26 
Stat.  Z.,  108$). 

2261.  No  person  in  the  Army,  Navy,  or  Marine  Corps 
shall  draw  both  a  pension  as  an  invalid,  and  the  pay  of  his  10Apr 
rank  or  station  in  the  service, 

which  the  pension  was  granted  be  such  as  to  occasion  his 
employment  in  a  lower  grade,  or  in  the  civil  branch  of  the 
service. 

1  Title  LVII,  Revised  Statutes.     By  the  terms  of  section  4722  of  the  Revised  Statutes 
the  provisions  of  this  Title  are  made  applicable  to  the  officers  and  privates  of  the 
Missouri  State  militia  and  the  Missouri  provisional  militia  in  certain  cases. 

2  The  act  of  March  1,  1893  (27  Stat.  L.,  524)  ,  contains  the  requirement  that  no  pen- 
sion shall  be  paid  to  a  nonresident  who  is  not  a  citizen  of  the  United  States,  except 
for  actual  disabilities  incurred  in  the  service.     This  statute  was  repealed  by  the  act  of 
March  2,  1895  (28  Stat.  L.,  703). 

'Section  2  of  the  act  of  August  29,  1890  (26  Stat.  L.,  371),  contained  the  requirement 
that  "Hereafter  no  officer  of  the  Army,  Navy,  or  Marine  Corps  on  the  retired  list 
shall  draw  or  receive  any  pension  under  any  law." 


unless  the  disability  for  Augvi66i84i  fl' 


886  MILITARY    LAWS    OF    THE    UNITED    STATES. 


c?  the     2262<  A11  Persons  who,  under  and  by  virtue  of  the  first 
pensioSewith-sec^on  °^  *^e  ac^  entitled  "An  act  supplementary  to  the 
Mar.  i,  1879,  v.  several  acts  relating  to  pensions,"  approved  March  third, 
20,  p.  327.  eighteen  hundred  and  sixty-five,  were  deprived  of  their 

pensions  during  any  portion  of  the  time  from  the  third  of 
March,  eighteen  hundred  and  sixty-five,  to  the  sixth  of 
June,  eighteen  hundred  and  sixty-six,  by  reason  of  their 
being  in  the  civil  service  of  the  United  States,  shall  be  paid 
their  said  pensions,  withheld  by  virtue  of  said  section  of 
the  act  aforesaid,  for  and  during  the  said  period  of  time 
from  the  third  of  March,  eighteen  hundred  and  sixty-five, 
.  to  the  sixth  of  June,  eighteen  hundred  and  sixty-six.1 
Act  of  March  1,  1879  (20  Stat.  Z.,  387). 

'The  act  of  June  6,  1866  (14  Stat.  L.,  57),  repealed  the  requirement  of  the  act  of 
March  3,  1865,  depriving  certain  persons  employed  in  the  civil  service  of  the  United 
States  of  pensions  to  which  they  were  otherwise  entitled. 


CHA'PTER 


THE  SOLDIERS'  HOME. 


Par. 
2263-2265.  Board       of     commissioners; 

duties. 

2266.  Inspections. 

2267, 2268.  Officers,  appointment,  duties. 
2269-2274.  Funds  for  support  of  Home. 


Par. 
2275-2278.  Admission   and  discharge  of 

inmates. 

2279.  Outdoor  relief . 
2280-2282.  Pensions  to  inmates. 
2283-2286.  Miscellaneous  requirements. 


BOARD   OF   COMMISSIONERS. 


2263.  The  Board  of  Commissioners  of  the  Soldiers' 
Home  shall  hereafter  consist  of  the  General  in  Chief  com- 
manding  the  Army,  the  Surgeon-General,  the  Commissary-  M 
General,  the  Adjutant-General,  the  Quartermaster-General,  MakVis 
the  Judge-  Advocate-General  and  the  Governor  of  the  Home, 
and  the  General  in  Chief  shall  be  President  of  the  Board, 
and  any  four  of  them  shall  constitute  a  quorum  for  the 
transaction  of  business;  whose  duty  it  shall  be  to  examine 
and  audit  the  accounts  of  the  treasurer  quarter-yearly,  and 
to  visit  and  inspect  the  Soldiers'  Home  at  least  once  in 
every  month.  The  majority  shall  also  have  power  to  estab- 
lish, from  time  to  time,  regulations  for  the  general  and 
internal  direction  of  the  institution,  to  be  submitted  to  the 
Secretary  of  War  for  approval;  and  may  do  any  other  acts 
necessary  for  the  government  and  interests  of  the  same,  as 
authorized  by  this  chapter.  1  Sec.  10,  act  of  March  3,  1883, 
(22  Stat.  L.,  565}. 

1  The  "Military  Asylum  for  the  Relief  and  Support  of  Invalid  and  Disabled  Soldiers 
of  the  Army  of  the  United  States"  was  established  by  the  act  of  March  3,  1851  (9 
Stat.  L.,  595)  (a).  For  the  support  of  the  institution  thus  established  the  following 
funds  were  set  apart:  (a)  Any  unexpended  balance  of  the  appropriation  made  by 
the  act  of  March  2,  1847  (9  Stat.  L.,  149),  for  the  benefit  of  soldiers  disabled  by 
wounds;  (b)  the  sum  of  $118,791.19,  levied  by  the  commanding  general  of  the 
Army  of  the  United  States  in  Mexico,  during  the  war  with  that  republic,  for  the 
benefit?  of  the  soldiers  of  the  United  States  Army,  regulars  and  volunteers,  who  were 
engaged  in  that  war,  but  taken  possession  of  as  funds  of  the  United  States  and  placed 
in  the  Treasury;  (c)  all  stoppages  and  fines  adjudged  against  soldiers  by  sentence  of 

a  The  act  of  Congress  establishing  the  Military  Asylum  does  not  constitute  the  commissioners  a  cor- 
poration with  capacity  to  sue  and  be  sued.  V  Opin.  Att.  Gen.,  398;  see  note  1  to  paragraph  2285, 
post. 

887 


888  MILITARY    LAWS    OF    THE    UNITED   STATES. 


DUTIES   OF   COMMISSIONERS. 

.sitesand build-     2264.  The  commissioners  of  the  Soldiers'  Home,  by  and 
g  sec.  s,  ibid.,  p.  wjtn  the  approval  of  the  President,  shall  procure  for  imme- 
Sec.  4817,  U.S.  (Jjate  use,  at  a  suitable  place  or  places,  a  site  or  sites  for 
the  Soldiers'  Home,  and  if  the  necessary  buildings  can  not 
be  procured  with  the  sites,  to  have  the  same  erected,  hav- 
ing due  regard  to  the  health  of  the  locations,  facility  of 
access,  and  economy,  and  giving  preference  to  such  places 
as,  with  the  most  convenience  and  least  cost,  will  accom- 
modate the  persons  entitled  to  the  benefits  of  the  Soldiers' 
Home. 

m?s09a[on°erTto     2265-  Tne  board  of  commissioners  of  the  Soldiers'  Home 
pwt,eetc.nual  re  snall  every  year  report  in  writing  to  the  Secretary  of  War, 
22fpar565.1883'  v>  giving  a  Wl  statement  of  all  receipts  and  disbursements  of 
money,  of  the  manner  in  which  the  funds  are  invested  of 
any  changes  in  the  investments  and  the  reasons  therefor, 
of  all  admissions  and  discharges,  and  generally  of  all  facts 
that  may  be  necessary  to  a  full  understanding  of  the  con- 
dition and  management  of  the  Home.     The  Secretary  of 
War  shall  have  power  to  call  for  and  require  any  omitted 
facts  which  in  his  judgment  should  be  stated  to  be  added. 
secretary  of  This  annual  report  shall  be,  by  the  Secretary  of  War, 

War  to  transmit  '       J.  _J 

report,  etc.,  to  together  with  the  report  of  the  inspecting  officer  herein- 
after provided  for,  transmitted  to  Congress  at  the  first 
session  thereafter,  and  he  shall  also  cause  the  same  to  be 
published  in  orders  to  the  Army,  a  copy  thereof  to  be 
deposited  in  each  garrison  and  post  library.  Act  of  March 
3,1883(2%  Stat.  L.,565}. 

court-martial,  over  and  above  any  amount  that  may  be  due  for  tLe  reimbursement 
of  Government  or  of  individuals;  (d)  all  forfeitures  on  account  of  desertion;  (e)  all 
moneys,  not  exceeding  two-thirds  of  the  balance  on  hand  of  the  hospital  fund,  and 
of  the  post  fund  of  each  military  station,  after  deducting  the  necessary  expenses  of 
the  year;  (a)  and  (f)  all  moneys  belonging  to  the  estates  of  deceased  soldiers,  which 
now  are  or  may  hereafter  be  unclaimed  for  the  period  of  three  years  subsequent  to 
the  death  of  said  soldier  or  soldiers,  to  be  repaid  by  the  commissioners  of  the  insti- 
tution, upon  the  demand  of  the  heirs  or  legal  representatives  of  "the  deceased;  (g) 
there  shall  also  be  ' '  deducted  from  the  pay  of  every  noncommissioned  officer,  musi- 
cian, artificer,  and  private  of  the  Army  of  the  United  States  the  sum  of  25  cents  (6) 
per  month,  which  sum  so  deducted  shall,  by  the  Pay  Department  of  the  Army,  be 
passed  to  the  credit  of  the  commissioners  of  the  asylum,  who  are  hereby  authorized 
to  receive  all  donations  of  money  or  property  made  by  any  person  or  persons  for  the 
benefit  of  the  institution,  and  hold  the  same  for  its  sole  and  exclusive  use."  Sec.  7, 
act  of  March  3,  1851,  9  Stat.  L.,  596. 

In  passing  upon  recommendations  made  by  the  board  of  commissioners  of  the 
Soldiers'  Home,  under  section  4815  of  the  Revised  Statutes,  the  Secretary  of  War  is 
invested  with  a  discretionary  power  to  approve  or  disapprove  the  same.  XVII 
Opin.  Att.  Gen.,  449, 


a  This  clause  was  repealed  by  section  2  of  the  act  of  July  5,  1862.    (12-Stat.  L.,  508. ) 

b  The  deduction  from  the  monthly  pay  of  enlisted  men,  fixed  at  25  cents  per  month  by  section  7, 

act  of  March  3, 1851  (9  Stat.  L.,  596),  was  reduced  to  12*  cents  by  section  7,  act  of  March  3, 1869  (11 

Stat.  L.,  424). 


MILITARY    LAWS    OF    THE    UNITED    STATES.  889 


INSPECTIONS. 

2266.  The  Inspector-General  of  the  Army  shall,  in  per- 
son,  once  in  each  year  thoroughly  inspect  the  Home,  its  J 
records,  accounts,  management,  discipline,  and  sanitary  18t^v. 
condition,  and  shall  report  thereon  in  writing,  together 
with  such  suggestions  as  he  desires  to  make.     Sec.  2,  act 

of  March  3, 1883  (22  Stat.  Z.,  664). 

OFFICERS. 

2267.  The  officers  of  the  Soldiers'  Home  shall  consist  of 

a  governor,  a  deputy  governor,  and  a  secretary,  for  each  25 
separate  site  of  the  home,  the  latter  to  be  also  the  treas- 
urer; and  the  officers  shall  be  taken  from  the  Army  and 
appointed  or  removed,  from  time  to  time,  as  the  interests 
of  the  institution  may  require,  by  the  Secretary  of  War, 
on  the  recommendation  of  the  board  of  commissioners.1 

2268.  The  governor  and  all  other  officers  of  the  Home 
shall  be  selected  by  the  President  of  the  United  States,  and  |y  g£ 

the  treasurer  of  the  Home  shall  be  required  to  give  a  bond  Str?ea8urer  to 
in  the  penal  sum  of  twenty  thousand  dollars  for  the  faith-  gigfcb?nMar  3 
ful  performance  of  his  duty.2  Sec.  7,  act  of  March  3, 1883™*^-  ^.P-M*.' 
(WStat.L.,564). 

1  The  commissioners  of  the  Soldiers'  Home  may  permit  the  governor,  deputy  gov- 
ernor, and  treasurer  of  the  Home,  who  are  retired  officers  of  the  Army  and  who 
reside  at  the  Home,  to  make  use  of  ordinary  supplies  of  fuel,  light,  forage,  etc. ,  pro- 
duced at  the  Home  or  purchased  for  it,  and  they  may  pay  the  treasurer,  out  of  the 
funds  of  the  Home,  a  salary  for  his  services.  XX  Opm.  Att.  Gen.,  350. 

The  funds  for  the  support  of  the  Soldiers'  Home  are  not  of  the  class  of  public 
moneys  annually  appropriated  for  a  specific  object,  as  for  the  pay  of  the  Army,  but 
a  special  trust  fund  committed  to  and  administered  by  the  board  of  commissioners 
for  the  benefit  of  the  institution.  From  an  early  period  in  the  history  of  the  Home 
it  has  been  the  usage  for  the  commissioners  to  permit  the  officers  of  the  Home  (retired 
officers  of  the  Army  residing  at  the  Home)  gratuitously  to  receive  and  use  a  reasona- 
ble portion  of  the  ordinary  supplies  of  fuel,  light,  forage,  milk,  ice,  and  vegetables, 
either  produced  at  the  Home  or  obtained  for  its  consumption.  Held,  that  such  allow- 
ance was  not  in  contravention  of  law;  that  the  articles  thus  issued  are  not  of  the 
class  of  military  pay  and  emoluments,  and  therefore  unauthorized  because  not 
allowed  by  law  to  retired  officers,  but  are  a  reasonaple  share  of  the  supplies  for  the 
use  and  benefit  of  the  Home,  the  disposition  of  which  is  properly  within  the  discre- 
tion of  the  commissioners  as  trustees  of  the  funds  of  the  Home  and  as  charged  by 
law  with  the  "government  and  interests  of  the  same."  And  similarly  held  in  regard 
to  the  amount  of  $1,000,  allowed  annually  out  of  such  funds  to  the  treasurer  of  the 
Home  as  a  compensation  for  his  special  services  and  in  consideration  of  his  pecuniary 
responsibility  as  a  bonded  officer.  Dig.  Opin.  J.  A.  G.,  par.  2331. 

Held,  that  a  medical  officer  of  the  Army,  occupying  quarters  at  the  Soldiers'  Home, 
was  not  thereby  precluded  from  receiving  commutation  of  quarters  at  New  York  on 
being  ordered  to  duty  there  as  a  member  of  a  medical  examining  board.  The  quar- 
ters occupied  by  him  at  the  Home  are  not  "public  quarters"  in  the  sense  of  par. 
1480,  A.  R. ;  he  does  not  occupy  them  at  the  expense  of  the  United  States,  and  by 
allowing  him  the  commutation  the  Government  is  not  put  to  a  double  expense  for 
his  quarters.  Ibid. ,  par.  2332. 

2 The  board  of  commissioners  of  the  Soldiers'  Home  can  not  delegate  to  the  gov- 
ernor of  the  Home  discretionary  police  authority  for  the  preservation  of  good  order 
within  its  limits.  XX  Opin.  Att.  Gen.,  514.  They  can  not  empower  him  to  arrest, 


890  MILITARY    LAWS    OF   THE    UNITED    STATES. 

FUNDS    FOR   SUPPORT    OF    THE    SOLDIERS'    HOME. 

diS^oSS.801"     2269-  For  the  support  of  the  Soldiers'  Home  the  follow- 
•25^r; v! 9^596; in^  f unds  are  setaPartand  are  hereby  appropriated:  All 
mjs.  I,  v1^!,  p!  stoppages  or  fines  adjudged  against  soldiers  by  sentence  of 
6°S«e.48i8,  B.S.  courts-martial  over  and  above  any  amount  that  may  be 
due  for  the  reimbursement  of  Government  or  of  individ- 
uals; all  forfeitures  on  account  of  desertion;  and  all  mon- 
eys belonging  to  the  estates  of  deceased  soldiers  which  are 
or  may  be  unclaimed  for  the  period  of  three  years  subse- 
quent to  the  death  of  such  soldiers,  to  be  repaid  by  the 
commissioners  of  the  institution  upon  the  demand  of  the 
heirs  or  legal  representatives  of  the  deceased.1 

m^ft^of^at  227°-  Hereafter  the  adjustment  of  the  accounts  of  the 
C°j1uiyi6,i892,v.  Soldiers'  Home  under  section  4818  of  the  Revised  Stat- 
27,  p.  IBS.  utes  jn  tke  Ofgces  Of  the  Second  Comptroller  and  Second 

Auditor  shall  be  limited  to  those  originating  subsequent 
to  March  3, 1881.     Act  of  July  16, 1892  (27  Stat.  Z.,  183). 
^Deductionfrom     2271.  There  shall  be  deducted  from  the  pay  of  every  non- 
25*8*7'  v1  918p1596: :  commissione(l  officer,  musician,  artificer,  and  private  of 
Mar  A  1869,0.^83,' the  Army  of  the  United  States  the  sum  of  twelve  and  a 
Sec.48io,u.s.  haif  Cents  per  month,  which  sum  so  deducted  shall  by  the 
Pay  Department  of  the  Army  be  passed  to  the  credit  of 
the  commissioners  of  the  Soldiers'  Home.     The  commis- 
sioners are  also  authorized  to  receive  all   donations   of 
money  or  property  made  by  any  person  for  the  benefit 
of  the  institution  and  hold  the  same  for  its  sole  and  exclu- 

detain,  or  deliver  over  to  the  court  authorities  nonmilitary  persons  committing  crimes 
less  than  capital,  except  in  the  cases  where  any  person  may  make  an  arrest  without 
warrant  or  precept.  Ibid. 

1  Section  4818,  Revised  Statutes,  appropriates  as  one  of  the  funds  for  the  support  of 
the  Soldiers'  Home  "all  forfeitures  on  account  of  desertion."  Held,  that  this  appro- 
priation included  the  retained  pay  of  soldiers  as  forfeited  by  desertion  under  the 
provisions  of  sections  1281  and  1282,  Revised  Statutes,  and  of  the  act  of  June  16, 
1890,  chapter  426,  section  1.  The  retained  pay  is  merely  a  fraction  of  the  monthly 
pay  of  the  soldier  earned  with  the  rest  of  his  monthly  pay  as  a  part  of  the  entire 
consideration  for  service  rendered,  but  of  which  the  payment — the  right  to  receive — 
is  deferred.  The  theory  that  it  is  not  to  be  regarded  as  earned  tilt  the  soldier's  serv- 
ice is  concluded  and  he  receives  an  honorable  discharge  is  rebutted  by  the  statu- 
tory provisions  above  cited,  and  especially  by  the  provision  of  the  act  of  1890,  which 
treats  the  retained  pay  as  pay  constantly  accruing  and  as  a  continuing  deposit  for 
the  use  of  the  soldier  drawing  interest  from  the  end  of  each  year  in  which  it  accrues. 
The  ruling  of  the  Supreme  Court  in  United  States  v.  Landers  (92  U.  S.,  77)  is  not 
opposed  to  this  view,  but  as  construed  by  the  same  court  in  United  States  v.  Kings- 
"tey  (138  U.  S.,  87),  shows  that  the  "forfeiture"  referred  to  in  sections  1281  and  1282, 
Revised  Statutes,  was  regarded  by  the  court  as  meaning  a  loss  of  an  acquired  right, 
and  the  act  of  1890,  passed  since  this  ruling,  has  confirmed  this  interpretation. 
Thus  a  soldier  in  deserting  forfeits  with  the  main  portion  of  his  pay  the  portion 
which  has  been  retained,  his  right  to  this  lesser  portion  being  as  much  acquired  and 
perfected  as  his  right  to  the  greater  portion.  Both  forfeitures  rest  upon  the  same 
basis,  and  the  aggregate  forfeiture  of  both  is  appropriated  by  the  statute  to  the  sup- 
port of  the  Soldiers'  Home.  Dig.  Gain.  J.  A.  G. ,  Dar.  2333. 


MILITARY    LAWS    OF   THE   UNITED   STATES.  891 

sive  use.  But  the  deduction  of  twelve  and  a  half  cents 
per  month  from  the  pay  of  noncommissioned  officers,  mu- 
sicians, artificers,  and  privates  of  regiments  of  volunteers 
or  other  corps  or  regiments  raised  for  a  limited  period  or 
for  a  temporary  purpose  or  purposes  shall  only  be  made 
with  their  consent.1 

2272.  That  all  funds  of  the  Home  not  needed  for  current  thf  ^^f^  £* 
use,  and  which  are  not  now  invested  in  United  States  regis-  T^asur6*1  united 

dper 


tered  bonds,  shall,  as  soon  as  received,  or  as  soon  as  Presen^  ^amf         per 


investments  can  be  converted  into  money  without  loss,  ke18ffCv 

deposited  in  the  Treasuiy  of  the  United  States  to  the  credit 

of  the  Home  as  a  permanent  fund,  and  shall  draw  interest    interest. 

at  the  rate  of  three  per  centum  per  annum,  which  shall  be 

paid  quarterly  to  the  treasurer  of  the  Home;  and  the  pro- 

ceeds of  such  registered  bonds,  as  they  are  paid,  shall  be 

deposited  in  like  manner.     No  part  of  the  principal  sum    principal  sum 

so  deposited  shall  be  withdrawn  for  use  except  upon  a  reso-  by  'resofutLiTS 

lution  of  the  board  of  commissioners  stating  the  necessity-  ** 

and  approved  by  the  Secretary  of  War.    Sec.  8,  act  of  March 

3,  1883  (%%  Stat.  L.,565). 

2273.  That  the  Treasurer  of  the  United  States  be,  and    united  states 

Treasurer  to  be 

he  is  hereby,  authorized  and  directed  to  receive  and  keep  custodian  of 

J  '  r  funds,  etc.,  of. 

on  deposit,  subject  to  the  checks  or  drafts  of  the  treasurer  2JJan-7JM89i,  v. 

of  the  Soldiers'  Home  in  the  District  of  Columbia,  all  funds 

which  may  now  be  under  the  control  of  the  said  treasurer 

of  the  Soldiers'  Home,  or  may  hereafter  be  furnished  him 

or  in  any  manner  come  into  his  possession  for  use  in  defray- 

ing the  current  expenses  of  maintaining  the  said  Soldiers' 

Home,  and,  upon  the  request  of  said  treasurer  of  the  Sol- 

diers' Home,  there  shall  be  transferred,  from  funds  to  his  fJ^tSlLlstant 

credit  with  the  United  States  Treasurer,  and  placed  to  ^asurer  in  New 

his  credit  with  the  assistant  treasurer  of  the  United  States 

in  New  York  City,  New  York,  such  sums  as  he  may  require 

monthly  or  quarterly  for  payments  on  account  of  "outdoor 

relief  "  to  members  of  the  said  Soldiers'  Home  residing  at 

a  distance  therefrom.     Act  of  January  16,  1891  (26  Stat. 

Z.,  718). 

2274.  No  officers  of  the  Home  shall  borrow  any  money    Borrowing 

J  J  money  on  credit 

on  the  credit  of  the  Home  for  any  purpose,  nor  shall  any  of  Home  prohib- 
pledge  of  an}^  of  its  property  or  securities  for  any  purpose  18||<^  |2Ma^3> 
be  valid.  Sec.  9,  act  of  March  3,  1883  (22  Stat.  Z.,  565). 

:The  act  of  March  16,  1896  (29  Stat.  L.,  60),  contained  the  requirement  that  no 
pay  should  thereafter  be  retained  from  enlisted  men,  but  excepted  therefrom  the 
deductions  authorized  to  be  made  on  account  of  the  Soldiers'  Home. 


892  MILITARY    LAWS    OF   THE    UNITED    STATES, 


ADMISSION    AND    DISCHARGE    OF   INMATES. 

comemembersbof     2275-  AU  soldiers  of  the  Army  of  the  United  States,  and 

Home  °ldiers>  a^  soldiers  who  have  been,  or  may  hereafter  be,  of  the 

25^ri3'v8591>  p'  Army  of  the  United  States,  and  who  have  contributed,  or 

c983^s&5  ?'  v8ii'mav  hereafter  contribute,  according  to  section  forty-eight 

P'se«.'48i4,  B.S.  hundred  and  nineteen,  to  the  support  of  the  Soldiers'  Home 

hereby  created,  and   the   invalid   and   disabled  soldiers, 

whether  regulars  or  volunteers,  of  the  war  of  eighteen  hun- 

dred and  twelve  and  of  all  subsequent  wars,  shall,  under 

the  restrictions  and  provisions  which  follow,  be  members 

of  the  Soldiers'  Home,  with  all  the  rights  annexed  thereto.1 

ar?  heantiSld°to     2276-  Tne  following  persons,  members  of  the  Soldiers' 

dfers^Home.801  Home,  according  to  section  forty-eight  hundred  and  four- 

25Msar4f'v18^p;teen,  shall  be  entitled  to  the  rights  and  benefits  herein 

c98'3>^a5)v.iirp!con^erre(^'  an(*  no  others: 

43s'ec.482i,  ii.s.  First.  Every  soldier  of  the  Army  of  the  United  States 
who  has  served,  or  may  serve,  honestly  and  faithfully 
twenty  years  in  the  same. 

Second.  Every  soldier  and  every  discharged  soldier, 
whether  regular  or  volunteer,  who  has  suffered,  or  may 
suffer,  by  reason  of  disease  or  wounds  incurred  in  the 
%  service  and  in  the  line  of  his  duty,  rendering  him  incapa- 
ble of  further  military  service,  if  such  disability  was  not 
occasioned  by  his  own  misconduct. 

Third.  The  invalid  and  disabled  soldiers,  whether  regu- 
lar or  volunteers,  of  the  wars  of  eighteen  hundred  and 
twelve  and  of  all  subsequent  wars.2 
are  ex-     2277.  The  benefits  of  the  Soldiers'  Home  shall  not  be 


Mar.  '3,  1851,  c.  extended  to  any  soldier  in  the  regular  or  volunteer  service 

25,  s.  6,  V.  9,  p.  596.  „    , 

sec.  4822,  R.s.  convicted  of  felony  or  other  disgraceful  or  infamous  crimes 
of  a  civil  nature  after  his  admission  into  the  service  of  the 
United  States;  nor  shall  any  one  who  has  been  a  deserter, 
mutineer,  or  habitual  drunkard  be  received  without  such 
evidence  of  subsequent  service,  good  conduct,  and  reforma- 
tion of  character  as  is  satisfactory  to  the  commissioners. 

1This  section  and  4815  recognize  two  classes  of  beneficiaries:  1.  Soldiers  who, 
while  in  the  service,  contributed  voluntarily  to  the  support  oi  the  Home.  2.  Sol- 
diers who  did  not  contribute.  Those  who  contributed  have  a  right  to  membership 
without  surrendering  their  pensions  to  the  Home.  Under  section  4820  of  the  Revised 
Statutes,  those  who  did  not  contribute  may  become  members  by  making  such  sur- 
render. Bo  wen  t;.  U.  S.,  100  U.  S.,  508;  ibid.,  14  Ct.  Cls.,  162. 

2  Held  that  under  section  4821,  Revised  Statutes,  invalid  and  disabled  soldiers  of 
the  war  of  the  rebellion  and  of  Indian  wars  were  entitled  to  the  benefits  of  the  Sol- 
diers' Home,  although  the  disability  may  not  have  grown  out  of  their  military  serv- 
ice, provided  it  be  not  the  result  of  their  own  misconduct  as  indicated  in  section 
4822,  Revised  Statutes.  Dig.  Opin.  J.  A.  G.,  705,  par.  1. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  893 


2278.  Any  soldier  admitted  into  the  Soldiers'  Home  for 
disability  who  recovers  his  health,  so  as  to  become  fit    sec.4828,  R.S. 
again  for  military  service,  if  under  fifty  years  of  age,  shall 
be  discharged.1 

OUTDOOR   RELIEF. 


2279.  That  the  board  of  commissioners  are  authorized' 

to  aid  persons  who  are  entitled  to  admission  to  the  Home,  re^ecf-  6  Mar  3 
by  outdoor  relief,  in  such  manner  and  to  such  an  extent1883-  v.-a.p.ses. 
as  thev  may  deem  proper;  but  such  relief  shall  not  exceed 
the  average  cost  of  maintaining  an  inmate  of  the  Home.  g 
Sec.  6,  act  of  March  3,  1883  (82  Stat.  Z.,  565). 

PENSIONS   TO   INMATES. 

2280.  The  fact  that  one  to  whom  a  pension  has  been  gi^f^and  ?S- 
granted  for  wounds  or  disability  received  in  the  military  gJ5JJj,er  of  pen" 
service  has  not  contributed  to  the  funds  of  the  Soldiers'  &£'£%%  £ 
Home  shall  not  preclude  him    from   admission   thereto.  JSf^JfJ;!;  \\^\ 
But  all  such  pensioners  shall  surrender  their  pensions  to  43|^c  4820^  B  s 
the  Soldiers'  Home  during  the  time  they  remain  therein 

and  voluntarily  receive  its  benefits.2 

2281.  Any  inmate  of  the  Home  who  is  receiving  a  pe 
sion  from  the  Government,  and  who  has  a  child,  wife,  or 
parent  living,  shall  be  entitled,  by  filing  with  the  pension 
agent  from  whom  he  receives  his  money  a  written  direc- 
tion to  that  effect,  to  have  his  pension,  or  any  part  of  it, 

paid  to  such  child,  wife,  or  parent.     The  pensions  of  all  toPebli0plidetto 
who  now  are  or  shall  hereafter  become  inmates  of  the  tr|^ur|r-Mar  3 
Home,  except  such  as  shall  be  assigned  as  aforesaid,  shall  1883)  v>  22)  p-  564> 
be  paid  to  the  treasurer  of  the  Home.     The  money  thus 
derived  shall  not  become  a  part  of  the  funds  of  the  Home, 
but  shall  be  held  by  the  treasurer  in  trust  for  the  pen- 

1  An  inrnate  is  not  required  to  remain  at  the  Home  if  he  wishes  to  leave  it.     The 
privileges  of  the  institution  may  be  renounced  by  any  act  showing  an  intention  to 
renounce  them  —  such  as  direct  notice  of  such  intention,  or  by  an  absenting  with  the 
evident  purpose  of  not  returning.     In  February,  1864,  a  certain  inmate  was  trans- 
ferred from  the  Home  to  the  Government  Insane  Hospital,  and  was  discharged 
thence  as  sane  in  June,  1864.     He  did  not  return  to  the  Home  and  was  not  again 
heard  of  till  March,  1886,  when  it  was  ascertained  that  he  was  at  the  State  Insane 
Hospital  of  Pennsylvania.     As  he  was  sane  when  he  left  the  Government  Hospital 
and  did  not  return  to  the  Home  within  a  reasonable  time,  but  remained  absent  nearly 
twenty-two  years,  held  that  he  must  be  deemed,  in  the  absence  of  contrary  evidence, 
to  have  intended  to  permanently  separate  himself  from  the  institution,  and  that  he 
therefore  was  not  now  an  inmate  or  member  of  the  same.     Dig.  Opin.  J.  A.  G.,  par. 
2329. 

2  Section  4820,  Revised  Statutes,  admits  of  no  other  reasonable  construction  than 
that  only  invalid  pensioners  who  had  not  contributed  to  the  funds  of  the  Soldiers' 
Home  were  bound  to  surrender  to  it  their  pensions  -while  receiving  its  benefits. 
U.  S.  v:  Bowen,  100  U.  S.,  508;  but  see  paragraph  2281,  post. 


894  MILITARY    LAWS    OF    THE    UNITED    STATES. 

sioner  to  whom  it  would  otherwise  have  been  paid,  and 
pension  paidguch  part  of  it  as  shall  not  sooner  have  been  paid  to  him 

in   full   on   dis- 

charge  of  pen- shall  be  paid  to  him  on  his  discharge  from  the  institution. 

sioner  from  the  r  . 

Home.  The  board  of  commissioners  may  from  time  to  time  pay 

over  to  any  inmate  such  part  of  his  pension  money  as  they 
t  think  best  for  his  interest  and  consistent  with  the  discip- 

line and  good  order  of  the  Home,  but  such  pensioner  shall 
not  be  entitled  to  demand  or  have  the  same  so  long  as  he 
siOTerh  "money  remains  an  inmate  of  the  Home.     In  case  of  the  death  of 
feUaieheir?aid  to  an v  Pensi°ner?  any  pension  money  due  him  remaining  in 
the  hands  of  the  treasurer  shall  be  paid  to  his  legal  heirs, 
if  demand  is  made  within  three  years;  otherwise  the  same 
shall  escheat  to  the  Home.     Sec.  h  act  of  March  3,  1883 
(%%  Stat.  Z.,  664). 

Payment  of  2282.  If  any  such  pensioner  isor  shall  become  an  inmate  of 
s£ntowife,etc!~a  National  Soldiers'  Home,  one-half  of  the  pension  drawn 
30,  p.  1379  in  his  behalf,  or  to  which  he  may  become  entitled  during 
his  residence  therein,  shall  be  paid  by  the  treasurer  of 
that  institution  to  such  pensioner's  wife,  she  being  in  neces- 
sitous circumstances  and  a  woman  of  good  moral  charac- 
ter, or,  if  there  be  no  wife,  to  the  legal  guardian  of  the 
minor  child  or  children,  or  the  permanently  dependent  and 
helpless  child  or  children  of  such  pensioner,  on  the  order 
of  the  Commissioner  of  Pensions. l  Act  of  March  3,  1899 
(30  Stat.  Z.,  1379). 

MISCELLANEOUS   PROVISIONS. 

jec?toArticiSof     2283>  AN  persons  admitted  into  the  Soldiers'  Home  shall 
Mar  3  1859  c  ^e  su^lect  to  the  Rules  and  Articles  of  War  in  the  same 


manner  as  soldiers  in  the  Army.2 

**4.  ^-  suitable  uniform  shall  be  furnished  to  every 
mates  free  of  inmate  of  the  Home,  without  cost  to  him.3  Sec.  5,  act  of 
i883efy522MPar565:  March  3,  1883  (82  'Stat.  Z.,  566). 

iimS?dnetcUexS     2285>  ^°  new  buildings  shall  be  erected  or  new  grounds 
o? Kdappr°val  purchased,  nor  shall  any  expenditure  of  more  than  five 

1  For  remainder  of  this  enactment  see  paragraphs  2224  and  2230,  ante. 

'2  Section  4824,  Revised  Statutes,  subjecting  the  inmates  of  the  Soldiers'  Home  to 
the  Rules  and  Articles  of  War,  is  unconstitutional  and  a  dead  letter.  These  inmates 
are  no  part  of  the  Army,  nor  are  they  supported  by  the  United  States.  They  are 
civilians  occupying  dwellings  and  sustained  by  funds  held  in  trust  for  them.  "  The 
territory  of  the  Home  being  within  the  District  of  Columbia,  and  not  having  been 
exempted  by  Congress  from  the  operation  of  the  criminal  laws  of  the  District,  the 
inmates  are  subject  to  those  laws  like  any  other  residents.  [Compare  opinion  of 
Attorney-General  in  XX  Opins.,  514.]  Dig.  Opin.,  J.  A.  G.,  par.  2328. 

3  The  inmates  of  the  Soldiers'  Home  wear  the  uniform  of  soldiers  of  the  Army. 
They  are  therefore  within  the.  operation  of  section  1181  of  the  Revised  Statutes 
relating  to  the  District  of  Columbia,  which  makes  penal  the  selling  of  liquor  to 
persons  wearing  the  uniform  of  soldiers.  Ibid.,  p.  705,  par.  3. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  895 

thousand  dollars  be  made,  until  the  action  of  the  board  usru£pli^'  how 
thereon  shall  be  approved  by  the  Secretary  of  War.  All 
supplies  that  can  be  purchased  upon  contract  shall  be  so 
purchased,  after  due  notice  by  advertisement,  of  the  low- 
est responsible  bidder.  Such  bidder  shall  give  bond,  with 
proper  security ,  for  the  performance  of  his  contract. *  Sec. 
3,  act  of  March  3,  1883  (22  Stat.  Z.,  565). 

2286.  On  and  after  the  passage  of  this  act  no  license    L&\!051iceI?'Ts 

1  prohibited  with- 

tor  the  sale  of  intoxicating  liquor  at  any  place  within  one1",11.1  mile  of  So1- 

J    J  diers'   Home, 

mile  of  the  Soldiers'  Home  property  in  the  District  of  Co-  D-£b 
lumbia  shall  be  granted.    Act  of  Felruat^y  28, 1891  (26  Stat. 26-  P-  797.' 
L.,  797). 

^Contracts  for  the  Home  should  be  entered  into,  not  by  the  "Soldiers'  Home," 
which  is  not  an  incorporated  institution,  but  by  the  board  of  commissioners,  who, 
as  trustees  for  the  Home,  may  make  contracts  which  will  bind  the  United  States 
Dig.  Opin.,  J.  A.  G.,  par.  2330. 

Section  11  of  the  act  of  March  3,  1883  (22  Stat.  L.,  p.  565),  contains  the  provision 
''that  all  laws  and  parts  of  laws  relating  to  the  Soldiers'  Home  now  in  force  and  not 
inconsistent  with  this  act  are  continued  in  force,  and  such  as  are  inconsistent  here- 
with are  to  that  extent  repealed."  Section  12  of  the  same  act  contained  the  require- 
ment that  "  the  sum  of  ten  thousand  dollars  is  hereby  appropriated  out  of  any  money 
in  the  Treasury  not  otherwise  appropriated  to  be  expended  by  the  Secretary  of  the 
Treasury  in  the  employment  of  additional  clerical  force  to  be  used  in  adjusting  the 
accounts  in  the  Treasury  Department  of  those  funds  which  under  the  law  belong  to 
the  Soldiers'  Home." 


CHAJPTER   XLII. 


THE  NATIONAL  HOME  FOR  DISABLED  VOLUNTEER 

SOLDIERS. 


Par. 

2287-2297. 

2298-2304. 
2305-2309. 
2310-2315. 
231&-2318. 
2319, 2320. 


Board  of  Managers:  GENERAL 

OFFICERS. 

Officers  of  branch  homes. 
Estimates  and  appropriations. 
Purchases. 
Accounts. 
Establishment      of      branch 

homes. 


Par. 

2321-2324.  State  and  Territorial  Homes. 

2325.  Admissions  to  the  Home. 

2326.  Transfer  of  inmates. 

2327.  Outdoor  relief. 
2328-2330.  Pensions  to  inmates. 
2331.  Insane  patients. 

2332-2339.  Miscellaneous  requirements. 


THE   BOARD   OF   MANAGERS:    GENERAL   OFFICERS. 


Par. 

2287.  Organization  of  Home. 

2288.  Election  of  managers. 

2289.  Election  of  officers. 

2290.  Expenses  of  Board  of  Managers. 

2291.  Salaried  officers. 

2292.  Bond  of  general  treasurer. 


Par. 

2293.  Assistant  to  general  treasurer. 

2294.  Bonds  of  depositories. 

2295.  Inspection  by  Secretary  of  War. 

2296.  Duties  of  Board  of  Managers. 

2297.  Estimates  to  show  salaries. 


2287.  The  President,  Secretary  of  War,  Chief  Justice, 
abiSf  Volunteer an<^  sucn  other  persons  as  have  been  or  from  time  to  time 

c  may  be  associated  with  them,  shall  constitute  a  board  of 
JJ;  managers  of  an  establishment  for  the  care  and  relief  of 
MarV'31?i87541c;^e  disabled  volunteers  of  the  United  States  Army,  to  be 
;  known  by  the  name  and  style  of  "The  National  Home  for 
;  Disabled  Volunteer  Soldiers,"  and  have  perpetual  succes- 
sion, with  powers  to  take,  hold,  and  convey  real  and  per- 
sonal property,  establish  a  common  seal,  and  to  sue  and 
be  sued  in  courts  of  law  and  equity;  and  to  make  by-laws, 
rules,  and  regulations,  not  inconsistent  with  law,  for  carry- 
ing on  the  business  and  government  of  the  Home,  and  to 
affix  penalties  thereto. 

2288.  Eleven  managers  of  the  National  Home  for  Dis- 
2i^&3'v1i4866io:  abled  Volunteers  shall  be  elected  from  time  to  time,  as 
v*ai5 *p  Xr7 Jan'  vacancies  occur,  by  joint  resolution  of  Congress.     They 
23^1878,^51,8.1,  shall  all  be  citizens  of  the  United  States,  and  all  residents 

sec.  4826,  R.S.  of  States  which  furnished  organized  bodies  of  soldiers  to 

896 


MILITARY    LAWS    OF    THE    UNITED    STATES.  897 

aid  in  suppressing  the  rebellion  commenced  in  eighteen 
hundred  and  sixty-one;  and  no  two  of  them  shall  be  resi- 
dents of  the  same  State,  and  no  person  who  gave  aid  or 
countenance  to  the  rebellion  shall  ever  be  eligible.  The 
term  of  office  of  these  managers  shall  be  for  six  years,  and 
until  a  successor  is  elected.1 

2289.  The  fourteen  managers  of  the  National  Home  for    Election  of  offi- 
Disabled  Volunteer  Soldiers  shall  elect  from  their  own  of  Managers0** 
number  a  president,  who  shall  be  the  chief  executive  offi- 21 

cer  of  the  board,  two  vice-presidents,  and  a  secretary.  s. 
Seven  of  the  board,  of  whom  the  president  or  one  of  the 
vice-presidents  shall  be  one,  shall  form  a  quorum  for  the 
transaction  of  business  at  any  meeting  of  the  board.2 

2290.  Hereafter  no  member  of  the  Board  of  Managers    Expenses     of 
of  the  National   Home  for  Disabled  Volunteer  Soldiers  ag£s* 

shall  receive  any  compensation  or  pay  for  any  services  orv.isfp.*^.1894' 
duties  connected  with  the  Home;  but  the  traveling  and 
other  actual  expenses  of  a  member,  incurred  while  upon 
the  business  of  the  Home,  may  be  reimbursable  to  such 
member.     Act  of  August  18,  1894  (®8  Stat.  L.,  412). 

2291.  The  president  and  secretary  of  the  Board  of  Man-    officers    who 
agers  may  receive  a  reasonable  compensation  for  their  serv-  Sies.receive  e*l~ 
ices  as  such  officers,  not  exceeding  four  thouand  dollars 

and  two  thousand  dollars,  respectively,  per  annum.     Ibid. 

2292.  The  general  treasurer3  shall  give  good  and  suffi-    Bond  of  gen- 
cient  bond  to  the  United  States  in  a  sum  not  less  than  one  e™  ugliaJiaS,  v. 
hundred  thousand  dollars,  as  the  Secretary  of  War  may 28>  p' 412' 
direct,  and  to  be  approved  by  him,  faithfully  to  account 

for  all  public  moneys  and  property  which  he  may  receive. 

2293.  The    assistant    general    treasurer    and    assistant    Assistant     to 
inspector-general  shall  hereafter,  in  the  necessary  absence  urerfbond. r< 

,  .,.,          ..  ,.  ,,  „  June  6,  1900,  v. 

or  inability  of  the  general  treasurer,  from  any  cause  what-  31,  p.  636. 
ever,  perform  his  duties  and  give  bond  to  the  general 
treasurer  for  the  faithful  performance  of  such  duties,  but 

lrChe  number  of  managers  to  be  elected  by  joint  resolution  of  Congress  was  fixed 

at  ten  by  section  3  of  the  act  of  March  3, 1887  (24  Stat.  L.,  444),  and  at  eleven  by  joint 

resolution  No.  21,  of  March  3,  1891  (26  ibid.,  1117). 
2  The  following-named  general  officers  were  provided  for  in  the  act  of  appropriation 

of  March  3,  1901  (31  Stat.  L.,  1178),  at  the  rates  of  compensation  set  opposite  their 

respective  designations: 

President  of  the  Board  of  Managers $4, 000 

Secretary  of  Board  of  Managers 2, 000 

General  treasurer '. 4, 000 

Inspector-general 2, 500 

Assistant  to  general  treasurer  and  assistant  inspector-general. . .     2, 000 

Assistant  inspectors-general,  each 2, 000 

8 The  act  of  June  6,  1900  (31  Stat.  L.,  636),  and  prior  acts  of  appropriation  have 

contained  the  requirement  that  the  general  treasurer  shall  not  be  a  member  of  the 

Board  of  Managers. 

22924—08 57 


mZTAKT   ULWS   Of  THE    rXTTEB    - 


in  every  respect  be  responsible 
to  the  United  States  for  any  default  on  the 

•Mpecter-fQMnL1    A**f  J*me  6. 1900(31  Stat.^  696). 
ttMu  Etam  a»d  after  the passage  of  this  act  it  shall  be 
-the  duty  of  die  Secretary  of  the  Treasury  to  require  from 
the  prarffoat  and  cashier  of  all  banks  used  as  depositories 
by  the  treasurer  of  the  Home  a  deposit  of  bonds  sufficient 
in  amount  to  folly  secure  all  moneys  pertaining  to  said 
Home  left  on  deposit  with  any  such  bank.     Sec.  t,  act  of 
July  9.  1*9*  94  &*-  L. 


8296.  Hereafter,  once  in  each  fiscal  year, 
of  War  shall  cause  a  thorough  inspection  to  be  made  of 
the  National  Home  for  Disabled  Volunteer  Soldiers,  MB 

to  be  made  by  an  officer  of  the 
shall  report  thereon 

and  aid  report  shall  be  transmitted  to  Con 
at  the  first  session  thereafter/    At*  of  August  18, 


The  Board  of  Managers  shall  make  an  annual  re- 
of  the  National  Home  for  Disabled 
Soldiers  to  Congress  on  the  first  Monday  of 
and  the  board  shall  examine  and  audit 
of  the  treasurer  and  visit  the  Home  quarterly. 
tsatement  of  expenses  of  the  Board 
of  the  National  Home  for  Disabled  Volunteer 
Tear  be  submitted  in  the  annual  Book 


ary  or  compensation  paid  to  each  of  die 

be  submitted 
of  officers 
section  four 
of  theBerised 

,of  salary  or  compensation  paid  to  each, 
and  the  amount  of  allowance  to  each,  if  any,  for  contingent 


MUJTAXY  LAWS  0F 


>•  :   v    :* 


i&V     S&^r.r*  -,-.  be 


and  they  may  be  appointed  and 

die  interests  of  die 
Board  of  Managers. 


officer*  of  the  National 


~JL  :••-•:•     «i: 

miliUiy  service  of  die  United 
1897  &  Stat,  L., 

mo.  The  Bomzd  of 
4BBEB  and  ***pi**y^^*  of  the 
Volunteer  Soldiers 
rnnce  for  each  class,  and  die  imte 
be  increased  by  fees,  perq 


the 

for  Disabled  ~J^ 
ante  of  pay  and  --- 


under  any  pretense  whatever;  and  no 
borne  on  more  than  one  pay  rofl  or 

A    ;•..-:-. 


«    Adtvf 


fine* 

i 


:: 
in* 

•::::.r 


£  ^  ^ 


"^'r-V  :  "    "  '.':^  -s:-     : 


oa:  ilb 


L .  M 


b-^1  ".:•-•:.  ^_   .  ;.  ::    -r.x 


900  MILITARY    LAWS    OF    THE    UNITED    STATES. 


230L  No  Person  shall  be  eligible  to  or  hold  any  position 
traffic.    liquoror  employment  in  the  government  or  management  of  any 
24Mpar54o.1887'v'Home  wno  i§  interested  in  or  connected  with,  directly  or 
indirectly,  any  brewery,  dramshop,  or  distillery  in  the 
State  where  such  Home  is  located.     Act  of  March  3,  1887 
(24  Stat.  Z.,  54.0). 

TRAVELING   EXPENSES. 

penselo/office^:  2302-  When  an  officer  of  the  National  Home  for  Disabled 
28fp.g4i28'  1894<  v'  Volunteer  Soldiers,  not  a  member  of  the  Board  of  Man- 
agers thereof,  travels  under  orders  on  business  for  the 
Home  he  shall  be  allowed  seven  cents  in  lieu  of  all  other 
expenses  for  each  mile  actually  traveled,  distance  to  be 
computed  by  the  most  direct  through  route.  Act  of  August 
18,  1894(28  Stat.  Z., 


BONDS. 

2303-  The  treasurers  of  the  several  Branch  Homes  shall 
e$Aug  is  1894,  v  £iye  g°°d  and  sufficient  bonds  to  the  general  treasurer  in 
28,  p.  4i2.  such  sums  as  he  may  require,  and  to  be  approved  by  him, 

faithfully  to  account  for  all  public  moneys  and  property 
which  they  may  receive.  Act  ofAuyust  18,  1894  (®&  Stat. 
Z.,  41$). 

MalTSbi,  v.  2304t  Hereafter  the  Board  of  Managers  of  the  National 
31,  p.  UTS.  Home  for  Disabled  Volunteer  Soldiers  may,  in  their  dis- 
cretion, designate  and  authorize  an  officer  at  each  or  any 
of  the  several  Branches  of  the  National  Home  for  Disabled 
Volunteer  Soldiers  to  perform  such  duties  in  connection 
with  the  offices  of  the  treasurer  and  quartermaster  at  any 
such  Branch  as  they  may  direct,  and  in  the  necessary 
absence  or  inability  of  either  of  said  officers  from  any 
cause  whatever  to  have  power  to  act  in  their  places  and 
perform  all  of  the  duties  connected  with  the  said  respective 
offices.  All  officers  so  designated  and  authorized  to  act  as 
provided  hereunder  shall  give  bond  to  the  general  treasurer 
of  the  National  Home  for  Disabled  Volunteer  Soldiers  in 
such  amount  as  he  may  require,  and  to  be  approved  by  him, 
faithfully  to  account  for  all  public  moneys  and  property 
which  they  may  receive.  Act  of  March  3,  1901  (31  Stat. 
Z.,  1178}. 


MILITARY    LAWS    OF   THE    UNITED   STATES. 


901 


ESTIMATES   AND   APPROPRIATIONS. 


Par. 

2305.  Home  to  be  supported  by  appro- 

priations. 

2306.  Estimates. 


Par. 

2307,  2308.  The  same;  items  of  expendi- 
ture. 
Money;  how  drawn. 


2305.  From  and  after  the  first  day  of  April,  eighteen 
hundred  and  seventy-five,  no  money  shall  be  appropriated  5  v 
or  drawn  for  the  support  and  maintenance  of  what  is  now  18>  p-  359> 
designated  by  law  as  the  "National  Home  for  Disabled 
Volunteer  Soldiers,"  except  by  direct  and  specific  annual 
appropriations  by  law.1    Act  of  March  3,  1875  (18  Stat.  Z., 

359). 

2306.  That  it  shall  be  the  duty  of  the  managers  of  said 
Home,  on  or  before  the  first  day  of  October  in  each  year, 
to  furnish  to  the  Secretary  of  War  estimates,  in  detail,  for 
the  support  of  said  Home  for  the  fiscal  year  commencing 
on  the  first  day  of  July  thereafter,  and  the  Secretary  of 
War  shall  annually  include  such  estimates  in  his  estimates 
for  his  Department.     Act  of  October  2,  1888  (25  Stat.  Z., 


P-  548- 


esti" 
1886'  v- 


2307.  That  the  estimates  hereafter  submitted  for  the  sup-  mj£*filed  esti" 
port  of  the  National  Home  shall  be  made  in  detail,  specify-  20Maiyjj  1879>  v- 
ing  the  several  items  of  expenditure,  and  separating  the 

cost  of  food  and  other  supplies  in  the  form  usually  adopted 
for  the  Army,  and  that  this  specification  be  made  for  each 
soldiers'  home  separately.  Act  of  March  3,  1879  (20  Stat. 
L.,390). 

2308.  And  hereafter  the  estimates  for  the  support  of  the 
Home  for  Disabled  Volunteer  Soldiers  shall  be  submitted 
by  items.     Act  of  August  4,  1886  (24  Stat.  Z.,  251). 

2309.  No  moneys  shall,  after  the  first  day  of   April,  dr^nney;  how 
eighteen  hundred  and  seventy-five,  be  drawn  from  the  18Mar§5g'  1876>  v- 
Treasury  for  the  use  of  said  Home,  except  in  pursuance  of 
quarterly  estimates,  and  upon  quarterly  requisitions  by 

the  managers  thereof  upon  the  Secretary  of  War,  based 

1This  statute  repealed  and  replaced  section  4831  of  the  Revised  Statutes,  which 
provided  that  "for  the  establishment  and  support  of  the  National  Home  for  Dis- 
abled Volunteer  Soldiers  there  shall  be  appropriated  all  stoppages  or  fines  adjudged 
against  such  officers  and  soldiers  by  sentence  of  court-martial  or  military  commission, 
over  and  above  the  amounts  necessary  for  the  reimbursement  of  the  Government  or 
of  individuals;  all  forfeitures  on  account  of  desertion  from  such  service;  and  all 
moneys  due  such  deceased  officers  and  soldiers,  which  now  are  or  may  be  unclaimed 
for  three  years  after  the  death  of  such  officers  and  soldiers,  to  be  repaid  upon  the 
demand  of  the  heirs  or  legal  representatives  of  such  deceased  officers  or  soldiers. 
The  Board  of  Managers  are  also  authorized  to  receive  all  donations  of  money  or 
property  made  by  any  person  or  persons  for  the  benefit  of  the  Home,  and  to  hold  or 
dispose  of  the  same  for  its  sole  and  exclusive  use." 


902 


MILITARY    LAWS    OF    THE    UNITED    STATES. 


upon  such  quarterly  estimates,  for  the  support  of  said  Home 
for  not  more  than  three  months  next  succeeding  such  requi- 
sition. And  no  money  shall  be  drawn  or  paid  upon  any 
such  requisition  while  any  balance  heretofore  drawn  or 
received  by  said  Home,  or  for  its  use,  from  the  Treasury, 
under  the  laws  now  or  heretofore  existing,  and  now  held 
under  investment  or  otherwise,  shall  remain  unexpended. 
Act  of  March  3,  1875  (18  Stat.  Z.,  359). 

PURCHASES. 


Par. 


2310.  Made  under  direction  of  Board  of 

Managers. 

2311.  Expenditures. 

2312.  Purchases  of  supplies. 


Par. 


2313.  The  same;  medical  supplies. 

2314.  Receipts  from  sales. 

2315.  Funds  for  repairs,  restriction. 


24,  p.  539. 


unTd°er  bdireSion     2310.  Hereafter  all  supplies  for  the  National  Home  for 

onjoardofMan-Disabled  Volunteer  Soldiers  shall  be  purchased,  shipped, 

3oJp!y64o.1898'  v'  and  distributed  as  may  be  directed  by  the  Board  of  Man- 

agers.    Act  of  July  1,  1898  (30  Stat.  Z.,  640). 

231L  A11  of  the  expenditures  of  the  said  Home,  including 
^ne  expenses  of  the  Board  of  Managers,  shall  be  made  sub- 
ject to  the  general  laws  governing  the  disbursement  of 
public  moneys,  so  far  as  the  same  can  be  made  applicable 
thereto,  and  shall  be  audited  by  the  proper  accounting  offi- 
cers of  the  Treasury,  under  such  rules  and  regulations  as 
may  be  prescribed  by  the  Secretary  of  the  Treasury.  Act 
of  March  3,  1887  (24  Stat.  Z.,  639). 

suppiieshase  °f  2312.  All  purchases  of  supplies  exceeding  the  sum  of 
2of^.r'339o!8juneone  thousand  dollars  at  any  one  time  shall  be  made  upon 
11^1896,  v.  29,  p.  public  tender  after  due  advertisement,  and  that  the  ex- 
penditure  for  new  buildings  shall  be  expressly  authorized 
'  in  writing.  Act  of  March  3,  1879  (20  Stat.  Z.,  390). 

2313>  Hereafter,  upon  proper  application  therefor,  the 
5SL  11,  18%,  v.  Medical  Department  of  the  Army  is  authorized  to  sell 
,  p.  445.  medical  and  hospital  supplies,  at  its  contract  prices,  to  the 

National  Home  for  Disabled  Volunteer  Soldiers.     Act  of 
June  11,  1896  (29  Stat.  Z.,  445). 

iesceipts  from  2314.  All  sums  received  from  sales  of  subsistence  stores 
28Ap^g4i28>1894'v'orother  property  of  the  National  Home  for  Disabled  Vol- 
unteer Soldiers  shall  be  taken  up  by  the  disbursing  officer 
under  the  proper  current  appropriation  and  be  available 
for  disbursement  on  account  of  that  appropriation.  Act 
of  August  18,  1894  (28  Stat.  Z.,  412). 

pafrsnds  f°r  re      2315.  No  part  of  the  appropriations  for  repairs  for  any 

so?  pn544'  189?>  v'  °*  ^e  Branch  Homes  shall  be  used  for  the  construction  of 

any  new  building.     Act  of  June  4,  1897  (30  Stat.  Z.,  54). 


m 


MILITARY    LAWS    OF   THE    UNITED    STATES. 


903 


ACCOUNTS. 


Par. 


4U- 


2316-2318.  Preparation  and  rendition. 


2316.  All  amounts  disbursed  from  the  appropriation 
of  a  Branch  Home  shall  be  disbursed  and  accounted  for  28 
monthly  to  the  general  treasurer  by  the  treasurer  of  that 
Branch,  except  such  expenditures  for  services,  stationery, 
tableware,  clothing,  and  bedding  as  may  be  required  by  the 
Board  of  Managers  to  be  legally  made  by  the  general  treas- 
urer; and  all  such  stationery,  tableware,  clothing,  and  bed- 
ding as  may  be  required  for  each  Branch  Home  shall  be 
shipped  directly  from  the  place  of  purchase  or  manufacture 
to  such  Branch  Home;  and  all  disbursements  shall  be  made  Disbursements. 
in  conformity  with  sections  thirty-six  hundred  and  seventy- 
eight  and  thirty  -six  hundred  and  seventy-nine,  Revised 
Statutes:2  Provided  further,  That  the  balance  of  the  post- 
humous  fund,  including  the  amount  invested  in  bonds  per- 
taining to  that  fund,  that  may  be  in  the  hands  of  the 
treasurer  of  any  Branch  of  the  Home  on  July  first,  eighteen 
hundred  and  ninety-four,  shall  be  transferred  to  the  ap- 
propriation for  "  Current  expenses,  eighteen  hundred  and 
ninety-five,"  of  that  Branch  Home,  and  thereafter  all  re- 

..  - 

ceipts  on  account  ot  the  effects  of  deceased  members  shall  bers  to  be  cred- 

.  ited    to   current 

be  credited  to  the  appropriation  for  current  expenses  "  of  expenses. 
the  fiscal  year  during  which  such  amounts  were  received, 
and  all  repayments  of  such  amounts  shall  be  made  from 
and  charged  to  the  like  appropriation  for  the  fiscal  year  in 
which  such  repayments  shall  be  made.  Act  of  August  18, 
1894(28  Stat.  L.,411). 


Receipts  from 

deceased    mem- 


CCOUNTS   AND    DISBURSEMENTS. 

The  accounts  of  the  National  Home  for  Disabled  Volunteer  Soldiers  in  their  audit, 
examination,  and  settlement  are  subject  to  the  general  laws  governing  the  disburse- 
ment of  public  moneys.  A  class  of  accounts  of  the  Homes  involving  receipts  or  sales 
of  property,  such  as  flowers,  provisions  to  officers  and  others  connected  with  the 
Homes,  and  transportation  of  members  of  the  Homes,  should,  however,  be  exempt 
from  the  operation  of  these  laws.  These  amounts  may  be  charged,  when  properly 
taken  up  day  by  day,  on  the  books  of  the  treasurer  and  credited  on  his  account  cur- 
rent without  vouchers.  3  Dig.  2nd  Compt.  Dec.  ,  par.  846. 

It  is  not  practicable,  in  all  cases,  to  apply  the  same  rules  in  the  settlement  of 
accounts  for  moneys  received  from  "sales  of  certain  things"  at  the  National  Home 
for  Disabled  Volunteer  Soldiers  as  are  applied  in  th  settlement  of  accounts  for  expend- 
itures, including  the  expenses  of  the  Board  of  Managers.  When  it  is  impracticable 
to  obtain  vouchers,  or  a  statement  of  items  of  receipts  from  sales,  the  certificate  of 
the  president  of  the  board  that  the  abstracts  of  receipts  are  correct  may  be  accepted. 
Ibid.,  848. 

2  Under  this  provision  the  expenses  of  inspecting  goods  purchased  for  the  Home 
are  properly  chargeable  as  an  incident  of  the  cost  of  such  goods,  and  payable  out  of 
the  appropriation  for  their  purchase,  in  the  absence  of  a  specific  appropriation  for 
inspection.  2  Compt.  Dec.,  522. 


904  MILITARY    LAWS    OF   THE    UNITED   STATER. 


2317t  The  accounts  relating  to  the  expenditure  of  all 
si,  p.  1178.  public  moneys  appropriated  for  the  support  and  mainte- 
nance of  the  National  Home  for  Disabled  Volunteer  Sol- 
diers shall  be  audited  by  the  Board  of  Managers  of  said 
Home  in  the  same  manner  as  is  provided  for  the  accounts 
of  the  various  Departments  of  the  United  States  Govern- 
ment, and  thereupon  immediately  transmitted  directly  to 
the  proper  accounting  officers  of  the  Treasury  Depart- 
ment for  final  audit  and  settlement.1  Act  of  March  3, 
1901  (31  Stat.  L.,  1178). 

Balances  of  ap-     2318.  Hereafter  the  provisions  of  section  thirty-six  hun- 

5^fS?ons>dls~dred  an(*  ninety  and  thirty-six  hundred  and  ninety-one 

25°p?543.1888'  v-  of  the  Revised  Statutes  of  the  United  States  shall  apply 

to  all  appropriations  made   for  the  maintenance   of  the 

National  Home  for  Disabled  Volunteer  Soldiers.     Act  of 

October  2,  1888  (25  Stat.  L.,  543). 

ESTABLISHMENT   OF   BRANCH   HOMES. 

2319-  The  Board  of  Managers  shall  have  authority  to 
i  nagd  procure  from  time  to  time,  at  suitable  places,  sites  for  mili- 
erMar.d2i,i866,c.  ^aiT  nomes  f°r  all  persons  serving  in  the  Army  of  the 
Jan.'  230873,0.'  6i|  United  States  at  any  time  in  the  war  of  the  rebellion,  not 
s'^c'.478?6?B7.'s.  otherwise  provided  for,  who  have  been  or  may  be  disquali- 
fied for  procuring  their  own  support  by  reason  of  wounds 
received  or  sickness  contracted  while  in  the  line  of  their 
duty  during  the  rebellion;    and  to   have   the   necessary 
buildings  erected,  having  due  regard  to  the  health  of  loca- 
tion, facility  of  access,  and  capacity  to  accommodate  the 
persons  entitled  to  the  benefits  thereof.2 


enactment  repeals  and  replaces  so  much  of  the  acts  of  March  3,  1875  (18 
Stat.  L.,  359),  March  3,  1891  (26  ibid.,  984),  and  March  3,  1893  (27  ibid.,  646),  as 
requires  the  Board  of  Managers  to  render  accounts  of  disbursements  for  the  several 
Branches  of  the  Home  to  the  Secretary  of  War,  and  vests  in  the  latter  a  supervision 
of  the  accounts  connected  therewith. 

2  Under  authority  conferred  by  separate  statutes  Branch  Homes  have  been  estab- 
lished at  the  following  places: 

The  Central  Branch,  at  Dayton,  Ohio. 

The  Northwestern  Branch,  at  Milwaukee,  Wis. 

The  Eastern  Branch,  at  Togus,  Me. 

The  Southern  Branch,  at  Hampton,  Va. 

The  Western  Branch,  at  Leavenworth,  Kans. 

The  Pacific  Branch,  at  Santa  Monica,  Cal. 

The  Marion  Branch,  at  Marion,  Ind. 

The  Danville  Branch,  at  Danville,  111. 

The  Johnson  City  Branch,  at  Johnson  City,  Tenn. 

By  the  act  of  July  7,  1898  (30  Stat.  L.,  668),  the  "jurisdiction  over  the  places  pur- 
chased for  the  location  of  the  Branches  of  the  National  Home  for  Disabled  Volunteer 
Soldiers,  under  and  by  authority  of  an  act  of  Congress  approved  July  23,  1888  (a)  , 
in  Grant  County,  State  of  Indiana,  and  upon  which  said  Branch  Home  is  located,  and 
by  authority  of  an  act  of  Congress  approved  June  4,  1897  (6),  'at  the  town  of  Dan- 

a  26  Stat.  L.,  340.  &  80  Ibid.,  54. 


MILITARY    LAWS    OF   THE    UNITED   STATES.  905 

2320.  The  provisions  of  the  act  entitled  "An  act  to 
authorize  condemnation  of  land  for  sites  of  public  build- 
ings,   and  for  other  purposes,"  approved  August  first, 
eighteen  hundred  and  eighty-eight,  shall  be  construed  to 
apply  to  the  Board  of  Managers  of  the  National  Home  for 
Disabled  Volunteer  Soldiers.     Act  of  July  19,  1897  (30 
Stat.  L.,  105}. 

STATE   AND   TERRITORIAL   HOMES. 

2321.  That  all  States  or  Territories  which  have  estab- 

lished,  or  which  shall  hereafter  establish,  State  homes  f or  h(£jedg  /0°  state 
disabled  soldiers  and  sailors  of  the  United  States  who25A^|J;1888'v- 
served  in  the  war  of  the  rebellion,  or  in  any  previous  war, 
who  are  disabled  by  age,  disease,  or  otherwise,  and  by 
reason  of  such  disability  are  incapable  of  earning  a  liv- 
ing, provided  such  disability  was  not  incurred  in  service 
against  the  United  States,  shall  be  paid  for  every  such 
disabled  soldier  or  sailor  who  may  be  admitted  and  cared 
for  in  such  home  at  the  rate  of  one  hundred  dollars  per 
annum.     The  number  of  such  persons  for  whose  care  any 
State  or  Territory  shall  receive  the  said  payment  under 
this  act  shall  be  ascertained  by  the  Board  of  Managers  of  age^NltiJSSi 
the  National  Home  for  Disabled  Volunteer  Soldiers,  under  JJ}™6^  make 
such  regulations  as  it  may  prescribe,  but  the  said  State    sec.  4826, B.S. 
or  Territorial  homes  shall  be  exclusively  under  the  control 
of  the  respective  State  or  Territorial  authorities,  and  the 
Board  of  Managers  shall  not  have  nor  assume  any  man- 
agement or  control  of   said  State  or  Territorial  homes. 
The  Board  of  Managers  of  the  National  Home  shall,  how- 
ever, have  power  to  have  the  said  State  or  Territorial 
homes  inspected  at  such  times  as  it  may  consider  necessary,    inspection, 
and  shall  report  the  result  of  such  inspections  to  Congress 
in  its  annual  report.     Act  of  Augmt  27,  1888  (25  Stat.  Z., 
450}. 

2322.  Payments  to  the  States  or  Territories     *     *     *    ISsTJli.  2? 
shall  be  made  quarterly  by  the  said  Board  of  Managers  1888> v- 25>  p- 45°- 
for  the  National  Home   for  Disabled  Volunteers  to  the 

officers  of  the  respective  States  or  Territories  entitled, 
duly  authorized  to  receive  such  payments,  and  shall  be 
accounted  for  as  are  the  appropriations  for  the  support 

ville,  county  of  Vermilion,  State  of  Illinois,'  and  upon  which  the  said  Branch  is  now 
located,  is  hereby  ceded  to  the  respective  States  in  which  Branches  are  located  and 
relinquished  by  the  United  States,  and  the  United  States  shall  claim  nor  exercise  no 
jurisdiction  over  said  places  after  the  passage  of  this  act:  Provided,  That  nothing  con- 
tained herein  shall  be  construed  to  impair  the  powers  and  rights  heretofore  conferred 
upon  the  Board  of  Managers  of  the  National  Home  for  Disabled  Volunteer  Soldiers 
in  and  over  the  said  places." 


900  MILITARY    LAWS    OF    THE    UNITED    STATES. 

of  the  National  Home  for  Disabled  Volunteer  Soldiers. 
See.  2,  act  of  August  27,  1888  (25  Stat.  Z.,  450). 
pension.  2323.  When  a  soldier  or  sailor  enters  into  a  State  home 

iviftr.  o,  loyy,  v. 

so,  p.  1379.  for  soldiers  or  sailors  as  an  inmate  thereof,  one-half  of  his 
pension  accruing  during  his  residence  therein  shall  be  paid 
to  his  wife,  she  being  a  woman  of  good  moral  character 
and  in  necessitous  circumstances,  or  if  there  be  no  wife, 
then  to  his  child  or  children  under  sixteen  years  of  age, 
or  his  permanently  helpless  and  dependent  child,  if  any, 
unless  such  wife  and  children  shall  also  be  inmates  of  the 
same  institution  or  of  some  home  provided  for  the  wives 
and  children  of  soldiers  and  sailors.1  Act  of  March  3, 
1899  (30  Stat.  Z.,  1379). 

kjjtates  to  pay     2324.  Hereafter  no  State  under  this  appropriation  shall 
25^975'  1889>  v>  De  Paid  a  sum  exceeding  one-half  the  cost  of  maintenance 
of  each  soldier  or  sailor  by  such  State.  2     Act  of  March  2, 
1889  (25  Stat.  Z.,  ,975). 

ADMISSIONS   TO   THE    HOME. 

ar^enmfeTT    2325«  Hereafter  the  following  persons  only  shall  be  en- 
aieH^n°efNation'titled  to  the  benefits  of  the  National  Home  for  Disabled 


21^7  'v^lT'ii-  Volunteer  Soldiers  and  may  be  admitted  thereto  upon  the 
45ebv28i687p'  ?99:  01'der  of  a  member  of  the  Board  of  Managers,  namely:  All 
sTv^p^n61'  honorably  discharged  officers,  soldiers,  and   sailors  who 
isii  v.'23,Uplyi2i;served  m  the  regular  or  volunteer  forces  of  the  United 
v*24,  p.  4^?  July  States  in  any  war  in  which  the  country  has  been  engaged, 
are  disabled  by  disease,  wounds,  or  otherwise,  and 
have  no  adequate  means  of  support,  and  by  reason  of 
such  disability  are  incapable  of  earning  their  living.3    Act 
of  May  26,  1900  (31  Stat.  Z.,  217). 

1  The  act  of  March  3,  1899,  contains  the  requirement  that  "in  all  cases  the  questions 
of  desertion,  entrance  into  a  home,  necessitous  circumstances,  and  of  good  moral 
character  shall  be  ascertained  and  determined  by  the  Commissioner  of  Pensions 
under  such  rules  and  regulations  as  he  shall  prescribe,  and  the  treasurers  or  govern- 
ors of  the  several  soldiers'  and  sailors'  homes  shall  be  advised  of  such  action  from 
time  to  time." 

2  Subsequent  acts  of  appropriation  contain  the  requirement  ''that  one-half  of  any 
sum  or  sums  retained  by  State  homes  on  account  of  pensions  received  from  inmates 
shall  be  deducted  from  the  aid  herein  provided  for." 

3  This  enactment  replaces  section  5  of  the  act  of  July  5,  1884  (23  Stat,  L.,  121)  ,  sec- 
tion  2  of  the  act  of  March  2,  1887  (24  ibid.,  444),  and  section  5  of  the  act  of  July  23, 
1888  (25  ibid.,  341). 

The  Government  is  under  no  legal  obligation  to  provide  burial  places  for  destitute 
soldiers  at  a  Volunteer  Home.  Section  4878,  Revised  Statutes,  in  providing  that  the 
soldiers,  etc.,  there  designated  "may  be  buried  in  any  national  cemetery  free  of 
cost"  does  not  require  the  establishment  of  a  national  .  cemetery  specially  for  the 
purpose  of  interments  at  such  a  Home.  Dig.  Opin.  J.  A.  G.,  par.  1770. 
-  The  act  of  January  28,  1901  (31  Stat.  L.,  745),  contained  the  requirement  that  "all 
honorably  discharged  soldiers  and  sailors  who  served  in  the  war  of  the  rebellion  and 
the  Spanish-  American  war,  and  the  provisional  army  and  the  volunteer  soldiers  and 
sailors  of  the  war  of  eighteen  hundred  and  twelve  and  of  the  Mexican  war,  who  are 
disabled  by  age,  disease,  or  otherwise,  and  by  reason  of  such  disability  are  incapable 
of  earning  a  living,  shall  be  admitted  into  the  Home  for  Disabled  Volunteer  Soldiers," 


MILITARY    LAWS    OF    THE    UNITED    STATES.  907 


TRANSFER   OF   INMATES. 

>.  In  the  event  that  buildings  at  any  Branch  of  the 
Home  shall  be  destroyed  by  fire,  or  rendered  unfit  f°i'28Au|^3'1894>v- 
habitation  because  of  pestilence  or  by  the  elements,  then 
and  in  that  event  the  Board  of  Managers  shall  have 
authority  to  remove  the  members  of  said  Branch  so 
afflicted  or  destroyed  to  any  other  Branch  not  so  affected; 
and  to  do  this  they  may  use  any  funds  appropriated  for 
the  Home,  notwithstanding  they  ma}-  have  been  specifi- 
cally appropriated  for  other  purposes,  to  the  extent  that 
such  funds  shall  be  necessary  to  effect  such  a  transfer  and 
the  maintenance  and  support  thereafter  of  said  members 
so  transferred,  and  shall  report  their  doings  therein  to 
the  Congress  and  their  expenditures  as  in  other  cases  of 
expenditures. 

SEC.  2.  This  act  shall  take  effect   from  and  after  its 
passage.     Act  of  August  23,  1894  (®$  Stat.  Z., 


OUTDOOR   RELIEF. 

Outdoor  relief. 

2327.  The  managers  of  the  National  Home  for  Disabled    Aug.  '23,  ISH 
Volunteer  Soldiers  are  authorized  to  aid  persons  who  are 

entitled  to  its  benefits  by  outdoor  relief  in  such  manner 
and  to  such  extent  as  they  may  deem  proper,  but  such  re- 
lief shall  not  exceed  the  average  cost  of  maintaining  an 
inmate  of  the  Home.  Act  of  August  23,  1894(28  Stat. 
Z.,#0). 

PENSIONS   TO   INMATES. 

2328.  All  pensions  payable  or  to  be  paid  under  this  act,    Pensioners,  in- 

r  .J  r        .  '  mates  of  the  Na- 

to  pensioners  who  are  inmates  of  the  National  Home  for 


Disabled  Volunteer  Soldiers,  shall  be  paid  to  the  treasurer  teer  soldiers, 

how  paid. 

or  treasurers  ot  said  Home,  upon  security  given  to  the  sat-    sec.  2,  Feb.  26, 

isfaction  of  the  managers,  to  be  disbursed  for  the  benefit 

of  the  pensioners  without  deduction  for  fines  or  penalties 

under  regulations  to  be  established  by  the  managers  of 

the  Home;  said  payment  to  be  made  by  the  pension  agent 

upon  a  certificate  of  the  proper  officer  of  the  Home  that 

the  pensioner  is  an  inmate  thereof  and  is  still  living.     Any 

balance  of  the  pension  which  may  remain  at  the  date  of 

the  pensioner's  discharge  shall  be  paid  over  to  him;  and 

in  case  of  his  death  at  the  Home,  the  same  shall  be  paid  to 

the  widow  or  children,  or  in  default  of  either  to  his  legal 

representatives.  l     Sec.  2,  act  of  February  26,  1881  (21  Stat. 

L.,  350). 

JBut  see  act  of  August  7,  1882  (22  Stat.  L.,  322),  paragraph  2329,  post. 


908  MILITARY    LAWS    OF    THE    UNITED    STATES. 


2329t  ^11  pensions  and  arrears  of  pensions  payable  or 
be  paid  to  pensioners  who  are  or  may  become  inmates 
.  of  the  National  Home  for  Disabled  Volunteer  Soldiers 
22,  p.  322.  shall  be  paid  to  the  treasurers  of  said  Home,  to  be  applied 
by  such  treasurers  as  provided  by  law,  under  the  rules  and 
regulations  of  said  Home.  Said  payments  shall  be  made 
by  the  pension  agent  upon  a  certificate  of  the  proper  officer 
of  the  Home  that  the  pensioner  is  an  inmate  thereof  on  the 
day  to  which  said  pension  is  drawn.  The  treasurers  of 
said  Home,  respectively,  shall  give  securit}^  to  the  satis- 
faction of  the  managers  of  said  Home,  for  the  payment 
and  application  by  them  of  all  arrears  of  pension  and  pen- 
sion moneys  they  may  receive  under  the  aforesaid  pro- 
vision. And  section  two  of  the  act  entitled  "An  act 
making  appropriations  for  the  payment  of  invalid  and 
other  pensions  of  the  United  States  for  the  fiscal  year  end- 
ing June  thirtieth,  eighteen  hundred  and  eighty-two,  and 
for  deficiencies,  and  for  other  purposes,"  approved  Feb- 
ruary twenty-sixth,  eighteen  hundred  and  eighty-one,  is 
hereby  revived  and  continued  in  force.1  Act  of  August 
7,  1882  (%2  Stat  L.,3%2). 

Payment  of     2330.  If  any  such  pensioner  is  or  shall  become  an  inmate 

Son  ito  wifVetc!  of  a  National   Soldiers'  Home,  one-half  of   the  pension 

so,  pari379.      v'  drawn  in  his  behalf,  or  to  which  he  may  become  entitled 

'  during  his  residence  therein,  shall  be  paid  by  the  treasurer 

of  that  institution  to  such  pensioner's  wife,  she  being  in 

necessitous  circumstances  and   a  woman  of   good  moral 

character,  or,  if  there  be  no  wife,  to  the  legal  guardian  of 

the  minor  child  or  children,  or  the  permanently  dependent 

and  helpless  child  or  children  of  such  pensioner,  on  the 

order  of  the  Commissioner  of  Pensions.2     Act  of  March 

3,  1899  (30  Stat.  Z.,  1379). 

INSANE    PATIENTS. 

2331*  *n  addition  to  the  persons  now  entitled  to  admis- 


ab°ied6  Volunteer  s*on  ^°  sa^  hospital,  any  inmate  of  the  National  Home 

mmidrset°cbead"  *or  Disabled  Volunteer  Soldiers  who  is  now  or  may  here- 

22Apg33o  1^82'  v'  after  become  insane  shall,  upon  an  order  of  the  president 

of  the  Board  of  Managers  of  the  said  National  Home,  be 

admitted  to  said  hospital  and  treated  therein;  and  if  any 

inmate  so  admitted  from  said  National  Home  is  or  there- 

.  after  becomes  a  pensioner,  and  has  neither  wife,  minor 

child,  nor  parent  dependent  on  him,  in  whole  or  part,  for 

1  For  disposition  of  pension  in  case  of  an  insane  inmate,  see  paragraph  2331,  post. 
.  2  For  remainder  of  this  section,  see  paragraphs  2224  and  2230,  ante.     See,  also,  note 
to  paragraph  2282,  ante. 


MILITARY    LAWS    OF    THE    UNITED    STATES. 


909 


support,  his  arrears  of  pension  and  his  pension  money 
accruing  during  the  period  he  shall  remain  in  said  hospital 
shall  be  applied  to  his  support  in  said  hospital,  and  be 
paid  over  to  the  proper  officer  of  said  institution  for  the 
general  uses  thereof.  Act  of  August  7,  1882  (22  Stat.  L. , 
330}. 

MISCELLANEOUS    REQUIREMENTS. 


Par. 

2336.  Transportation  to   inmates  at   re- 

duced rates. 

2337.  Documents  to  be  supplied. 

2338.  Franking  privilege. 

2339.  Recession  of  jurisdiction. 


Par. 

2332.  Inmates  subject  to  Articles  of  War. 

2333.  Building  for  insane. 

2334.  Issues  of  ordnance. 

2335.  The  same;  State  Homes. 


2332.  All  inmates  of  the  National  Home  for  Disabled 
Volunteer  Soldiers  shall  be  subject  to  the  Rules  and  Arti- 
cles of  War,  and  in  the  same  manner  as  if  they  were  in  ^'ns 

the  Army.1  *&%&%*. 

2333.  The  Secretary  of  War  is  directed  to  turn  over  i^^as   j 
to  the  managers  of  the  National  Home  for  Disabled  Vol-  21Mpar4$ -1881'  v> 
unteer  Soldiers  all  the  old  clothing  now  held  for  issue  to 

the  National  Home.  Said  managers  are  authorized  to 
estimate  for  building  and  maintenance  at  the  Central  Branch 
of  a  building  or  buildings  for  the  safe  and  proper  keeping 
of  the  insane.  Act  of  March  3,  1881  (2.1  Stat.  L.,  447). 

2334.  The  Chief  of  Ordnance  is  authorized  to  issue  such    condemned 
obsolete  or  condemned  ordnance,  gun  carriages,  and  ord-  carriages,'  etc. 

,     ,     '  &  '  Mar.  3,  1899,  v. 

nance  stores  as  maybe  needed  for  ornamental  purposes  so,  p.  1073. 
to  the  Homes  for  Disabled  Volunteer  Soldiers,  the  Homes 
to  pay  for  transportation  and  such  other  expenses  as  are 
necessary.     Act  of  March  3,  1899  (30  Stat.  Z.,  1073). 

2335.  The   Secretary  of  War     *     *     * 

and  directed,  subject  to  such  regulations  as  he  may  pre- 
scribe, to  deliver  to  any  of  the  "  National  Homes  for  Dis- 
abled Volunteer  Soldiers  "  already  established  or  hereafter 
established  and  to  any  of  the  State  Homes  for  soldiers  and  25' p<  657- 
sailors  or  either  now  or  hereafter  duly  established  and 
maintained  under  State  authority,  such  obsolete  service- 
able cannon,  bronze  or  iron,  suitable  for  firing  salutes,  as 
may  be  on  hand  undisposed  of,  not  exceeding  two  to  any 
one  Home.  Act  of  February  8,  1889  (25  Stat.  Z.,  657). 

1  Section  4835,  Revised  Statutes,  providing  that  the  inmates  of  the  "National  Home 
for  Disabled  Volunteer  Soldiers"  shall  be  "subject  to  the  Rules  and  Articles  of 
War,5'  held  (1870)  to  be  clearly  an  unconstitutional  enactment,  such  inmates  not 
being,  any  part  of  the  armies  of  the  United  States,  but  civilians.  The  fact  that  they 
had  once  been  members  of  the  volunteer  forces  could  not  attach  to  them,  after  their 
final  discharges,  any  amenability  to  the  military  jurisdiction.  Dig.  Opin.,  J.  A.  G., 
par.  2344.  In  re  Kelly  71  Fed.  Rep.,  545. 


anthr»ri-7Arl      Obsolete  serv- 

autnorizea  iceable  cannon. 


910  MILITARY    LAWS    OF   THE    UNITED    STATES. 


2336'  N°tbing  in  this  act  1  shall  be  construed  to  prohibit 
2  A?  &25  V&U'  s'  anv  common  carrier  from  giving  reduced  rates  to  minis- 
ters of  religion;  *  *  *  or  to  inmates  of  the  National 
Homes  or  State  Homes  for  Disabled  Volunteers  and  of 
Soldiers  and  Sailors'  Orphan  Homes,  including  those  re- 
turning home  after  discharge,  under  arrangements  with 
the  Boards  of  Managers  of  said  Homes.  Sec.  82,  act  of 
February  4,  1887  (25  Stat.  Z.,  387),  as  amended  ly  sec. 
9.,  act  of  March  2,  1889  (25  Stat.  Z.,  855). 

beDfurn™hed.  to     2337-  The  Secretary  of  the  Senate  and  the  Clerk  of  the 

28Jplyi59'  1894'  v'  House  of  Representatives  shall  cause  to  be  sent  to  the 

National  Home  for  Disabled  Volunteer  Soldiers  at  Dayton, 

Ohio,  and  to  the  Branches  at  Togus  in  Maine,  Milwaukee 

in  Wisconsin,  Hampton  in  Virginia,  Marion  in  Indiana, 

Leavenworth  in  Kansas,  Santa  Monica  in  California,  and 

et^tate   Homes.  to  the  Homes  for  the  widows  and  orphans  of  soldiers  and 

sailors  3stablished  and  maintained  by  any  State  or  Terri- 

tory, and  all  Soldiers  and  Sailors'  Homes  established  by  the 

authority  of  any-  State  or  Territory  receiving  aid  from  the 

United  States  under  legislation  of  Congress,  each,  one 

sageVVandmReec-  COPV  eacn  °^  *he  following  documents:  The  session  laws 

sent°nly  to  be°^  Congress;  the  annual  messages  of  the  President,  with 

Sec-4837'K-s-  accompanying  documents  in  the  abridgment  thereof;  the 

daily  Congressional  Record;  and   the   Public  Printer  is 

hereby  authorized  and  directed  to  furnish  to  the  Secre- 

tary of  the  Senate  and  the  Clerk  of  the  House  of  Repre- 

sentatives the  documents  referred  to  in  this  section.2     Act 

of  July  26,  1894  (28  Stat.  Z.,  169). 

be^ent?reeert°     2338<  Tlie  Provisions  of  the  fifth  and  sixth  sections  of 
Aug9'i83?894  tne  ac^  entitled  "An  act  establishing  post  routes,  and  for 
v.  28,  p.  412.        ether  purposes,  approved  March  third,  eighteen  hundred 
and  seventy-seven,"  for  the  transmission  of  official  mail 
matter,  be,  and  they  are  hereby,  extended  and  made  appli- 
cable to  all  official  mail  matter  of  the  National  Home  for 
Disabled  Volunteer  Soldiers.     Act  of  August  18,  1894  (^ 
Stat.  Z.,  412). 
°f     2339.  The  jurisdiction  over  the  places  purchased  and 


Mar.  a,  Ian,  v.  used   for  the  location  of  the  Branches   of  the  National 

ol,  p.  1175. 

Home  for  Disabled  Volunteer  Soldiers,  under  and  by  the 
authority  of  an  act  of  Congress  approved  March  twenty  - 
first,  eighteen  hundred  and  sixty-six,  in  Milwaukee 


'The  interstate-commerce  act  of  February  4,  1887  (25  Stat.  L.,  387),  as  amended 
by  the  act  of  March  2,  1889  (25  Stat.  L. ,  855) . 

2  This  enactment  replaces  corresponding  provisions  contained  in  section  4837,  Rev. 
Stat.,  and  in  the  act  of  February  5,  1881  (21  Stat.  L.,  322). 


MILITARY    LAWS    OF   THE    UNITED   STATES.  911 

County,  State  of  Wisconsin,  and  upon  which  said  Branch 
Home  is  located,  and  by  authority  of  an  act  of  Congress 
approved  July  fifth,  eighteen  hundred  and  eighty-eight, 
in  the  county  of  Leavenworth,  State  of  Kansas,  and  upon 
which  said  Branch  Home  is  located,  is  hereby  ceded  to  the 
respective  States  in  which  said  Branches  are  located  and 
relinquished  by  the  United  States,  and  the  United  States 
shall  claim  or  exercise  no  jurisdiction  over  said  places  after 
the  passage  of  this  act:  Provided,  That  nothing  contained 
herein  shall  be  construed  to  impair  the  powers  or  rights 
heretofore  conferred  upon  or  exercised  by  the  Board  of 
Managers  of  the  National  Home  for  Disabled  Volunteer 
Soldiers  in  and  on  said  places.  Act  of  March  3,  1901  (31 
Stat.  Z.,  1175). 


CHAPTER    XLIII. 


THE  GOVERNMENT  HOSPITAL  FOR  THE  INSANE. 


Par. 


2340,  2341.  Establishment  and    supervi- 


sion. 


2342.  Superintendent;  duties. 

2343.  The  same,  funds  of  inmates. 


Par. 


2346.  Disbursement  of  appropriations. 

2347.  Pensions  to  inmates. 

2348.  Treatment  of    the  insane    of    the 

Army  in  asylums  in  California. 


2344.  2345.  Admissions,  discharges. 

ESTABLISHMENT   AND    SUPERVISION. 

of BS?1§!!£S-  2340'  There  sha11  be  in  the  District  of  Columbia  a  Gov- 
£r  the  insane^1  ernmen^  Hospital  f or  the  Insane,  and  its  objects  shall  be 
19?  "'i8  V1^}'  p'  ^e  mos^  humane  care  and  enlightened  curative  treatment 
^i'ec  4838  B  s  °^  *ke  insane  of  the  Army  and  Navy  of  the  United  States 

and  of  the  District  of  Columbia. 

fSS^i&i;  v.      2341.  The  supervision  heretofore  exercised  by  the  Sec- 
21,  p.  458.  retary  of  the  Interior  over  the  Government  Hospital  for 

the  Insane  shall  be  continued,  and  the  officers  of  said  hos- 
pital shall  report  to  him  as  heretofore,  anything  in  this  act 
to  the  contrary  notwithstanding.  Act  of  March  3,  1881 
(21  Stat.  Z.,  458). 

SUPERINTENDENT. 

tendent superin"  2342-  The  ch!ef  executive  officer  of  the  Hospital  for  the 
Mar.Vissi,  v.  Insane  snall  be  a  superintendent,  who  shall  be  appointed 

^sec.^sse  K  s  by  the  Secretary  of  the  Interior,  and  shall  be  entitled  to  a 
salary  of  four  thousand  dollars  a  year,  and  shall  give  bond 
for  the  faithful  performance  of  his  duties,  in  such  sum 
and  with  such  securities  as  may  be  required  by  the  Sec- 
retary of  the  Interior.  The  superintendent  shall  be  a 
well-educated  physician,  possessing  competent  experience 
in  the  care  and  treatment  of  the  insane;  he  shall  reside 
on  the  premises,  and  devote  his  whole  time  to  the  welfare  of 
the  institution;  he  shall,  subject  to  the  approval  of  the  vis- 
itors, engage  and  discharge  all  needful  and  useful  employees 
912 


MILITARY    LAWS    OF   THE    UNITED   STATES.  913 

in  the  care  of  the  insane,  and  all  laborers  on  the  farm,  and 
determine  their  wages  and  duties;  he  shall  be  the  respon- 
sible disbursing  agent  of  the  institution,  and  shall  be  ex- 
officio  secretary  of  the  board  of  visitors. 

2343.  The  superintendent  of  the  Government  Hospital         ds  of  in* 
for  the  Insane  shall  deposit  in  the  Treasury  of  the  United 

States,  in  his  name  as  agent,  all  funds  now  in  his  hands  or 
which  may  hereafter  be  intrusted  to  him  by  or  for  the  use 
of  patients,  which  shall  be  kept  as  a  separate  account;  and 
he  is  hereby  authorized  to  draw  therefrom  on  his  order, 
from  time  to  time,  under  such  regulations  as  the  Secretary 
of  the  Interior  may  prescribe,  for  the  use  of  such  patients, 
but  not  to  exceed  for  any  one  patient  the  amount  intrusted 
to  the  superintendent  on  account  of  such  patient;  and  he 
shall  give  a  separate  bond,  satisfactory  to  the  said  Secre- 
retary,  for  the  faithful  performance  of  his  duties  in  respect 
to  these  funds  as  herein  provided.  Act  of  July  1,  1898 
(30  Stat.  L.,  6%3). 

ADMISSIONS. 

2344.  The  superintendent,  upon  the  order  of  the 
tary  of  War,  of  the  Secretary  of  the  Navy,  and  of 

Secretary  of  the  Treasury,  respectively,  shall  receive,  andetnel5  1860  (> 
keep  in  custody  until  they  are  cured,  or  removed  by  the:1^-^^-^; 
same  authority  which  ordered  their  reception,  insane  per-  179> 


sons  of  the  following  descriptions  :  i8)  p.  486.     eiss  SR5's  ' 

First.  Insane  persons  belonging  to  the  Army,  Navy, 
Marine  Corps,  and  Revenue-Cutter  Service. 

Second.  Civilians  employed  in  the  Quartermaster's, 
Pay,  and  Subsistence  Departments  of  the  Army  who  may 
be,  or  may  hereafter  become,  insane  while  in  such  employ- 
ment. Act  of  February  9,  1900  (31  Stat.  L.,  7). 

Third.  Men  who,  while  in  the  service  of  the  United 
States,  in  the  Army,  Navy,  or  Marine  Corps,  have  been 
admitted  to  the  hospital,  and  have  been  thereafter  dis- 
charged from  it  on  the  supposition  that  they  have  recov- 
ered their  reason,  and  have,  within  three  years  after  such 
discharge,  become  again  insane  from  causes  existing  at  the 
time  of  such  discharge,  and  have  no  adequate  means  of 
support. 

Fourth.  Indigent  insane  persons  who  have  been  in  either 
of  the  said  services  and  been  discharged  therefrom  on 
account  of  disability  arising  from  such  insanity. 

Fifth.  Indigent  insane  persons  who  have  become  insane 
22924—08  -  58 


914  MILITAKY   LAWS    OF    THE    UNITED   STATES. 

within  three  years  after  their  discharge  from  such  service, 
from  causes  which  arose  during  and  were  produced  by  said 
service.1 
Discharge  of      2345.  If   any   person    will    give    bond   with    sufficient 

patients     upon  J 

sec'  9  ibid       security,  to  be  approved  by  the  supreme  court  of  the  Dis- 
seci*866,  B.S.  trict  of  Columbia,  or  by  any  judge  thereof  in  vacation 
payable  to  the  United  States,  with  condition  to  restrain 
and  take  care  of  any  independent  or  indigent  insane  per- 
son not  charged  with  a  breach  of  the  peace,  whether  in 
the  hospital  or  not,  until  the  insane  person  is  restored  to 
sanity,  such  court  or  judge  thereof  may  deliver  such  insane 
person  to  the  party  giving  such  bond. 
Disbursement      2346.  All  appropriations  of  monev  by  Congress  for  the 

of  appropriations  ,        x*       A  ' ,  ° 

for  the  insane,    support  of  the  Hospital  for  the  Insane  shall  be  drawn  from 
199,  s.  '7,  V.  10,'  p!  the  Treasury  on  the  requisition  of  the  Secretary  of  the 
sW. 4868,  B.S.  Interior,  and  shall  be  disbursed  and  accounted  for  in  all 
respects  according  to  the  laws  regulating  ordinary  dis- 
bursements of  public  money.2 
payment  of     2347.  If  any  inmate  of  the  Government  Hospital  for  the 

pensions    to   in-  «r<         ,  „    «  -*.T  TT  • 

mates.  Insane  so  admitted 3  from  said  National  Home  is  or  there- 

Aug.  7,- 1882,  v. 

22,  p.  330.  *  after  becomes  a  pensioner,  and  has  neither  wife,  minor 
child,  nor  parent  dependent  on  him,  in  whole  or  in  part, 
for  support,  his  arrears  of  pension  and  his  pension  money 
accruing  during  the  period  he  shall  remain  in  said  hospital 
shall  be  applied  to  his  support  in  said  hospital  and  be  paid 
over  to  the  proper  officer  of  said  institution  for  the  gen- 
eral uses  thereof.  Act  of  August  7, 1882  (22  Stat.  L. ,  330). 

Treatment  of     2348.  The  Secretary  of  War  may,  in  his  discretion,  con- 
insane  of   the  ~ 
Army  in  caiifor-  tract  for  the  care,  maintenance,  and  treatment  of  the  insane 

Mar.  3, 1901,  v.  of  the  Army,  and  inmates  of  the  National  Home  for  Dis- 
abled Volunteer  Soldiers  on  the  Pacific  coast  at  any  State 
asylum  in  California,  in  all  cases  which  he  is  now  author- 
ized by  law  to  cause  to  be  sent  to  the  Government  Hos- 
pital for  the  Insane  in  the  District  of  Columbia.  Act  of 
March  3,  1901  (31  Stat.  Z.,  1163). 

1  The  right  to  admission  to  the  asylum  has  been  extended  by  statute  to  include 
the  following  classes  of  cases: 

( 1 )  To  insane  convicts  serving  sentences  of  confinement  imposed  by  United  States 
courts.     Act  of  June  23,  1874  (18  Stat.  L.,  251) . 

(2)  To  persons  in  custody  charged  with  crime  against  the  United  States.     Act  of 
August  7,  1882  (22  Stat.  L.,  202). 

(3)  To  inmates  of  the  several  branches  of  the  National  Home  for  Disabled  Volun- 
teer Soldiers  who  may  become  insane.     Act  of  August  7,  1882  (22  Stat.  L.,  302). 

(4)  To  inmates  of  the  Soldiers'  Home  who  may  become  insane.     Act  of  July  7, 
1884  (23  Stat.  L.,  194).     The  expense  of  maintenance  to  be  paid  from  the  Soldiers' 
Home  fund. 

2 The  act  of  March  3,  1881  (21  Stat.  L.,  458),  vests  the  supervision  of  the  asylum 
and  the  control  over  its  management  in  the  Secretary  of  the  Interior. 
3  In  accordance  with  the  act  of  August  7,  1882.     See  note  1,  ante. 


CHAPTER 


Par. 


NATIONAL  PARKS. 


2349-2354.  National  Military  Parks. 

2355-2382.  The  Chickamauga  and  Chat- 
tanooga National  Military 
Park. 

2378-2394.  The  Gettysburg  National 
Park. 

2395-2405.  The  Shiloh  National  Military 
Park. 


Par. 

2406-2413.  The  Vicksburg  National  Mili- 
tary Park. 

2414-2421.  The  Antietam  Battlefield. 

2422-2446.  The  Yellowstone  National 
Park. 


NATIONAL   MILITARY   PARKS. 


Par. 


2353.  Trespass,  hunting,  shooting,  etc. 

2354.  Superintendent  may  make  arrests. 

2355.  Ejectment  from  purchased  lands. 


Par. 

2349.  Use  for  maneuvers. 
2350-2351.  The  same,  regulations. 
2352.  Injuries  to  monuments,  trees,  etc. 


2349.  In  order  to  obtain  practical  benefits  of  great  value 
to  the  country  from  the  establishment  of  national  military  f°M?y i5,ui8%!v. 
parks,  said  parks  and  their  approaches  are  hereby  declared  29)  p<  m 
to  be  national  fields  for  military  maneuvers  for  the  Regular 
Army  of  the  United  States  and  the  National  Guard  or 
Militia  of  the  States:  Provided,  That  the  said  parks  shall 
be  opened  for  such  purposes  only  in  the  discretion  of  the 
Secretary  of  War,  and  under  such  regulations  as  he  may 
prescribe.1     Act  of  May  16,  1896  (29  Stat.  L.,  120). 

Section  35  of  the  act  of  February  2,  1901  (31  Stat.  L.,  757),  contained  a  provision 
that  ' '  the  Secretary  of  War  be,  and  he  is  hereby,  authorized  and  directed  to  cause 
preliminary  examinations  and  surveys  to  be  made  for  the  purpose  of  selecting  four 
sites  with  a  view  to  the  establishment  of  permanent  camp  grounds  for  instruction  of 
troops  of  the  Regular  Army  and  National  Guard,  with  estimates  of  the  cost  of  the 
sites  and  their  equipment  with  all  modern  appliances,  and  for  this  purpose  is  author- 
ized to  detail  such  officers  of  the  Army  as  may  be  necessary  to  carry  on  the  prelimi- 
nary work;  and  the  sum  of  ten  thousand  dollars  is  hereby  appropriated  for  the 
necessary  expense  of  such  work,  to  be  disbursed  under  the  direction  of  the  Secretary 
of  War:  Provided,  That  the  Secretary  of  War  shall  report  to  Congress  the  result  of 
such  examination  and  surveys;  and  no  contract  for  said  sites  shall  be  made  nor  any 
obligations  incurred  until  Congress  shall  approve  such  selections  and  appropriate  the 
money  therefor." 

915 


916  MILITARY    LAWS    OF   THE    UNITED    STATES. 


235°-  The  Secretary  of  War  is  hereby  authorized,  within 
be  in"  tne  limits  of  appropriations  which  may  from  time  to  time 
sec.  2,  md.  be  available  for  such  purpose,  to  assemble,  at  his  discre- 
tion, in  camp  at  such  season  of  the  year  and  for  such  period 
as  he  may  designate,  at  such  field  of  military  maneuvers, 
such  portions  of  the  military  forces  of  the  United  States 
as  he  may  think  best,  to  receive  military  instruction  there. 
Sec.  2,  ibid. 

w!?tomaakeyre°g!  235L  The  Secretary  of  War  is  further  authorized  to 
ulsec°2*'iwrf.  make  and  publish  regulations  governing  the  assembling  of 
the  National  Guard  or  Militia  of  the  several  States  upon 
the  maneuvering  grounds,  and  he  may  detail  instructors 
from  the  Regular  Army  for  such  forces  during  their  exer- 
cises. Sec.  2,  ibid. 

PROTECTION    OF    MILITARY    PARKS. 

2352-  Every  person  who  willfully  destroys,  mutilates, 
v.  defaces,  injures,  or  removes  any  monument,  statue,  marker, 
29,  p.  621.  guidepost,  or  other  structure,  or  who  willfully  destroys, 

cuts,  breaks,  injures,  or  removes  any  tree,  shrub,  or  plant 
within  the  limits  of  any  National  Parks,  shall  be  deemed 
guilty  of  a  misdemeanor,  punishable  by  a  fine  of  not  less 
than  ten  dollars  nor  more  than  one  thousand  dollars  for 
each  monument,  statue,  marker,  guidepost,  or  other 
structure,  tree,  shrub,  or  plant  destroyed,  defaced,  injured, 
cut,  or  removed,  or  by  imprisonment  for  not  less  than 
fifteen  days  and  not  more  than  one  }Tear,  or  by  both  fine 
and  imprisonment.  Act  of  March  3,  1897  (29  Stat.  L.  ,  621.  ) 
hJnt?nga8shS&-  2353t  Every  person  who  shall  trespass  upon  any 
infecet2'  'aid  National  Parks  for  the  purpose  of  hunting  or  shooting,  or 
who  shall  hunt  any  kind  of  game  thereon  with  gun  or  dog, 
or  shall  set  trap  or  net  or  other  device  whatsoever  thereon 
for  the  purpose  of  hunting  or  catching  game  of  any  kind, 
shall  be  guilty  of  a  misdemeanor,  punishable  by  a  fine  of 
not  more  than  one  thousand  dollars  or  by  imprisonment 
for  not  less  than  five  days  or  more  than  thirty  days,  or  by 
both  fine  and  imprisonment.  Sec.  2,  ibid. 

deSntepmavnmake     23^'  The  superintendent  or  any  guardian  of  such  park 
arrests.    '          is  authorized  to  arrest  forthwith  anv  person  engaged  or 

Sec.  3,  ibid.  , 

who  may  have  been  engaged  in  committing  any  misde- 
meanor named  in  this  act,  and  shall  bring  such  person  be- 
fore any  United  States  commissioner  or  judge  of  any  dis- 
trict or  circuit  court  of  the  United  States  within  either  of 
the  districts  within  which  the  park  is  situated,  and  in  the 
district  within  which  the  uisdemeanor  has  been  committed, 


MILITARY   LAWS    OF   THE    UNITED   STATES.  917 

for  the  purpose  of  holding  him  to  answer  for  such  misde- 
meanor, and  then  and  there  shall  make  complaint  in  due 
form.1  Sec.  3,  ibid. 

2355.  Any  person  to  whom  land  lying  within  any  p^S^^JS? 
National  Parks  may  have  been  leased,  who  refuses  to  give  Sec- 4- md- 
up  possession  of  the  same  to  the  United  States  after  the 
termination  of  the  said  lease,  and  after  possession  has  been 
demanded  for  the  United  States  by  any  Park  Commissioner 
or  the  Park  Superintendent,  or  any  person  retaining  pos- 
session of  land  lying  within  the  boundary  of  said  park 
which  he  or  she  may  have  sold  to  the  United  States  for 
park  purposes,  and  have  received  payment  therefor,  after 
possession  of  the  same  has  been  demanded  for  the  United 
States  by  any  Park  Commissioner  or  the  Park  Superin- 
tendent, shall  be  deemed  guilty  of  trespass,  and  the  United 
States  may  maintain  an  action  for  the  recovery  of  the  pos- 
session of  the  premises  so  withheld  in  the  courts  of  the 
United  States,  according  to  the  statutes  or  code  of  practice 
of  the  State  in  which  the  park  may  be  situated.2  Sec.  4,  ibid. 

CHICKAMAUGA   AND    CHATTANOOGA    NATIONAL    MILITARY    PARK. 


Par. 

2356.  Extent. 

2357.  Designation,  acquisition  of  lands. 

2358.  Supervision  of  Secretary  of  War. 

2359.  Agreements  with  land  owners. 

2360.  Commissioners,  appointment. 

2361.  The  same,  duties. 

2362.  Location  of  troops. 

2363.  Care  of  park. 

2364.  Appropriation    for   preliminary 

work. 

2365.  Reduction  of  area. 


Par. 

2366,  2367,  2368.  Purchases. 

2369.  State  monuments. 

2370.  P>ection  of  monuments,  restriction. 

2371.  The  same,  construction. 

2372.  The  same,  location. 

2373.  Leases. 

2374.  Donations  of  land  for  roads. 

2375.  Donations  of  cannon,  balls,  etc. 

2376.  Injuries  to  monuments,  trees,  etc. 

2377.  Right  of  way  to  Chattanooga  Rapid 

Transit  Railroad. 


2356.  For  the  purpose  of  preserving  and  suitably  mark-  an^/chat£no<f  a 
ing  for  historical  and  professional  military  study  the 
of  some  of  the  most  remarkable  maneuvers  and  most  bril- 
liant  fighting  in  the  war  of  the  rebellion,  and  upon  the 
ceding  of  jurisdiction  to  the  United  States  by  the  States 
of  Tennessee  and  Georgia,  respectively,  and  the  report  of 

1  For  other  statutes  respecting  the  punishment  of  offenses  committed  in  National 
Military  Parks  see  section  10,  act  of  August  19,  1890  (26  Stat.  L.,  333);  section  7,  act 
of  February  11,  1895  (28  ibid.,  651) ;  section  7,  act  of  December  27,  1894  (ibid.,  945); 
section  7,  act  of  February  21,  1899  (30  ibid.,  84). 

2  For  other  enactments  authorizing  leases  of  land  included  within  the  limits  of 
National  Military  Parks,  see  the  act  of  August  5,  1890  (26  Stat.  L..  333);  August  5, 
1892  (27  ibid.,  376);  section  3,  act  of  December  27,  1894  (28  ibid., 597);  June '4, 1897 
(30  ibid.,  44);  and  February  21,  1899  (30  ibid.,  84). 


918  MILITARY    LAWS    OF   THE    UNITED    STATES. 

the  Attorney-General  of  the  United  States  that  the  title 
to  the  lands  thus  ceded  is  perfect,  the  following  described 
c  i^?heTy\pe- kignwaJs  in  those  States  are  hereby  declared  to  be  ap- 
pStsCSf  pa?tand  Proa°hes  to  a°d  parts  of  the  Chickamauga  and  Chatta- 
26Apg3ss' 189°' v'  no°ga  National  Military  Park  as  established  by  the  second 
section  of  this  act,  to  wit:  First.  The  Missionary  Ridge 
Crest  road  from  Sherman  Heights  at  the  north  end  of 
Missionary  Ridge,  in  Tennessee,  where  the  said  road  enters 
upon  the  ground  occupied  by  the  Army  of  the  Tennessee 
under  Major-General  William  T.  Sherman,  in  the  military 
operations  of  November  twenty -fourth  and  twenty-fifth, 
eighteen  hundred  and  sixty-three;  thence  along  said  road 
through  the  positions  occupied  by  the  army  of  General 
Braxton  Bragg  on  November  twenty-fifth,  eighteen  hun- 
dred and  sixty-three,  and  which  were  assaulted  by  the 
Army  of  the  Cumberland  under  Major-General  George  H. 
Thomas  on  that  date,  to  where  the  said  road  crosses  the 
southern  boundary  of  the  State  of  Tennessee,  near  Ross- 
ville  Gap,  Georgia,  upon  the  ground  occupied  by  the 
troops  of  Major-General  Joseph  Hooker,  from  the  Army  of 
the  Potomac,  and  thence  in  the  State  of  Georgia  to  the 
junction  of  said  road  with  the  Chattanooga  and  Lafayette 
or  State  road  at  Rossville  Gap;  second,  the  Lafayette  or 
State  road  from  Rossville,  Georgia,  to  Lee  and  Gordon's 
Mills,  Georgia;  third,  the  road  from  Lee  and  Gordon's 
Mills,  Georgia,  to  Crawfish  Springs,  Georgia;  fourth,  the 
road  from  Crawfish  Springs,  Georgia,  to  the  crossing  of  the 
Chickamauga  at  Glass'  Mills,  Georgia;  fifth,  the  Dry  Valley 
road  from  Rossville,  Georgia,  to  the  southern  limits  of  Mc- 
Far land's  Gap  in  Missionary  Ridge;  sixth,  the  Dry  Vallej7 
and  Crawfish  Springs  road  from  McFarland's  Gap  to  the 
intersection  of  the  road  from  Crawfish  Springs  to  Lee  and 
Gordon's  Mills;  seventh,  the  road  from  Ringold,  Georgia, 
to  Reed's  Bridge  on  the  Chickamauga  River;  eighth,  the 
roads  from  the  crossing  of  Lookout  Creek  across  the  north- 
ern slope  of  Lookout  Mountain  and  thence  to  the  old  Suni- 
mertown  Road  and  to  the  valley  on  the  east  slope  of  the 
said  mountain,  and  thence  by  the  route  of  General  Joseph 
Hooker's  troops  to  Rossville,  Georgia,  and  each  and  all  of 
these  herein  described  roads  shall,  after  the  passage  of 
this  act,  remain  open  as  free  public  highways,  and  all 
Rights  of  way.  rights  of  way  now  existing  through  the  grounds  of  the  said 
park  and  its  approaches  shall  be  continued.  Act  of  Au- 
gmt  19,  1890  (26  Stat.  L., 


MILITARY    LAWS    OF   THE    UNITED   STATES.  919 

2357.  Upon  the  ceding  of  jurisdiction  by  the  legislature  ofc°anTsnaand 
of  the  State  of  Georgia,  and  the  report  of  the  Attorney-  rogj®-  2  iwd 
General  of  the  United  States  that  a  perfect  title  has  been 

secured  under  the  provisions  of  the  act  approved  August 
first,  eighteen  hundred  and  eighty-eight,  entitled  "An  act 
to  authorize  condemnation  of  land  for  sites  for  public 
buildings,  and  for  other  purposes,"  the  lands  and  roads 
embraced  in  the  area  bounded  as  herein  described,  together 
with  the  roads  described  in  section  one  of  this  act,  are 
hereby  declared  to  be  a  national  park,  to  be  known  as  the 
Chickamauga  and  Chattanooga  National  Park;  that  is  to  Name.  etc- 
say,  the  area  inclosed  by  a  line  beginning  on  the  Lafay- 
ette or  State  road,  in  Georgia,  at  a  point  where  the  bottom 
of  the  ravine  next  north  of  the  house  known  on  the  field 
of  Chickamauga  as  the  Cloud  House,  and  being  about  six 
hundred  yards  north  of  said  house,  due  east  to  the  Chicka- 
mauga River  and  due  west  to  the  intersection  of  the  Dry 
Valley  road  at  McFarland's  Gap;  thence  along  the  west  side 
of  the  Dry  Valley  and  Crawfish  Springs  roads  to  the  south 
side  of  the  road  from  Crawfish  Springs  to  Lee  and  Gor- 
don's Mills;  thence  along  the  south  side  of  the  last-named 
road  to  Lee  and  Gordon's  Mills;  thence  along  the  channel 
of  the  Chickamauga  River  to  the  line  forming  the  north- 
ern boundary  of  the  park  as  hereinbefore  described,  con- 
taining seven  thousand  six  hundred  acres,  more  or  less. 
Sec.  2,  ibid. 

2358.  The  said  Chickamauga  and  Chattanooga  National  peaches  "to  a£j 
Park,  and  the  approaches  thereto,  shall  be  under  the  con- 

trol  of  the  Secretary  of  War,  and  it  shall  be  his  duty, 
immediately  after  the  passage  of  this  act,  to  notify  the 
Attorney  General  of  the  purpose  of  the  United  States  to  SeCl  3>  md' 
acquire  title  to  the  roads  and  lands  described  in  the  pre- 
vious sections  of  this  act  under  the  provisions  of  the  act  of 
August  first,  eighteen  hundred  and  eighty-eight;  and  the 
said  Secretary,  upon  receiving  notice  from  the  Attorney- 
General  of  the  United  States  that  perfect  titles  have  been 
secured  to  the  said  lands  and  roads,  shall  at  once  proceed 
to  establish  and  substantially  mark  the  boundaries  of  the 
said  park.  Sec.  3,  ibid. 

2359.  The  Secretary  of   War  is  hereby  authorized  towffhrepe™^ 
enter  into  agreements,  upon  such  nominal  terms  as  he^miinTtf8  to 
may  prescribe,  with  such  present  owners  of  the  land  as    Sec- 4'  md- 
may  desire  to  remain  upon  it,  to  occupy  and  cultivate 

their  present  holdings,  upon  condition  that  they  will  pre-  ^^ncy n  s  °f 
serve  the  present  buildings  and  roads,  and  the  present 


920  MILITARY    LAWS    OF    THE    UNITED   STATES. 

outlines  of  field  and  forest,  and  that  they  will  only  cut 
trees  or  underbrush  under  such  regulations  as  the  Secre- 
tary may  prescribe,  and  that  they  will  assist  in  caring  for 
and  protecting  all  tablets,  monuments,  or  such  other  arti- 
ficial works  as  may  from  time  to  time  be  erected  by  proper 
authority.  Sec.  4, 


COMMISSIONERS. 


c°mmi8'  236°-  The  affairs  of  the  Chickamauga.  and  Chattanooga 
sec.  5,  md.  National  Park  shall,  subject  to  the  supervision  and  direc- 
tion of  the  Secretary  of  War,  be  in  charge  of  three  com- 
missioners, each  of  whom  shall  have  actively  participated 
in  the  battle  of  Chickamauga  or  one  of  the  battles  about 
Chattanooga,  two  to  be  appointed  from  civil  life  by  the 
Secretary  of  War,  and  a  third,  who  shall  be  detailed  by 
the  Secretary  of  War  from  among  those  officers  of  the 
Army  best  acquainted  with  the  details  of  the  battles  of 

eommfssion  ° f  Chickamauga  and  Chattanooga,  who  shall  act  as  secretary 
of  the  commission.  The  said  commissioners  and  secre- 
office.  tarv  saan  have  an  office  in  the  War  Department  building, 

and  while  -on  actual  duty  shall  be  paid  such  compensation, 
out  of  the  appropriation  provided  in  this  act,  as  the  Secre- 
tary of  War  shall  deem  reasonable  and  just.  Sec.  5,  ibid. 

miSon8°f  c°m"  2361.  It  shall  be  the  duty  of  the  commissioners  named 
sec.  e,  md.  jn  tne  prece(iing  section,  under  the  direction  of  the  Secre- 
tary of  War,  to  superintend  the  opening  of  such  roads  as 
may  be  necessary  to  the  purposes  of  the  park,  and  the 
repair  of  the  roads  of  the  same,  and  to  ascertain  and  defi- 
nitely mark  the  lines  of  battle  of  all  troops  engaged  in  the 
battles  of  Chickamauga  and  Chattanooga,  so  far  as  the 
same  shall  fall  within  the  lines  of  the  park  as  defined  in 
the  previous  sections  of  this  act,  and,  for  the  purpose  of 
assisting  them  in  their  duties  and  in  ascertaining  these 

ofESstoiIcaieafr^nes»  ^e  Secretary  of  War  shall  have  authority  to  employ, 

sistarrt  ^  a£  sucn  compensation  as  he  may  deem  reasonable  and  just, 
to  be  paid  out  of  the  appropriation  made  by  this  act,  some 
person  recognized  as  well  informed  in  regard  to  the  details 
of  the  battles  of  Chickamauga  and  Chattanooga,  and  who 
shall  have  actively  participated  in  one  of  those  battles,  and 
it  shall  be  the  duty  of  the  Secretary  of  War  from  and  after 
•the  passage  of  this  act,  through  the  commissioners,  and 
their  assistant  in  historical  work,  and  under  the  act 
approved  August  first,  eighteen  hundred  and  eighty-eight, 
regulating  the  condemnation  of  land  for  public  uses,  to 
proceed  with  the  preliminary  work  of  establishing  the  park 


MILITARY    LAWS    OF    THE    UNITED    STATES.  921 

and  its  approaches  as  the  same  are  defined  in  this  act,  and 
the  expenses  thus  incurred  shall  be  paid  out  of  the  appro- 
priation provided  by  this  act.1  Sec.  6,  ibid. 

2362.  It  shall  be  the  duty  of  the  commissioners,  acting  ul^c£o£ngof reg" 
under  the  direction  of  the  Secretary  of  War,  to  ascertain    Sec-  7»  ***• 
and  substantially  mark  the  locations  of  the  regular  troops, 
both  infantry  and  artillery,  within  the  boundaries  of  the 
park,  and  to  erect  monuments  upon  those  positions  as 
Congress  may  provide  the  necessary  appropriations;  and 
the  Secretary  of  War  in  the  same  way  may  ascertain  and 
mark  all  lines  of  battle  within  the  boundaries  of  the  park    Lines  of  battle. 
and  erect  plain  and  substantial  historical  tablets  at  such 
points  in  the  vicinity  of  the  park  and  its  approaches  as  he 
may  deem  fitting  and  necessary  to  clearly  designate  posi- 
tions and  movements,  which,  although  without  the  limits 
of  the  park,  were  directly  connected  with  the  battles  of 
Chickamauga  and  Chattanooga.     Sec.  7,  ibid. 


STATE    MONUMENTS. 


2363.  The  Secretary  of  War,  subject  to  the  approval  of  etcCare  of  Park 
the  President  of  the  United  States,  shall  have  the  power    Sec-  9> md- 
to  make,  and  shall  make,  all  needed  regulations  for  theet^egulations' 
care  of  the  park  and  for  the  establishment  and  marking  of 

the  lines  of  battle  and  other  historical  features  of  the  park. 
Sec.  9,  ibid. 

MISCELLANEOUS  PROVISIONS. 

2364.  To  enable  the  Secretary  of  War  to  begin  to  carry 
out  the  purposes  of  this  act,  including  the  condemnation 

and  purchase  of  the  necessary  land,  marking  the  bounda-  si°n'  etc- 
ries  of  the  park,  opening  or  repairing  necessary  roads, 
maps,  and  surveys,  and  the  pay  and  expenses  of  the  com- 
missioners and  their  assistant,  the  sum  of  one  hundred  and 
twenty-five  thousand  dollars,  or  such  portion  thereof  as 
may  be  necessary,  is  hereby  appropriated  out  of  any 
moneys  in  the  Treasury  not  otherwise  appropriated,  and 
disbursements  under  this  act  shall  require  the  approval  of 
the  Secretary  of  War,  and  he  shall  make  annual  report  of 
the  same  to  Congress.2  Sec.  11,  act  of  August  19, 1900  (26 
Stat.  Z.,  336). 

1  All  vouchers  in  support  of  disbursements  under  the  act  of  August  19,  1890  (26  Stat. 
L.,  333),  providing  for  the  Chickamauga  and  Chattanooga  National  Military  Park, 
and  the  acts  supplementary  thereto,  require  the  approval  of  the  Secretary  of  War. 
II  Compt.  Dec.,  331. 

2  The  act  of  Congress  of  August  19,  1890,  vested  in  the  Secretary  of  War  a  simple 
authority  to  purchase  land  for  the  purposes  of  the  Chickamauga  and  Chattanooga 
National  Park,  without  direction  or  indication  as  to  the  terms  of  such  purchase.     Deeds 


922  MILITARY    LAWS    OF    THE    UNITED    STATES. 


*?:     2365-  The  Secretary  of  War,  upon  the  recommendation 

26,  p.  978.  Of  ^e  Chickarnauga  Park  Commissioners,  may  confine  the 

limits  of  the  park  to  such  reduced  area,  within  the  bounds 
fixed  by  the  said  act,  as  may  be  sufficient  for  the  purposes 
of  the  said  act,  and  the  acquisition  of  title  by  the  United 
States  to  such  reduced  area  shall  be  held  to  be  a  compliance 
with  the  terms  of  said  act,  and  such  title  shall  be  procured 
by  the  Secretary  of  War  and  under  his  direction  in  accord- 
ance with  the  methods  prescribed  in  sections  four,  five, 
and  six  of  the  act  approved  February  twenty-second, 
eighteen  hundred  and  sixty-seven,  entitled  "An  act  to 
establish  and  protect  national  cemeteries,"  which  procure- 
ment of  title  shall-  be  held  to  be  a  compliance  with  the  act 
establishing  the  said  park,  and  the  Secretary  of  War  shall 
proceed  with  the  establishment  of  the  park  as  rapidly  as 
jurisdiction  over  the  roads  of  the  park  and  its  approaches 
and  title  to  the  separate  parcels  of  land  which  compose  it 
may  be  obtained  from  the  United  States.  Act  of  March 
.  3,  1891(26  Stat.  Z.,  978). 
SS^Sz,  v.  2366-  To  enable  the  'Secretary  of  War  to  complete  the 

27,  p.  376.  establishment  of  the  Chickamauga  and  Chattanooga  Na- 

tional Military  Park  according  to  the  terms  of  existing 
laws,  including  surveys,  maps,  models  in  relief,  the  pur- 
chase of  Orchard  Knob  and  Sherman's  Earthworks,  and 
for  observation  towers  and  the  purchase  of  sites  for  two 
of  them,  one  hundred  and  fifty  thousand  dollars.  Art  <>f 
August  5,  1892  (27  Stat.  Z.,  376). 

SS.TiaB,  v.     2367'  To  enable  the  Secretary  of  War  to  complete  the 
27,  p.  376.  establishment  of  the  Chickamauga  and  Chattanooga  Na- 

tional Military  Park,  according  to  the  terms  of  existing 
laws,  including  the  construction  of  roads,  surveys,  maps, 
iron  gun  carriages,  administration  building,  the  purchase  of 
land  within  the  legal  area  of  the  park  and  the  north  point 
of  Lookout  Mountain,1  and  for  widening  roads,  for  bronze 
historical  tablets,  repairs  to  bridges,  one  observation  tower 

were  offered  by  its  owners  containing  two  conditions  —  first,  a  condition  subsequent  to 
the  effect  that  unless  certain  improvements  should  be  made  the  grant  should  become 
null  and  void;  second,  a  proviso  that  in  case  the  United  States  should  at  any  future 
time  condemn  other  land  of  the  grantor,  he  should  then  be  paid  for  the  same  an 
amount  to  be  measured  by  the  value,  determined  by  appraisement,  of  the  lands  con- 
veyed by  the  present  deed,  an  arrangement  which  would  be  equivalent  to  giving  him 
a  claim  on  the  United  States  for  an  unliquidated  amount.  Held,  that  such  conditional 
conveyances  could  not  legally  be  accepted  by  the  Secretary  of  War,  no  authority 
being  given  him  by  the  statute  to  bind  the  Government  by  conditions  or  stipulations 
in  regard  to  the  title  or  purchase.  Dig.  Opin.  J.  A.  G.,  par.  2304. 

*The  act  of  July  1,  1890  (30  Stat.  L.,  629),  contains  provision  for  the  completion  of 
this  purchase. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  923 

on  Orchard  Knob;1    *    *    *     in  all,  one  hundred  thousand 
dollars.     Act  of  March  3, 1893  (27  Stat.  Z.,  376). 

2368.  To     *     *     *     complete  the  establishment  of  the    Sl.'ISisw, v. 
park,      *      *      *      including  road  construction,     *     *     *28,  P.403. 
foundations  for  State  monuments,  the  purchase  of  the  . 

north  end  of  Missionary  Ridge,  and  monument  sites  in 
the  vicinity  of  Glass's  Mill,     *  *     in  all,  seventy-five 

thousand  dollars.    Act  of  August  18, 1894  (28  Stat.  L. ,  4O3). 

2369,  To     *     *     *     complete  the  establishment  of  the 

*  *  *  park,  *  *  *  including  road  work,  memorial 28>  p- 
gateway  and  designs  therefor,  *  *  land  the  purchase 
of  which  has  heretofore  been  authorized  by  law,  sites  for 
monuments  in  Lookout  Valle}T,  not  to  exceed  three  hundred 
dollars  in  all;  in  all,  seventy -five  thousand  dollars.2  Act 
of  March  2. 1895  (28  Stat.  Z.,  94$). 


STATE    MONUMENTS. 


2370.  It  shall  be  lawful  for  the  authorities  of  any  State  hav- 
ing  troops  engaged  either  at  Chattanooga  or  Chickamauga, 
and  for  the  officers  and  directors  of  the  Chickamauga  Me-  et^ug  19  1890  8 
morial  Association,  a  corporation  chartered  under  the  laws8^-26^-333- 
of  Georgia,  to  enter  upon  the  lands  and  approaches  of  the 
Chickamauga  and  Chattanooga  National  Park  for  the  pur- 
pose of  ascertaining  and  marking  the  lines  of  battle  of 
troops  engaged  therein:  Provided,  That  before  any  such 
lines  are  permanently  designated  the  position  of  the  lines 
and  the  proposed  methods  of  marking  them  by  monuments, 
tablets,  or  otherwise  shall  be  submitted  to  the  Secretary    secretary  of 
of  War,  and  shall  first  receive  the  written  approval  of  the  prove  lines,  etc. 
Secretary,   which  approval  shall  be  based   upon  formal 
written  reports,  which  must  be  made  to  him  in  each  case 
by  the  commissioners  of  the  park.     Sec.  8,  act  of  August 
19,  1890  (26  Stat.  Z., 


2371.   The   said   Board    of    Commissioners    heretofore  monr^entsn  °f 
appointed  pursuant  to  the  statute  creating  said  park  is18^^-^  ^  2- 
hereby  empowered  to  authorize  the  boards  or  representa- 
tives of  the  several  States  building  monuments  upon  said 

1The  term  '  '  or  other  public  building  of  any  kind  whatever,  '  '  used  in  sec.  355,  Rev.  Sts.  , 
held  to  include  the  "observation  towers,"  for  the  erection  of  which  in  the  Chicka- 


mauga and  Chattanooga  National  Park  appropriations  were  made  in  the  acts  of  August 
5,  1892,  and  March  3,  1893.  Consent  by  the  legislature  of  the  State  to  the  purchase  of 
the  land  by  the  United  States  is  therefore  requisite  before  the  appropriation  can  legally 
be  expended.  Dig.  Opin.  J.  A.  G.,  par.  681. 

2  The  act  of  February  26,  1896  (29  Stat.  L.,  21),  makes  the  unexpended  balance  of 
the  appropriation  for  dedication  ceremonies  available  for  the  current  work  of  establish- 


ment, 


924  MILITARY   LAWS    OF   THE    UNITED   STATES. 

battlefield  to  take  and  use,  under  such  rules  and  regula- 
tions  an(*  uPon  suc^  terms  as  said  National  Commission 
author-  mav  direct,  such  stone  and  other  material,  including  sand 
and  gravel,  as  may  be  necessary  to  construct  the  founda- 
tion for  any  such  monuments,  and  which  may  be  found 
within  the  territory  of  said  National  Park,  and  the  roads 
and  highways  leading  thereto.1  Joi,nt  resolution  No.  8, 
October  2,  1893  (28  Stat.  Z.,  12). 

2372.  No  monuments  or  memorials  shall  be  erected  upon 
,  18%,  v.  an7  lands  of  the  park,  or  remain  upon  any  lands  which 
29,  p.  21.  mav  j^  purchased  for  the  park,  except  upon  ground  actu- 

ally occupied  in  the  course  of  the  battle  by  troops  of  the 
State  which  the  proposed  monuments  are  intended  to  com- 
memorate, except  upon  those  sections  of  the  park  set  apart 
for  memorials  to  troops  which  were  engaged  in  the  cam- 
paigns, but  operated  outside  of  the  legal  limits  of  the 
park;  and  the  regulations  of  the  commissioners  of  the 
park,  as  approved  by  the  Secretary  of  War,  promulgated 
December  fourteenth,  eighteen  hundred  and  ninety-five, 
are  hereby  affirmed.1  Act  of  February  26,  1896  (29  Stat. 
Z.,  21). 

st!0tea  m°onnS-  2373-  State  memorials  shall  be  placed  on  brigade  lines 
mjune4  189?  v  °^  Battle  under  the  direction  of  the  Park  Commission. 
'  ' 


so,  p.  43.  £ct  Ofjune  ^  1897  (30  Stat.  L.  ,  43). 

LEASES. 


~~e.  „,  *J92,  v.     2374>  The  Secretary  of  War  may  lease  the  lands  of  the 
27,  p.  376.  park  at  his  discretion,  either  to  former  owners  or  other 

persons,  for  agricultural  purposes,  the  proceeds  to  be  ap- 
plied by  the  Secretary  of  War  to  the  repairs  of  roads  and 
the  care  of  the  park;  and  from  this  appropriation  the 
Secretary  of  War  is  authorized  to  pay  the  disbursing 
officer  of  the  War  Department  the  sum  of  five  hundred 
dollars  for  disbursing  this  and  former  appropriations  for 
said  park.2  Act  of  August  6,  1892  (27  Stat.  Z.,  376). 

DONATIONS. 

land^or'JSds  °f     2375-  The  Secretary  of  War  is  hereby  authorized  to 
27ipai599>. 1893'  v'  accept  on  behalf  of  the  United  States  donations  of  land 

for  road  purposes.     Act  of  March  3,  1893  (27  Stat.  Z., 

599). 

canSon!1^8   °f     2376-  Tne  Secretary  of  War  and  the  Secretary  of  the 
27Ap*376  1892<  v'  Navy  are  hereby  authorized  to  deliver  to  the  Commis- 

1  See  also  paragraph  2363,  ante. 

2 See  also  section  4,  act  of  August  19,  1890  (26  Stat.  L.,  333),  paragraph  2359.  ante. 


MILITARY    LAWS    OF   THE    UNITED    STATES.  925 

sioners  of  the  Chickamauga  and  Chattanooga  National 
Military  Park,  at  the  park,  such  number  of  condemned 
cannon  and  cannon  balls  as  their  judgment  may  approve, 
for  the  purpose  of  their  work  of  indication  and  marking 
location  on  the  battlefields  of  Chickmauga,  Missionary 
Ridge,  and  Lookout  Mountain.  Act  of  August  5,  1892 
(27  Stat.  L.,376}. 

i  * 

INJURIES   TO   MONUMENTS,    TREES,    ETC. 

2377.  If   any  person  shall  willfully  destroy,  mutilate,  ^f1^^^* 
deface,  injure,  or  remove  any  monument,  column,  statues,  *°c  monument8' 
memorial  structure,  or  work  of  art  that  shall  be  erected  or    Sec- 10j  ibid- 
placed  upon  the  grounds  of  the  park  by  lawful  authority, 

or  shall  willfully  destroy  or  remove  any  fence,  railing,  in- 
closure,  or  other  work  for  the  protection  or  ornament  of 
said  park,  or  any  portion  thereof,  or  shall  willfully  destroy, 
cut,  hack,  bark,  breakdown,  or  otherwise  injure  any  tree, 
bush,  or  shrubbery  that  may  be  growing  upon  said  park, 
or  shall  cut  down  or  fell  or  remove  any  timber,  battle  relic, 
tree  or  trees  growing  or  being  upon  such  park,  except  by 
permission  of  the  Secretary  of  War,  or  shall  willfully  re- 
move or  destroy  any  breast-works,  earth-works,  walls,  or 
other  defenses  or  shelter,  or  any  part  thereof,  constructed 
by  the  armies  formerly  engaged  in  the  battles  on  the  lands 
or  approaches  to  the  park,  any  person  so  offending  and 
found  guilty  thereof,  before  any  justice  of  the  peace  of  the 
county  in  which  the  offense  may  be  committed,  shall  for 
each  and  every  such  offense  forfeit  and  pay  a  fine,  in  the 
discretion  of  the  justice,  according  to  the  aggravation  of 
the  offense,  of  not  less  than  five  nor  more  than  fifty  dol- 
lars, one-half  to  the  use  of  the  park  and  the  other  half  to 
the  informer,  to  be  enforced  and  recovered,  before  such 
justice,  in  like  manner  as  debts  of  like  nature  are  now  by 
law  recoverable  in  the  several  counties  where  the  offense 
may  be  committed.1  Sec.  10,  ibid. 

RIGHT   OF    WAY    TO    CHATTANOOGA    RAPID   TRANSIT   COMPANY. 

2378.  The  Secretary  of  War  is  herebv  authorized,  at  his    Right  of  way. 

j .  .  J  J  May  7,  1898,  v  . 

discretion,  and  upon  the  tavorable  recommendation  of  the^o.  p. "399. 
Chickamauga  and  Chattanooga  National  Park  Commission, 
to  grant  a  right  of  way  to  the  Chattanooga  Rapid  Transit 
Company  to  lay  a  single  track  across  the  Dry  Valley  road 
at  such  point  or  place  thereon  as  said  commission  may 

^ee  for  general  provisions  on  this  subject  the  act  of  March  3.  1897  (29  Stat.  L.. 
621),  par.  2352,  ante. 


926  MILITARY    LAWS    OF    THE    UNITED    STATES. 

determine  upon;  and  also,  upon  like  recommendation  of 
said  commission,  may  grant  such  other  concessions  as  may 
be  necessary  to  permit  the  said  Chattanooga  Rapid  Transit 
Company  to  extend  its  lines  to  the  Chickamauga  and  Chat- 
tanooga National  Park:  Provided,  That  such  grant  or 
grants  shall  only  become  or  be  operative  on  the  condition 
that  the  track  and  tracks  and  roadbed  of  said  company, 
and  the  right  of  way  for  any  and  all  extensions  of  its  road 
to  said  park  from  the  point  of  crossing  said  Dry  Valley 
road  shall  first  be  definitely  fixed  and  located  upon  a  line 
or  lines  which  shall  be  satisfactory  to  and  approved  by 
said  commission;  and  no  part  of  said  line  or  lines  of  road, 
after  being  so  located,  established,  built,  or  constructed, 
shall  be  changed,  moved,  or  extended  without  the  consent 
in  writing  of  said  commission  thereto  being  first  had  and 
obtained,  and  upon  the  further  condition  that  an  agree- 
ment satisfactory  to  said  commission  and  approved  by  it 
shall  be  entered  into  on  the  part  of  said  company  for  the 
proper  maintenance  of  the  crossing  of  said  Dry  Valley 
road,  and  at  all  times  keeping  the  same  .in  proper  repair 
and  condition.  Act  of  May  7,  1898  (30  Stat.  Z.,  399). 


THE    GETTYSBURG    NATIONAL   PARK. 


Par. 


2379.  Acquisition  of  lands. 

2380.  Designation. 

2381.  Commissioners,  compensation,  du- 

ties. 

2382.  Acquisition  of  additional  lands. 


Par. 

2387.  Roads. 

2388.  Specimens  of  arms,  uniforms,  etc. 

2389.  Condemnation  of  lands. 

2390.  Leases. 

2391.  2392,  2393.  Erection  of  monuments. 

2383.  The  same,  condemnation.  Lincoln's  Gettysburg  address. 

2384.  Appropriations,  disbursements.         j  2394.  Injuries  to  monuments,  trees,  etc. 

2385.  Monuments  and  tablets,  avenues,      j  2395.  Regulations. 

2386.  Continuing  surveys. 

tioGn^typSarUkgNa"      2379'  The  Secretary  of  War  is  hereby   authorized  to 
landfromSattie-  receive  from  the  Gettysburg  Battlefield  Memorial  Asso- 
ilociatio?orial  ciati°n>  a  corporation  chartered  by  the  State  of  Pennsyl- 
28Fpb66i' 1895>  v'  vania?  a  deed  of  conveyance  to  the  United  States  of  all  the 
lands  belonging  to  said  association,  embracing  about  eight 
hundred  acres,  more  or  less,  and  being  a  considerable  part 
of  the  battlefield  of  Gettysburg,  together  with  all  rights 
of  way  over  avenues  through  said  lands  acquired  by  said 
association,  and  all  improvements  made  by  it  in  and  upon 
the  same.  .  Upon  the  due  execution  and  delivery  to  the 
Secretary  of  War  of  such  deed  of  conveyance  the  Secre- 
tary of  War  is  authorized  to  pay  to  the  said  Battlefield 
Memorial  Association  the  sum  of  two  thousand  dollars,  or 


MILITARY    LAWS    OF    THE    UNITED   STATES. 


927 


so  much  thereof  as  may  be  necessary  to  discharge  the 
debts  of  said  association,  the  amount  of  such  debts  to  be 
verified  by  the  officers  thereof,  and  the  sum  of  two  thou- 
sand dollars  is  hereby  appropriated  out  of  any  money  in 
the  Treasury  not  otherwise  appropriated  to  meet  and 
defray  such  charges.  Act  of  F&bruary  11,  1895  (28  Stat. 
Z.,  651). 

2380.  As  soon  as  the  lands  aforesaid  shall  be  conveyed 
to  the  United  States  the  Secretary  of  War  shall  take  pos- 
session of  the  same,  and  such  other  lands  on  the  battlefield 
as  the  United  States  have  acquired,  or  shall  hereafter 
acquire,  by  purchase  or  condemnation  proceedings;  and 
the  lands  aforesaid  shall  be  designated  and  known  as  the 
"  Gettysburg  National  Park."1  Sec.  2,  iUd. 


Designation. 

Cft>r»     9     fl/vyW 


COMMISSIONERS. 


compensation. 


Duty- 


2381.  The  Gettysburg  national  park  shall,  subject  to  the 
supervision  and  direction  of  the  Secretary  of  War,  be  in 
charge  of  the  commissioners  heretofore  appointed  by  the 
Secretary  of  War  for  the  location  and  acquisition  of  lands 
at  Gettysburg,  and  their  successors;  the  said  commission- 
ers shall  have  their  office  at  Gettysburg,  and  while  on  duty 
shall  be  paid  such  compensation  out  of  the  appropriation 
provided  in  this  act  as  the  Secretary  of  War  shall  deem 
reasonable  and  just.     And  it  shall  be  the  duty  of  the  said 
commissioners,  under  the  direction  of  the  Secretary  of 
War,  to  superintend  the  opening  of  such  additional  roads 
as  may  be  necessary  for  the  purposes  of  the  park  and  for 
the  improvement  of  the  avenues  heretofore  laid  out  therein, 
and  to  properly  mark  the  boundaries  of  the  said  park,  and 
to  ascertain  and  definitely  mark  the  lines  of  battle  of  all 
troops  engaged  in  the  battle  of  Gettysburg,  so  far  as  the 
same  shall  fall  within  the  limits  of  the  park.2     Sec.  3,  ibid. 

2382.  The  Secretary  of  War  is  hereby  authorized  and 
directed  to  acquire,  at  such  times  and  in  such  manner  as    Sec-  4>  md- 

1  Where  certain  land,  part  of  the  battlefield  of  Gettysburg,  was  in  danger  of  being 
so  cut  up  and  altered  by  the  construction  of  an  electric  railroad  as  to  cause  the  oblit- 
eration of  important  tactical  positions  occupied  by  the  different  commands  engaged 
in  the  battle,  advised  that  the  Attorney-General  be  requested  to  have  initiated  the 
proper  proceedings  for  the  condemnation  of  the  land  so  that  the  United  States  may 
acquire  the  fee,  and  for  an  injunction  restraining  the  railroad  company  from  con- 
structing or  operating  its  road  upon  the  land  pending  the  condemnation  proceedings. 
Dig.  Opin.  J.  A.  G.,  par.  1561. 

2  Any  act  of  Congress  which  plainly  and  directly  tends  to  enhance  the  respect  and 
love  of  the  citizen  for  the  institutions  of  his  country  and  to  quicken  and  strengthen 
his  motives  to  defend  them,  and  which  is  germane  to  and  intimately  connected  with 
and  appropriate  to  the  exercise  of  some  one  or  all  of  the  powers  "granted  bv  Con- 
gress, must  be  valid,  and  the  proposed  use  in  this  case  comes  within  such  description. 
U.  S.  v.  Gettysburg  Electric  Railway  Co.,  160  U.  S.,  668. 


&" 


928  MILITARY    LAWS    OF    THE    UNITED    STATES. 

he  may  deem  best  calculated  to  serve  the  public  interest, 
such  lands  in  the  vicinity  of  Gettysburg,  Pennsylvania, 
not  exceeding  in  area  the  parcels  shown  on  the  map  pre- 
pared by  Major-General  Daniel  E.  Sickles,  United  States 
Army,  and  now  on  file  in  the  office  of  the  Secretary  of  War, 
which  were  occupied  by  the  infantry,  cavalry,  and  artillery 
on  the  first,  second,  and  third  days  of  July,  eighteen  hun- 
dred and  sixty-three,  and  such  other  adjacent  lands  as  he 
may  deem  necessary  to  preserve  the  important  topograph- 
ical features  of  the  battlefield:  Provided,  That  nothing  con- 
tained in  this  act  shall  be  deemed  and  held  to  prejudice 
the  rights  acquired  by  any  State  or  by  any  military  organi- 
zation to  the  ground  on  which  its  monuments  or  markers 
are  placed,  nor  the  right  of  way  to  the  same.  Sec.  4,  ibid. 
commissioners  2383.  For  the  purpose  of  acquiring  the  lands  designated 

to  acquire  lands  .     *        ^  .  . 

designated.  and  described  in  the  foregoing  section  not  already  acquired 
and  owned  by  the  United  States,  and  such  other  adjacent 
land  as  may  be  deemed  necessary  by  the  Secretary  of  War 
for  the  preservation  and  marking  of  the  lines  of  battle  of 
the  Union  and  Confederate  armies  at  Gettysburg,  the  Sec- 
retary of  War  is  authorized  to  employ  the  services  of  the 
commissioners  heretofore  appointed  by  him  for  the  loca- 
tion, who  shall  proceed,  in  conformity  with  his  instruc- 
tions and  subject  in  all  things  to  his  approval,  to  acquire 
condemnation  such  lands  by  purchase,  or  by  condemnation  proceedings, 

prAug.  visss,  v.  to  be  taken  by  the  Attorney-General  in  behalf  of  the 
United  States,  in  any  case  in  which  it  shall  be  ascertained 
that  the  same  can  not  be  purchased  at  prices  deemed 
reasonable  and  just  by  the  said  commissioners  and  approved 
by  the  Secretary  of  War.  And  such  condemnation  pro- 
ceedings may  be  taken  pursuant  to  the  act  of  Congress 
approved  August  first,  eighteen  hundred  and  eighty-eight, 
regulating  the  condemnation  of  land  for  public  uses,  or  the 
joint  resolution  authorizing  the  purchase  or  condemnation 
of  land  in  the'  vicinity  of  Gettysburg,  Pennsylvania,  ap- 
proved June  fifth,  eight  hundred  and  ninety-four.  Sec.  5, 
iUd. 
Appropriation  2384.  To  enable  the  Secretary  of  War  to  carry  out  the 

for  expenses,  etc.  J 

sec.  9,  iMd.  purposes  of  this  act,  including  the  purchase  or  condem- 
nation of  the  land  described  in  sections  four  and  five  of 
this  act,  opening,  improving,  and  repairing  necessary 
roads  and  avenues,  providing  surveys  and  maps, 
seventy -five  thousand  dollars,  or  so  much  thereof  as  may 
be  necessary,  is  hereby  appropriated,  out  of  any  money 
in  the  Treasury  not  otherwise  appropriated;  and  all  dis- 


MILITARY    LAWS    OF    THE    UNITED    STATES.  929 

bursements  made  under  this  act  shall  require  the  approval 
of  the  Secretary  of  War,  who  shall  make  annual  report  of 
the  same  to  Congress.  Sec.  9,  ibid. 

2385.  For  the  purpose  of  preserving  the  lines  of  battle  ^  Ablets11  at 
at  Gettysburg,  Pennsylvania,  and  for  properly  marking  Gettysburg,  Pa. 
with  tablets  the  positions  occupied  by  the  various  com- 
mands of  the  armies  of  the  Potomac  and  of  Northern  Vir- 
ginia on  that  field,  and  for  opening  and  improving  avenues    Marn3,ei893,cV. 
along  the  positions  occupied  by  troops  upon  those  lines,  2 

and  for  fencing  the  same,  and  for  determining  the  leading 
tactical  positions  of  batteries,  regiments,  brigades,  divi- 
sions, corps,  and  other  organizations  with"  reference  to  the 
study  and  correct  understanding  of  the  battle,  and  to  mark 
the  same  with  suitable  tablets,  each  bearing  a  brief  histor- 
ical legend,  compiled  without  praise  and  without  censure, 
the  sum  of  twenty-five  thousand  dollars,  to  be  expended 
under  the  direction  of  the  Secretary  of  War.1  Act  of 
March  3,  1893  (27  Stat.  Z.,  599). 

2386.  For  continuing  the  work  of  surveying,  locating,  Su?v0eyst,ientcuing 
and  preserving  the  lines  of  battle  at  Gettysburg,  Pennsyl- 

vania,  and  for  purchasing,  opening,  constructing,  and  im- 
proving avenues  along  the  portions  occupied  by  the  vari- 
ous commands  of  the  armies  of  the  Potomac  and  Northern 
Virginia  on  that  field,  and  for  fencing  the  same;  and  for 
the  purchase,  at  private  sale  or  by  condemnation,  of  such 
parcels  of  land  as  the  Secretary  of  War  may  deem  neces- 
sary for  the  sites  of  tablets,  and  for  the  construction  of 
the  said  avenues;  for  determining  the  leading  tactical  posi- 
tions and  property  marking  the  same  with  tablets  of  bat- 
teries, regiments,  brigades,  divisions,  corps,  and  other 
organizations  with  reference  to  the  study  and  correct  un- 
derstanding of  the  battle,  each  tablet  bearing  a  brief  his- 
torical legend,  compiled  without  praise  and  without  cen- 
sure; fifty  thousand  dollars,  to  be  expended  under  the 
direction  of  the  Secretary  of  war.2  Act  of  August  18, 
189 %  (28  Stat.  Z.,  405). 

1  This  statute  was  held  to  be  constitutional  and  within  the  power  of  Congress  by 
the  decision  of  the  Supreme  Court  of  the  United  States  in  the  case  of  the  United 
States  r.  The  Gettysburg  Electric  Railway  Company  (160  U.  S.,  668) .     But  see  U.  S. 
v.  Tract  of  Land,  etc.  (70  Fed.  Rep.,  940) . 

2  The  appropriations  for  the  Gettysburg  National  Park,  made  in  the  acts  of  August 
18,  1894,  and  February  11,  1895,  to  the  extent  that  they  provide  for  objects  common 
to  both,  are  cumulative,  while  each  is  available  for  certain  objects  not  provided  for 
in  the  other.     (2  Compt.  Dec.,  59. ) 

The  act  of  June  9, 1880  (21  Stat.  L.,  170),  contained  the  folio  wing  provision:  "That 
the  sum  of  fifty  thousand  dollars,  or  so  much  thereof  as  may  be  necessary,  is  hereby 
appropriated,  out  of  any  money  in  the  Treasury  not  otherwise  appropriated,  to  com- 
plete the  survey  of  the  Gettysburg  battlefield;  also,  to  provide  for  the  compilation 

22924—08 59 


930  MILITARY   LAWS    OF   THE   UNITED    STATES. 


ROADS. 


?u°nei6,ei8C96(v      2387-  The  Secretary  of    War  is  hereby  authorized  in 
29,  p.  384.  kis  discretion  to  improve  and  maintain  the  public  roads 

within  the  limits  of  the  national  park  at  Gettysburg,  Penn- 
sylvania, over  which  jurisdiction  has  been  or  may  hereafter 
be  ceded  to  the  United  States:  Provided,  That  nothing 
contained  in  this  act  shall  be  deemed  and  held  to  prejudice 
the  rights  acquired  by  any  State  or  by  any  military  organ- 
ization to  the  ground  on  which  its  monuments  or  markers 
are  placed  nor  the  right  of  way  to  the  same.  Act  of  June 
10,  1896  (W  Stat.  Z., 


SPECIMENS    OF    ARMS,    ETC. 

used  2388«  The  Secretary  of  War  is  hereby  authorized  and 
to  be  directed  to  deliver  to  the  Gettysburg  Battlefield  Memo- 
892>v'ria^  Association,  at  Gettysburg,  Pennsylvania,  specimens 
of  the  arms,  equipments,  projectiles,  uniforms,  and  other 
material  of  war  used  by  the  armies  in  that  battle  (so  far 
as  may  be  practicable),  for  the  purpose  of  exhibiting  and 
preserving  them  for  historical  purposes  in  the  museum  at 
the  house  used  by  Major-General  Meade  for  headquarters, 
now  owned  by  the  said  association,  or  at  such  other  place 
as  the  directors  of  the  association  may  cleem  proper.  And 
that  the  transportation  to  Gettysburg  be  furnished  by  the 
Quartermaster's  Department  of  the  United  States  from 
the  appropriation  for  the  transportation  of  army  supplies. 
Act  of  July  87,  1892  (27  Stat.  Z.,  276). 

CONDEMNATION   OF    LANDS. 

andcqcondemnan     2389-  The  Secretary  of  War  is  authorized  to  acquire  by 

U  jtinVaResS'  so,  purchase   (or  by  condemnation),  pursuant  to  the  act  of 

2?np  m 1894'  v'  August  one,  eighteen   hundred  and   eighty -eight,1  such 

lands,  or  interests  in  lands,  upon  or  in  the  vicinity  of  said 

battlefield,  as,  in  the  judgment  of  the  Secretary  of  War, 

may  be  necessaiy  for  the  complete  execution  of  the  act  of 

of  all  available  data  used  in  locating  troops  on  the  engineer  maps  of  that  battle;  also, 
to  provide  diagrams  showing  the  changing  movements  and  positions  during  the  en- 
gagement; the  whole  to  be  done  by  or  under  the  direction  of  Mr.  John  B.  Bachelder, 
author  of  the  position  plates  of  the  Government  maps  of  that  battle,  under  the  direc- 
tion of  the  Secretary  of  War:  Provided,  That  no  part  of  said  sum  shall  be  disbursed 
by  the  Secretary  of  War  except  for  work  actually  performed  or  for  materials  fur- 
nished for  the  objects  heretofore  named ;  and  that  all  the  maps,  data,  and  materials 
prepared  for,  or  used  for,  the  work  contemplated  by  this  act  shall  be  the  property  of 
the  Government,  to  be  deposited  in  the  Department  of  War:  And  provided  further, 
That  the  sum  hereby  appropriated  shall  be  in  full  satisfaction  for  all  work  done  and 
all  material  collected  by  the  said  John  B.  Bachelder." 
1  See  also  paragraph  2383,  ante. 


MILITARY   LAWS    OF    THE    UNITED    STATES.  931 

March  three,  eighteen  hundred  and  ninety-three:1  Pro- 
vided, That  no  obligation  or  liability  upon  the  part  of  the 
Government  shall  be  incurred  under  this  resolution  nor 
any  expenditure  made  except  out  of  appropriations  already 
made  and  to  be  made  during  the  present  session  of  Con- 
gress.2 Joint  Resolution  No.  30,  June  5,  1894.  (®$  Stat. 
Z.,  684). 

LEASES. 

2390.  The  Secretary  of  War  may  lease  the  lands  of  the    Jjjjfj- 1897  v 
park,  at  his  discretion,  either  to  former  owners  or  other  30> p>  44- 
persons,   for   agricultural   purposes,  the   proceeds  to  be 
applied  by  the  Secretary  of  War,  through  the  proper  dis- 
bursing officer,  to  the  maintenance  of  the  park.     Act  of 
June  4,  1897  (30  Stat.  Z.,  44). 


ERECTION    OF    MONUMENTS. 


2391.  For  the  erection  of  monuments  or  memorial  tablets 

for  the  proper  marking  of  the  position  of  each  of  the  com-  24Mpar5335 1887'  v' 
mands  of  the  Regular  Army  engaged  at  Gettysburg,  fifteen 
thousand  dollars,  to  be  expended  under  the  direction  of 
the  Secretary  of  War.     Act  of  March  3, 1887  (24  Stat.  L. , 
535). 

2392.  The   appropriation   of   fifteen   thousand   dollars,    Set6  t^Iss,  v. 
made  by  the  act  approved  March  third,  eighteen  hundred  25>  p- 538> 
and  eighty -seven,  for  the  erection  of  monuments  or  me- 
morial tablets  for  the  proper  marking  of  the  position  of 

each  of  the  commands  of  the  Regular  Army  engaged  at 
Gettysburg,  be,  and  the  same  is  hereby,  made  available 
for  the  purchase  of  land  upon  which  to  erect  the  monu- 
ments and  tablets.  Act  of  October  2,  1888  (25  Stat.  Z., 
538). 

2393.  The  Secretary  of  War  is  hereby  authorized  and  COnta?nzfngtaLin- 
directed  to  cause  to  be  made  a  suitable  bronze  tablet,  con-™ln's  address- 
taining  on  it  the  address  delivered  by  Abraham  Lincoln,  8  *" e2g-  j^f95' s- 
President  of  the  United  States,  at  Gettysburg,  on  the  nine- 
teenth day  of  November,  eighteen  hundred  and  sixty -three, 

on  the  occasion  of  the  dedication  of  the  national  cemetery 
at  that  place,  and  such  tablet,  having  on  it  besides  the 
address  a  medallion  likeness  of  President  Lincoln,  shall  be    Medallion, 
erected  on  the  most  suitable  site  within  the  limits  of  said 

1  The  requirement  of  the  act  of  June  4,  1897,  which  authorizes  the  Secretary  of 
War  to  lease  the  lands  of  the  Gettysburg  National  Military  Park  for  agricultural  pur- 
poses that  ' '  the  proceeds  are  to  be  applied  *  *  *  to  the  maintenance  of  the 
park,"  relates  only  to  the  proceeds  of  leases  so  made,  and  not  to  other  proceeds  of 
the  lands.  IV  Compt.  Dec.,  343, 


932  MILITARY    LAWS    OF    THE    UNITED    STATES. 

park,  which  said  address  was  in  the  following  words,  to 
wit: 

'  4  Four  score  and  seven  years  ago  our  fathers  brought 
forth  on  this  continent  a  new  nation,  conceived  in  liberty 
and  dedicated  to  the  proposition  that  all  men  are  created 
equal. 

"Now  we  are  engaged  in  a  great  civil  war,  testing 
whether  that  nation,  or  any  nation  so  conceived  and  so 
dedicated,  can  long  endure.  We  are  met  on  a  great  battle- 
field of  that  war.  We  have  come  to  dedicate  a  portion  of 
that  field  as  a  final  resting  place  for  those  who  here  gave 
their  lives  that  that  nation  might  live.  It  is  altogether 
fitting  and  proper  that  we  should  do  this. 

"  But,  in  a  larger  sense,  we  can  not  dedicate,  we  can  not 
consecrate,  we  can  not  hallow  this  ground.  The  brave 
men,  living  and  dead,  who  struggled  here  have  consecrated 
it  far  above  our  poor  power  to  add  or  detract.  The  world 
will  little  note,  nor  long  remember,  what  we  say  here; 
but  it  can  never  forget  what  they  did  here.  It  is  for  us, 
the  living,  rather  to  be  dedicated  here  to  the  unfinished 
work  which  they  who  fought  here  have  thus  far  so  nobly 
advanced.  It  is  rather  for  us  to  be  here  dedicated  to  the 
great  task  remaining  before  us;  that  from  these  honored 
dead  we  take  increased  devotion  to  that  cause  for  which 
they  gave  the  last  full  measure  of  devotion;  that  we  here 
highly  resolve  that  these  dead  shall  not  have  died  in  vain  ; 
that  this  nation,  under  God,  shall  have  a  new  birth  of  free- 
dom, and  that  government  of  the  people,  by  the  people,  for 
the  people,  shall  not  perish  from  the  earth." 

And  the  sum  of  five  thousand  dollars,  or  so  much  thereof 
as  may  be  necessary,  is  hereby  appropriated,  out  of  any 
money  in  the  Treasury  not  otherwise  appropriated,  to  pay 
the  cost  of  said  tablet  and  medallion  and  pedestal.  Sec. 
8,  act  of  February  11,  1895  (28  Stat.  Z.,  651). 

INJURIES  TO    MONUMENTS,  TABLETS,  ETC'. 


stronyainygf°cof-     2394t  ^  anv  Person   sna^   destroy,   mutilate,   deface, 

UIFeb  en   1895-  injure?  or  remove,  except  by  permission  of  the  Secretary 

s.  7,  v.  28,  'p.  65i.  Of  War,  any  column,  statue,  memorial  structure,  or  work 

of  art  that  shall  be  erected  or  placed  upon  the  grounds  of 

the  park  by  lawful  authority,  or  shall  destroy  or  remove 

any  fence,  railing,  inclosure,  or  other  work  for  the  pro- 

tection or  ornament  of  said  park  or  any  portion  thereof, 

or  shall  destroy,  cut,  hack,  bark,  break  down,  or  other- 

wise injure  any  tree,  bush,  or  shrubbery  that  may  be 


MILITARY    LAWS    OF   THE    UNITED   STATES.  933 

growing  upon  said  park,  or  shall  cut  down  or  fell  or  remove 
any  timber,  battle  relic,  tree  or  trees,  growing  or  being 
upon  said  park,  or  hunt  within  the  limits  of  the  park,  or 
shall  remove  or  destroy  any  breastworks,  earthworks, 
walls,  or  other  defenses  or  shelter  or  any  part  thereof 
constructed  by  the  armies  formerly  engaged  in  the  battles 
on  the  land  or  approaches  to  the  park,  or  shall  violate  any 
regulation  made  and  published  by  the  Secretary  of  War 
for  the  government  of  visitors  within  the  limits  of  said 
park,  any  person  so  offending  and  found  guilty  thereof, 
before  any  justice  of  the  peace  of  the  county  in  which  the 
offense  may  be  committed,  shall,  for  each  and  every  such 
offense,  forfeit  and  pay  a  fine,  in  the  discretion  of  the  jus- 
tice, according  to  the  aggravation  of  the  offense,  of  not 
less  than  five  .nor  more  than  five  hundred  dollars,  one 
half  for  the  use  of  the  park  and  the  other  half  to  the 
informer,  to  be  enforced  and  recovered  before  such  justice 
in  like  manner  as  debts  of  like  nature  are  now  by  law 
recoverable  in  the  county  where  the  offense  may  be  com- 
mitted.1 Sec.  ?',  act  of  Feliruary  11,  1895  (28  Stat.  L., 
651). 


REGULATIONS. 


2395.  It  shall  be  the  duty  of  the  Secretary  of  War  toet(?egulations 
establish  and  enforce  proper  regulations  for  the  custodv,    feb- 'oilf  1f^6; 

A  J  '  s.  6,  V.  28,  p.  651. 

preservation,  and  care  of  the  monuments  now  erected  or 
which  may  be  hereafter  erected  within  the  limits  of  the 
said  national  military  park;  and  such  rules  shall  provide 
for  convenient  access  by  visitors  to  all  such  monuments 
within  the  park,  and  the  ground  included  therein,  on  such 
days  and  within  such  hours  as  may  be  designated  and 
authorized  by  the  Secretary  of  War.  Sec.  6,  act  of  Feb- 
ruary 11,  1895  (28  Stat.  Z.,  661). 

THE    SHILOH    NATIONAL    MILITARY    PARK. 

Par.  Par. 

2396.  Extent,  designation.  2401.  Marking  lines  of  battle.     ^ 

2397.  Acquisition  of  lands.  |  2402.  Injuries  to  monuments,  trees,  etc. 

2398.  Commissioners,  appointment,  com-  I  2403.  Leases. 

pensation.  I  2404.  Appropriation. 


2399.  The  same,  duties. 

2400,  2401.  The  same,  location  of  office. 


2405,  2406.  Condemned  cannon,  balls,  etc. 


2396.  In  order  that  the  armies  of  the  Southwest  which  swioh  National 
served  in  the  civil  war,  like  their  comrades  of  the  Eastern  teMfched. &1 
armies  at  Gettysburg  and  those  of  the  Central  West  at  i,  v628,  p'.  597. ' s 

1  For  other  statutes  imposing  penalties  for  offenses  committed  in  national  military 
parks,  see  act  of  March  3,  1897  (29  Stat.  L.,  621),  paragraph  2352,  ante. 


934  MILITARY    LAWS    OF   THE    UNITED   STATES. 

Chickamauga,  may  have  the  history  of  one  of  their  memo- 
rable battles  preserved  on  the  ground  where  they  fought, 
the  battlefield  of  Shiloh,  in  the  State  of  Tennessee,  is 
hereby  declared  to  be  a  national  military  park,  whenever 
title  to  the  same  shall  have  been  acquired  by  the  United 
States  and  the  usual  jurisdiction  over  the  lands  and  roads 
of  the  same  shall  have  been  granted  to  the  United  States 
by  the  State  of  Tennessee;  that  is  to  sa}7,  the  area  inclosed 
by  the  following  lines,  or  so  much  thereof  as  the  commis- 
sioners of  the  park  may  deem  necessary,  to  wit:  Begin- 
ning at  low-water  mark  on  the  north  bank  of  Snake  Creek 
where  it  empties  into  the  Tennessee  River;  thence  west- 
wardly  in  a  straight  line  to  the  point  where  the  river  road 
to  Crumps  Landing,  Tennessee,  crosses  Snake  Creek; 
thence  along  the  channel  of  Snake  Creek  to  Owl  Creek} 
thence  along  the  channel  of  Owl  Creek  to  the  crossing  of 
the  road  to  Purdy,  Tennessee;  thence  southwardly  in  a 
straight  line  to  the  intersection  of  an  east  and  west  line 
drawn  from  the  point  where  the  road  to  Hamburg,  Ten- 
nessee, crosses  Lick  Creek,  near  the  mouth  of  the  latter; 
thence  eastward  along  the  said  east  and  west  line  to  the 
point  where  the  Hamburg  road  crosses  Lick  Creek;  thence 
along  the  channel  of  Lick  Creek  to  the  Tennessee  River; 
thence  along  low-water  mark  of  the  Tennessee  River  to 
the  point  of  beginning,  containing  three  thousand  acres, 
more  or  less,  and  the  area  thus  inclosed  shall  be  known  as 
the  Shiloh  National  Military  Park:  Provided,  That  the 
boundaries  of  the  land  authorized  to  be  acquired  may  be 
changed  by  the  said  commissioners.  Sec.  7,  act  of  Decem- 
ber 27,  1894  (28  Stat.  L.,  597). 

wlr  ctoe  acquit     2397t  ^ne  establishment  of  the  Shiloh  National  Military 
land,  etc.          Park  shall  be  carried  forward  under  the  control  and  direc- 

Sec.  2,  ibid. 

tion  of  the  Secretary  of  War  who,  upon  the  passage  of 
this  act,  shall  proceed  to  acquire  title  to  the  same  either 
under  the  act  approved  August  first,  eighteen  hundred 
and  eighty-eight,  entitled  "An  act  to  authorize  the  con- 
demnation of  land  for  sites  of  public  buildings,  and  for 
other  purposes,"  or  under  the  act  approved  February 
twenty -seventh,  eighteen  hundred  and  sixty-seven,  entitled 
"  An  act  to  establish  and  protect  national  cemeteries,"  as 
he  may  select,  and  as  title  is  procured  to  any  portion  of 
the  lands  and  roads  within  the  legal  boundaries  of  the 
park  he  may  proceed  with  the  establishment  of  the  park 
upon  such  portions  as  may  thus  be  acquired.  Sec.  2,  ibid. 


MILITARY   LAWS    OF   THE    UNITED    STATES.  935 


COMMISSIONERS. 


2398.  The  affairs  of  the  Shiloh  National  Military  Park 
shall,  subject  to  the  supervision  and  direction  of  the  Sec- 
retary of  War,  be  in  charge  of  three  commissioners,  to  be 
appointed  by  the  Secretary  of  War,  each  of  whom  shall 
have  served  at  the  time  of  the  battle  in  one  of  the  armies 
engaged  therein,  one  of  whom  shall  have  served  in  the 
Army  of  the  Tennessee,  commanded  by  General  U.  S. 
Grant,  who  shall  be  chairman  of  the  commission;  one  in 
the  Army  of  the  Ohio,  commanded  by  General  D.  C.  Buell; 
and  one  in  the  Army  of  the  Mississippi,  commanded  by 

General  A.  S.  Johnston.  The  said  commissioners  shall  et?ompensation 
have  an  office  in  the  War  Department  building,  and  while 
on  actual  duty  shall  be  paid  such  compensation  out  of  the 
appropriations  provided  by  this  act  as  the  Secretary  of 
War  shall  deem  reasonable  and  just;  and,  for  the  purpose 
of  assisting  them  in  their  duties  and  in  ascertaining  the 
lines  of  battle  of  all  troops  engaged  and  the  history  of 
their  movements  in  the  battle,  the  Secretary  of  War  shall 
have  authority  to  employ,  at  such  compensation  as  he  may 
deem  reasonable,  to  be  paid  out  of  the  appropriations 
made  by  this  act,  some  person  recognized  as  well  informed 
concerning  the  history  of  the  several  armies  engaged  at 
Shiloh,  and  who  shall  also  act  as  secretary  of  the  commis- 
sion. Sec.  4,  ibid. 

2399.  It  shall  be  the  duty  of  the  commission  named  in  J^  of  com- 
the  preceding  section,  under  the  direction  of  the  Secretary    Sec>  6>  ***• 
of  War,  to  open  or  repair  such  roads  as  may  be  necessary 

to  the  purposes  of  the  park,  and  to  ascertain  and  mark 
with  historical  tablets  or  otherwise,  as  the  Secretary  of 
War  may  determine,  all  lines  of  battle  of  the  troops  en- 
gaged in  the  battle  of  Shiloh  and  other  historical  points 
of  interest  pertaining  to  the  battle  within  the  park  or  its 
vicinity,  and  the  said  commission  in  establishing  this  mili- 
tary park  shall  also  have  authority,  under  the  direction  of 
the  Secretary  of  War,  to  employ  such  labor  and  services 
and  to  obtain  such  supplies  and  material  as  may  be  nee-  • 
essary  to  the  establishment  of  the  said  park  under  such 
regulations  as  he  may  consider  best  for  the  interest  of  the 
Government,  and  the  Secretary  of  War  shall  make  and 
enforce  all  needed  regulations  for  the  care  of  the  park. 
Sec.  5,  ibid. 

2400.  The  commissioners   appointed   under  the  act  of  0^**imitation 
Congress  approved   December   twenty-seventh,  eighteen  £fn(furchases  of 


936  MILITARY    LAWS    OF   THE    UNITED    STATES. 

28Mi?r9425.1895' v'  hundred  and  ninety-four,  to  have  charge,  under  the  Secre- 
189?>  v'  tery  of  War>  of  the  affairs  of  the  Shiloh  National  Military 
Park,  shall  have  their  office  at  Pittsburg  Landing,  Tennes- 
see, or  at  such  other  point  convenient  to  the  battlefield  of 
Shiloh,  Tennessee,  as  the  Secretary  of  War  may  direct; 
and  the  limit  of  cost  of  all  the  lands  to  be  embraced  in  the 
said  park  is  hereby  fixed  at  not  to  exceed  fifty  thousand 
dollars.1  Act  of  March  8,  1895  (28  Stat.  Z.,  945). 

MARKING    LINES   OF   BATTLE,   MONUMENTS,  ETC. 

tcines  2401-  Jt  sha11  be  lawful  for  a-ny  State  that  had  troops 
59T4' engaged  in  the  battle  of  Shiloh  to  enter  upon  the  lands  of 
the  Shiloh  National  Military  Park  for  the  purpose  of  ascer- 
taining and  marking  the  lines  of  battle  of  its  troops  en- 
gaged therein-  Provided,  That  before  any  such  lines'  are 
permanently  designated  the  position  of  the  lines  and  the 
proposed  methods  of  marking  them  by  monuments,  tablets, 
or  otherwise  shall  be  submitted  to  and  approved  by  the  Sec- 
retary of  War,  and  all  such  lines,  designs,  and  inscrip- 
tions for  the  same  shall  receive  the  written  approval  of 
the  Secretary,  which  approval  shall  be  based  upon  formal 
written  reports,  which  must  be  made  to  him  in  each  case 
onl8  forbidden" ^.Y  ^e  commissioners  of  the  park:  Provided,  That  no  dis- 
crimination shall  be  made  against  any  State  as  to  the 
manner  of  designating  lines,  but  any  grant  made  to  any 
State  by  the  Secretary  of  War  may  be  used  by  any  other 
State.  Sec.  6,  act  of  December  27 ,  1894  (28  Stat.  L.,597). 

INJURIES   TO    MONUMENTS,  TABLETS,   ETC. 

stroy!iigy£onu-  2402>  ^  anJ  Person  shall,  except  by  permission  of  the 
msecS)7e<fed  Secretary  of  War,  destroy,  mutilate,  deface,  injure,  or 
remove  any  monument,  column,  statues,  memorial  struc- 
tures, or  work  of  art  that  shall  be  erected  or  placed  upon 
the  grounds  of  the  park  by  lawful  authority,  or  shall 
destroy  or  remove  any  fence,  railing,  inclosure,  or  other 
\v  ork  for  the  protection  or  ornament  of  said  park,  or  any 
portion  thereof,  or  shall  destroy,  cut,  hack,  bark,  break 
down,  or  otherwise  injure  any  tree,  bush,  or  shrubbery  that 
may  be  growing  upon  said  park,  or  shall  cut  down  or  fell  or 
remove  any  timber,  battle  relic,  tree  or  trees  growing  or 
being  upon  said  park,  or  hunt  within  the  limits  of  the  park, 
or  shall  remove  or  destroy  any  breastworks,  earthworks, 

lfrhe  act  of  June  4,  1897  (30  Stat.  L.,  43),  contained  the  requirement  that  "the 
limit  of  cost  of  all  the  lands  to  be  embraced  in  the  said  park  is  hereby  increased  to 
not  to  exceed  fifty  thousand  dollars." 


MILITARY    LAWS    OF   THE    UNITED   STATES. 

walls,  or  other  defenses  or  shelter  on  any  part  thereof  con- 
structed by  the  armies  formerly  engaged  in  the  battles  on 
the  lands  or  approaches  to  the  park,  any  person  so  offend- 
ing and  found  guilty  thereof,  before  any  justice  of  the 
peace  of  the  county  in  which  the  offense  may  be  committed, 
or  any  court  of  competent  jurisdiction,  shall  for  each  and 
every  such  offense  forfeit  and  pay  a  fine,  in  the  discretion 
of  the  justice,  according  to  the  aggravation  of  the  offense, 
of  not  less  than  five  nor  more  than  fifty  dollars,  one-half 
for  the  use  of  the  park  and  the  other  half  to  the  informer, 
to  be  enforced  and  recovered  before  such  justice  in  like 
manner  as  debts  of  like  nature  are  now  by  law  recoverable 
in  the  several  counties  where  the  offense  may  be  com- 
mitted.1 Sec.  7,  ibid. 


937 


LEASES. 

2403.  The  Secretary  of  War  is  hereby  authorized  to    Leases,  eto.,au- 
enter  into  agreements  wherebj^  he  may  lease,  upon  such 

terms  as  he  may  prescribe,  with  such  present  owners  or 
tenants  of  the  lands  as  may  desire  to  remain  upon  it,  to 
occupy  and  cultivate  their  present  holdings  upon  condition 
that  they  will  preserve  the  present  buildings  and  roads  and 
the  present  outlines  of  field  and  forest,  and  that  they  only 
will  cut  trees  or  underbrush  under  such  regulations  as  the 
Secretary  may  prescribe,  and  that  they  will  assist  in  caring 
for  and  protecting  all  tablets,  monuments,  or  such  other 
artificial  works  as  may  from  time  to  time  be  erected  by 
proper  authority.  Sec.  3,  ibid. 

MISCELLANEOUS    REQUIREMENTS. 

2404.  To  enable  the  Secretary  of  War  to  begin  to  carry 
out  the  purpose  of  this  act,  including  the  condemnation  or 
purchase  of  the  necessary  land,  marking  the  boundaries  of 
the  park,  opening  or  repairing  necessary  roads,  restoring 
the  field  to  its  condition  at  the  time  of  the  battle,  maps 
and  surveys,  and  the  pay  and  expenses  of  the  commission- 
ers and  their  assistant,  the  sum  of  seventy-five  thousand 
dollars,  or  such  portion  thereof  as  may  be  necessary,  is 
hereby  appropriated,  out  of  any  moneys  in  the  Treasury 

not  otherwise  appropriated;  and  disbursements  under  this   Disbursements. 
act  shall  require  the  approval  of  the  Secretary  of  War, 
and  he  shall  make  annual  report  of  the  same  to  Congress. 
Sec.  £,  ibid. 

1  For  general  statutes  in  respect  to  offenses  in  national  military  parks,  see  the  act  of 
March  3,'  1897  (39  Stat.  L.,  621),  paragraphs  2352  to  2355  ante. 


938  MILITARY    LAWS   OF   THE   UNITED   STATES. 

can°nonaen^bands     2405-  The  Secretary  of  War  and  the  Secretary  of  the 

t°j^eneiini896dv  Navy  are  hereby  authorized  to  deliver  to  the  Commissioners 

29,  p.  442.'          Of  the  ghiloh  National  Military  Park,  at  the  park,  upon 

the  requisition  of   said  Commissioners,  such  condemned 

cannon,  cannon  balls,  and  shells  as  may  be  needed  for  the 

purposes  of   the  park.    Act  of  June  11,  1896  (29  Stat. 

L.,  442). 

The  same.  2406.  The  Secretary  of  War  and  the  Secretary  of  the 

29,  p.  442.'  '  Navy  are  hereby  authorized  to  deliver  to  the  Commissioners 
of  the  Shiloh  National  Military  Park,  at  the  park,  upon 
the  requisition  of  the  Commissioners,  such  condemned 
cannon,  cannon  balls,  and  shells  as  may  be  needed  for  the 
purposes  of  the  park.  Act  of  February  26, 1898  (29  Stat. 


THE    VICKSBURG    NATIONAL    MILITARY    PARK. 

Par.  Par. 

2407.  Establishment,  extent.  2411.  The  same,  duties. 

2408.  Acquisition  of  lands.  2412.  State  monuments. 

2409.  Leases.  2413.  Injuries  to  monuments,  trees,  etc. 

2410.  Commissioners'  office;  salary.  j  2414.  Construction  of  park. 

^Boundaries  of  2407.  In  order  to  commemorate  the  campaign  and  siege 
3oFeb84i' 18"' v' anc^  Defense  of  Vicksburg,  and  to  preserve  the  history  of 
the  battles  and  operations  of  the  siege  and  defense  on  the 
ground  where  they  were  fougfft  and  were  carried  on,  the 
battlefield  of  Vicksburg,  in  the  State  of  Mississippi,  is 
hereby  declared  to  be  a  national  military  park  whenever 
the  title  to  the  same  shall  have  been  acquired  by  the 
United  States  and  the  usual  jurisdiction  over  the  lands 
and  roads  of  the  same  shall  have  been  granted  to  the 
United  States  by  the  State  of  Mississippi;  that  is  to  say, 
the  area  inclosed  by  the  following  lines,  or  so  much 
thereof  as  the  commissioners  of  the  park  may  deem  nec- 
essary, to  wit:  -Beginning  near«the  point  where  the  grave- 
yard road,  now  known  as  the  City  Cemetery  road,  crosses 
the  line  of  the  Confederate  earthworks;  thence  north 
about  eighty  rods;  thence  in  an  easterly  direction  about 
one  hundred  and  twenty  rods;  thence  in  a  southerly  direc- 
tion, and  keeping  as  far  from  the  line  of  the  Confederate 
earthworks  as  the  purposes  of  the  park  may  require  and 
as  the  park  commission,  to  be  hereinafter  named,  may 
determine,  but  not  distant  from  the  nearest  point  on  said 
line  of  Confederate  earthworks  more  than  one  hundred 
and  sixty  rods  at  ai>y  part,  to  a  point  about  forty  rods 
south  and  from  eighty  to  one  hundred  and  sixty  rods  east 


MILITARY   LAWS    OF   THE    UNITED   STATES.  939 

of  Fort  Garrott,  also  known  as  the  "Square  Fort;"  thence 
in  a  westerly  direction  to  a  point  in  the  rear  of  said  Fort 
Garrott;  thence  in  a  northerly  direction  across  the  line  of 
the  Confederate  earthworks  and  to  a  point  about  two  hun- 
dred feet  in  the  rear  of  the  said  line  of  Confederate  earth- 
works; thence  in  a  general  northerly  direction,  and  at  an 
approximate  distance  of  about  two  hundred  feet  in  the 
rear  of  the  line  of  Confederate  earthworks  as  the  confor- 
mation of  the  ground  may  require,  to  the  place  of  begin- 
ning. This  to  constitute  the  main  body  of  the  park.  In 
addition  thereto  a  strip  of  land  about  two  hundred  and 
sixty-four  feet  in  width,  along  and  including  the  remain- 
ing parts  of  the  Confederate  earthworks,  namely,  from  the 
north  part  of  said  main  body  of  the  park  to  and  including 
Fort  Hill  or  Fort  Nogales  on  the  high  hill  overlooking 
the  national  cemetery,  and  from  the  south  part  of  said 
main  body  of  the  park  to  the  edge  of  the  bluff  at  the  river 
below  the  city  of  Vicksburg;  and  also  in  addition  thereto 
a  strip  of  land  about  two  hundred  and  sixty  -four  feet  in 
width,  as  near  as  may  be,  along  and  including  the  Federal 
lines  opposed  to  the  Confederate  lines  herein  and  above 
named  and  not  included  in  the  main  body  of  the  park; 
and  in  further  addition  thereto  such  points  of  interest  as 
the  commission  may  deem  necessary  for  the  purposes  of 
the  park  and  the  Secretary  of  War  may  approve;  the 
whole  containing  about  one  thousand  two  hundred  acres, 
and  costing  not  to  exceed  forty  thousand  dollars.1  Act  of 
February  21,  1899  (30  Stat.  Z.,  841). 

2408.  The  establishment  of  the  Vicksburg  national  mili-  lands.^"011  * 
tary  park  shall  be  carried  forward  under  the  control  and  See>  ?I  lbld' 
direction  of  the  Secretary  of  War;  and  the  Secretary  of 
War  shall,  upon  the  passage  of  this  act,  proceed  to  acquire 
title  to  the  same  by  voluntary  conveyance  or  under  the 
act  approved  August  first,  eighteen  hundred  and  eighty- 
eight,  entitled  "An  act  to  authorize  the  condemnation  of 
land  for  sites  of  public  buildings,  and  for  other  purposes," 
or  under  act  approved  February  twenty-second,  eighteen 
hundred  and  sixty  -seven,  entitled  "An  act  to  establish  and 
protect  national  cemeteries,"  as  he  may  elect  or  deem 


act  of  February  9,  1900  (31  Stat.  L.,  12),  contains  the  requirement  that  "the 
sum  of  five  thousand  dollars,  or  so  much  of  said  amount  as  may  be  necessary,  may 
be  expended,  with  the  approval  of  the  Secretary  of  War,  in  addition  to  the  amount 
authorized  by  section  one  of  the  act  approved  February  twenty-first,  eighteen  hun- 
dred and  ninety-nine,  in  the  purchase  of  lands  to  be  used  as  a  part  of  the  site  of  said 
park."  This  clause  operates  to  increase  the  limit  of  expenditure  for  land  from 
$40,000  to  $45,000.  By  the  act  of  June  6,  1900  (31  ibid.,  625),  the  additional  amount 
of  $6,000  was  appropriated  for  the  purchase  of  lands. 


940  MILITARY    LAWS    OF   THE    UNITED   STATES. 

practicable;  and  when  title  is  procured  to  all  of  the  lands 
and  roads  within  the  boundaries  of  the  proposed  park,  as 
described  in  section  one  of  this  act,  he  may  proceed  with 
the  establishment  of  the  park,  and  he  shall  detail  an  officer 
of  the  Engineer  Corps  of  the  Army  to  assist  the  commis- 
sioners in  establishing  the  park.  Sec.  #,  ibid. 

2409.  The  Secretary  of  War  is  hereby  authorized  to 
enter  into  agreements  of  leasing,  upon  such  terms  as  he 
may  prescribe,  with  such  occupants  or  tenants  of  the  lands 
as  may  desire  to  remain  upon  it,  to  occupy  and  cultivate 
their  present  holdings  upon  condition  that  they  will  pre- 
serve the  present  buildings  and  roads  and  the  present  out- 
lines of  field  and  forest,  and  that  they  will  only  cut  trees 
or  underbrush  under  such  regulations  as  the  Secretary  of 
War  may  prescribe,  and  that  they  will  assist  in  caring  for 
and  protecting  all  tablets,  monuments,  or  such  other  arti- 
ficial works  as  may  from  time  to  time  be  erected  by  proper 
authority :  Provided,  That  the  United  States  shall  at  all  times 
have  and  retain  full  right,  power,  and  authority  to  take 
possession  of  any  and  all  parts  or  portions  of  said  prem- 
ises and  to  remove  and  expel  therefrom  any  such  occupant, 
tenant,  or  other  person  or  persons  found  thereon  whenever 
the  Secretary  of  War  or  the  commissioners  shall  deem  it 
proper  or  necessary;  and  such  right,  power,  and  authority 
shall  be  reserved  in  express  terms  in  all  leases  and  agree- 
ments giving  or  granting  such  occupant  or  tenant  the  right 
to  remain  in  possession  as  herein  contemplated;  and  there- 
upon said  occupant  or  tenant  or  other  persons  who  may  be 
required  to  vacate  said  premises  shall  each  and  all  at  once 
surrender  and  deliver  up  the  possession  thereof.  Sec.  3, 
ibid. 
commission-  2410.  The  affairs  of  the  Vicksburg  national  military 

ers'  office;  salary.  . 

sec.4,t&»d.  park  shall,  subject  to  the  supervision  and  direction  of  the 
Secretary  of  War,  be  in  charge  of  three  commissioners,  to 
be  appointed  by  the  Secretary  of  War,  each  of  whom  shall 
have  served  at  the  time  of  the  siege  and  defense  in  one  of 
the  armies  engaged  therein,  two  of  whom  shall  have  served 
in  the  army  commanded  by  General  Grant  and  one  in  the 
army  commanded  by  General  Pemberton.  The  commis- 
sioners shall  elect  one  of  their  number  chairman;  they 
shall  also  elect,  subject  to  the  approval  of  the  Secretary  of 
War,  a  secretary,  who  shall  also  be  historian,  and  who 
shall  possess  the  requisite  qualifications  of  a  commissioner, 
and  they  and  the  secretary  shall  have  an  office  in  the  city 
of  Vicksburg,  Mississippi,  or  on  the  grounds  of  the  park, 


MILITARY    LAWS    OF   THE    UNITED    STATES.  941 

and  be  paid  such  compensation  as  the  Secretary  of  Wai- 
shall  deem  reasonable  and  just.  Sec.  4,  ibid. 

2411.  It  shall  be  the  duty  of  the  commissioners  named  in    gjjjj1!8^ 
the  preceding  section,  under  the  direction  of  the  Secretary 

of  War,  to  restore  the  forts  and  the  lines  of  fortification, 
the  parallels  and  the  approaches  of  the  two  armies,  or  so 
much  thereof  as  may  be  necessary  to  the  purposes  of  this 
park;  to  open  and  construct  and  to  repair  such  roads  as 
may  be  necessary  to  said  purposes,  and  to  ascertain  and 
mark  with  historical  tablets,  or  otherwise,  as  the  Secretary 
of  War  may  determine,  the  lines  of  battle  of  the  troops 
engaged  in  the  assaults,  and  the  lines  held  by  the  troops 
during  the  siege  and  defense  of  Vicksburg,  the  headquar- 
ters of  General  Grant  and  of  General  Pemberton,  and 
other  historical  points  of  interest  pertaining  to  the  siege 
and  defense  of  Vicksburg  within  the  park  or  its  vicinity; 
and  the  said  commissioners  in  establishing  this  military 
park  shall  also  have  authority  under  the  direction  of  the 
Secretary  of  War  to  do  all  things  necessary  to  the  pur- 
poses of  the  park,  and  for  its  establishment  under  such 
regulations  as  he  may  consider  best  for  the  interest  of  the 
Government,  and  the  Secretary  of  War  shall  make  and  en- 
force all  needful  regulations  for  the  care  of  the  park.1 
Sec.  5,  ibid. 

2412.  It  shall  be  lawful  for  any  State  that  had  troops  en-    state  monu- 

•  •  i  f  -\r-  me nts,  erection. 

gaged  m  the  siege  and  defense  of  Vicksburg  to  enter  upon  sec.6,*id. 
the  lands  of  the  Vicksburg  National  Military  Park  for  the 
purpose  of  ascertaining  and  marking  the  lines  of  battle  of 
its  troops  engaged  therein:  Provided,  That  before  any 
such  lines  are  permanently  designated  the  position  of  the 
lines  and  the  proposed  methods  of  marking  them  by  monu- 
ments, tablets,  or  otherwise  shall  be  submitted  to  and  ap- 
proved by  the  Secretary  of  War,  and  all  such  lines,  designs, 
and  inscriptions  for  the  same  shall  first  receive  the  written 
approval  of  the  Secretary  of  War,  which  approval  shall 
be  based  upon  formal  written  reports  which  must  be  made 
to  him  in  each  case  by  the  commissioners  of  the  park;  and 
no  monument,  tablet,  or  other  designating  indication  shall 
be  erected  or  placed  within  said  park  or  vicinit}^  without 

1  The  employment  of  persons  to  aid  the  Vicksburg  Military  Park  Commission  in 
preparing  abstracts  of  title  to  and  conveyances  of  lands  to  be  purchased  for  park  pur- 
poses is  not  the  employment  of  "attorneys  or  counsel,"  within  the  meaning  of  sec- 
tion 189,  Revised  Statutes,  which  provides  that  "no  head  of  a  department  shall 
employ  attorneys  or  counsel."  The  employment  of  such  persons  is  authorized,  and 
compensation  for  such  services  may  be  made  from  the  appropriation  made  in  section 
8  of  the  act  of  February  21,  1899,  30  Stat.  L.,  841.  6  Comp.  Dec.,  133. 


942  MILITARY    LAWS    OF   THE    UNITED    STATES. 

such  written  authority  of  the  Secretary  of  War:  Provided, 
That  no  discrimination  shall  be  made  against  any  State  as 
to  the  manner  of  designating  lines,  but  any  grant  made  to 
any  State  by  the  Secretary  of  War  may  be  used  by  any 
other  State.  The  provisions  of  this  section  shall  also  apply 
to  organizations  and  persons;  and  as  the  Vicksburg  National 
Cemetery  is  on  ground  partly  occupied  by  Federal  lines 
during  the  siege  of  Vicksburg,  the  provisions  of  this  sec- 
tion, as  far  as  may  be  practicable,  shall  apply  to  monu- 
ments or  tablets  designating  such  lines  within  the  limits  of 
that  cemetery.  Sec.  6,  ibid. 

menteryetem°nu"  2413>  ^  an^  Person  shall,  except  by  permission  of  the 
sec.'7,iWd.  Secretary  of  War,  destroy,  mutilate,  deface,  injure,  or 
remove  any  monument,  column,  statue,  memorial  struc- 
ture, tablet,  or  work  of  art  that  shall  be  erected  or  placed 
upon  the  grounds  of  the  park  by  lawful  authority,  or  shall 
destroy  or  remove  any  fence,  railing,  inclosure,  or  other 
work  intended  for  the  protection  or  ornamentation  of  said 
park,  or  any  portion  thereof,  or  shall  destroy,  cut,  hack, 
bark,  break  down,  or  otherwise  injure  any  tree,  bush,  or 
shrub  that  may  be  growing  upon  said  park,  or  shall  cut 
down  or  fell  or  remove  any  timber,  battle  relic,  tree,  or 
trees  growing  or  being  upon  said  park,  or  hunt  within  the 
limits  of  the  park,  or  shall  remove  or  destroy  any  breast- 
works, earthworks,  walls,  or  other  defenses  or  shelter  on  any 
part  thereof  constructed  by  the  armies  formerly  engaged  in 
the  battles,  on  the  lands  or  approaches  to  the  park,  any 
person  so  offending  and  found  guilty  thereof,  before  any 
United  States  commissioner  or  court,  justice  of  the  peace 
of  the  county  in  which  the  offense  may  be  committed,  or 
any  court  of  competent  jurisdiction,  shall  for  each  and 
every  such  offense  forfeit  and  pay  a  fine  in  the  discretion 
of  the  said  commissioner  or  court  of  the  United  States  or 
justice  of  the  peace,  according  to  the  aggravation  of  the 
offense,  of  not  less  than  five  nor  more  than  five  hundred 
dollars,  one-half  for  the  use  of  the  park  and  the  other  half 
to  the  informant,  to  be  enforced  and  recovered  before 
such  United  States  commissioner  or  court  or  justice  of  the 
peace  or  other  court  in  like  manner  as  debts  of  like  nature 
are  now  by  law  recoverable  in  the  several  counties  where 
the  offense  may  be  committed.  Sec.  7,  ibid. 
construction  of  2414.  To  enable  the  Secretary  of  War  to  begin  to  carry 

pasec.  s,itid.  out  the  purpose  of  this  act,  including  the  condemnation  or 
purchase  of  the  necessary  land,  marking  the  boundaries 
of  the  park,  opening  or  repairing  necessary  roads,  restor- 


MILITARY    LAWS    OF    THE    UNITED    STATES.  943 

ing  the  field  to  its  condition  at  the  time  of  the  battle,  maps 
and  surveys,  material,  labor,  clerical  and  all  other  neces- 
sary assistants,  and  the  pay  and  expenses  of  the  commis- 
sioners and  their  secretary  and  assistants,  the  sum  of 
sixty-five  thousand  dollars,  or  such  portion  thereof  as  may 
be  necessary,  is  hereby  appropriated,  out  of  any  moneys 
in  the  Treasury  not  otherwise  appropriated,  and  disburse- 
ments under  this  act  shall  require  the  approval  of  the  Sec- 
retary of  War,  and  he  shall  make  annual  report  of  the 
same  to  Congress.  Sec.  8,  ibid. 


THE   ANTIETAM   BATTLEFIELD. 


Par. 


Par. 


2419.  The  same,  South  Mountain,  Har-i 

pers  Ferry,  etc. 

2420.  Condemned  cannon,  balls,  etc. 

2421.  Condemned  gun  carriages. 

2422.  Superintendent. 


2415.  Locating  lines  of  battle. 

2416.  Tablets. 

2417.  Marking  lines. 

2418.  Appropriation. 


2415.  For  the  purpose  of  surveying,  locating,  and  pre- 

serving  the  lines  of  battle  of  the  Army  of  the  Potomac  and  ^,^30  1890  v 
of  the  Army  of  Northern  Virginia  at  Antietam,  and  for26^-401- 
marking  the  same,  and  for  locating  and  marking  the  posi- 
tion of  each  of  the  forty-three  different  commands  of  the 
Regular  Army  engaged  in  the  battle  of  Antietam,  and  for 
the  purchase  of  sites  for  tablets  for  the  marking  of  such 
positions,  fifteen  thousand  dollars.  And  all  lands  acquired 
by  the  United  States  for  this  purpose,  whether  by  pur- 
chase, gift,  or  otherwise,  shall  be  under  the  care  and  super- 
vision of  the  Secretary  of  War.  Act  of  August  30,  1890 
(26  Stat.  L.,  401). 

2416.  For  the  purpose  of  surveying,  locating,  and  pre- 
serving  the  lines  of  battle  of  the  Army  of  the  Potomac  and 27-  P- 
of  the  Army  of  Northern  Virginia  at  Antietam,  and  for 
marking  the  same,  and  for  locating  and  marking  the  posi- 
tions of  each  of  the  forty-three  different  commands  of  the 
Regular  Army  engaged  in  the  battle  of  Antietam,  and  for 
the  purchase  of  sites  for  tablets  for  the  marking  of  such 
positions,  as  follows:  For  cost  of  one  hundred  and  fourteen 
tablets,  transporting  and  setting  up  of  same,  purchase  of 
one  hundred   and   fourteen  sites  for  tablets,  salaries  of 
board,  including  office  rent,  hire  of  vehicles,  mileage,  and 
for  condemnation  of  land  and  acquiring  title  for  same,  in 
all,  sixteen  thousand  three  hundred  and  ten  dollars:  Pro- 
vided, That  in  acquiring  land  for  the  sites  for  tablets  on 
the  battlefield,  the  Secretary  of  War  is  authorized  to  pro- 


944  MILITABY    LAWS    OF    THE    UNITED    STATES. 

ceed  in  accordance  with  act  approved  March  third,  eighteen 
hundred  and  ninety -one,  making  appropriations  for  sundry 
civil  expenses  under  title  "Chickamauga  and  Chattanooga 
National  Park."     Act  of  August  5, 1892  (27  Stat.  Z.,  377). 
^Marking  lines,     2417.  For  continuing  the  work  of  surveying,  locating, 
27^599  1893>  v' anc*  Preserying  lines  °f  battle  of  the  Army  of  the  Potomac 
and  of  the  Army  of  Northern  Virginia  at  Antietam,  and 
for  locating  and  marking  the  positions  of  the  forty-three 
different  commands  of  the  Regular  Army  engaged  in  the 
battle  of  Antietam,  and  for  purchase  of  sites  for  tablets 
for  marking  the  same,  and  for  the  purchase  of  roadway  to 
tablets,  as  follows:    For  the  purchase  of  fifty  additional 
tablets,  and  transporting  and  setting  up  same;  purchase 
,  of  fifty  additional   sjtes   for   tablets;    salaries  of  board, 

including  office  rent,  hire  of  vehicles,  and  mileage,  and 
for  the  condemnation  of  the  land  and  acquiring  title  of  the 
Roadway.  same,  and  for  the  purchase  of  land  for  roadway  from  a 
point  on  the  Sharpsburg  and  Hagerstown  turnpike  to 
a  point  on  the  Sharpsburg  and  Boons boro  turnpike  (said 
land  is  known  as  the  Bloody  Lane  or  Sunken  Road),  and 
for  repairing  and  fencing  in  said  roadway,  fifteen  thou- 
sand dollars. 

workntinuing  2418-  For  completing  the  work  of  locating,  preserving, 
28fpar95o.1895' v' an(^  mai>king  the  lines  of  battle  at  Antietam,  and  for  prop- 
erly marking  with  tablets,  each,  bearing  a  brief  historical 
legend  compiled  without  praise  and  without  censure,  the 
position  occupied  by  the  several  commands  of  the  Armies 
of  the  Potomac  and  of  Northern  Virginia  on  that  field,  and 
for  opening  and  improving  avenues  along  the  positions 
occupied  by  troops  upon  those  lines,  and  for  fencing  the 
same,  nine  thousand  four  hundred  and  twenty-one  dollars, 
to  be  immediately  available,  and  to  be  expended  under  the 
direction  of  the  Secretary  of  War.  Act  of  March  2, 1895 
(28  Stat.  Z.,  950). 

formari3nge?o"     2419>  The  Secretary  of  War  is  authorized  to  supply  at 
sitManr%  18Q,  _  Antietam  such  number  of  cannon  and  cannon  balls  as  his 

Mar.  o,  loyo,  v. 

27,  p.  599.          judgment  may  approve,  and  which  can  be  spared,  for  the 

purpose  of  marking  the  positions  of  the  different  com- 
mands engaged  in  the  battle  of  Antietam.     Act  of  March 
3,  1893  (27  Stat.  L.,599). 
Ma?  C2ai89a5gev      2420t  The  Secretary  of  War  be,  and  he  is  hereby,  au- 

28,  p.  950.          thorized  to   supply  fifty  unserviceable  wooden  field-gun 

carriages,  of  the  type  used  during  the  civil  war,  for  the 
purpose  of  marking  the  positions  occupied  by  batteries  of 
artillery  on  the  said  field.  Act  of  March  2, 1895  (28  Stat. 
Z.,  950). 


MILITARY    LAWS    OF    THE   UNITED    STATES. 


945 


2421.  For  completing  the  work  of  locating,  preserving,  tefn,utHa?P°e?s 
and  marking  the  positions  of  troops  and  lines  of  battle  of 

the  Union  and  Confederate  armies  at  Antietam,  and 
closely  related  battles  of  Harpers  Ferr}^  South  Mountain,  29>  P-  443> 
Cramptons  Gap,  and  Shepherdstown,  the  said  lines  and 
positions  to  be  marked  with  cast-iron  tablets,  each  bearing 
a  brief  historical  legend  compiled  without  praise  and  with- 
out censure :  for  improvement  of  roads  owned  by  the  United 
States  at  Antietam;  for  monuments  of  cannon  balls  and 
bases  therefor  to  mark  the  localities  where  six  general 
officers  were  killed ;  for  completing  the  observatory  towers ; 
for  guideposts;  for  preparing  and  publishing  maps  indicat- 
ing the  movements  and  positions  of  troops  engaged  in  the 
battles  and  in  the  Antietam  campaign;  and  for  services 
and  materials  incidental  to  the  foregoing,  seventeen  thou- 
sand dollars,  to  be  expended  under  the  direction  of  the 
Secretary  of  War.  Act  of  June  11, 1896  (29  Stat.  L. ,  443). 

2422.  For  pay  of  superintendent  of  Antietam  battlefield,  ^superintend- 
said  superintendent  to  perform  his  duties  under  the  direc-  31Jun|3o' 1900)  v* 
tion  of  the  Quartermaster's  Department  and  to  be  selected 

and  appointed  by  the  Secretary  of  War,  at  his  discretion, 
the  person  selected  and  appointed  to  this  position  to  be  an 
honorably  discharged  Union  soldier,  one  thousand  two 
hundred  dollars.  Act  of  June  6,  1900  (31  Stat.  Z.,  630). 

THE    YELLOWSTONE    NATIONAL   PARK. 


Par. 

2423-2436.  Establishment  and  jurisdic- 
tion. 

2437-2441.  Protection  of  birds  and  ani- 
mals, 

2442,2443.  Leases. 


Par. 

2444.  Employees. 

2445.  Details  of  troops. 

2446.  Improvements. 

2447.  Employment  of  troops. 


ESTABLISHMENT    AND   JURISDICTION. 


Par. 

2423.  Establishment. 

2424.  Control    of    Secretary   of    the   In- 

terior. 

2425.  Preservation  of  fish  and  game. 
2426, 2427.  Jurisdiction. 

2428.  The  same;  laws  of  Wyoming. 

2429.  United  States  commissioner. 


Par. 

2430.  Duties,  trials. 

2431.  Process  in  felony  cases. 

2432.  Fees. 

2433.  Deputy  marshals. 

2434.  Jail. 

2435.  Costs. 

2436.  Existing  laws  continued. 


2423.  The  tract  of  land  in  the  Territories  of  Montana  and 
Wyoming,  lying  near  the  head  waters  of  the  Yellowstone  $ 
River,  and  described  as  follows,  to  wit,  commencing  at  the 
junction  ot  Gardiner's  River  with  the  Yellowstone  River, 
and  running  east  to  the  meridian  passing  ten  miles  to  the 
22924—08 60 


946  MILITARY    LAWS    OF    THE    UNITED    STATF*. 

ca-tward  of  the  most  eastern  point  of  Yellowstone  Lake: 
thence  south  along  said  meridian  to  the  parallel  of  latitude 
passing  ten  miles  south  of  the  most  southern  point  of  Yel- 
lowstone Lake:  the  nee  west  along  said  parallel  to  the 
meridian  passing-  fifteen  miles  west  of  the  most  western 
point  of  Madison  Lake;  thence  north  along  said  meridian 
to  the  latitude  of  the  junction  of  the  Yellowstone  and  Gar- 
diner's Rivers:  thence  east  to  the  place  of  beginning,  is 
reserved  and  withdrawn  from  settlement,  occupancy,  or 
sale  under  the  laws  of  the  United  States,  and  dedicated 
and  set  apart  as  a  public  park  or  pleasuring  ground  for  the 
benefit  and  enjoyment  of  the  people:  and  all  persons  who 
locate,  or  settle  upon,  or  occupy  any  part  of  the  land  thus 
set  apart  as  a  public  park,  except  as  provided  in  the  fol- 
lowing section ,  shall  be  considered  trespassers  and  removed 
therefrom.1 

SUPERVISION. 

or  °to     2424.  Such  public  park  shall  be  under  the  exclusive  con- 
icxof '"the  tr°l  °*  the  Secretary  of  the  Interior,  whose  duty  it  shall  be, 
P*sec  *>  ibid      ^  soon   as  practicable,  to  make  and  publish   such  regu- 
se*.  2475.R.S.  latjons  as  he  may  deem  necessary  or  proper  for  the  care 
and  management  of  the  same.     Such  regulations  shall  pro- 
vide for  the  preservation,  from  injury  or  spoliation,  of  all 
timber,  mineral  deposits,  natural  curiosities,  or  wonders, 
within  the  park,  and  their  retention  in  their  natural  con- 
dition. 
preservation  of     2425.  He  shall  provide  against  the  wanton  destruction 

fish  and  game.  r 

sec.  2475. B.S.  Of  the  fish  and  game  found  within  the  park,  and  against 
their  capture  or  destruction  for  the  purpose  of  merchan- 

Removai  ofdise  or  profit.     He  shall  also  cause  all  persons  trespassing 
upon  the  same  to  be  removed  therefrom,  and  generally  is 
authorized  to  take  all  such  measures  as  may  be  nec<  - 
or  proper  to  full}*  carry  out  the  objects  and  purposes  of 
this  section.2 

JURISDICTION. 

UOTleof  jluSted      2426-  The  Yellowstone  National  Park,  as  its  boundaries 

StMay7  1894  v  now  are  defined,  °r  as  they  may  be  hereafter  defined  or 

28, p. 73.  extended,  shall  be  under  the  sole  and  exclusive  jurisdiction 

of  the  United  States;  and  that  all  the  laws  applicable  to 

1  The  boundaries  of  the  Yellowstone  Park  are  described  in  the  act  of  March  1, 1872 
(17  Stat.  L.,  32),  above  cited.  Under  the  authority  conferred  by  the  act  of  March  3, 
1891  (26  Stat.  L.,  1095):  the  President  on  March  30,  1891,  set  apart  as  a  forest  reserva- 
tion a  tract  of  land  adjoining  the  Yellowstone  Park,  the  limits  of  which  are  described 
in  proclamation  No.  17  (26  Stat.  L.,  1565).  On  September  10, 1891,  by  proclamation 
No.  6  (27  Stat.  L.,  11),  a  second  tract  of  land  was  similarly  reserved. 

'See,  also,  section  4,  act  of  May  7,  1894  (28  Stat.  L.,  73), par.  2437,  post. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  947 

places  under  the  sole  and  exclusive  jurisdiction  of  the 
United  States  shall  have  force  and  effect  in  said  park:1  I 

.  That  nothing  in  this  act  shall  be  construed  to 
forbid  the  service  in  the  park  of  any  civil  or  criminal  proc-    state  process. 

—  <J  any  court  having  jurisdiction  in  the  States  of 
Idaho.  Mont-ana,  and  Wyoming.  All  fugitives  from  jus- 
tice taking  refuge  in  said  park  shall  be  subject  t«>  tin-  same 
laws  as  refugees  from  justice  found  in  the  State  of  Wyo- 
ming. :.  1894  '.-  a 

2427.  Said  park,  for  all  the  purposes  of  thi>  art. 
constitute  a  part  of  the  United  Stetoe   nidicial  district 
Wyoming,  and  the  district  and  circuit  courts  of  the  United 
States  in  and  for  said  district  shall  have  jurisdiction  of  all 
offenses  committed  within  said  park.      >  '  ,'d. 

2428.  If  any  offense  shall  be  committed  in  said  Yellow- 
stone  National  Park,  which  offense  is  not  prohibited  or  the 

-•• 

punishment  is  not  specially  'provided  for  by  any  law  of 
the  United  States  or  by  any  regulation  of  the  Secretary  of 
the  Interior,  the  offender  shall  be  subject  to  the  same  pun- 
ishment as  the  laws  of  the  State  of  Wyoming  in  force  at 
the  time  of  the  commission  of  the  ohYnse  may  provide  for 
alike  offence  in  the  said  Stat«  •:  and  no  subsequent  repeal 
of  any  such  law  of  tl  Si  Vyorning  shall  affect  any 

•  ution  for  said  offense  committed  within  said  park. 

UNITED    STATES   COMMISSIONER. 


2429.  The  United  States  circuit  court  in   said   district 

31  ay  t  ,  jLcftjO,  s.  o, 

shall  appoint  a  commissioner,  who  shall  reside  in  the  park,  v-  ^  P-  73- 
who  shall  have  jurisdiction  to  hear  and  act  upon  all  com- 
plaints made,  of  any  and  all  violations  of  the  law.  or  of 
the  rules  and  regulations  made  by  the  Secretary  of  the 
Interior  for  the  government  of  the  park,  and  for  the  pro- 
n  of  the  animals,  birds,  and  tish  and  objects  of  interest 

'Section  2  of  the  act  of  July  10,  1890  (26  Stat  L.,  222)  ,  by  which  the  State  of  Wyo- 
ming was  admitted  to  the  Union,  contained  the  following  clause:  "  That  Nothing  in 
this  act_  contained  shall  repeal  or  affect  any  act  of  Congress  relating  to  the  Yellow- 
stone National  Park,  or  the  reservation  of  the  park  as  now  defined,  or  as  may  be 
hereafter  defined  or  extended,  or  the  power  of  the  United  States  over  it;  and  noth- 
ing contained  in  this  act  shall  interfere  with  the  right  and  ownership  of  the  United 
States  in  said  park  and  reservation  as  it  now  is  or  may  hereafter  be  defined  or  extended 
by  Law;  but  exclusive  legislation,  in  all  cases  whatsoever,  shall  be  exercised  by  the 
United  States,  which  shall  have  exclusive  control  and  jurisdiction  over  the  same":  but 
nothing  in  this  proviso  contained  shall  be  construed  to  prevent  the  service  within 
said  park  of  civil  and  criminal  process  lawfully  issued  by  the  authority  of  said  State: 
and  the  said  State  shall  not  be  entitled  TO  select  indemnity  school  lands  for  the  six- 
teenth and  thirty-sixth  sections  that  may  be  in  said  park  reservation  as  the  same  is  now 
defined  or  may  be  hereafter  denned." 

This  statute  operated  to  reserve  to  the  United  States  exclusive  jurisdiction  and  con- 
trol over  the  park  as  then  defined  or  as  it  might  be  thereafter  defined  or  extended  by 
enactment  of  Congress.     By  the  act  of  May  7.  1894  (28  Stat.  L..  73  .  paragraph  I 
post,  Congress  assumed  the  jurisdiction  authorized  by  the  act  of  July  10,  1890. 


948 


MILITARY    LAWS    OF    THE    UNITED    STATES. 


Duties. 


Trials. 


Appeals. 
Sec.  5,  ibid. 


therein,  and  for  other  purposes  authorized  by  this  act. 
Such  commissioner  shall  have  power,  upon  sworn  informa- 
tion, to  issue  process  in  the  name  of  the  United  States  for 
the  arrest  of  any  person  charged  with  the  commission  of 
any  misdemeanor,  or  charged  with  the  violation  of  the 
rules  and  regulations,  or  with  the  violation  of  any  provi- 
sion of  this  act  prescribed  for  the  government  of  said 
park,  and  for  the  protection  of  the  animals,  birds,  and  fish 
in  the  said  park,  and  to  try  the  person  £p  charged,  and,  if 
found  guilt}7,  to  impose  the  punishment  and  adjudge  the 
forfeiture  prescribed.  Section  5,  act  of  Mcuy  7,  1894 
(28  Stat.  Z.,  73). 

2430.  In  all  cases  of  conviction  an  appeal  shall  lie  from 
the  judgment  of  said  commissioner  to  the  United  States 
district  court  for  the  district  of  Wyoming,  said  appeal  to 
be  governed  by  the  laws  of  the  State  of  Wyoming  provid- 
ing for  appeals  in  cases  of  misdemeanor  from  justices  of 
the  peace  to  the  district  court  of  said  State;  but  the  United 
States  circuit  court  in  said  district  may  prescribe  rules  of 
procedure  and  practice  for  said  commissioner  in  the  trial 
of  cases  and  for  appeal  to  said  United  States  district  court. 
Ibid. 

2431.  Said  commissioner  shall  also  have  power  to  issue 
process  as  hereinbefore  provided  for  the  arrest  of  any 
person  charged  with  the  commission  of  any  felony  within 
the  park,  and  to  summarily  hear  the  evidence  introduced, 
and,  if  he  shall  determine  that  probable  cause  is  shown  for 
holding  the  person  so  charged  for  trial,  shall  cause  such 
person  to  be  safely  conveyed  to  a  secure  place  for  confine- 
ment, within  the  jurisdiction  of  the  United  States  district 
court  in  said  State  of  W^yoming,  and  shall  certify  a  tran- 
script of  the  record  of  his  proceedings  and  the  testimony 
in  the  case  to  the  said  court,  which  court  shall  have  juris- 
diction of  the  case:  Provided,  That  the  said  commissioner 
shall  grant  bail  in  all  cases  bailable  under  the  laws  of  the 
United  States  or  of  said  State.     All  process  issued  by  the 
commissioner  shall  be  directed  to  the  marshal  of  the  United 
States  for  the  district  of  Wyoming;  but  nothing  herein 

summary  a r- contained  shall  be  construed  as  preventing  the  arrest  by 
any  officer  of  the  Government  or  employee  of  the  United 
States  in  the  park  without  process  of  any  person  taken  in 
the  act  of  violating  the  law  or  any  regulation  of  the  Sec- 
au-retary  of  the  Interior:  Provided,  That  the  said  commis- 
sioner shall  only  exercise  such  authority  and  powers  as  are 
conferred  by  this  act.  Ibid.  > 


Process  in  fel 
ony  cases. 
Ibid. 


Bail,  etc.  • 


Limit 
thority. 


of 


MILITARY    LAWS    OF   THE    UNITED    STATES. 


949 


2432.  That  the  commissioner  provided  for  in  this  act    I^V/fid 
shall,  in  addition  to  the  fees  allowed  by  law  to  commission- 
ers of  the  circuit  courts  of  the  United  States,  be  paid  an 
annual  salary  of  one  thousand  dollars,1  payable  quarterly, 

and  the  marshal  of  the  United  States  and  his  deputies,  and 
the  attorney  of  the  United  States  and  his  assistants  in  said 
district,  shall  be  paid  the  same  compensation  and  fees  as 
are  now  provided  by  law  for  like  services  in  said  district. 
Sec.  7,  ibid. 

2433.  The  marshal  of  the  United  States  for  the  district  sh^fsputy  mar' 
of  Wyoming  may  appoint  one  or  more  deputy  marshals    Sec-  6>  lbld- 
for  said  park,  who  shall  reside  in  said  park,  and  the  said 

United  States  district  and  circuit  courts  shall  hold  one 

session  of  said  courts  annually  at  the  town  of  Sheridan,  in    Terms  of  court. 

the  State  of  Wyoming,  and  may  also  hold  other  sessions 

at  any  other  place  in  said  State  of  Wryoming  or  in  said 

national  park  at  such  dates  as  the  said  courts  may  order. 

Sec.  6,  ibid. 

2434.  The  Secretary  of  the  Interior  shall  cause  to  be    Jail- 
erected  in  the  park  a  suitable  building  to  be  used  as  a 
jail,  and  also  having  in  said  building  an  office  for  the  use 

of  the  commissioner,  the  cost  of  such  building  not  to 
exceed  five  thousand  dollars,  to  be  paid  out  of  any  moneys 
in  the  Treasury  not  otherwise  appropriated  upon  the  cer- 
tificate of  the  Secretary  as  a  voucher  therefor.  Sec.  9,  ibid. 

2435.  All  costs  and  expenses  arising  in  cases  under  this    costs,  etc. 
act,  and  properly  chargeable  to  the  United  States,  shall  be 
certified,  approved,  and  paid  as  like  costs  and  expenses  in 

the  courts  of  the  United  States  are  certified,  approved, 
and  paid  under  the  laws  of  the  United  States.  Sec.  8,  ibid. 

2436.  This  act  shall  not  be  construed  to  repeal  existing 

laws  conferring  upon  the  Secretary  of  the  Interior  and    Existing  laws, 
the  Secretary  of  War  certain  powers  with  reference  to  the 
protection,  improvement,  and  control  of  the  said  Yellow- 
stone National  Park.     Sec.  10,  ibid. 


Par. 


PROTECTION   OF   BIRDS   AND    ANIMALS. 


Par. 


2440.  Forfeiture  of  guns,  traps,  etc. 

2441.  .Regulations. 


2437.  Prohibition  of  hunting  and  fishing. 

2438.  Evidence  of  violation. 

2439.  Unlawful  transportation  of  game. 

2437.  All  hunting,  or  the  killing,  wounding,  or  captur- 
ing  at  any  time  of  any  bird  or  wild  animal,  except  dan-  et^ay  7  1894  g 
gerous  animals,  when  it  is  necessary  to  prevent  them  from4>v-28>p'73- 

1  The  act  of  February  19,  1896  (29  Stat.  L.,  578),  and  subsequent  acts  of  appropria- 
tion contain  the  requirement  that  section  21,  of  the  act  of  May  28,  1896  (29  Stat.  L., 
184),  shall  not  be  construed  "as  impairing  the  right  of  said  commissioner  to  receive 
said  salary  as  herein  provided." 


950  MILITARY    LAWS    OF    THE    UNITED    STATES. 

destroying  human  life  or  inflicting  an  injury,  is  prohibited 
within  the  limits  of  said  park;  nor  shall  any  fish  be  taken 
out  of  the  waters  of  the  park  by  means  of  seines,  nets, 
traps,  or  by  the  use  of  drugs  or  any  explosive  substances 
or  compounds,  or  in  any  other  way  than  by  hook  and  line, 
and  then  only  at  such  seasons  and  in  such  times  and  man- 
ner as  may  be  directed  by  the  Secretary  of  the  Interior. 
Sec.  4,  act  of  May  7,  1894  (28  Stat.  Z.,  73). 

viStiS?.06    °f     2438-  Possession  within  the  said  park  of  the  dead  bodies, 
sec.  4,  flrcd.      or  any  par^  thereof,  of  any  wild  bird  or  animal  shall  be 
prima  facie  evidence  that  the  person  or  persons  having  the 
same  are  guilty  of  violating  this  act.     Ibid. 

lawluf^mnspor-      2439.  Any  person  or  persons,  or  stage  or  express  com- 

ta/S.etc'  '  Panv  or  railway  company,  receiving  for  transportation 
any  of  the  said  animals,  birds,  or  fish  so  killed,  taken,  or 
caught  shall  be  deemed  guilty  of  a  misdemeanor,  and  shall 
be  fined  for  every  such  offense  not  exceeding  three  hun- 
dred dollars.  Any  person  found  guilty  of  violating  any 
of  the  provisions  of  this  act  or  any  rule  or  regulation  that 
may  be  promulgated  by  the  Secretary  of  the  Interior  with 
reference  to  the  management  and  care  of  the  park,  or  for 
the  protection  of  the  property  therein,  for  the  preserva- 
tion from  injury  or  spoliation  of  timber,  mineral  deposits, 
natural  curiosities  or  wonderful  objects  within  said  park, 
or  for  the  protection  of  the  animals,  birds,  and  fish  in  the 
said  park,  shall  be  deemed  guilty  of  a  misdemeanor,  and 
shall  be  subjected  to  a  fine  of  not  more  than  one  thousand 
dollars  .or  imprisonment  not  exceeding  two  years,  or  both, 
and  be  adjudged  to  pay  all  costs  of  the  proceedings.  7 bid. 

gimsrffrapseetc°f  2440.  All  guns,  traps,  teams,  horses,  or  means  of  trans- 
portation of  every  nature  or  description  used  by  any  per- 
son or  persons  within  said  park  limits  when  engaged  in 
killing,  trapping,  ensnaring,  or  capturing  such  wild  beasts, 
birds,  or  wild  animals  shall  be  forfeited  to  the  United 
States,  and  may  be  seized  by  the  officers  in  said  park  and 
held  pending  the  prosecution  of  any  person  or  persons 
arrested  under  charge  of  violating  the  provisions  of  this 
act,  and  upon  conviction  under  this  act  of  such  person  or 
persons  using  said  guns,  traps,  teams,  horses,  or  other 
means  of  transportation  such  forfeiture  shall  be  adjudi- 
cated as  a  penalty  in  addition  to  the  other  punishment 
provided  in  this  act.  Such  forfeited  property  shall  be 
disposed  of  and  accounted  for  by  and  under  the  authority 
of  the  Secretary  of  the  Interior.  7bid. 

2441,  The  Secretary  of  the  Interior  shall  make  and  pub- 


MILITARY    LAWS    OF   THE    UNITED    STATES.  951 

lish  such  rules  and  regulations  as  he  may  deem  necessary  J*giiationB. 
and  proper  for  the  management  and  care  of  the  park  and 
for  the  protection  of  the  property  therein,  especially  for 
the  preservation  from  injury  or  spoliation  of  all  timber, 
mineral  deposits,  natural  curiosities,  or  wonderful  objects 
within  said  park,  and  for  the  protection  of  the  animals 
and  birds  in  the  park  from  capture  or  destruction,  or  to 
prevent  their  being  frightened  or  driven  from  the  park; 
and  he  shall  make  rules  and  regulations  governing  the 
taking  of  fish  from  the  streams  or  lakes  in  the  park.  Ibid. 

LEASES. 

2442.  The  Secretary  of  the  Interior  is  hereby  authorized  groUendsS;econdi- 
and  empowered  to  lease  to  any  person,  corporation,  or tl(^  3  1894  v 
company,  for  a  period  not  exceeding  ten  years,  at  such  ^  p>  222< 
annual  rental  as  the  Secretary  of  the  Interior  may  deter- 
mine, parcels  of  land  in  the  Yellowstone  National  Park,  of 

not  more  than  ten  acres  in  extent  for  each  tract  and  not  in 
excess  of  twenty  acres  in  all  to  any  one  person,  corporation, 
or  company  on  which  may  be  erected  hotels  and  necessary 

outbuildings :  Provided.  That  such  lease  or  leases  shall  not    Natural   curi- 
osities excluded- 
include  any  of  the  geysers  or  other  objects  of  curiosity  or 

interest  in  said  park,  or  exclude  the  public  from  free  and 
convenient  approach  thereto  or  include  any  ground  within 
one-eighth  of  a  mile  of  any  of  the  ge}rsers  or  the  Yellow- 
stone Falls,  the  Grand  Canyon,  or  the  Yellowstone  River, 
Mammoth  Hot  Springs,  or  any  object  of  curiosity  in  the 
park.1  Act  of  August  3,  1894(88  Stat.  L., »). 

2443.  Such  leases  shall  not  convey,  either  expressively  .Jthe  same  sub- 
or  by  implication,  any  exclusive  privilege  within  the  park  28Au^' 1894>  v- 
except  upon  the  premises  held  thereunder  and  for  the  time 

1  Section  2474,  Revised  Statutes,  had  contained  the  following  requirement:  "The 
Secretary  may,  in  his  discretion,  grant  leases  for  building  purposes,  for  terms  not 
exceeding  ten  years,  of  small  parcels  of  ground,  at  such  places  in  the  park  as  may 
require  the  erection  of  buildings  for  the  accommodation  of  visitors;  all  of  the  proceeds 
of  such  leases,  and  all  other  revenues  that  may  be  derived  from  any  source  connected  with 
the  park,  to  be  expended  under  his  direction  in  the  management  of  the  same,  and  the 
construction  of  roads  and  bridle  paths  therein."  The  act  of  March  3,  1883  (26  Stat. 
L.,  620),  had  contained  the  following:  "  The  Secretary  of  the  Interior  may  lease  small 
portions  of  ground  in  the  park,  not  exceeding  ten  acres  in  extent  for  each  tract,  on 
which  may  be  erected  hotels  and  the  necessary  outbuildings,  and  for  a  period  not 
exceeding  ten  years;  but  such  lease  shall  hot  include  any  of  the  geysers  or  other  objects 
of  curiosity  or  interest  in  said  park,  or  exclude  the  public  from  the  free  and  convenient 
approach  thereto;  or  include  any  ground  within  one  quarter  of  a  mile  of  any  of  the 
geysers  or  the  Yellowstone  Falls,  nor  shall  there  be  leased  more  than  ten  acres  to  any 
one  person  or  corporation;  nor  shall  any  hotel  or  other  buildings  be  erected  within 
the  park,  until  such  lease  shall  be  executed  by  the  Secretary  of  the  Interior,  and  all 
contracts,  agreements,  or  exclusive  privileges  heretofore  made  or  given  in  regard  to 
said  park,  or  any  part  thereof,  are  hereby  declared  to  be  invalid;  nor  shall  the  Secre- 
tary of  the  Interior,  in  any  lease  which  he  may  make  and  execute,  grant  any  exclusive 
privileges  within  said  park,  except  upon  the  ground  leased." 


952 


MILITARY    LAWS    OF   THE    UNITED   STATES. 


therein  granted.  Every  lease  hereafter  made  for  any 
property  in  said  park  shall  require  the  lessee  to  observe 
and  obey  each  and  every  provision  in  any  act  of  Congress, 
and  every  rule,  order,  or  regulation  made,  or  which  may 
hereafter  be  made,  and  published  b}T  the  Secretary  of  the 
Interior  concerning  the  use,  care,  management,  or  govern- 
ment of  the  park,  or  any  object  or  property  therein,  under 
penalty  of  forfeiture  of  such  lease,  and  every  such  lease 
shall  be  subject  to  the  right  of  revocation  and  forfeiture, 
which  shall  therein  be  reserved  by  the  Secretary  of  the 
Interior:  And  provided  further,  That  persons  or  corpora- 
tions now  holding  leases  of  ground  in  the  park  may,  upon 
the  surrender  thereof,  be  granted  new  leases  hereunder, 
and  upon  the  terms  and  stipulations  contained  in  their 
present  leases,  with  such  modifications,  restrictions,  and 
reservations  as  the  Secretary  of  the  Interior  may  prescribe. 
This  act,  however,  is  not  to  be  construed  as  mandatory 
upon  the  Secretary  of  the  Interior,  but  the  authority  herein 
given  is  to  be  exercised  in  his  sound  discretion.  Ibid. 


EMPLOYEES. 


£rpl3yie883,  v. 


2444<  For  everl  purpose  and  object  necessary  for  the 
Pr°tection,  preservation,  and  improvement  of  the  Yellow- 
stone National  Park,  including  conpensation  of  superin- 
tendent and  employees,  forty  thousand  dollars,  two  thou- 
sand dollars  of  said  amount  to  be  paid  annually  to  a 
superintendent  of  said  park,  and  not  exceeding  nine  hun- 
dred dollars  annually  to  each  of  ten  assistants,  all  of  whom 
shall  be  appointed  by  the  Secretary  of  the  Interior,  and 
reside  continuously  in  the  park,  and  whose  duty  it  shall  be 
to  protect  the  game,  timber,  and  objects  of  interest  therein; 
the  balance  of  the  sum  appropriated  to  be  expended  in 
the  construction  and  improvement  of  suitable  roads  and 
bridges  within  said  park,  under  the  supervision  and  direc- 
tion of  an  engineer  officer  detailed  by  the  Secretary  of  War 
for  that  purpose.1  ActofMarchS,  1883  (22  Stat.  L.,  626). 


DETAILS   OF   TROOPS. 


2445.  The  Secretary  of  War,  upon  the  request  of  the 

cretary  of  the  Interior,  is  hereby  authorized  and  directed 

make  the  necessary  details  of  troops  to  prevent  tres- 


^he  acts  of  August  7,  1882  (22  Stat.  L.,  329),  and  March  3,  1883  (ibid.,  626),  made 
provision  for  the  appointment  of  a  superintendent  of  the  park  at  a  salary  of  $2,000 
per  annum,  and  for  the  employment  of  ten  assistants  at  $900  each.  These  employees 
were  to  reside  continually  in  the  park,  and  it  was  made  their  duty  to  protect  the 
game,  timber,  and  objects  of  interest  in  the  park.  This  provision  was  repeated  in  the 
acts  of  July  7,  1884  (23  Stat.  L.,  211),  and  March  3,  1885  (ibid.,  499). 


MILITARY    LAWS    OF    THE    UNITED   STATES.  953 

passers  or  intruders  from  entering  the  park  for  the  purpose 
of  destroying  the  game  or  objects  of  curiosity  therein,  or 
for  any  other  purpose  prohibited  by  law,  and  to  remove 
such  persons  from  the  park  if  found  therein.  Act  of  March 
3,  1883  (82  Stat.  L.,626). 


IMPROVEMENTS. 


2446.  Road  extensions  and  improvements  shall  hereafter 
be  made  in  said  park  under  and  in  harmony  with  a  general 
plan  of  roads  and  improvements  to  be  approved  by  the  31>  p- 625- 
Chief  of  Engineers  of  the  Army.1     Act  of  June  6,  1900 
(31  Stat.  Z.,  625). 


EMPLOYMENT    OF   TROOPS. 


2447.  The  Secretary  of  War,  upon  the  request  of  the 
Secretary  of  the  Interior,  is  hereafter  authorized  and  31Jpn61f >1900' v* 
directed  to  make  the  necessary  detail  of  troops  to  prevent 
trespassers  or  intruders  from  entering  the  Sequoia  National 
Park,  the  Yosemite  National  Park,  and  the  General  Grant 
National  Park,  respectively,  in  California,  for  the  purpose 
of  destroying  the  game  or  objects  of  curiosity  therein,  or 
for  any  other  purpose  prohibited  by  law  or  regulation  for 
the  government  of  said  reservations,  and  to  remove  such 
persons  from  said  parks  if  found  therein.  Act  of  June  6, 
1900(31  Stat.  L.,618). 

Successive  acts  of  appropriation  since  that  of  August  4,  1886  (24  Stat.  L.,  210), 
have  made  provision  for  the  construction  of  roads,  bridges,  and  other  works  of 
improvement;  all  of  them  have  contained  the  requirement  that  the  work  so  author- 
ized shall  be  carried  on  under  the  direction  of  the  Secretary  of  War. 


CHAPTER 


NATIONAL  CEMETERIES. 


Par. 

2448.  Maintenance    of    national    ceme- 

teries. 

2449.  Acquisition  of  lands. 

2450.  Appraisement, 

2451.  Payment. 
2452-2454.  Superintendents. 
2455-2457.  Inclosures,    headstones,    and 

registers. 


Par. 

2458-2460.  Interments. 

2461,2462.  Jurisdiction,  criminal  of- 
fenses. 

2463,2464.  The  United  States  cemetery 
near  the  City  of  Mexico. 

2465.  Encroachments  by  railroads. 


2448>  Tlie  Secretary  of  War  shall  provide  for  the  care 
etRies  4876  p  anc^  maintenance  of  the  national  military  cemeteries,  and 
95juiyi4  1876  v  ^or  ^s  purpose  shall  submit  an  estimate  with  his  annual 
19,  p.  99.  estimates  to  Congress,  and  section  four  thousand  eight 

hundred  and  seventy-six  of  the  Revised  Statutes  is  hereby 
repealed.     Act  of  July  24,  1876  (19  Stat.  Z.,  99). 
°f     2449'  Tlie  Secretary  of  War  shall  purchase  from  the 
p  owners  thereof,  at  such  price  as  may  be  mutually  agreed 
c^e^5]!4'  1899:  uPon  between  the  Secretary  and  such  owners,  such  real 
83%'  5  ^269 c'  egtate  as  in  his  judgment  is  suitable  and  necessary  for  the 
Sec.  4870,  B.  s.  purpose  of  carrying  into  effect  the  provisions  for  national 
cemeteries,  and  obtain  from  such  owners  the  title  in  fee 
simple  for  the  same.     And  in  case  the  Secretary  of  War  is 
not  able  to  agree  with  any  owner  upon  the  price  to  be  paid 
for  any  real  estate  needed  for  such  purpose,  or  to  obtain 
from  such  owner  title  in  fee  simple  for  the  same,  the  Sec- 
retary is  hereby  authorized  to  enter  upon  and  appropriate 
any  real  estate  which,  in  his  judgment,  is  suitable  and 
necessary  for  such  purposes. 

Appraisement.     2450.  The  Secretary  of  War,  or  the  owners  of  any  real 

6i^  s.  s,  v.  if,  P.  estate  thus  entered  upon  and  appropriated,  are  authorized 

Sec.  487i,  B.  s.  to  make  application  for  an  appraisement  of  real  estate  thus 

entered  upon  and  appropriated  to  any  circuit  or  district 

court  within  any  State  or  district  where  such  real  estate 

is  situated;  and  such  courts  shall,  upon  such  application, 

and  in  such  mode  and  under  such  rules  and  regulations  as 

it  may  adopt,  make  a  just  and  equitable  appraisement  of 

954 


MILITARY    LAWS    OF    THE    UNITED    STATES.  955 

the  cash  value  of  the  several  interests  of  each  and  every 
owner  of  such  real  estate  and  improvements  thereon. 

2451.  When  appraisement  of  the  real  estate  thus  entered 
upon  and  appropriated  has  been  made  under  the  order  83M 
and  direction  of  the  court,  the  fee  simple  thereof  shall,  upon  ^ec*  4872,B.s. 
payment  to  the  owner  of  the  appraised  value,  or  in  case 
such  owner  refuses  or  neglects  for  thirty  days  after  the 
appraisement  of  the  cash- value  of  the  real  estate  or  im- 
provements as  aforesaid  to  demand  the  same  from  the 
Secretary  of  War  upon  depositing  the  appraised  value  in 
the  court  making  such  appraisement  to  the  credit  of  such  - 
owner,  be  vested  in  the  United  States,  and  its  jurisdiction 
over  such  real  estate  shall  be  exclusive  and  the  same  as  its 
jurisdiction  over  real  estate  purchased,  ceded,  or  appro- 
priated for  the  purposes  of  navy -yards,  forts,  and  arsenals. 
The  Secretary  of  War  is  authorized  and  required  to  pay 
to  the  several  owner  or  owners,  respectively,  the  appraised 
value  of  the  several  pieces  or  parcels  of  real  estate,  as 
specified  in  the  appraisement  of  any  of  such  courts,  or  to 
pa}'  into  any  of  such  courts  by  deposit,  as  hereinbefore 
provided,  the  appraised  value;  and  the  sum  necessary  for 
such  purpose  may  be  taken  from  any  moneys  appropri- 
ated for  the  purposes  of  national  cemeteries.1 

1  To  authorize  payment  for  land  appropriated  for  the  purpose  of  a  national  ceme- 
tery under  the  act  of  February  22,  1867  (14  Stat.  L.,  400;  sec.  4870,  Rev.  Stat.),  the 
consent  of  the  legislature  of  the  State  in  which  the  land  lies  is  not  necessary;  nor 
in  such  case  is  the  opinion  of  the  Attorney-General  as  to  the  validity  of  the  title 
required;  though  as  a  prudential  measure  for  the  security  of  the  Government  it 
would  seem  to  be  highly  expedient  to  obtain  his  opinion.  XIII  Opin.  Att.  Gen.,  131; 
XIV;  ibid.,  271;  ibid.,  559. 

The  appraisement  of  land  for  a  national  cemetery,  as  duly  made  by  a  United  States 
court  under  sections  4871  and  4872,  Revised  Statutes,  is  conclusive"  upon  the  Secre- 
tary of  War,  who  must  thereupon  pay  the  appraised  value  as  indicated  in  the  latter 
section.  If  indeed  there  has  been  fraud  in  the  valuation  by  which  the  court  has 
been  deceived  in  its  decree,  or  its  original  appraisement  is  deemed  excessive,  it  may 
properly  be  moved  for  a  new  appraisement  on  the  part  of  the  United  States.  Dig. 
Opin.  J.  A.  G.,  1763.  See  XIII  Opin.  Att.  Gen.,  27. 

To  authorize  the  acquisition  by  the  exercise  of  the  right  of  eminent  domain,  of 
private  land  for  a  national  cemetery  under  sections  4870  and  4871,  Revised  Statutes, 
there  must  be  (1)  an  existing  appropriation  (in  conformity  with  the  rule  of  section 
3736,  Revised  Statutes)  authorizing  the  acquisition;  and  (2)  the  private  owner  must 
be  unwilling  to  give  title,  or  the  Secretary  of  War  be  unable  to  agree  with  him  as  to 
price.  Ibid.,  par.  1769. 

Held  that,  notwithstanding  the  provision  in  section  4872,  Revised  Statutes,  that  the 
jurisdiction  of  the  United  States  over  land  taken  for  a  national  cemetery  by  the  right 
of  eminent  domain  "shall  be  exclusive,"  such  a  jurisdiction,  where  the  lancl  is  within 
a  State,  can  not  legally  be  vested  in  the  United  States  except  by  the  cession  of  the 
State  legislature.  In  the  absence  of  such  cession  on  the  part  of  the  State  sovereignty 
an  act  of  Congress  must  be  powerless  to  confer  such  an  authority,  (a)  Ibid. 

An  appropriation  for  the  inclosure  and  improvement  of  a  cemetery  must  be  regarded 
as  a  ratification  of  the  taking  and  of  the  intent  to  occupv  permanently-  Johnson  v. 
U.  S.,  31  Ct.  Cls.,  262. 

aSee  the  subsequent  opinion  of  the  Attorney-General  in  XIII  Opins.,  131. 


956  MILITARY    LAWS    OF    THE    UNITED    STATES. 

SUPERINTENDENTS. 

enStepoefricnementedr-     2452«  The  Secretary  of  War  shall  cause  to  be  erected  at 
leFeb.22,i867,  c.  *ne  principal  entrance  of  each  national  cemetery  a  suitable 
JM1™??'  building  to  be  occupied  as  a  porter's  lodge;  and  shall  ap- 
0^n^  a  meritorious  and  trustworthy   superintendent  to 
reside  therein,  for  the  purpose  of  guarding  and  protecting 
the  cemetery  and  giving  information  to  parties  visiting  the 
same. 

selected  issuper*      2453.  The  superintendents   of   the  national   cemeteries 

inMay  is  ?872  c  >sna^  be  selected  from  meritorious  and  trustworthy^  soldiers, 

135 s' lf  v'  17>  p'  either  commissioned  officers  or  enlisted  men  of  the  Volun- 

sec.4874,n.s.  j-eer  or  Regular  Army,  who  have  been  honorably  mustered 

out  or  discharged  from  the  service  of  the  United  States, 

and  who  may  have  been  disabled  for  active  field  service  in 

the  line  of  duty. 

salary  of  super-     2454.  The   superintendents  of   the  national   cemeteries 

mtendents.  A          . 

sec.  4875, U.K.  shall  receive  for  their  compensation  from  sixty  dollars  to 
seventy -five  dollars  a  month  each,  according  to  the  extent 
and  importance  of  the  cemeteries  to  which  they  may  be 
respectively  assigned,  to  be  determined  by  the  Secretary  of 
War;  and  they  shall  also  be  furnished  with  quarters  and 
fuel  at  the  several  cemeteries.1 

INCLOSURES,    HEADSTONES,    AND    REGISTERS. 

and      2455.  In   the  arrangement  of  the   national   cemeteries 
'#>id      established  for  the  burial  of  deceased  soldiers  and  sailors, 
7 1p?2345:  ^e  Secretary  of  War  is  hereby  directed  to  have  the  same 
^r^3^71?)73^- inclosed  with  a  good  and  substantial  stone  or  iron  fence; 
sec.4877,B.s.  an(j  ^o  cause  each  grave  to  be  marked  with  a  small  head- 
stone or  block,  which  shall  be  of  durable  stone,  and  of  such 
design  and  weight  as  shall  keep  it  in  place  when  set,  and 
shall  bear  the  name  of  the  soldier  and  the  name  of  his  State 
inscribed  thereon,  when  the  same  are  known,  and  also  with 
the  number  of  the  grave  inscribed  thereon,  corresponding 
with  the  number  opposite  to  the  name  of  the  party  in  a 

1  The  superintendent  of  a  national  cemetery  over  which  the  State  has  'ceded  juris- 
diction to  the  United  States,  and  within  the  limits  of  which  he  resides,  is  exempt 
from  the  duty  devolved  by  the  State  upon  all  male  persons  between  certain  ages 
to  work  upon  the  public  roads.  Otherwise  if  the  State  has  not  ceded  jurisdiction, 
or  if  the  superintendent  resides  elsewhere  within  its  jurisdiction.  XVI  Opin.  Att. 
Gen.,  468. 

Superintendents  of  national  cemeteries  are  no  part  of  the  Army,  but  civilians,  being 
required  indeed  by  section  4874,  Revised  Statutes,  to  be  selected  from  persons  who 
have  been  honorably  discharged  from  the  military  service.  They  are  therefore,  of 
course,  notsubject  to  the  Articles  of  War  or  to  trial  by  court-martial,  and  for  any  serious 
misconduct  on  the  part  of  a  superintendent  a  removal  from  office  would  be  the 
only  adequate  remedy.  Dig.  Opin.  J.  A.  G.,  1767. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  957 

register  of  burials  to  be  kept  at  each  cemetery  and  at  the 
office  of  the  Quartermaster-General,  which  shall  set  forth 
the  name,  rank,  company,  regiment,  and  date  of  death  of 
the  officer  or  soldier;  or  if  these  are  unknown,  it  shall  be 
so  recorded. 

2456.  That  the  Secretary  of  War  is  hereby  authorized  to  80Si^t0graves 
erect  headstones  over  the  graves  of  soldiers  who  served  in  jjyjjj1**6  ceme" 
the  Regular  or  Volunteer  Army  of  the  United  States  dur-  2oFpb283i 18?9'  v' 
ing  the  war  for  the  Union,  and  who  have  been  buried  in 
private  village  or  city  cemeteries,  in  the  same  manner  as 
provided  by  the  law  of  March  third,  eighteen  hundred  and 
seventy-three,  for  those  interred  in  national  military  ceme- 
teries; and  for  this  purpose,  and  for  the  expenses  incident 
to  such  work,  so  much  of  the  appropriation  of  one  million 
dollars,  made  in  the  act  above  mentioned,  as  has  not  been 
expended,    and   as   ma}7   be   necessary,    is    hereby   made 
available.     Act  of  February  3,  1879  (20  Stat.  Z.,  281). 

'  2457.  The  Secretary  of  War  shall  cause  to  be  preserved    Records. 
in  the  records  -of  his  Department  the  names  and  places  of 
burial  of  all  soldiers  for  whom  such  headstones  shall  have 
been  erected  by  aiithorit}r  of  this  or  former  acts.1     Ibid. 

INTERMENTS. 

2458.  All  soldiers,  sailors,  or  marines,  dying  in  the  serv- 
ice  of  the  United  States,  or  dying  in  a  destitute  condition, 

after  having  been  honorably  discharged  from  the  service,  2ooUsyi187'v8i2' c 
or  who  served  during  the  late  war,  either  in  the  regular  or  jflfc^1?/1  ^02 
volunteer  forces,  may  be  buried  in  any  national  cemetery  *jar/  ^  187j^5c 
free  of  cost.  The'x  production  of  the  honorable  discharge  sec. 48*78,  B.S. 
of  a  deceased  man  shall  be  sufficient  authority  for  the 
superintendent  of  any  cemetery  to  permit  the  interment. 

2459.  Army   nurses,  honorably  discharged   from  their    MaT.Vis^v. 
service  as  such,  may  be  buried  in  any  national  cemetery,  29>  p>  625< 
and,  if  in  a  destitute  condition,  free  of  cost.     The  Secre- 
tary of  War  is  authorized  to  issue  certificates  to  those  army 

nurses  entitled  to  such  burial.  Act  of  March  3,  1897  (29 
Stat.  Z.,  625). 

2460.  For  expenses  of  burying  in  the  Arlington  National    Burial  of  indi- 

/-<  •      ,1  •          7  A  i       T-A  •    ,    •    ,  gent  soldiers. 

Cemeterv  or  in  tne  cemeteries  01  the  District  ot  Columbia,    Mar.  3, 1399,  v. 

.          ,  .  TT        •  1    T  30.   P.  1108. 

indigent  ex-Union  soldiers,  sailors,  and  marines  of  the  late 

1  Provision  for  carrying  this  statute  into  effect  has  been  made  in  the  acts  of  appro- 
priation of  August  4,  1886  (24  Stat.  L.,  249),  March  3,  1887  (24  Stat.  L.,  534),  October 

2,  1888  (25  Stat.  L.,  539),  March  2,  1889  (25  Stat.  L.,  969),  August  30,  1890  (26  Stat. 
L.,  400),  March  3,  1891  (26  Stat.  L.,  973),  August  5,  1892  (27  Stat.  L.,  377),  March 

3,  1893  (27  Stat.  L.,  599),  August  18,  1894  (28  Stat.  L.,  405),  March  2,  1895  (28  Stat. 
L.,  949),  June  11,  1896  (29  Stat.  L.,  443),  and  subsequent  acts  of  appropriation. 


958  MILITAEY    LAWS    OF    THE    UNITED    STATES. 

civil  war  who  die  in  the  District  of  Columbia,  to  be  dis- 
Limitation.  bursed  by  the  Secretary  of  War,  at  a  cost  not  exceeding 
forty  dollars  for  such  burial  expenses  in  each  case,  exclu- 
sive of  cost  of  grave,  three  thousand  dollars.1  Act  of 
March  3,  1899  (30  Stat.  Z.,  1108). 

JURISDICTION,  CRIMINAL    OFFENSES. 

uStef  ^Se^     246L  From  the  time  an~v  State  legislature  shall  have 

ceVmeteriestional  given?  or  shall  hereafter  give,  the  consent  of  such  State  to 

2oJlslyi1v1i6°'p't'ne  purchase  by  the  United  States  of  any  national  ceme- 

18|ec.4882,B.s.  ^eiT?  the  jurisdiction  and  power  of  legislation  of  the  United 

States  over  such  cemetery  shall  in  all  courts  and  places  be 

held  to  be  the  same  as  is  granted  by  section  eight,  article 

one,  of  the  Constitution  of  the  United  States;  and  all  pro- 

visions relating  to  national  cemeteries  shall  be  applicable 

to  the  same. 

faSnTUnatiomi  2462t  Every  person  who  willfully  destroys,  mutilates, 
ceFebte^ei867  c  defaces,  injures,  or  removes  any  monuments,  gravestone, 
406  8'  8'  >y'  14>  P'  or  °ther  structure,  or  who  willfully  destroys',  cuts,  breaks, 
Sec.488i,  R.S.  injures,  or  removes  any  tree,  shrub,  or  plant  within  the 
limits  of  any  national  cemetery,  shall  be  deemed  guilty  of 
a  misdemeanor,  punishable  by  a  fine  of  not  less  than  twenty- 
five  dollars,  and  not  more  than  one  hundred,  or  by  imprison- 
ment for  not  less  than  fifteen  days  and  not  more  than  sixty. 
The  superintendent  in  charge  of  any  national  cemetery  is 
authorized  to  arrest  forthwith  any  person  engaged  in  com- 
mitting any  misdemeanor  herein  prohibited,  and  to  bring 
such  person  before  any  United  States  commissioner  or 
judge  of  any  district  or  circuit  court  of  the  United  States 
within  any  State  or  district  where  any  of  the  cemeteries 
are  situated,  for  the  purpose  of  holding  such  person  to 
answer  for  such  misdemeanor,  and  then  and  there  shall 
make  complaint  in  due  form.2 

UNITED    STATES    CEMETERY    NEAR   THE    CITY    OF    MEXICO. 

theeStyeoFMS-  2463-  Tlle  President  is  authorized  to  provide,  out  of  the 
lCMar  3  1873  c  ordinary  annual  appropriations,  for  establishing  and  main- 
T's  taining  United  States  military  cemeteries,  for  the  proper 
care  and  preservation  and  maintenance  of  the  cemetery  or 


1  A  similar  provision  occurs  in  the  annual  acts  of  appropriation  since  that  of  March 
2,  1889  (25  Stat.  L.,  409). 

2  By  section  4881,  Revised  Statutes,  the  superintendent  of  a  national  cemetery  is 
authorized  to  arrest  persons  who  injure,  etc.,  gravestones,  trees,  shrubs,  etc.,  within 
the  cemetery.     Held  that  he  could  not,  under  this  authority,  legally  arrest  a  person 
who  fired  a  gun  into  or  across  the  cemetery  without  causing  any  such  injury  as  is 
specified  in  the  statute,  but,  for  the  arrest  and  punishment  of  such  a  tresspasser,  must 
have  recourse  to  the  local  authorities.     Dig.  Opin.  J.  A.  G.,  par.  1766. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  959 

burial  ground  near  the  City  of  Mexico,  in  which  are 
interred  the  remains  of  officers  and  soldiers  of  the  United 
States,  and  of  citizens  of  the  United  States,  who  fell  in 
battle  or  died  in  and  around  said  city. 

2464.  The  cemetery  in  Mexico  shall  be  subject  to  the    T£hbaet 
rules  and  regulations  affecting  United  States  national  nril- 
itary  cemeteries  within  the  limits  of  the  United  States,  so 

far  as  they  may,  in  the  opinion  of  the  President,  be  appli- 
cable thereto. 

ENCROACHMENT   BY    RAILROADS,  ETC. 

2465.  That  no  railroad  shall  be  permitted  upon  the  right 

of  way  which  may  have  been  acquired  by  the  United  States  bl5jjlern2  1391  v. 
to  a  national  cemetery,  or  to  encroach  upon  any  roads  or  28>  p- m 
walks  constructed  thereon  and  maintained  by  the  United 
States.     Act  of  March  0,  1896  (28  Stat.  Z.,  949).1 

1  By  separate  statutes  provision  has  been  made  for  the  construction  of  roads  and 
other  approaches  as  follows:  Act  of  January  20,  1878  (20  Stat.  L.,  242),  and  March  3, 

1881  (21  Stat.  L.,  447) ,  at  Vicksburg,  Miss.;  March  3, 1881  (21  Stat.  L.,  445),  August  7, 

1882  (22 Stat.  L.,  319),  March 3, 1883  (22  Stat.  L.,  617),  and  July  7, 1884  (23  Stat.  L.,  219), 
at  Chattanooga,  Tenn.;  March  3,  1881  (21  Stat.  L.,  447),  August  7,  1882  (22  Stat.  L., 
150),  and  July  7, 1884  (22  Stat.  L.,  319),  at  Fort  Scott,  Kans. ;  July  3, 1882  (22  Stat.  L., 
150) ,  and  March  3, 1891  (26  Stat,  L.,  978) ,  at  Mound  City,  111. ;  March  3, 1883  (22  Stat. 
L.,  617),  July  2, 1886,  chapter  610  (24  Stat.  L.,  121),  at  Chalmette,  La.;  March  3,  1885 
(23  Stat.  L.,  507),  October  2, 1888  (25  Stat.  L.,  539),  and  August  30, 1890  (26  Stat,  L.,  401), 
at  Marietta,  Ga. ;  March  3, 1885  (23  Stat.  L.,  507) ,  at  Baton  Rouge,  La. ;  August  4, 1880 
(24  Stat.  L.,  249),  and  October  2, 1888  (25  Stat.  L.,  539) ,  at  Springfield,  Mo. ;  July  2, 
1886  (24  Stat.  L.,  121) ,  at  Natchez,  Miss. ;  July  28, 1886  (24  Stat.  L.,  159),  at  Knoxville, 
Tenn. ;  February  23, 1887  ( 24  Stat,  L. ,  416) ,  and  March  2, 1889  ( 25  Stat.  L. ,  969) ,  at  Dan- 
ville, Va. ;  February  28, 1887  (24  Stat.  L.,  431),  at  Richmond,  Va. ;  October  2,  1888  (25 
Stat.  L.,  539),  March  2, 1889,  chapter  416  (25  Stat.  L.,  915),  August  30, 1890  (26  Stat.  L., 
401),  at  Antietam,  Md.;  August  30,  1890  (26  Stat.  L.,  401),  at  Hampton,  Va.;  March 
2,  1889  (25  Stat.  L.,  969),  at  Beverly,  N.  J. ;  January  8, 1889  (25  Stat,  L.,  641),  at  Flor- 
ence, S.  C.;  August  30, 1890  (26  Stat.  L.,  401),  roads  at  Culpeper  and  Fredericksburg, 
Va.,  and  a  levee  at  Brownville,  Tex.;  May  14,  1890  (26  Stat.  L.,  108),  at  Port  Hud- 
son, La. ;  April  9,  1890  (26  Stat.  L.,  46),  at  Staunton,  Va. ;  March  3,  1891  (26  Stat.  L., 
978) ,  August  5, 1892  (27  Stat.  L.,  377),  March  3, 1893  (27  Stat.  L.,  599),  August  18, 1894 
(28  Stat.  L.,  405) ,  March  2, 1895  (28  Stat.  L.,  909),  June  11, 1896  (29  Stat.  L.,  443) ,  July 
1,  1898  (30  Stat.  L.,634),  March  3,  1899  (30  Stat.  L.,  1108),  at  the  Presidio  of  San 
Francisco,  Cal. ;  December  11, 1890  (26  Stat.  L.,  687 j,  at  Alexandria,  Va. ;  July  1, 1898 
(30  Stat.  L.,  634),  at  Mound  City,  111. ;  July  1, 1898  (30 Stat.  L.,  634) ,  at  Natchez,  Miss. 

Held  that  the  title  and  possession  of  the  United  States  to  and  of  land  situate  at  El 
Paso,  Texas,  duly  purchased  for  cemetery  purposes,  would  properly  be  protected 
against  a  continuous  trespass  on  the  part  of  the  municipality  in  cutting  a  street 
through  the  land,  by  an  injunction  sued  out  in  the  proper  court,  the  remedy  by  suit 
for  damages  being  inadequate.a  Dig.  Opin.  J.  A.  G.,  par.  2115. 

al  Pomeroy,  Equity  Jurisprudence,  sec.  138;  3  ibid.,  sees.  1347  1356. 


CHAPTER     XL  VI. 


FLAG  AND  SEAL  OF  THE  UNITED  STATES. 


Par. 

2466.  The  flag  to  be  13  stripes  and  45 

stars. 

2467.  A  star  to  be  added  for  every  new 

State. 


Par. 

2468.  Seal  of  the  United  States. 

2469.  Secretary  of  State  to  keeo  and  use 

the  seal. 


The  flag  to  be 
13  stripes  and  45 


Jan.  13, 1794,  e. 
l,v.l,p.341:  Apr. 
4,  1818,  c.  34,  s.  1, 
v.  3,  p.  415. 

Sec.  1791,  B.S. 

A  star  to  be 
added  for  every 
new  State. 

Apr.  4,  1818,  c. 
34,  s.  2,  v.  3,  p.  415. 

Sec.l792,R.S. 


Seal  of  the 
United  States. 

Sept.  15, 1789,  c. 
14,s.3,  v.l,  p.  68. 

Sec.l793,K.S. 


2466.  The  flag  of  the  United  States  shall  be  thirteen 
horizontal  stripes,  alternate  red  and  white;  and  the  union 
of  the  flag-   shall  be   [forty-five]   stars,  white  in  a  blue 
field. 

2467.  On  the  admission  of  a  new  State  into  the  Union 
one  star  shall  be  added  to  the  union  of  the  flag;  and  such 
addition  shall  take  effect  on  the  fourth  da}T  of  July  then 
next  succeeding  such  admission.1 

2468.  The  seal  heretofore  used  by  the  United  States  in 
Congress  assembled  is  declared  to  be  the  seal  of  the  United 
States. 


1  The  Union  of  the  flag  now  contains  forty-five  stars,  arranged  in  accordance  with 
the  following  order: 

WAR  DEPARTMENT,  Washington,  March  17 ',  1896. 

The  field  or  union  of  the^  national  flag  in  use  in  the  Army  will,  on  and  after  July 
4,  1896,  consist  of  forty-five  stars,  in  six  rows,  the  first,  third,  and  fifth  rows  to  have 
eight  stars,  and  the  second,  fourth,  and  sixth  rows  seven  stars  each,  in  a  blue  field, 
arranged  as  follows: 


*  *  *  *  *  '  *  *  * 
******* 

******** 
******* 

******** 
******* 


DANIEL  S.  LAMONT, 

Secretary  of  War. 

Held  that  there  was  no  law  precluding  an  alien  residing  in  the  United  States,  tl 
subject  of  a  foreign  government  with  which  we  are  at  peace,  from  displaying  the  flag 
of  his  country  on  his  dwelling.     Dig.  Opin.  J.  A.  G.,  par.  404. 


MILITARY    LAWS    OF   THE    UNITED    STATES.  961 


2469.  The  Secretary  of  State  shall  keep  such  seal,  and 
shall  make  out  and  record,  and  shall  affix  the  same  to, 
civil  commissions  for  officers  of  the  United  States,1  to  be 
appointed  by  the  President,  by  and  with  the  advice  and  ^rv-  318'18^  2^; 
consent  of  the  Senate,  or  by  the  President  alone.  But  the  Jig-  s-  1*>  v-  &  P- 
.seal  shall  not  be  affixed  to  any  commission  before  the  same  ^J^  UIYCT' 
has  been  signed  by  the  President  of  the  United  States,  nor  15|ec  im  B  g 
to  any  other  instrument,  without  the  special  warrant  of 
the  President  therefor. 

1  The  commissions  of  military  officers  now  bear  the  seal  of  the  War  Department. 
Act  of  March  28,  1896  (29  Stat.  L.,  75). 

22924—08  -  61 


CHAPTER  XLVTI. 


THE  ARTICLES  OF  WAR.1 

LIMITATIONS  OF  PUNISHMENT. 


Section. 

1342.  Articles  of  war. 

Article. 

1.  Officers  shall  subscribe  these  articles. 

2.  Articles  to  be  read  to  recruits. 

3.  Officers  making  unlawful  enlistments. 

4.  Discharges. 

5.  Mustering  persons  not  soldiers. 

6.  Taking  money  on  mustering. 

7.  Return  of  regiments,  etc. 

8.  False  returns. 

9.  Captured    stores   secured  for  public 

service. 

10.  Accountability  for  arms,  etc. 

11.  Furloughs. 


Article. 

12.  Musters. 

13.  False  certificates. 

14.  False  muster. 

15.  Allowing  military  stores  to  be  dam- 


16.  Wasting  ammunition. 

17.  Losing  or  spoiling  horses,   accouter- 

ments,  etc. 

18.  Commanders  not  to  be  interested  in 

sale  of  victuals,  etc. 

19.  Disrespectful  words  against  the  Presi- 

dent, etc. 

20.  Disrespect  toward  commanding  offi- 


1HISTORICAL   NOTE. 

In  the  early  periods  of  English  history  military  law  existed  only  in  time  of  actual 
war.  When  war  broke  out  troops  were  raised  as  occasion  required,  and  ordinances 
for  their  government,  or,  as  they  were  afterwards  called,  Articles  of  War,  were  issued 
by  the  Crown,  with  the  advice  of  the  constable  or  of  the  peers  or  other  experienced 
persons,  or  were  enacted  by  the  commander  in  chief  in  pursuance  of  an  authority  for 
that  purpose  given  in  his  commission^from  the  Crown,  (a) 

These  ordinances  or  articles,  however,  remained  in  force  only  during  the  service 
of  the  troops  for  whose  government  they  were  issued,  and  ceased  to  operate  on  the 
conclusion  of  peace.  Military  law  in  time  of  peace  did  not  come  into  existence 
until  the  passing  of  the  first  mutiny  act  in  1689. 

The  system  of  governing  troops  in  active  service  by  articles  of  war,  issued  under 
the  prerogative  power  of  the  Crown,  whether  issued  by  the  King  himself,  or  by  the 
commanders  in  chief,  or  by  other  officers  holding  commissions  from  the  Crown,  con- 
tinued from  the  time  of  the  Conquest  till  long  after  the  passing  of  the  annual  mutiny 
acts,  (6)  and  did  not  actually  cease  till  the  prerogative  power  of  issuing  such  articles 
was  superseded  in  1803  by  a  corresponding  statutory  power,  (c) 

The  earlier  articles  were  of  excessive  severity,  inflicting  death  or  loss  of  limb  for 
almost  every  crime.  Gradually,  however,  they  assumed  something  of  -the  shape 
which  they  bear  in  modern  times,  and  the  ordinances  or  articles  of  war  issued  by 
Charles  I  in  1672  formed  the  groundwork  of  the  Articles  of  War  of  1878,  which  were 
consolidated  with  the  mutiny  act  in  the  army  discipline  and  regulation  act  of  1879, 
which  was  replaced  by  the  army  act  of  1881.  The  army  act  of  1881,  which  now  con- 
stitutes the  military  code  of  the  British  army,  has  of  itself  no  force,  but  requires  to 


a  Grose,  Military  Antiquities,  vol.  2, 
b  Barwis  v.  Keppel,  2  Wilson's  ~ 


c  43  Geo.  Ill,  chapter  20. 
962 


Wilson's  Rep., 


3.58. 
14. 


MILITARY    LAWS    OF    THE    UNITED   STATES. 


963 


Article. 

21.  Striking  superior  officer. 

22.  Mutiny. 

23.  Failing  to  resist  mutiny. 

24.  Quarrels  and  frays. 

25.  Reproachful  or  provoking  speeches. 

26.  Challenges  to  fight  duels. 

27.  Allowing  persons  to  go  out  and  fight; 

seconds  and  promoters. 

28.  Upbraiding    another    for    refusing 

challenge. 

29.  Wrongs  to  officers,  redress  of. 

30.  AVrongs  to  soldiers,  redress  of. 

31.  Lying  out  of  quarters. 

32.  Soldiers  absent  without  leave. 

33.  Absence  from  parade  without  leave. 

34.  One  mile  from  camp  without  leave. 

35.  Failing  to  retire  at  retreat. 

36.  Hiring  duty. 

37.  Conniving  at  hiring  duty. 

38.  Drunk  on  duty. 

39.  Sentinel  sleeping  on  post. 

40.  Quitting  guard,  etc.,  without  leave. 

41.  False  alarms. 

42.  Misbehavior  before  the  enemy,  cow- 

ardice, etc. 

43.  Compelling  a  surrender. 

44.  Disclosing  watchword. 

45.  Relieving  the  enemy. 


Article. 

46.  Corresponding  with  the  enemy. 

47.  Desertion. 

48.  Deserter  shall  serve  full  term. 

49.  Desertion  by  resignation. 

50.  Enlisting  in  other  regiment  without 

discharge. 

51.  Advising  to  desert. 

52.  Misconduct  at  divine  service. 

53.  Profane  oaths. 

54.  Officers  to  keep  good  order  in  their 

commands. 

55.  Waste   or  spoil  and  destruction  of 

property  without  orders. 

56.  Violence  to  persons  bringing  pro- 

visions. 

57.  Forcing  a  safeguard. 

58.  Certain  crimes  during  rebellion. 

59.  Offenders  to  deliver  up  to  civil  mag- 

istrates. 

60.  Certain  crimes  of  fraud  against  the 

United  States. 

61.  Conduct  unbecoming  an  officer  and 

gentleman. 

62.  Crimes  and  disorders  to  prejudice 

of  military  discipline. 

63.  Retainers  of  camp. 

64.  All  troops  subject  to  Articles  of  War. 

65.  Arrest  of  officers  accused  of  crimes. 


be  brought  into  operation  annually  by  another  act  of  Parliament,  thus  securing  the 
constitutional  principle  of  the  control  of  the  Parliament  over  the  discipline  requisite 
for  the  government  of  the  army,  (a) 

The  Rules  and  Articles  of  War  were  derived  originally  from  the  English  mutiny 
act  and  articles  of  war  under  the  following  circumstances:  In  May,  1775,  the  Conti- 
nental Congress  met  in  Philadelphia  and  at  once  proceeded  to  levy  and  organize  an 
army.  A  system  of  rules  for  its  government  was,  of  course,  indispensable.  The 
members  of  this  Congress  were  naturally  familiar  with  the  English  military  code. 
The  local  troops  serving  with  the  English  forces  sent  to  this  country  in  1754  had 
been  brought  under  the  mutiny  act,  while  the  armies  of  Gage  and  Burgoyne  were 
governed  by  the  English  code  at  the  time  the  first  "  Continental  troops  "  were  raised. 
It  was  but  natural,  therefore,  that  this  body  should  turn  to  the  mutiny  act  as  a 
model,  and  on  June  30,  1775,  the  Congress  promulgated  articles,  69  in  number, 
for.  the  government  of  the  Continental  troops.  These  articles  were  adopted  from 
the  English,  in  the  same  form  as  our  present  articles,  modified,  however,  to  meet  the 
milder  views  which  were  entertained  by  a  people  who  entertained  an  objection  to  a 
standing  army.  Additions -were  made  in  November  of  this  year,  but  were  repealed 
by  the  act  of  September  30,  1776,  and  new  articles  adopted.  These  articles,  102  in 
number,  were  modeled  upon  the  British  form  and  were  arranged  in  18  sections. 
With  some  modifications  they  remained  in  force  until  1806. 

In  September,  1789,  they  were  formally  recognized  and  adapted  to  the  new  Con- 
stitution by  the  First  Congress  of  the  United  States.  In  1806  the  articles,  101 
in  number,  were  rearranged  and  promulgated  by  Congress;  (b)  the  divisions  into 
sections  were  dropped  and  the  old  model  substituted.  These,  with  five  or  six  modifi- 
cations, remained  in  force  for  nearly  seventy  years,  and  were  the  governing  code 
of  the  Army  until  the  passage  of  the  act  of  June  22,  1874  (c)  (ISStat.  L.,  113).  These 
articles  are  embodied  in  the  Revised  Statutes  as  sections  1342  and  1343  of  that  work. 

a  Manual  of  Military  Law,  War  Office,  Pall  Mall,  1884,  pp.  9-18. 
b  Act  of  April  10,  1806  (2  Stat.  L,,  p.  359). 
elves,  Mil.  Law,  p.  17. 


964 


MILITARY    LAWS    OF    THE   UNITED    STATES. 


Article. 

66.  Soldiers  accused  of  crimes. 

67.  Receiving  prisoners. 

68.  Report  of  prisoners. 

69.  Releasing  prisoner  without  author- 

ity; escapes. 

70.  Duration  of  confinement. 

71.  Copy  of  charges  and  time  of  trial. 

72.  Who  may  appoint  general   courts- 

martial. 

73.  Commanders  of  divisions  and  sep- 

arate   brigades    may   appoint    in 
time  of  war. 

74.  Judge-advocate. 

75.  Members  of  general  courts-martial. 

76.  When  requisite  number  not  at  a  post. 

77.  Regular  officers,  on  what  courts  may 

sit. 

78.  Marine  and   Regular  Army  officers 

associated  on  courts. 

79.  Officers    triable  by  general  courts- 

martial. 

80.  The  summary  court. 

81.  Regimental  courts. 

82.  Garrison  courts. 

83.  Jurisdiction  of  field  officers',  regi- 

mental, and  garrison  courts. 

84.  Oath  of  members  of  courts-martial. 

85.  Oath  of  judge-advocate. 

86.  Contempts  of  court. 

87.  Behavior  of  members. 

88.  Challenges  by  prisoner. 

89.  Prisoner  standing  mute. 

90.  Judge  -  advocate,    prosecutor     and 

counsel  for  prisoner. 

91.  Depositions. 

92.  Oath  of  witness. 

93.  Continuances. 

95.  Order  of  voting. 

96.  Sentence  of  death. 

97.  Penitentiaries. 

98.  Flogging. 

99.  Discharge  and  dismissal  of  officers. 

100.  Publication  of  officers  cashiered  for 

cowardice  or  fraud. 

101.  Suspension  of  officers'  pay. 

102.  No  person  tried  twice  for  same,  etc. 

Articles  of 
War.  Limits  of 
punishment. 

Apr.  10, 1806,  o 


Article. 

103.  Limitation  of  time  of  prosecution. 

104.  Approval    of    sentence    by    officer 

ordering  court. 

105.  Confirmation  of  death  sentence. 

106.  Confirmation  of  dismissals  in  time 

of  peace. 

107.  Dismissal    by  division    or    brigade 

courts. 

108.  General  officers,  sentences  respect- 

ing. 

109.  Confirmation     by    officer    ordering 

court- 
HO.  Confirmation  of  field  officers'  sen- 
tences. 

111.  Suspension  of  sentence  of  death  or 

dismissal. 

112.  Pardon  and  mitigation  of  sentences. 

113.  Proceedings    forwarded    to    judge- 

advocate-general. 

114.  Party  entitled  to  a  copy. 

115.  Courts  of  inquiry,  how  ordered. 

116.  Members  of  court  of  inquiry. 

117  Oaths  of  members  and  recorder  of 
court  of  inquiry. 

118.  Witnesses  before  courts  of  inquiry. 

119.  Opinion,  when  given  by. 

120.  Authentication    of    proceedings    of 

court  of  inquiry. 

121.  Proceedings  of  court  of  inquiry  used 

as  evidence. 

122.  Command  when  different  corps  hap- 

pen to  join. 

123.  Regular  and  volunteer  officers   on 

same  footing  as  to  rank,  etc. 

124.  Rank  of  militia  officers  on  duty  with 

officer    of    regular    or    volunteer 
forces. 

125.  Deceased  officers'  effects. 

126.  Deceased  soldiers'  effects. 

127.  Effects  of  deceased  officers  and  sol- 

diers to  be  accounted  for. 

1 28.  Articles  of  War  to  be  published  once 

in  six  months  to  every  regiment, 

etc. 
Section. 
1343.  Spies. 


SECTION  1342.  The  armies  of  the  United  States  shall  be 
governed  by  the  following  rules  and  articles.     The  word 
;er,  as  used  therein,  shall  be  understood  to  designate 
Psec!i342  B.  s.  commissioned  officers;  the  word  soldier  shall  be  understood 
to  include  noncommissioned  officers,  musicians,  artificers, 
and  privates,  and  other  enlisted  men,  and  the  convictions 


MILITARY    LAWS    OF   THE    UNITED    STATES.  965 

mentioned  therein  shall  be  understood  to  be  convictions  by 
court-martial.1     Sec.  131$,  R.  S. 

That  whenever  by  any  of  the  Articles  of  War  for  the 
government  of  the  Army  the  punishment  on  conviction  of 
any  military  offense  is  left  to  the  discretion  of  the  court- 
martial,  the  punishment  therefor  shall  not,  in  time  of 
peace,  be  in  excess  of  a  limit  which  the  President  may 
prescribe.2  Act  of  September  07,  1890  (26  Stat.  Z.,  491). 

ARTICLE  1.  Every  officer  now  in  the  Army  of  the  United  8Ug£355  sthh^e 
States  shall  within  six  months  from  the  passing  of  this  ^Art*.'  war. 
act,  and  every  officer  hereafter  appointed  shall  before  he 
enters  upon  the  duties  of  his  office,  subscribe  these  rules 
and  articles. 

ART.  2.  These  rules  and  articles  shall  be  read  to  every  reacftoreVuits!6 
enlisted  man  at  the  time  of  or  within  six  days  after  his    fatrt29Wi8i3,  c. 
enlistment,  and  he  shall  thereupon  take  an  oath  or  affirma-  ^g.^Jfg.  3;  186?] 
tion  in  the  following  form:  "I,  A.  B.,  do  solemnly  swear  £ ;§'9.s'11>  v>12> 
(or  affirm)  that  I  will  bear  true  faith  and  allegiance  to  the    3  Art* War' 
United  States  of  America;  that  1  will  serve  them  honestly 
and  faithfully  against  all  their  enemies  whomsover,  and 
that  I  will  obey  the  orders  of  the  President  of  the  United 
States  and  the  orders  of  the  officers  appointed  over  me, 
according  to  the  rules  and  articles  of  war."     This  oath 
may  be   taken   before   any  commissioned  officer  of   the 
Army.3 

1  The  Army  and  Navy  of  the  United  States  are  engaged  in  the  performance  of  pub- 
lic, not  private,  duties.     Service  in  the  army  or  navy  of  one's  country,  according  to  the 
terms  of  the  enlistment,  never  implies  slavery  or  involuntary  servitude,  even  where 
the  soldier  or  sailor  is  required  against  his  will  to  respect  the  terms  upon  which  he 
voluntarily  engaged  to  serve  the  public.     Involuntary  service  rendered  for  the  pub- 
lic, pursuant  as  well  to  the  requirements  of  a  statute  as  to  a  previous  voluntary 
engagement,  is  not,  in  any  legal  sense,  either  slavery  or  involuntary  servitude. 
(Robertson  v.  Baldwin,  165  U.  S.,  275,  299.)     (Dissenting  opinion  of  Justice  Harlan.) 

2  Under  the  authority  conferred  by  this  statute  two  executive  orders  have  been 
issued  prescribing  limits  of  punishment  for  offenses  to  which  specific  penalties  are  not 
attached  in  the  Articles  of  War.     See  G.  O.  No.  21,  A.  G.  O.  of  1891,  as  modified  by 
the  executive  order  of  March  20,  1895  (MANUAL  FOR  COURTS- MARTIAL,  pp.  59-63). 

3  The  taking  of  the  oath  prescribed  by  this  article  is  not  ah  essential  to  the  validity 
of  an  enlistment.     It  is,  however,  an  almost  invariable  part  of  a  regular  formal 
enlistment,  and  in  the  absence  of  any  provision  in  our  law  defining  in  what  an  enlist- 
ment shall  consist,  it  is  important  that  it  should  not  be  omitted  for  the  reason  that 
the  oath  as  taken  and  subscribed  by  the  party  constitutes  the  regular  and  in  some 
cases  the  only  legal  written  evidence  that  the  personal  act  of  enlisting  has  been  com- 
pleted by  him.     Dig.  Opin.  J.  A.  G.,  par.  1251.     But  see  Grimley's  case  (137  U.  S., 
147),  in  which  it  was  held  that  the  oath  of  allegiance  was  the  pivotal  fact  which 
changed  the  status  from  that  of  civilian  to  soldier.     Section  11  of  the  act  of  August  3, 
1861  (12  Stat.  L.,  289),  conferred  authority  to  administer  the  oath  of  allegiance  upon 
any  commissioned  officer  of  the  Army. 

The  statement  in  regard  to  age,  incorporated  in  the  printed  blank  which  contains 
the  form  of  oath  prescribed  by  this  article,  is  no  part  whatever  of  the  legal  oath. 
Dig.  Opin.  J.  A.  G.,  par.  19. 

By  direction  of  the  Secretary  of  War,  such  of  the  Articles  of  War  as  relate  specially 
to  the  duties  and  rights  of  enlisted  men  and  the  penalties  for  military  crimes  will  be 
plainly  read,  and  so  far  as  necessary,  explained  to  each  recruit  just  before  administer- 
ing to  him  the  oath  of  enlistment.  G.  0.  210,  A.  G.  O.,  1899. 


966  MILITAEY    LAWS    OF   THE    UNITED    STATES. 

ing  un?awfuT!n-     ART.  3-  Every  officer  who  knowingly  enlists  or  musters 
"^rt.'war.      ln^°  ^ne  military  service  any  minor  over  the  age  of  sixteen 
68Mgr'65'v.8?'p'  Jears  without  the  written  consent  of  his  parents  or  guard- 
c47-^^  3>v!8i2'  ians?  or  anJ  minor  under  the  age  of  sixteen  years,  or  any 
i86478c  237 lys  5>msane  or  intoxicated  persons,  or  any  deserter  from  the 
s'lsV'c3^  Ili8  militaiT  or  naval  service  of  the  United  States,  or  any  per- 
is lim  4c°i6?asy  son  w^°  ^as  ^een  convicted  of  any  infamous  criminal  offense 
2,  v.  17,  p.  117.     shall,  upon  conviction,  be  dismissed  from  the  service  or 
suffer  such  other  punishment  as  a  court-martial  may  direct.1 
iisTmentulenten      Fraudulent  enlistment,  and  the  receipt  of  any  pay  or 
3  vUl272?>  277 ' s'  all°wance  thereunder,  is  hereby  declared  a  military  offense 
and  made  punishable,  by  a  court-martial,  under  the  sixty- 
second  Article  of  War.2     Sec.  3,  act  of  July  27,  1892  (27 
Stat.  Z.,  277). 

? Ar?.avFar.'  ART.  4.  No  enlisted  man,  duly  sworn,  shall  be  discharged 
from  the  service  without  a  discharge  in  writing,  signed  by 
a  field  officer  of  the  regiment  to  which  he  belongs,  or  by 
the  commanding  officer,  when  no  field  officer  is  present: 

1  Neither  this  article  nor  the  directory  provision  in  pari  materia  of  sections  1117- 
1118,  Revised  Statutes,  renders  void  enlistments  of  the  classes  of  persons  whose 
enlistment  or  muster-in  is  made  punishable  and  interdicted.  Except,  of  course,  in 
the  case  of  an  enlistment  of  a  person  clearly  non  compos  mentis,  and  whose  contract 
is  a  nullity  in  law  independently  of  any  statute,  these  enlistments  are  voidable  only; 
the  United  States  may  hold  the  party  to  service  or  may  discharge  him  forthwith  in 
the  manner  authorized  by  the  fourth  article.  Ibid.,  20,  par.  1. 

It  is  not  essential  to  a  conviction  under  this  article  that  the  officer  shall  be  shown 
to  have  had  positive  and  absolute  knowledge  that  the  person  enlisted  by  him 
belonged  to  one  of  the  classes  of  persons  whose  enlistment  is  made  an  offense.  If  he 
had  such  knowledge  or  information  as  to  place  the  fact  beyond  a  reasonable  doubt 
he  may  properly  be  deemed  to  have  acted  " knowingly."  Ibid.,  par.  2. 

The  enlistment  of  a  party  who  was  evidently  so  much  under  the  influence  of 
liquor  as  to  make  it  doubtful  whether  he  comprehended  the  legal  effect  of  his  acts, 
held  an  enlistment  of  an  "  intoxicated  person ' '  and  an  offense  under  this  article. 
Ibid.,  par.  3. 

2 This  offense  (constituted  and  made  punishable  as  a  violation  of  article  62,  by 
section  3  of  the  act  of  July  27,  1892,  c.  272)  is  defined  in  Circular  No.  13  (A.  G.  O. ), 
1892.  The  misrepresentation  or  concealment  characterizing  it  must  have  induced 
the  enlistment  of  the  soldier,  and  must  have  related  to  a  fact  which,  if  known,  would 
have  caused  his  rejection.  Where  the  offense  consisted  in  his  having  concealed  the 
fact  that  he  had  been  discharged  with  a  questionable  character — viz,  "  very  good 
except  when  intoxicated,  then  bad" — held  that  such  offense  was  chargeable  as  "fraud- 
ulent enlistment, "  provided  the  knowledge  of  this  fact  on  the  part  of  the  recruiting 
officer  would  have  prevented  the  enlistment.  Dig.  Opin.  J.  A.  G.,  par.  1412. 

A  fraudulently  enlisting  soldier  may  be  disposed  of  in  either  of  two  ways,  viz,  he 
may  be  brought  to  trial  for  his  offense  under  the  statute  or  he  may  be  discharged 
"without  honor."  If  brought  to  trial  and  convicted,  and  his  sentence  does  not 
include  dishonorable  discharge  (as  it  need  not  do  under  the  order  prescribing  a  maxi- 
mum punishment  for  this  offense) ,  held  that  the  Government  could  not  properly  also 
summarily  discharge  him.  While  it  might  have  resorted  to  either  course,  it  would 
scarcely  be  just  to  subject  the  offender  to  both.  Ibid.,  par.  1413. 

A  fraudulent  contract  of  enlistment  is  not  void,  but  voidable  only  at  the  option  of 
the  Government.  The  Government,  on  becoming  cognizant  of  the  "fraud,  may  avoid 
the  contract,  or  waive  the  objection  and  allow  it  to  stand — in  which  latter  case  the 
accepted  service  is  as  legal  as  that  of  any  other  soldier.  Where  the  fraudulent  char- 
acter of  an  enlistment  contract  did  not  become  known  until  after  a  part  of  it  had 
been  executed,  held  that  while  the  same  as  to  its  unexecuted  portion  might  legally 
then  be  avoided  and  terminated,  yet  as  to  the  part  executed  it  was  a  -valid  con- 
tract, and  the  soldier  could  not  lawfully  be  required  to  refund  money  paid  for  that 
part.  Ibid.,  par.  1414. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  967 

and  no  discharge  shall  be  given  to  an  enlisted  man  before 
his  term  of  service  has  expired,  except  by  order  of  the 
President,  the  Secretary  of  War,  the  commanding  officer 
of  a  department,  or  by  sentence  of  a  general  court-martial.1 

1  While  no  soldier  can  assume  to  discharge  himself  from  the  military  service,  he  is 
yet,  at  the  expiration  of  his  contract  of  enlistment,  entitled  in  general  to  be  at  once 
formally  discharged  by  the  proper  authority,  (a)  In  view,  howevei,  of  the  terms 
of  the  first  clause  of  this  article,  held  that  a  discharge  of  a  soldier  actually  takes  effect, 
like  a  deed,  only  upon  the  delivery,  actual  or  constructive,  of  the  written  certificate 
of  discharge.  Thus,  where  a  soldier's  discharge  was  not  received  by  him  at  his  sta- 
tion— a  hospital  in  the  field — till  at  the  end  of  three  months  after  its  date,  held  that 
it  did  not  take  effect  till  its  receipt,  and  that  the  soldier  was  entitled  to  pay  up  to 
that  time.  Dig.  Opin.  J.  A.  Gen.,  20,  par.  1. 

A  formal  discharge,  given  to  a  soldier  in  accordance  with  this  article,  is  legal  evi- 
dence of  the  fact  of  discharge,  as  well  as  of  the  circumstances — when  the  same  are 
stated — under  which  the  soldier  was  separated  from  the  service.  (6)  Ibid. ,  21,  par.  2. 

Where  an  honorable  discharge  has  once  duly  taken  effect  by  the  delivery  of  the 
formal  certificate  (see  art.  4,  sec.  1),  it  is  final  and  can  not  be  revoked  unless 
obtained  by  fraud,  (c)  But  in  such  a  case  the  revocation  should  be  made  within  a 
reasonable  time,  otherwise  the  Government  will  be  deemed  to  have  waived  the 
defect.  A  mere  order  for  a  discharge  may,  of  course,  be  recalled  or  suspended  at  any 
time  before  it  is  executed  by  the  delivery  of  the  discharge  ordered.  Where  an  officer 
of  volunteers  had  been  duly  mustered  out  of  service — a  form  of  honorable  discharge — 
and  was  thus  a  civilian,  held  that  a  revocation  in  orders  of  his  muster  out,  and  a 
substitution  therefor  of  a  dishonorable  discharge,  would — in  the  absence  of  any  fraud 
in  the  case — be  wholly  unauthorized  and  illegal.  Ibid,  355,  par.  1. 

Where  a  soldier,  by  making  an  alteration  in  his  " descriptive  list,"  so  as  to  cause 
it  to  appear  that  his  term  of  enlistment,  which  was  in  fact  five  years,  was  three  years 
only,  induced  the  regimental  commander  to  give  him  an  honorable  discharge  at  the 
end  of  three  years'  service,  held,  upon  the  fraud  being  presently  discovered,  that  the 
discharge  might  legally  be  revoked  and  the  soldier  be  brought  to  trial  by  court- 
martial  under  the  ninety-ninth  (now  sixty-second)  article  of  war.  But  where,  by 
competent  authority,  according  to  the  present  fourth  article,  an  honorable  dis- 
charge wras  given  to  a  soldier  who  was  at  the  time  in  arrest  under  charges,  held  that 
such  discharge — no  fraud  being  imputable  to  the  soldier — was  final,  and  could  not 
legally  be  revoked.  Ibid,  par.  1142. 

The  fact  that  a  soldier  has  been  a  deserter  does  not  affix  an  irreparable  taint  upon 
his  status  or  service  when  returned  from  desertion,  or  preclude  his  receiving  an  hon- 
orable discharge,  if  either  he  be  restored  to  duty  without  trial,  or  having  been 
tried  and  sentenced,  he  yet,  by  reason  of  his  imprisonment  being  fully  executed  or 
being  remitted  before  the  end  of  his  term,  is  returned  to  duty  and  is  in  the  perform- 
ance of  faithful  service  when  his  term  is  completed.  A  discharge  in  the  usual  form 
then  given  to  him,  is  an  authoritative  declaration  by  it  that  he  leaves  the  military 
service  in  a  status  of  honor.  Thus  honorably  discharged,  he  can  not,  by  reason  of  his 
having  formerly  deserted,  be  deprived  of  any  rights  to  pay,  allowances,  or  bounty 
usually  incident  upon  honorable  discharge,  (d)  Ibid,  356,  par.  4. 

This  article,  in  its  second  clause,  specifies  two  kinds  of  discharge  as  authorized  to 
be  given  to  soldiers  before  their  terms  of  enlistment  have  expired,  and  which  are  quite 
distinct  in  their  nature.  The  one  is  given  by  Executive  order  and  the  other  by  sen- 
tence; the  one  is  a  rescinding  of  the  contract  of  the  soldier,  authorized  to  be  resorted 
to  whenever  deemed  desirable,  at  the  discretion  of  the  Secretary  of  War,  etc.,  and  is, 
in  law,  an  honorable  discharge  or  a  discharge  without  honor,  as  the  case  may  be;  the 
other  is  a  punishment,  and  therefore  a  dishonorable  discharge.  One  of  the  officials 
named  can,  of  his  own  authority,  no  more  order  a  soldier  to  be,  in  terms  technically, 
dishonorably  discharged  than  can  a  court-martial  adjudge  a  soldier  to  be  honorably 
discharged.  A  discharge  can  not  legally  be  given  a  soldier  before  the  expiration  of 
his  term  of  service  except  as  authorized  in  this  article;  and  no  officer,  other  than  the 
three  designated,  can  exercise  the  authority,  expressly  devolved  upon  them,  of  dis- 
charging by  order,  (e)  Ibid.,  21,  par.  3. 

a  See  Justice  Story's  charge  to  the  jury  in  United  States  v.  Travers,  2  Wheeler  Cr.  C.,  509;  also 
Prendergast,  42. 

6 See  Board  of  Commissioners  v.  Mertz,  27  Ind.,  103;  Hanson  v.  S.  Scituate,  115  Mass.,  336;  U.  S.  v. 
Wright,  5  Philad.,  296. 

cSee  opinion  of  the  Attorney-General,  in  XVI  Opins.,  352,  in  which  it  was  held  that  an  honorable  dis- 
charge obtained  by  gross  falsehood  and  fraud  was  revocable  by  the  Secretary  of  War. 

dSee  United  States  v.  Kelly,  15  Wallace,  36. 

elll  Opin.  Att.  Gen.,  353. 


968  MILITARY    LAWS    OF   THE    UTSITED   STATES. 


officer  who  knowingly  musters  as  a  soldier 
5  Art.  war.      a  person  wno  [s  nof;  a  soldier  shall  be  deemed  guilty  of 
knowingly  making  a  false  muster,  and  punished  accord- 
ingly. 

onTm^sntfrSgney  ART.  6.  Any  officer  who  takes  money,  or  other  thing,  by 
c  Art.  war.  way  of  gratification,  on  mustering  any  regiment,  troop, 
battery,  or  company,  or  on  signing  muster-rolls,  shall  be 
dismissed  from  the  service,  and  shall  thereby  be  disabled 
to  hold  any  office  or  employment  in  the  service  of  the 
United  States. 

m!a£!2c!*fre8fl~  ART.  1.  Every  officer  commanding  a  regiment,  an  inde- 
irt.  war.  pendent  troop,  battery,  or  company,  or  a  garrison,  shall, 
in  the  beginning  of  every  month,  transmit  through  the 
proper  channels,  to  the  Department  of  War,  an  exact  re- 
turn of  the  same,  specifying  the  names  of  the*  officers  then 
absent  from  their  posts,  with  the  reasons  for  and  the  time 
of  their  absence.  And  any  officer  who,  through  neglect 
or  design,  omits  to  send  such  returns,  shall,  on  conviction 
thereof,  be  punished  as  a  court-martial  may  direct. 
s  Art/fvar?8'  ART.  8.  Every  officer  who  knowingly  makes  a  false  return 
to  the  Department  of  War,  or  to  any  of  his  superior  offi- 
cers authorized  to  call  for  such  returns,-of  the  state  of  the 
regiment,  troop,  or  company,  or  garrison  under  his  com- 
mand; or  of  the  arms,  ammunition,  clothing,  or  other 
stores  thereunto  belonging,  shall,  on  conviction  thereof 
before  a  court-martial,  be  cashiered.1 

8ecu?edr!ors^ubs     ART.  9.  All  public  stores  taken  from  the  enemy  shall  be 

llC9SArt.lcwar.      secured  for  the  service  of  the  United  States;  and  for  neg- 
lect thereof  the  commanding  officer  shall  be  answerable.2 

1  This  article  refers  only  to  returns  made  by  certain  commanders  as  such.     It  is 
only  as  commander  of  a  regiment,  company,  or  garrison  that  an  officer  can  be  made 
amenable  to  a  charge  under  the  article.     An  officer  not  exercising  one  of  these  com- 
mands is  not  within  its  terms,  (a)     Dig.  Opin.  J.  A.  Gen.,  par.  1. 

In  1872  an  officer  of  the  line  of  the  Army,  on  duty  as  post  quartermaster  at  Padu- 
cah,  Ky.,  was  tried  for  a  violation  of  this  article  in  making  false  returns  of  the 
property  for  which  he  was  responsible,  and  was  convicted.  As  the  article  applies 
exclusively  to  officers  exercising  the  specific  commands  named  in  the  statute,  and  as 
the  officer  in  this  exercised  no  one  of  the  commands  so  specified,  the  findings  under 
the  eighth  article  were  disapproved  by  the  reviewing  authority.  Gen.  Court-Martial 
Orders,  No.  12,  War  Dept.,  1872.  See,  also,  G.  C.  M.  O.,  No.  19,  War  Dept.,  1872. 

An  officer  "knowingly  makes  a  false  return  "  under  this  article  who  makes  a  return 
which  he  knows  to  be  untrue  in  any  material  particular.  Ibid,  22,  par.  2. 

The  "returns"  indicated  in  the  article  can  scarcely  be  said  to  include  returns  of 
funds,  what  is  contemplated  being  mainly  returns  of  the  personnel  or  materiel  of  the 
command.  A  false  return  of  a  company  fund  would  more  properly  be  charged  under 
another  article,  as  the  sixty-first  or  sixty-second.  Ibid,  par.  2. 

2  The  title  to  property  captured  from  an  enemy  in  war  vests,  at  the  instant  of  cap- 
ture, in  the  captor's  Government,  which  may  make  such  disposition  of  it  as  it  may 
deem  expedient.     The  policy  and  practice  of  the  United  States,  as  to  the  property 
captured  on  land,  has  been  to  retain  it  for  governmental  uses  or  to  sell  it  and  convert 

a  See  G.  C.  M.  0.  12,  19,  War  Department,  1872. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  969 

AST.  10.   Every  officer  commanding  a  troop,  battery,  or 


company,  is  charged  with  the  arms,  accouterments,  ammu-    10  Art*  War> 
nition,  clothing,  or  other  military  stores  belonging  to  his 
command,  and  is  accountable  to  his  colonel  in  case  of  their 
being  lost,  spoiled,  or  damaged  otherwise  than  by  unavoid- 
able accident,  or  on  actual  service. 

AET.  11.  Everv  officer  commanding  a  regiment  or  an    Furloughs. 

s   .  Mar.  3,  1863,  c. 

independent  troop,  battery,  or  company,  not  in  the  field,  75,  s.  32,  v.  12,  p. 

may,  when  actually  quartered  with  such  command,  grant    u  Art.  war. 

furloughs  to  the  enlisted  men,  in  such  numbers  and  for 

such  time  as  he  shall  deem  consistent  with  the  good  of  the 

service.    Every  officer  commanding  a  regiment,  or  an  inde- 

pendent troop,  battery,  or  company,  in  the  field,   may 

grant  furloughs  not  exceeding  thirty  days  at  one  time,  to 

five  per  centum  of  the  enlisted  men,  for  good  conduct  in 

the  line  of  duty,  but  subject  to  the  approval  of  the  com- 

mander of  the  forces  of  which  said  enlisted  men  form  a 

part.     Every  company  officer  of  a  regiment,  commanding 

any  troop,  battery,  or  company  not  in  the  field,  or  com- 

manding in  any  garrison,  fort,  post,  or  barrack,  may,  in 

the  absence  of  his  field  officer,"  grant  furloughs  to  the 

enlisted  men,  for  a  time  not  exceeding  twenty  days  in  six 

months,  and  not  to  more  than  two  persons  to  be  absent  at 

the  same  time. 

ART.  12.  At  every  muster  of  a  regiment,  troop,  battery,  ^IrfVar 
or  company,  the  commanding  officer  thereof  shall  give  to 
the  mustering  officer  certificates,  signed  by  himself,  stating 
how  long  absent  officers  have  been  absent  and  the  reasons 
of  their  absence.  And  the  commanding  officer  of  every 
troop,  battery,  or  company  shall  give  like  certificates,  stat- 
ing how  long  absent  noncommissioned  officers  and  private 

the  proceeds  to  its  own  use.     See  the  "Captured  and  abandoned  property  act"  (act 
of  March  12,  1863)  ,  in  the  chapter  entitled  EMPLOYMENT  OP  MILITARY  FORCE,  ETC. 

This  provision  is  in  accordance  with  the  principle  of  the  law  of  nations  and  of  war, 
that  enemy's  property  duly  captured  in  war  becomes  the  property  of  the  govern- 
ment or  power  by  whose  forces  it  is  taken,  and  not  that  of  the  individuals  who  take 
it.  (a)  "  Private  persons  can  not  capture  for  their  own  benefit."  (b)  Military  stores 
taken  from  the  enemy,  becoming  upon  capture  the  property  of  the  United  States, 
Congress,  which  by  the  Constitution  (c)  is  exclusively  vested  with  the  power  to  dis- 
pose of  the  public  property,  as  well  as  to  make  rules  concerning  captures  on  land 
and  water,  can  alone  authorize  the  sale  or  transfer  of  the  same.  An  officer  or  soldier 
of  the  Army  who  assumes  of  his  own  authority  to  appropriate  such  articles  renders 
himself  chargeable  with  a  military  offense,  (d)  Ibid,  par.  3. 

aU.  S.  v.  Klein,  13  Wallace,  136;  Decatur  v.  U.  S.,  Devereux,  110;  White  v.  Red  Chief,  1  Woods,  40: 
Brannerv.  Felkner,  1  Heisk.,  232;  Worthy  v.  Kinamon,  44  Ga.,  299;  Huff  v.  Odom,49  ibid.,  395;  XIII  Opin. 
Att.  Gen.,  105;  Hough  (Practice),  329,  330;  G.  0.  54,  Headquarters  of  Army,  Mexico  1848-  G  O  21  War 
Department,  1848;  G  0.  64,  107,  ibid.,  1862.  And  see  also  Lamar  v.  Browne,  2  Otto,  195,  in  regard  to  the 
same  principle  as  illustrated  by  the  captured  and  abandoned  property  act  of  March  12,  1863. 

b  Worthy  v.  Kinamon,  supra. 

c  Article  I,  section  8,  paragraph  11;  Article  IV,  section  3,  paragraph  2. 

a  See,  in  this  connection,  section  6313,  Revised  Statutes. 


970  MILITARY    LAWS    OF    THE    UNITED    STATES. 

soldiers  have  been  absent  and  the  reasons  of  their  absence. 
Such  reasons  and  time  of  absence  shall  be  inserted  in  the 
muster  rolls  opposite  the  names  of  the  respective  absent 
officers  and  soldiers,  and  the  certificates,  together  with  the 
muster  rolls,  shall  be  transmitted  by  the  mustering  officer 
to  the  Department  of  War,  as  speedily  as  the  distance  of 
the  place  and  muster  will  admit. 

Fake  certiii-     ART.  13.   Every  officer  who  signs  a  false   certificate, 

13  Art.  war.  relating  to  the  absence  or  pay  of  an  officer  or  soldier,  shall 
be  dismissed  from  the  service.1 

u  Art™ war1"'  ART.  14.  Any  officer  who  knowingly  makes  a  false  mus- 
ter of  man  or  horse,  or  who  signs,  or  directs,  or  allows 
the  signing  of  any  muster  roll,  knowing  the  same  to  con- 
tain a  false  muster,  shall,  upon  proof  thereof  by  two  wit- 
nesses, before  a  court  martial,  be  dismissed  from  the  serv- 
ice, and  shall  thereby  be  disabled  to  hold  any  office  or 
employment  in  the  service  of  the  United  States.2 

Allowing  mm-  ART.  15.  Any  officer  who,  willfully  or  through  neglect, 
damaged68  e  suffers  to  be  lost,  spoiled,  or  damaged,  any  military  stores 
67,  £\  v.  12,' p.'  belonging  to  the  United  States,  shall  make  good  the  loss 
69is  Art.  war.  or  damage,  and  be  dismissed  from  the  service. 

wasting  am-     ART.  16.  Any  enlisted  man  who  sells,  or  willfully  or 

16  Art.  'war.  through  neglect  wastes  the  ammunition  delivered  out  to 
him,  shall  be  punished  as  a  court-martial  may  direct. 

selling  horse,     ART.  17.  Anv  soldier  who  sells  or  through  neglect  loses 

etc.,  to  be  pun-  9 

ished  by  court- or  spoils  his  horse,  arms,  clothing,  or  accouterments  shall 
July 27, 1892,  v.  be  punished  as  a  court-martial  may  adjudge,  subject  to 
i?  Art.  war.    such  limitations  as  may  be  prescribed  \>y  the  President  by 
virtue  of  the  power  vested  in  him.3 

1  Held  that  the  mere  signing  by  an  officer  of  a  voucher  for  his  pay  before  the  last 
day  of  the  month  for  which  it  was  due  did  not  constitute  an  offense  of  the  class 
intended  to  be  made  punishable  by  this  article,  (a)  Dig.  Opin.  J.  A.  Gen.,  par.  4. 

2 For  a  case  in  which  an  officer  was  convicted  of  false  muster  (although  the  offense 
was  erroneously  charged  under  the  sixty-first  article)  see  G.  O.,  183,  A.  G.  O.,  1863. 

3  This  article  is  quite  independent  of  the  regulations  contained  in  article  60,  Army 
Regulations,  relating  to  boards  of  survey.  The  latter  pass  upon  questions  of  pecun- 
iary responsibility  for  the  loss,  etc.,  of  public  property.  The  court-martial,  under 
this  article,  simply  imposes  punishment. (6)  Ibid.,  par.  5. 

The  description,  "his  clothing,"  refers  to  articles  which  are  regularly  issued  to  the 
soldier  for  his  use  in  the  service  and  with  the  safe-keeping  of  which  he  is  charged. 
His  property  in  them  is  qualified  by  the  trust  that  he  can  not  dispose  of  them  while 
he  is  in  the  military  service,  and  can  only  use  them  for  military  purposes.  Ibid., 
par  6. 

Improper  dispositions  of  property  in  the  charge  and  use  of  soldiers,  other  than 
the  dispositions  indicated  in  this  article,  will  in  general  properly  be  charged  under 
article  62.  Likewise  the  selling,  through  neglect  losing,  etc.,  by  soldiers,  of  property 
issued  to  them,  but  not  mentioned  in  article  17,  should  be  charged  under  article  62. 
Thus  held  that  a  selling  or  losing  of  the  following  articles  was  not  punishable  under 

a  See  G.  C.  M.  O.,  28,  War  Department,  1872. 

b  Where  a  trial  is  had,  the  proceedings  of  a  board  of  survey,  already  ordered  in  the  same  case,  will 
not  be  competent  evidence  to  prove  the  fact  of  the  loss,  etc.,  charged.  G.  C.  M.  O.,  45,  Department  of 
the  Missouri,  1877;  G.  C.  M.  O.,  15,  Department  of  Texas,  1877. 


MILITAEY    LAWS    OF   THE    UNITED   STATES.  97ll 


'ART.  18.  Any  officer  commanding  in  any  garrison,  fort, 
or  barracks  of  the  United  States  who,  for  his  private  ftd-«*gjj|  |tacle  of 
vantage,  lays  any  duty  or  imposition  upon,  or  is  interested    18  Art*  War* 
in,  the  sale  of  any  victuals,  liquors,  or  other  necessaries  of 
life,  brought  into  such  garrison,  fort,  or  barracks,  for  the 
use  of  the  soldiers,  shall  be  dismissed  from  the  service. 

ART.  19.  Any  officer  who  uses  contemptuous  or  disre-    Disrespectful 

J  T»        .  words     against 

spectful  words  against  the  President,  the  Vice-President,  the  President, 
the  Congress  of  the  United  States,  or  the  chief  magistrate    i»  Art.  war. 
or  legislature  of  any  of  the  United  States  in  which  he  is 
quartered,  shall  be  dismissed  from  the  service,  or  otherwise 
punished,  as  a  court-martial  may  direct.     Any  soldier  who 
so  offends  shall  be  punished  as  a  court-martial  may  direct.  l 

article  17,  but  under  article  62,  viz,  sheets,  pillows,  pillowcases,  mattress  covers, 
shelter  tent,  barrack  bag,  greatcoat  strap,  tin  cup,  spoon,  knife,  fork,  meat-ration 
can,  cartridges.  Ibid.,  par.  8. 

Only  three  offenses  are  made  punishable  by  this  article  —  selling,  through  neglect 
losing,  and  through  neglect  spoiling  the  property  named  therein.  Any  other  form  of 
wrongful  disposition  should  be  made  the  subject  of  a  charge  under  article  60  or  arti- 
cle 62.  Ibid.,  par.  7. 

"Unlawfully  disposing  of"  (or  "otherwise  unlawfully  disposing  of")  clothing, 
arms,  etc.,  is  not  a  proper  form  for  the  charge  under  this  article.  A  charge  under 
this  article  should  not  be  expressed  in  the  alternative  —  as  that  the  accused  "sold" 
or  "through  neglect  lost."  The  selling,  through  neglect  losing,  and  through  neglect 
spoiling,  are  distinct  offenses  and  are  to  be  so  charged.  Ibid.,  par.  9,  10. 

Clothing  issued  and  charged  to  a  soldier  is  not  now  (as  it  was  formerly)  regarded 
as  remaining  the  property  of  the  United  States.  It  is  now  considered  as  becoming, 
upon  issue,  the  property  of  the  soldier,  although  his  use  of  it  is,  for  purposes  of  dis- 
cipline, qualified  and  restrictedo  Thus,  he  commits  a  military  offense  by  disposing  of 
it  as  specified  in  this  article,  though  the  United  States  may  suffer  no  loss.  Ibid.  ,  par.  11. 

The  present  seventeenth  article  (as  amended  by  the  act  of  July  27,  1892)  does  not 
authorize  a  stoppage  or  forfeiture  of  pay  to  reimburse  the  United  States.  The  stop- 
page which  was  enjoined  by  the  old  form  of  the  article  is  dropped  entirely  from  the 
present  statute.  This  provides  for  punishment  only  —  does  not  provide  any  means 
of  reimbursing  the  appropriation  out  of  which  the  lost,  etc.  ,  property  was  paid  for, 
or  of  repairing  the  loss  or  damage  as  such.  So  held  (April,  1893)  that  a  sentence, 
upon  a  conviction  under  this  article,  which  adjudged  a  stoppage  of  pay  "to  reim- 
burse the  United  States  for  the  value  of  the  clothing  alienated"  was  unauthorized 
and  inoperative.  Ibid.,  par.  12. 

1  When  a  trial  of  an  officer  or  soldier  has  been  resorted  to  under  this  article,  it  has 
usually  been  on  account  of  the  use  of  "contemptuous  or  disrespectful  words  against 
the  President,"  or  the  Government  mainly  as  represented  by  the  President.  The 
deliberate  employment  of  denunciatory  or  contumelious  language  in  regard  to  the 
President,  whether  spoken  in  public,  or  published,  or  conveyed  in  a  communication 
designed  to  be  made  public,  has,  in  repeated  cases,  been  made  the  subject  of  charges 
and  trial  under  this  article;  (a)  and,  where  taking  the  form  of  a  hostile  arraignment, 
by  an  officer,  of  the  President  or  his  Administration,  for  the  measures  adopted  in 
carrying  on  the  late  war  —  a  juncture  when  a  peculiar  obedience  and  deference  were 
due,  on  the  part  of  the  subordinate,  to  the  President  as  Executive  and  Commander 
in  Chief  —  was  in  general  punished  by  a  sentence  of  dismissal.  On  the  other  hand,  it 
was  held  that  adverse  criticisms  of  the  acts  of  the  President,  occurring  in  political 
discussions,  and  which,  though  characterized  by  intemperate  language,  were  not 
apparently  intended  to  be  disrespectful  to  the  President  personally  or  to  his  office, 
or  to  excite  animosity  against  him,  were  not  in  general  to  be  regarded  as  properly 
exposing  officers  or  soldiers  to  trial  under  this  article.  To  seek,  indeed,  for  ground 
of  offense  in  such  discussions  would  ordinarily  be  inquisitorial  and  beneath  the  dig- 
nity of  the  Government.  Dig.  Opin.,  J.  A.  G.,  par.  13. 

a  See  cases  in  G.  C.  M.  O.  43,  War  Department,  1863;  G.  O.  171,  Army  of  the  Potomac,  1862;  G.  O.  23, 
ibid.,  1863;  G.  O.  52,.  Middle  Department,  1863;  G.  O.  119,  Department  of  the  Ohio,  1863;  G.  O.  33, 
Department  of  the  Gulf,  1863;  G.  O.  68,  Department  of  Washington,  1864;  G.  O.  86,  Northern  Depart- 
ment, 1864;  G.  O.  1,  ibid.,  1865;  G.  O.  29,  Department  of  North  Carolina,  1865. 


972  MILITARY    LAWS    OP   THE    UNITED   STATES. 


AllT-  20"    An7  officer  or  soldier  who   behaves  himself 
info°Art?rwar.    w^h  disrespect  toward   his  commanding  officer  shall  be 

punished  as  a  court-martial  may  direct.1 

perioro^cer.  su  ART.  21.  Any  officer  or  soldier  who,  on  any  pretense 
21  Art.  war.  whatsoever,  strikes  his  superior  officer,  or  draws  or  lifts 
up  any  weapon,  or  offers  any  violence  against  him,  being 
in  the  execution  of  his  office,  or  disobeys  any  lawful  com- 
mand of  his  superior  officer,  shall  suffer  death,  or  such 
other  punsishment  as  a  court-martial  may  direct.2 

1  The  disrespect  here  indicated  may  consist  in  acts  or  words;  (a)  and  the  particular 
acts  or  words  relied  upon  as  constituting  the  offense  should  properly  be  set  forth  in 
substance  in  the  specification.  (6)     It  must  be  shown  in  evidence  under  the  charge 
that  the  officer  offended  against  was  the  ''commanding  officer"  of  the  accused,  (c) 
The  commanding  officer  of  an  officer  or  soldier  in  the  sense  of  this  article  is  properly 
the  superior  who  is  authorized  to  require  obedience  to  his  orders  from  such  officer  or 
soldier,  at  least  for  the  time  being.     Thus  where  a  battalion  was  temporarily  detached 
from  a  regiment  and  placed  under  the  orders  of  the  commander  of  a  portion  of  the 
Army  distinct  from  that  in  which  the  main  part  of  the  regiment  was  included,  held 
that  it  was  the  commander  of  this  portion  who  was  the  commanding  officer  of  the 
detachment,  and  that  the  use  by  an  officer  of  such  detachment  of  disrespectful  lan- 
guage in  reference  to  the  regimental  commander  (who  had  remained  with  and  in 
command  of  the  main  body  of  the  regiment)  was  properly  chargeable  not  under  this 
article,  but  rather  under  the  sixty-second.     Ibid.,  par.  14. 

Held  that  disrespectful  language  used  in  regard  to  his  captain  by  a  soldier  when 
detached  from  his  company  and  serving  at  a  hospital,  to  the  surgeon  in  charge  of 
which  he  has  been  ordered  to  report  for  duty,  was  an  offense  cognizable  by  court- 
martial  not  under  this  article,  but  under  article  62.  Ibid.,  par.  15. 

2  To  justify  a  conviction  of  the  capital  offense  of  offering  violence  against  a  superior 
officer,  it  should  be  made  to  appear  in  evidence  that  the  accused  knew  or  believed 
that  the  person  assaulted  was  in  fact  an  officer  in  the  Army  and  was  his  "superior" 
in  rank.  (d)     Ibid.,  par.  17. 

Under  a  charge  of  a  violation  of  this  article  in  offering  violence  to  a  superior  officer, 
it  should  be  alleged  and  proved  that  the  officer  assaulted  was  at  the  time  "in  the 
execution  of  his  office."  Ibid.,  par.  18. 

In  charging  a  striking  or  doing  of  violence  to  a  superior  officer  under  this  article, 
in  a  case  where  the  assault  was  fatal,  it  was  allowable  to  add  in  the  specification, 
"thereby  causing  his  death,"  as  indicating  the  measure  of  violence  employed. 
Ibid.,  par.  19. 

The  "superior  officer"  in  the  sense  of  this  article  need  not  necessarily  have  been 
the  commanding  officer  of  the  accused  at  the  time  of  the  offense.  The  article  is  thus 
broader  than  article  20,  which  relates  only  to  an  offense  against  a  commanding 
officer.  Ibid.,  par.  20. 

"The  first  duty  of  a  soldier  is  obedience,  and  without  this  there  can  be  neither 
discipline  nor  efficiency  in  an  army."  McCall  v.  McDowell,  15  Fed.  Cas.,  1235. 

"To  insure  efficiency  an  army  must  be,  to  a  certain  extent,  a  despotism.  Each 
officer  *  *  *  is  invested  with  an  arbitrary  power  over  those  beneath  him,  and 
the  soldier  who  enlists  in  the  army  waives,  in  some  particulars,  his  rights  as  a  civil- 
ian, surrenders  his  personal  liberty  during  the  term  of  his  enlistment,  and  consents 
to  come  and  go  at  the  will  of  his  superior  officers.  He  agrees  to  become  amenable  to 
the  military  courts,  to  be  disciplined  for  offenses  unknown  to  the  civil  law,  to  relin- 
quish his  right  of  trial  by  jury,  and  to  receive  punishments  which,  to  the  civilian, 
seem  out  of  all  proportion  to  the  magnitude  of  the  offense."  U.  8.  v.  Clarke,  3  Fed. 
Rep.,  713  —  Brown,  J. 

"An  army  is  not  a  deliberative  body.  It  is  the  executive  arm.  Its  law  is  that  of 
obedience.  No  question  can  be  left  open  as  to  the  right  to  command  in  the  officer,  or 
the  duty  of  obedience  in  the  soldier.  Vigor  and  efficiency  on  the  part  of  the  officer 


aG.  O.  44,  Department  of  Dakota,  1872.    And  see  G.  C.  M.  O.  28,  War  Department,  1875;  G.  O.  47, 
Department  of  the  Platte,  1870. 
bG.  C.  M.  O.  35,  Department  of  the  Missouri,  1872. 
cG.  O.  53,  Department  of  Dakota,  1871. 
dSee  G.  O.  34,  Department  of  Virginia,  1863. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  973 

and  confidence  among  the  soldiers  in  one  another  are  impaired  if  any  question  be 
left  open  as  to  their  attitude  to  each  other."     In  re  Grimley,  137  U.  S.,  153. 

The  offense  of  disobedience  of  orders  contemplated  by  this  article  consists  in  a 
refusal  or  neglect  to  comply  with  a  specific  order  to  do  or  not  to  do  a  particular 
thing.  A  mere  failure  to  perform  a  routine  duty  is  properly  charged  under  article 
62.  (a)  Where  an  officer  neglected  fully  to  perform  his  duty  under  general  instruc- 
tions given  him  in  regard  to  the  conduct  of  an  expedition  against  Indians,  held  that 
his  offense  was  properly  chargeable  not  under  the  twenty-first,  but  under  the  sixty- 
second  article.  Dig.  Opin.,  J.  A.  G.,  par.  25. 

The  fact  that  any  stated  duty  is  enjoined  in  regulations  or  orders  does  not  in  itself 
render  a  nonperformance  of  such  duty  a  disobedience  of  orders  in  violation  of  the 
twenty-first  article;  but  to  support  this  charge  it  is  essential  that  there  should  be 
shown  an  intentional  disregard  of  authority  as  is  evinced  by  a  willful  refusal  or  omis- 
sion to  comply  with  the  specific  command  of  a  superior  officer.  G.  C.  M.  0.  26, 
WarDept.,  1872. 

A  noncompliance  by  a  soldier  with  an  order  emanating  from  a  noncommissioned 
officer,  or  offering  violence  to  the  latter  is  not  an  offense  under  this  article,  but  one 
to  be  charged,  in  general,  under  the  sixty-second,  (b)  Dig.  Opin.,  J.  A.  G.  par.  21. 

Under  a  charge  of  a  disobedience  of  the  order  of  a  superior  officer  in  violation  of 
this  article,  it  should  be  alleged,  and  should  appear  from  the  evidence  introduced, 
that  the  order  or  "command"  was  "lawful."  An  officer  or  soldier  is  not  punish- 
able under  this  article  for  disobeying  an  unlawful  order.  But  the  order  of  a  proper 
superior  is  to  be  presumed  to  be  lawful,  and  should  be  obeyed,  where  it  is  not  clearly 
and  obviously  in  contravention  of  law.  Unless  the  illegality  is  unquestionable,  he 
should  obey  first  and  seek  redress,  if  entitled  to  any,  afterwards.  A  military  inferior 
in  refusing  or  failing  to  comply  with  the  order  of  a  superior  on  ^he  ground  that  the 
same  is,  in  his  opinion,  unlawful  does  so,  of  course,  on  his  own  personal  responsi- 
bility and  at  his  own  risk.  Ibid.,  par.  22. 

To  justify,  from  a  military  point  of  view,  a  military  inferior  in  disobeying  the 
order  of  a  superior,  the  order  must  be  one  requiring  something  to  be  done  which  is 
palpably  a  breach  of  law  and  a  crime  or  an  injury  to  a  third  person,  or  is  of  a  serious 
character  (not  involving  unimportant  consequences  only)  and  if  done  would  not  be 
susceptible  of  being  righted.  An  order  requiring  the  performance  of  a  military  duty 
or  act  can  not  be  disobeyed  with  impunity  unless  it  has  one  of  these  characters.  If 
not  triable  under  the  twenty-first  article,  such  disobedience  may  be  tried  under  the 
sixty-second.  In  the  Cedarquist  case  it  was  held  by  the  Judge-  Advocate-General 
that  "there  could  be  no  more  dangerous  principle  in  the  government  of  the  Army 
than  that  each  soldier  should  determine  for  himself  whether  an  order  requiring  a 
military  duty  to  be  performed  is  necessary  or  in  accordance  with  orders,  regulations, 
decision  circulars,  or  custom,  and  may  disobey  the  order  if,  in  his  judgment  (taking, 
of  course,  all  risks  in  case  his  judgment  should  be  erroneous)  ,  it  should  not  be  neces- 
sary or  should  be  at  variance  with  orders,  regulations,  decision  circulars,  or  custom. 
It  is  his  duty  to  obey  such  order  first,  and  if  he  should  be  aggrieved  thereby,  he  can 
seek  redress  afterwards."  Ibid.,  par.  23. 

The  civil  responsibility  is  another  matter.  Civil  courts  have  sometimes  made 
allowance  for  the  requirements  of  military  discipline,  but  if  they  should  not,  the 
military  obligation  would  remain  unimpaired.  The  soldier,  in  entering  the  service, 
has  voluntarily  submitted  himself  to  this  double  and  possibly  conflicting  liability. 
The  evil  of  an  undisciplined  soldiery  would  be  far  greater  than  the  injustice  (appar- 
ent, rather  than  actual)  of  this  principle.  Ibid.,  note  1. 

An  order  given  by  a  military  officer  to  his  private  should  be  obeyed  by  the  private, 
and  will  be  his  full  protection  in  a  criminal  prosecution,  unless  the  illegality  of  the 
order  is  so  clearly  shown  on  its  face  that  a  man  of  ordinary  sense  and  understanding 
would  know  when  he  heard  it  read  or  given  that  the  order  was  illegal.  In  re  Fair 
et  al.,  100  Fed.  Rep.,  149;  Riggs  v.  State,  3  Cold.,  85;  McCall  v.  McDowell,  Fed. 
Cases,  No.  8673;  U.  S.  v.  Clark,  31  Fed.  Rep.,  710;  In  re  Grimley,  137  U.  S.,  147; 
In  re  Lewis,  83  Fed.  Rep.,  159;  In  re  Waite,  81  Fed.  Rep.,  359. 

Whatever  may  be  the  rule  in  time  of  war  and  in  the  presence  of  actual  hostilities, 
military  officers  can  no  more  protect  themselves  than  civilians  for  actual  wrongs, 
committed  in  time  of  peace,  under  orders  emanating  from  a  source  which  is  itself 
without  authority  in  the  premises.  Hence,  a  military  officer  seizing  liquors  sup- 
posed to  be  in  Indian  country,  when  they  are  not,  is  liable  to  an  action  as  a  tres- 
passer. Bates  v.  Clark,  95  U.  S.,  204. 

An  officer  or  soldier  on  leave  of  absence  can  not  in  general  be  made  liable  to  a 


wKM.-  M<  0>  26>  War  DePartment,  1872;  G.  C.  M.  O.  7,  Department  of  Texas,  1875;  G.  O.  24,  35, 
Fifth  Military  District,  1868. 

_    b  See  the  provision,  introductory  to  the  Articles  of  War,  of  section  1342,  Revised  Statutes,  in  which 
it  is  specified  that  "  the  word  officer,  as  used  therein,  shall  be  understood  to  designate  commissioned 
" 


officers. 


974  MILITARY    LAWS    OF   THE    UNITED    STATES. 

22Art!war.  ART.  22-  Any  officer  or  soldier  who  begins,  excites, 
causes,  or  joins  in  any  mutiny  or  sedition,  in  any  troop, 
battery,  company,  party,  post,  detachment,  or  guard,  shall 
suffer  death,  or  such  other  punishment  as  a  court-martial 
may  direct.1 

charge  of  disobedience  of  orders,  except,  indeed,  where  required  by  a  positive  order, 
issued  on  account  of  a  public  emergency,  to  return  before  his  leave  has  expired,  and 
failing  to  comply  with  such  requirement.  Dig.  Opin.  J.  A.  G.,  29,  par.  10. 

An  illiterate  soldier,  unable  to  sign  his  name,  was  furnished  with  a  written  exhibit 
of  it,  and  ordered  by  his  commanding  officer  to  continue  to  copy  the  same  till  he 
could  properly  sign  his  name  to  papers.  He  refused.  Held  that  such  order,  while 
not  in  fact  a  legal  one,  was  not  one  palpably  illegal,  and  that  the  soldier  should  have 
obeyed  it  and  complained  afterwards.  Disobedience  of  an  order,  however,  where  its 
illegality  is  merely  doubtful,  should  be  charged  under  the  sixty-second  rather  than 
under  this  article.  Ibid. ,  par.  26. 

Where  an  officer  respectfully  declined  to  comply  with  the  direction  of  his  superior 
to  sign  the  certificate  to  a  report  of  target  firing,  on  the  ground  that  the  facts  set 
forth  in  such  certificate  were  not  within  his  knowledge,  he  having  been  stationed  at 
the  butt,  where  he  was  not  in  a  position  to  be  informed  as  to  such  facts,  held  that  he 
was  not  amenable  to  a  charge  of  disobedience  of  orders  under  this  article.  Ibid., 
par.  29. 

The  term  officer  ( "superior  officer" ),  in  this  as  in  other  articles  of  war,  means  com- 
missioned officer.  (Sec.  1342,  Revised  Statutes.)  So  held  that  the  disobedience  by 
a  cadet  private  of  the  Military  Academy  of  an  order  of  a  cadet  lieutenant  of  his  com- 
pany was  not  chargeable  under  this  article,  but  was  an  offense  under  article  62. 
Ibid.,  par.  30. 

1  Mutiny  at  military  law  may  be  defined  to  be  an  unlawful  opposing  or  resisting  of 
lawful  military  authority,  with  intent  to  subvert  the  same,  or  to  nullify  or  neutralize 
it  for  the  time,  (a)  It  is  this  intent  which  distinguishes  mutiny  from  other  offenses, 
and  especially  from  those  with  which,  to  the  embarrassment  of  the  student,  it  has 
frequently  been  confused,  viz,  those  punishable  by  the  twenty-first  article,  as  also 
those  which,  under  the  name  of  ' '  mutinous  conduct, ' '  are  merely  forms  of  violation  of 
article  62.  The  offenses  made  punishable  by  this  article  are  not  necessarily  "aggre- 
gate" or  joint  offenses;(6)  among  them  is  the  beginning  or  causing  of  a  mutiny, 
which  may  be  committed  by  a  single  person.  In  general,  however,  the  offense  here 
charged  will  be  a  concerted  proceeding,  the  concert  itself  going  far  to  establish  the 
intent  necessary  to  the  legal  crime.  Ibid.,  par.  31. 

To  charge  as  a  capital  offense  under  this  article  a  mere  act  of  insubordination  or  dis- 
orderly conduct  on  the  part  of  an  individual  soldier  or  officer,  unaccompanied  by  the 
intent  above  indicated,  is  irregular  and  improper,  (c)  Such  an  act  should  in  general 
be  charged  under  article  20,  21,  or  62.  Ibid.,  par.  31. 

Soldiers  can  not  properly  be  charged  with  the  offense  of  joining  in  a  mutiny  under 
this  article  where  their  act  consists  in  refusing,  in  combination,  to  comply  with  an 
unlawful  order.  Thus,  where  a  detachment  of  volunteer  soldiers  who,  under  and  by 
virtue  of  acts  of  Congress  specially  authorizing  the  enlistment  of  volunteers  for  the 
purpose  of  the  suppression  of  the  rebellion,  and  with  the  full  understanding  on  their 
part  and  that  of  the  officers  by  whom  they  were  mustered  into  the  service  that  they 
were  to  be  employed  solely  for  this  purpose,  entered  into  enlistments  expressed  in 
terms  to  be  for  the  war,  and  after  doing  faithful  service  during  the  war,  and  just  before 
the  legal  end  of  the  war,  but  when  it  was  practically  terminated,  and  when  the  vol- 
unteer organizations  were  being  mustered  out  as  no  longer  required  for  the  prosecu- 
tion of  the  war,  were  ordered  to  march  to  the  Plains,  and  to  a  region  far  distant  from 
the  theater  of  the  late  war,  and  engage  in  fighting  Indians,  wholly  unconnected  as 
allies  or  otherwise  with  the  recent  enemy,  and  thereupon  refused  together  to  comply 
with  such  orders,  held  that  they  were  not  chargeable  with  mutiny.  While  by  the 
strict  letter  of  their  contracts  tney  were  subject  to  be  employed  upon  any  military 
service  up  to  the  last  day  of  their  terms  of  enlistment,  the  public  acts  and  history  of 

a  Compare  the  definition  and  description  of  mutiny  or  revolt  at  maritime  law  in  U.  S.  v.  Smith, 
1  Mason,  147;  U.  S.  v.  Haines,  5  ibid.,  276;  U.  S.  v.  Kelly,  4  Wash.,  528;  U.  S.  v.  Thompson,  1  Sumner, 
171:  U.  S.  v.  Borden,  1  Sprague,  376. 

ft  Samuel,  254,  257;  G.  O.  77,  War  Department,  1837;  G.  0.  10,  Department  of  the  Missouri,  1863. 

cSeeG.  O.  7,  War  Department,  1848;  G.  O.  115,  Department  of  Washington,  1865,  G.  C.  M.  0.  73, 
Department  of  the  Missouri,  1873.  And  compare  U.  S.  v.  Smith,  1  Mason,  147;  U.  S.  v.  Kelly,  4  Wash., 
528;  U.  S.  v.  Thompson,  1  Sumner,  171. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  .      975 

ART.  23.  Any  officer  or  soldier  who,  being  present  at  any  JStfn/0  re~ 
mutiny  or  sedition,  does  not  use  his  utmost  endeavor  to    23  Art- War- 
suppress  the  same,  or  having  knowledge  of  any  intended 
mutiny  or  sedition,  does  not,  without  delay,  give  informa- 
tion thereof  to  his  commanding  officer,  shall  suffer  death, 
or  such  other  punishment  as  a  court-martial  may  direct. 

ART.  24.  All  officers,  of  what  condition  soever,  have  fr^arrels    and 
power  to  part  and  quell  all  quarrels,  frays,  and  disorders,    24  Art-  War- 
whether  among  persons  belonging  to  his  own  or  to  another 
corps,  regiment,  troop,  battery,  or  company,  and  to  order 
officers  into  arrest,  and  noncommissioned  officers  and  sol- 
diers into  confinement,  who  take  part  in  the  same,  until 
their  proper  superior  officer  is  acquainted  therewith.     And 
whosoever,  being  so  ordered,  refuses  to  obey  such  officer 
or  noncommissioned  officer,  or  draws  a  weapon  upon  him, 
shall  be  punished  as  a  court-martial  may  direct.1 

the  time  made  it  perfectly  clear  that  this  enlistment  was  entered  into  for  the  partic- 
ular purpose  and  in  contemplation  of  the  particular  service  above  indicated,  and  to 
treat  the  parties  as  bound  to  another  and  distinct  service,  and  liable  to  capital  pun- 
ishment if  they  refused  to  perform  it,  was  technical,  unjust,  and  in  substance  illegal. 
Ibid.,  par.  32. 

In  a  case  where  a  brief  mutiny  among  certain  soldiers  of  a  colored  regiment  was 
clearly  provoked  by  inexcusable  violence  on  the  part  of  their  officer,  the  outbreak 
not  having  been  premeditated,  and  the  men  having  been  prior  thereto  subordinate 
and  well  conducted,  advised  that  a  sentence  of  death  imposed  by  a  court-martial  upon 
one  of  the  alleged  mutineers  should  be  mitigated  and  the  officer  himself  brought  to 
trial.  Similarly  advised  in  the  cases  of  sentences  of  long  terms  of  imprisonment 
imposed  on  sundry  colored  soldiers  who,  without  previous  purpose  of  revolt,  had 
been  provoked  into  momentary  mutinous  conduct  by  the  recklessness  of  their  officer 
in  firing  upon  them  and  wounding  several,  in  order  to  suppress  certain  insubordina- 
tion which  might  apparently  have  been  quelled  by  ordinary  methods. (a)  Ibid., 
par.  33. 

1  It  is  a  principle  of  the  common  law  that  any  bystander  may  and  should  arrest 
an  affrayer.  1  Hawkins,  P.  C.,  c.  63,  s.  11;  Timothy  v.  Simpson,  1  C.  M.  &  R.,  762, 
765;  Phillips  r.  Trull,  11  Johns,  487.  And  that  an  officer  or  soldier,  by  entering  the 
military  service,  does  not  cease  to  be  a  citizen,  and  as  a  citizen  is  authorized  and 
bound  to  put.  a  stop  to  a  breach  of  the  peace  committed  in  his  presence,  has  been 
specifically  held  by  the  authorities.  Burdett  v.  Abbott,  4  Taunt.,  449;  Bowyer,  Com. 
on  Const.  L.  of  Eng.,  499;  Simmons,  sees.  1096-1100.  This  article  is  thus  an  appli- 
cation of  an  established  common-law  doctrine  to  the  relations  of  the  military  service. 
See  its  application  illustrated  in  the  following  general  orders:  G.  0.  4,  War  Depart- 
ment, 1843;  G.  O.  63,  Department  of  the  Tennessee,  1863;  G.  O.  104,  Department  of 
the  Missouri,  1863;  G.  O.  52,  Department  of  the  South,  1871;  G.  0.  92,  ibid.,  1872. 
Dig.  Opin.  J.  A.  G.,  note  2,  page  16. 

Force  used.— The  force  to  be  used  in  quelling  an  affray  or  maintaining  the  peace  is 
that  only  which  is  necessary  to  secure  or  subdue  the  offenders.  It  does  not  consist 
of  repeated  blows,  inflicted  by  way  of  punishment  for  past  deeds,  but  must  be  such 
force  as  is  preventive  in  character,  and  must  not  exceed  the  strict  necessity  of  the 
case  requiring  such  acts  of  prevention.  No  officer  has  authority  to  inflict  punishment 
for  past  offenses  of  any  kind.  This  authority  is  possessed  by  courts  only.  G.  O., 
No.  4,  A.  G.  p.,  1843;  see  also,  G.  O.,  par.  7,  of  G.  O.  53,  A.  G.  O.,  of  1842. 

In  suppressing  disorders,  etc.,  means  should  be  proportioned  to  ends  to  be  gained; 
violent  measures,  clearly  unnecessary,  will  not  be  justified.  U.  S.  v.  Carr,  1  Woods,  480. 

For  a  case  in  which  it  became  incumbent  upon  a  junior  officer  to  "part  and  quell" 
an  affray,  and,  in  the  performance  of  his  duty  under  this  article,  to  give  orders  to  a 
military  superior,  who  was  a  participant  in  the  disturbance,  see  General  Court- 
Martial  Orders,  No.  20,  War  Department,  of  1880. 


a  Compare  cases  in  G.  O.  12,  War  Department,  1866;  G.  O.  104,  ibid.,  1863:  G.  C.  M.  O.  50,  Headquar- 
ters of  Army,  1867. 


976  MILITARY    LAWS    OF    THE    UNITED   STATES. 


or 


Reprp°rovohking     ART-  25-  No  officer  or  soldier  shall  use  any  reproachful 
sp25CArts.'  war.    or  provoking  speeches  or  gestures  to  another.     Any  officer 
who  so  offends  shall  be  put  in  arrest.     Any  soldier  who  so 
offends  shall  be  confined,  and  required  to  ask  pardon  of  the 
party  offended,  in  the  presence  of  his  commanding  officer.1 
flg^dlST8  to     ART-  26-  No  officer  or  soldier  shall  send  a  challenge  to 
i9Fpb244' 1877>  v  ano^ner  officer  or  soldier  to  fight  a  duel,  or  accept  a  chai- 
se Art.  war.    ienge  so  sent.     Any  officer  who  so  offends  shall  be  dis- 
missed from  the  service.     Any  soldier  who  so  offends  shall 
suffer  such  punishment  as  a  court-martial  may  direct.2 
sonslotoinjo  Po6ut     ART.  27.  Any  officer  or  noncommissioned  officer,  com- 
onds  fifnd   pfo-  man(ling  a  guard,  who,  knowingly  and  willingly,  suffers 
m27eArt.  war.    anv  Person  to  go  forth  to  fight  a  duel,  shall  be  punished  as 
a  challenger;  and  all  seconds  or  promoters  of  duels,  and 
carriers  of  challenges  to  fight  duels,  shall  be  deemed  prin- 
cipals, and  punished  accordingly.     It  shall  be  the  duty  of 
any  officer  commanding  an  army,  regiment,  troop,  battery, 
company,  post,  or  detachment,  who  knows  or  has  reason  to 
believe  that  a  challenge  has  been  given  or  accepted  by  any 
officer  or  enlisted  man  under  his  command,  immediately  to 
arrest  the  offender  and  bring  him  to  trial.3 

1This  article  confers  no  jurisdiction  or  power  to  punish  on  courts-martial,  but 
merely  authorizes  the  taking  of  certain  measures  of  prevention  and  restraint  by  com- 
manding officers — i.  e. ,  measures  preventive  of  serious  disorders  such  as  are  indicated 
in  the  two  following  articles  relating  to  duels,  (a)  Dig.  Opin.  J.  A.  G.,  par.  34. 

2  To  establish  that  a  challenge  was  sent,  there  must  appear  to  have  been  communi- 
cated by  one  party  to  the  other  a  deliberate  invitation  in  terms  or  in  substance  to 
engage  in  a  personal  combat  with  deadly  weapons,  with  a  view  of  obtaining  satisfac- 
tion for  wounded  honor.  (6)  The  expression  merely  of  a  willingness  to  fight,  or  the 
use  simply  of  language  of  hostility  or  defiance,  will  not  amount  to  a  challenge.  On 
the  other  hand,  though  the  language  employed  be  couched  in  ambiguous  terms,  with 
a  view  to  the  evasion  of  the  legal  consequences,  yet  if  the  intention  to  invite  to  a 
duel  is  reasonably  to  be  implied — and  ordinarily,  notwithstanding  the  stilted  and 
obscure  verbiage  employed,  this  intent  is  quite  transparent — a  challenge  will  be 
deemed  to  have  been  given.  And  the  intention  of  the  message,  where  doubtful 
upon  its  face,  may  be  illustrated  in  evidence  by  proof  of  the  circumstances  under 
which  it  was  sent,  and  especially  of  the  previous  relations  of  the  parties,  the  contents 
of  other  communications  between  them  on  the  same  subject,  etc.  (c)  And  technical 
words  in  an  alleged  challenge  may  be  explained  by  a  reference  to  the  so-called  duel- 
ling code,  (d)  (Ibid.,  par.  35.) 

It  may  be  noted  that  our  Articles  of  War,  unlike  the  British,  fail  to  make  punish- 
able, as  a  specific  military  offense,  the  engaging  in  a  duel.  Such  an  act,  therefore, 
would,  as  such,  be  in  general  chargeable  only  under  article  62.  Ibid.,  note  4. 

*On  the  general  subject  of  challenges,  and  the  question  what  constitutes  a  chal- 
lenge, see  the  principal  cases  of  the  sending  of  challenges  in  our  service,  as  pub- 
lished in  G.  O.  64,  A.  G.  O.,  1827;  G.  O.  39,  41,  ibid.,  1835;  G.  O.  2,  War  Department, 
1858;  G.  0.,  330,  ibid.,  1863;  G.  O.  11,  Army  of  the  Potomac,  1861;  G.  O.  46,  Depart- 
ment of  the  Gulf,  1863;  G.  O.  223,  Department  of  the  Missouri,  1864;  G.  O.  130, 
ibid.,  1872;  G.  O.  33,  Department  and  Army  of  the  Tennessee,  1864.  And  compare 
Commonwealth  v.  Levy,  2  Wheeler,  Cr.  C.,  245;  Commonwealth  v.  Tibbs,  1  Dana, 
524;  Commonwealth  v.  Hart,  6  J.  J.  March,  119;  State  v.  Taylor,  1  So.  Ca.,  108;  State 
v.  Strickland,  2  Nott  &  McCord,  181;  Ivey  v.  State,  12  Ala.,  277;  Aulger  v.  People,  34 
111.,  486;  2  Bishop,  Cr.  L.,  sec.  314;  Samuel,  384-387;  State  v.  Gibbons,  1  South,  51. 


a  Compare  Samuel,  372.  cSee  note  1  to  article  27.  par.  2. 

*  Compare  the  definition  in  2  Wharton,  Cr.  L.  sees.  2624-2679.          d  State  v.  Gibbons,  1  South,  51. 


MILITARY    LAWS    OF   THE    UNITED   STATES.  977 


ART.  28.  Any  officer  or  soldier  who  upraids  another 
officer  or  soldier  for  refusing  a  challenge  shall  himself  be  in|8cjrtlewlr' 
punished  as  a  challenger;  and  all  officers  and  soldiers  are 
hereby  discharged  from  any  disgrace  or  opinion  of  disad- 
vantage which  might  arise  from  their  having  refused  to 
accept  challenges,  as  they  will  only  have  acted  in  obedience 
to  the  law,  and  have  done  their  duty  as  good  soldiers,  who 
subject  themselves  to  discipline. 

ART.  29.  Any  officer  who  thinks  himself  wronged  by  the  Ce^0redre8s  of" 
commanding  officer  of  his  regiment,  and,  upon  due  appli-    29  Art-  War- 
cation  to  such  commander,  is  refused  redress,  may  complain 
to  the  general  commanding  in  the  State  or  Territory  where 
such  regiment  is  stationed.     The  general  shall  examine  into 
said  complaint  and  take  proper  measures  for  redressing 
the  wrong  complained  of;  and  he  shall,  as  soon  as  possible, 
transmit  to  the  Department  of  War  a  true  statement  of 
such  complaint,  with  the  proceedings  had  thereon.1 

ART.  30.  Anv  soldier  who  thinks  himself  wronged  bv    wrongs  to  soi- 

'  ^  diets;  redress  of. 

any  officer  may  complain  to  the  commanding  officer  of  his  so  Art-  War- 
regiment,  who  shall  summon  a  regimental  court-martial  for 
the  doing  of  justice  to  the  complainant.  Either  party  may 
appeal  from  such  regimental  court-martial  to  a  general 
court-martial;  but  if,  upon  such  second  hearing,  the  appeal 
appears  to  be  groundless  and  vexatious,  the  party  appeal- 
ing shall  be  punished  at  the  discretion  of  said  general 
court-martial.2 

1  This  article  is  expressly  confined  to  cases  of  alleged  wrongs  on  the  part  of  regi- 
mental commanders.  It  can  not  be  extended  to  apply  to  a  complaint  of  wrong  done 
by  a  post  commander  who  is  not  also  the  commanding  officer  of  the  regiment  of  the 
complainant.  (Dig.  Opin.  J.  A.  G.,  par.  36.) 

The  right  in  charges  and  appeals  is  not  to  be  exercised  in  any  mode  or  style  the 
subordinate  pleases,  but  with  some  reasonable  circumspection,  and  in  good  faith,  and 
in  subjection  to  the  controlling  law  of  discipline,  which,  to  sustain  military  author- 
ity, requires  obedience  and  forbids  disobedience  to  commanding  officers.  These 
rights,  and  the  mode  of  exercising  them,  have  been  well  and  carefully  defined  in  the 
General  Order  from  the  War  Department  of  No.  16  of  1851.  Under  color  of  charges  or 
appeals,  a  subordinate  has  no  right  to  avail  himself  of  the  opportunity  to  behave  with 
contempt  to  his  commanding  officer.  Where  such  a  case  is  alleged  in  the  specifications, 
a  court-martial  will  entertain  and  try  the  charge.  (G.  O.  No.  1,  A.  G.  O.,  1856.) 

2 See  the  title  "Regimental  Courts-Martial"  in  the  chapter  entitled  MILITARY 
TRIBUNALS. 

This  article  is  not  inconsistent  with  article  83,  which  prohibits  regimentel  courts 
from  trying  commissioned  officers.  It  does  not  contemplate  or  provide  for  a  trial  of 
an  officer  as  an  accused,  but  simply  an  investigation  and  adjustment  of  some  matter 
in  dispute — as,  for  example,  a  question  of  accountability  for  public  property,  of  right 
to  pay  or  to  an  allowance,  of  relief  from  a  stoppage,  etc.  The  regimental  court  does 
not  really  act  as  a  court,  but  as  a  board,  and  the  "appeal"  authorized  is  practically 
from  one  board  to  another.  But  though  the  regimental  court  has  no  power  to  find 
"guilty"  or  "not  guilty,"  or  to  sentence,  it  should  come  to  some  definite  opinion  or 
conclusion — one  sufficiently  specific  to  allow  of  its  being  intelligently  reviewed  by  the 
general  court,  if  desired.  (Dig.  Opin.  J.  A.  G. ,  par.  37 ;  see  also  ibid. ,  paragraphs  38-42. ) 

The  "regimental  court-martial"  under  the  thirtieth  article  of  war  can  not  be  used 

22924—08 62 


978  MILITARY   LAWS    OF   THE    UNITED   STATES. 


°ut  °f     ART.  31  •  Any  officer  or  soldier  who  lies  out  of  his  quar- 

31  Art.  war.    £erg?  garrison?  or  camp,  without  leave  from  his  superior 

officer,  shall  be  punished  as  a  court-martial  ma}^  direct. 
ART.  ^2.  Any  soldier  who  absents  himself  from  his  troop, 

32  Art.  war.    battery,  company,  or  detachment,  without  leave  from  his 

commanding  officer,  shall  be  punished  as  a  court-martial 
may  direct.1 
Absence  from     ART.  33.  Any  officer  or  soldier  who  fails,  except  when 

parade   without  » 

IFirt  war  Prevented  by  sickness  or  other  necessity,  to  repair,  at  the 
fixed  time,  to  the  place  of  parade,  exercise,  or  other  ren- 
dezvous, appointed  by  his  commanding  officer,  or  goes 

as  a  substitute  for  a  general  court-martial  or  court  of  inquiry,  for  it  can  not  try  an 
officer  nor  make  an  investigation  for  the  purpose  of  determining  whether  he  shall 
be  brought  to  trial.  When,  if  the  soldier's  complaint  should  be  sustained,  the  only 
redress  would  be  a  reprimand  to  the  officer,  the  matter  would  not  be  within  the  juris- 
diction of  this  court.  It  can  only  investigate  such  matters  as  are  susceptible  of  re- 
dress by  the  doing  of  justice  to  the  complainant  —  that  is,  when  in  some  way  he  can 
be  set  right  by  putting  a  stop  to  the  wrongful  condition  which  the  officer  has  caused 
to  exist.  Erroneous  stoppages  of  pay,  irregularity  of  detail,  the  apparent  require- 
ment of  more  labor  than  from  other  soldiers  and  the  like  might  in  this  way  be  inves- 
tigated and  the  wrongful  condition  put  an  end  to.  The  court  will  in  such  cases 
record  the  evidence  and  its  conclusions  of  fact  and  recommend  the  action  to  be  taken. 
The  members  of  the  court  (and  the  judge-advocate)  will  be  sworn  faithfully  to  per- 
form their  duties  as  members  (and  judge-advocate)  of  the  court,  and  the  proceedings 
will  be  recorded  as  nearly  as  practicable  in  the  same  manner  as  the  proceedings  of 
ordinary  courts-martial.  Manual  for  Courts-Martial  (1901),  p.  99,  note.  (Dig.  Opin. 
J.  A.  G.,  par.  42,  note  1.) 

In  the  case  of  Brevet-Major  Henshaw,  tried  by  court-martial  in  1856  for  disrespect 
to  his  commanding  officer,  Major  Andrews,  Seventh  Infantry,  the  conduct  of  Major 
Andrews  was  thus  remarked  on  by  the  Secretary  of  War:  "An  experienced  officer 
who  had  served  with  him  (Major  A.)  admits  his  treatment  of  his  men  to  be  harsh 
and  violent  and  his  conduct  very  reprehensible  in  this  respect.  This  was  *the  con- 
siderate testimony  of  a  friendly  witness,  and  is  such  evidence  of  the  fact  as  calls  for 
a  decided  expression  of  the  opinion  of  the  President.  A  commanding  officer  has  no 
right  to  be  insulting,  harsh,  or  abusive  to  those  in  his  command.  Both  officers  and 
enlisted  men  are  equally  entitled  to  be  protected  from  ill-treatment  by  him.  An 
officer  who  commits  such  offenses  is  wanting  in  some  of  the  essential  qualifications 
for  command,  and  it  is  to  be  regretted  that  a  thorough  investigation  of  this  matter 
was  not  made  by  putting  Major  Andrews  on  trial.  (G.  0.  No.  1,  A.  G.  O.,  1851.) 

*An  unauthorized  absence  from  the  quarters  only,  as  from  11  p.  in.  inspection, 
held  not  properly  chargeable  under  the  32d  Article.  This  article  contemplates  an 
absence  from  the  soldier's  "troop,  battery,  company,  or  detachment"  —  an  absence 
from  the  post  or  command.  Dig.  Opin.  J.  A.  G.,  par.  374. 

Where  an  officer  or  soldier  on  his  return  from  an  unauthorized  absence  is,  in  con- 
sequence of  his  report  of  the  facts  and  circumstances  of  such  absence,  not  proceeded 
against  by  his  proper  commander  for  the  military  offense  involved,  but  is  by  the 
latter  placed  upon  full  duty,  such  action,  under  the  general  custom  of  the  service,  may 
be  pleaded  as  a  good  defence,  if  the  officer  or  soldier  be  subsequently  brought  to 
trial  for  the  unauthorized  absence.  Ibid.,  par.  377. 

An  enlisted  man  forfeits  his  pay  and  allowances  during  the  period  of  an  absence 
without  leave,  as  provided  in  par.  144  A.  R.  During  such  absence  he  renders  no 
service  and  therefore  earns  neither  pay  nor  allowances.  The  forfeiture  is  thus  by 
operation  of  law  and  accrues  independently  of  the  result  of  a  trial  for  the  military 
offence  involved  in  the  unauthorized  absence.  One  of  the  purposes  of  the  muster 
and  pay  rolls  is  to  show  what  service  the  soldier  renders,  and  if  they  show  that  he 
has  rendered  none  during  a  particular  period  by  reason  of  an  absence  without  leave, 
he  is  not  entitled  to  pay  and  allowances  during  such  period.  For  an  absence  with- 
out leave  of  less  than  a*  day  the  soldier  may  of  course  be  tried  by  court-martial  and 
sentenced  to  suffer  a  forfeiture,  but  such  absence  should  not  be  noted  on  the  muster 
and  pay  rolls.  Ibid.,  par.  378. 


MILITARY   LAWS    OF   THE   UNITED   STATES. 


979 


35  Art>  War- 


from  the  same,  without  leave  from  his  commanding  officer, 
before  he  is  dismissed  or  relieved,  shall  be  punished  as  a 
court-martial  may  direct. 

ART.  34.  Any  soldier  who  is  found  one  mile  from  camp,    one  mile  from 

...  i     11  camp     without 

without  leave  in  writing  from  his  commanding  officer,  shall  leave. 

.    _  _  .  3*  Art*  »Vfir» 

be  punished  as  a  court-martial  may  direct. 

ART.  35.  Any  soldier  who  fails  to  retire  to  his  quarters 
or  tent  at  the  beating  of  retreat  shall  be  punished  accord- 
ing  to  the  nature  of  his  offense. 

ART.  36.  No  soldier  belonging  to  any  regiment,  troop, 
battery,  or  company  shall  hire  another  to  do  his  duty  for 
him,  or  be  excused  from  duty,  except  in  cases  of  sickness, 
disability,  or  leave  of  absence.  Every  such  soldier  found 
guilty  of  hiring  his  duty,  and  the  person  so  hired  to  do 
another's  duty,  shall  be  punished  as  a  court-martial  may 
direct. 

ART.  37.  Every  noncommissioned  officer  who  connives 
at  such  hiring  of  duty  shall  be  reduced.  Every  officer  who 
knows  and  allows  such  practices  shall  be  punished  as  a 
court-martial  may  direct. 

ART.  38.  Any  officer  who  is  found  drunk  on  his  guard, 
party,  or  other  duty,  shall  be  dismissed  from  the  service.  80 
Any  soldier  who  so  offends  shall  suffer  such  punishment  as  ^ 
a  court-martial  may  direct.     No  court-martial  shall  sen- 
tence any  soldier  to  be  branded,  marked,  or  tattooed.1 


at 


37 


t 
Art*  W 


SuAnrt.0wa?.ty> 
?'  p873i8j 
'  °' 


1  Held  that  a  soldier  found  drunk  when  on  duty  was  properly  convicted  under  this 
article,  though  his  drunkenness  actually  commenced  before  he  went  on  the  duty,  his 
condition  not  being  perceived  till  some  time  after  he  had  entered  upon  the  same. 
While  it  is  in  itself  an  offense  knowingly  to  allow  a  soldier  to  go  on  duty  when  under 
the  influence  of  intoxicating  liquor,  yet  if  a  soldier  is  placed  on  duty  while  partially 
under  this  influence,  but  without  the  fact  being  detected,  and  his  drunkenness  con- 
tinues and  is  discovered  while  he  remains  upon  the  duty,  he  is  strictly  amenable 
under  this  article,  which  prescribes  not  that  the  party  shall  become  drunk,  but  that 
he  shall  be  "found  drunk"  on  duty.  fa)  Dig.  Opin.  J.  A.  G.,  par.  43. 

A  charge  of  drunkenness  on  duty  (drill)  held  not  sustained  where  the  party  was 
found  drunk,  not  at  or  during  the  drill,  but  at  the  hour  appointed  for  the  drill,  which 
however,  by  reason  of  his  drunkenness,  he  did  not  enter  upon  or  attend.  The  charge 
should  properly  have  been  laid  under  article  62.  Ibid.,  par.  44. 

An  officer  reporting  in  person  drunk,  upon  his  arrival  at  a  post,  to  the  commander 
of  which  he  had  been  ordered  to  report,  held  chargeable  under  this  article.  And  so 
held  of  an  officer  reporting,  when  drunk,  to  the  post  commander  for  orders  as  officer 
of  the  day,  after  having  been  duly  detailed  as  such.  Ibid.,  par.  45. 

But  where  an  officer,  after  being  specially  ordered  to  remain  with  his  company, 
absented  himself  from  it  and  from  his  duty,  and  while  thus  absent  became  and  was 
found  drunk,  held  that  he  was  not  strictly  chargeable  with  drunkenness  on  duty 
under  this  article,  but  was  properly  chargeable  with  drunkenness  in  violation  of  the 
Sixty-second  article,  disobedience  of  orders,  and  unauthorized  absence.  Ibid.  ,  par.  46. 

A  post  commander,  while  present  and  exercising  command  as  such,  is  deemed  to 

a  Note  the  emphatic  order  of  the  President  in  regard  to  violations  of  this  article,  published  in  G.  O. 
104,  Headquarters  of  Army,  1877.  See  cases  in  G.  O.  11,  Department  of  Louisiana,  1869;  G.  C.  M.  O.,  113, 
Department  of  the  Missouri,  1873. 


980  MILITARY    LAWS    OF   THE    UNITED   STATES. 

in|e?npoL8leep"     ART-  39-  AnJ  sentinel  who  is  found  sleeping  upon  his 
39  Art.  war.    pOSt5  Or  who  leaves  it  before  he  is  regularly  relieved,  shall 
suffer  death,  or  such  other  punishment  as  a  court-martial 
may  direct.1 

ete^wfffo'ut     ART-  40-  AnJ  officer  or  soldier  who  quits  his  guard, 
le406Art.  war.    P^toon,  or  division  without  leave  from  his  superior  offi- 
cer, except  in  a  case  of  urgent  necessity,  shall  be  punished 
as  a  court-martial  may  direct. 

fiArtfwar!'  ART.  41.  Any  officer  who,  by  any  means  whatsoever, 
occasions  false  alarms  in  camp,  garrison,  or  quarters  shall 
suffer  death,  or  such  other  punishment  as  a  court-martial 
may  direct. 

be  at  all  times  on  duty  in  the  sense  of  this  article,  and  thus  liable  to  a  charge  under 
the  same  if  found  drunk  at  the  post,  (a)  Ibid.,  par.  47. 

A  medical  officer  of  a  post,  where  there  are  constantly  sick  persons  under  his  charge 
who  may  at  any  moment  require  his  attendance,  may,  generally  speaking,  be  deemed 
to  be  "on  duty,"  in  the  sense  of  the  article,  during  the  whole  day,  and  not  merely 
during  the  hours  regularly  occupied  by  sick  call,  visiting  the  sick,  or  attending 
hospital.  If  found  drunk  at  any  other  hour  he  may,  in  general,  be  charged  with  an 
offense  under  this  article.  Ibid. ,  par.  48. 

The  drunkenness  need  not  be  such  as  totally  to  incapacitate  the  party  for  the  duty. 
It  is  sufficient  if  it  be  such  as  to  materially  impair  the  full  and  free  use  of  his  mental 
or  physical  abilities.  (6)  It  is  not  a  sufficient  defense  to  a  charge  of  drunkenness  on 
duty  to  show  that  the  accused,  though  under  the  influence  of  liquor,  contrived  to 
get  through  and  somehow  perform  the  duty.  Ibid.,  par.  49.  See  also  ibid.,  par.  50. 

It  is  immaterial  whether  the  drunkenness  be  voluntarily  induced  by  spirituous 
liquor  or  by  opium  or  other  intoxicating  drug.  In  either  case  the  offense  may  be 
equally  complete. (c)  Ibid.,  par.  51. 

Drunkenness  not  on  duty,  or  when  off  duty,  when  amounting  to  a  "  disorder," 
should  be  charged  under  article  62,  unless  (in  a  case  of  an  officer)  committed  under 
such  circumstances  as  to  constitute  an  offense  under  article  61.  Ibid.,  par.  52. 

No  p  unishment  except  dismissal  can  legally  be  imposed  upon  an  officer  on  a  con- 
viction of  the  offense  made  punishable  by  this  article.  A  sentence  imposing,  with 
dismissal,  any  further  punishment,  as  imprisonment  or  forfeiture  of  pay,  is,  as  to 
such  additional  penalty,  unauthorized  and  inoperative,  and  should  so  far  be  disap- 
proved. Ibid.,  par.  53. 

*It  is  no  defense  to  a  charge  of  "  sleeping  on  post "  that  the  accused  had  been  pre- 
viously overtasked  by  excessive  guard  duty;(d)  or  that  an  imperfect  discipline 
prevailed  in  the  command  and  similar  offenses  had  been  allowed  to  pass  without 
notice;  (e)  or  that  the  accused  was  irregularly  or  informally  posted  as  a  sentinel,  (f) 
Evidence  of  such  circumstances,  however,  may  in  general  be  received  in  extenuation 
of  the  offense,  or,  after  sentence,  may  form  the  basis  for  a  mitigation  or  partial 
remission  of  the  punishment,  (g)  An  officer  who  places  or  continues  a  soldier  on 
duty  as  a  sentinel  when,  from  excessive  fatigue,  infirmity,  or  other  disability,  he  is 
incompetent  to  perform  the  important  duties  of  such  a  position  will  ordinarily  ren- 
der himself  liable  to  charges,  (h)  Ibid.,  par.  55. 

a  That  the  article  is  not  limited  in  its  application  to  mere  duties  of  detail,  but  embraces  all  descrip 
tions  and  occasions  of  duty,  see  the  interpretation  of  the  same  as  declared  in  G.  0. 7,  War  Department, 
1856,  and  affirmed  in  G.  0. 5,  ibid.,  1857.  The  case  in  the  latter  order,  indeed,  Avas  a  case  of  drunken- 
ness while  on  duty  as  a  post  commander.  See  another  case  of  the  same  character  in  G.  C.  M.  0. 21, 
Department  of  the  Missouri,  1870,  and  the  remarks  of  Major-General  Schofield  thereon,  and  compare 
G.  C.  M.  0. 9,  War  Department,  1875. 

6See  G.C.M.O.33,  War  Department,  1875;  also  G.  C.  M.  O.21,  Department  of  the  Missouri,  1870; 
G.  0. 53,  98,  Army  of  the  Potomac,  1862;  G.  0. 48,  Department  of  Virginia  and  North  Carolina,  1864; 
G.O.33,  Department  of  the  Platte,  1871. 

cSimmons,  sec.  157;  and  see  Hough  (Precedents),  208;  James's  Precedents,  60. 

dSee  G.  0. 74,  Army  of  the  Potomac,  1862. 

eG.  O  74,  Army  of  the  Potomac,  1862. 

/G.  0. 10,  Middle  Military  Department,  1865;  G.  0. 166,  Department  of  the  South,  1864. 

g  See  G.0. 10,  62,  Department  of  Virginia  and  North  Carolina,  1863:  G.  0. 2,  Northern  Department, 
1865;  G.O.67,  Department  of  Washington,  1866;  G.O.9,  Department  of  the  South,  1870;  G.C.M.O.  44, 
Department  of  Texas,  1875. 

A  See  G.  0. 15,  Army  of  the  Potomac,  1861;  G.  0. 62,  Department  of  Virginia  and  North  Carolina,  1863, 
G.  C.  M,  0. 59,  Department  of  Texas,  1872;  G.  C.  M.  0. 80,  Department  of  the  Missouri,  1875. 


MILITARY   LAWS   OF   THE   UNITED   STATES. 


981 


g>   cowar(iice. 
42  Art-  War> 


43  Art-  War- 


44  Art-  War- 


^y  ving  the 
46  Art-  War- 


ART.  42.  Any  officer  or  soldier  who  misbehaves  himself 
before  the  enemy,  runs  away,  or  shamefully  abandons  any 
fort,  post,  or  guard,  which  he  is  commanded  to  defend,  or 
speaks  words  inducing  others  to  do  the  like,  or  casts 
away  his  arms  or  ammunition,  or  quits  his  post  or  colors 
to  plunder  or  pillage,  shall  suffer  death,  or  such  other 
punishment  as  a  court-martial  may  direct.1 

ART.  43.  If  any  commander  of  any  garrison,  fortress,  or 
post  is  compelled,  by  the  officers  and  soldiers  under  his 
command,  to  give  up  to  the  enemy  or  to  abandon  it,  the 
officers  or  soldiers  so  offending  shall  suffer  death,  or  such 
other  punishment  as  a  court-martial  may  direct. 

ART.  44.  Any  person  belonging  to  the  armies  of  the 
United  States  who.  makes  known  the  watchword  to  any 
person  not  entitled  to  receive  it,  according  to  the  rules  and 
discipline  of  war,  or  presumes  to  give  a  parole  or  watch- 
word different  from  that  which  he  received,  shall  suffer 
death,  or  such  other  punishment  as  a  court-martial  may 
direct. 

ART.  45.  Whosoever  relieves  the  enemy  with  money, 
victuals,  or  ammunition,  or  knowingly  harbors  or  protects 
an  enemy,  shall  suffer  death,  or  such  other  punishment  as 
a  court-martial  may  direct.2 

1  Misbehavior  before  the  enemy  may  be  exhibited  in  the  form  of  cowardice,  or  it 
may  consist  in  a  willful  violation  of  orders,  gross  negligence,  or  inefficiency,  an  act 
of  treason  or  treachery,  etc.  (a)     It  need  not  be  committed  in  the  actual  sight  of 
the  enemy,  but  the  enemy  must  be  in  the  neighborhood,  and  the  act  of  offense  have 
relation  to  some  movement  or  service  directed  against  the  enemy  or.  growing  out  of 
a  movement  or  operation  on  his  part.     It  may  be  committed  in  an  Indian  war 
equally  as  in  a  foreign  or  civil  war.  (6)     Dig.  Opin.  J.  A.  G.,  par.  56. 

The  term  "his  arms  or  ammunition"  does  not  refer  to  arms,  etc.,  which  are  the 
personal  property  of  the  soldier,  but  means  such  as  have  been  furnished  to  him  by 
the  proper  officer  for  use  in  the  service.  (c)  The  term  is  to  be  construed  in  connec- 
tion with  the  further  similar  expression  "his  post  or  colors."  Ibid.,  par.  57. 

2  In  view  of  the  general  term  of  description  in  this  and  the  succeeding  article, 
"  whosoever,"  it  was  held,  during  the  late  war,  by  the  Judge-Advocate-General  and 
by  the  Secretary  of  War,  [d]  and'  has  been  held  later  by  the  Attornev-General,  (e} 

il~_i    ,i__:ii  ___      -"_  ___  11    _  ___;Ii_    _      *I'A  11        ,        ,     •     -i  S  •    T_  A 

mmshment 
But  the 
code 

enacted  for  the  government  of  the  military  establishment,  they  relate  only  to  per- 
sons belonging  to  that  establishment  unless  a  different  intent  should  be  expressed  or 

a  The  phases  which  this  offense  may  assume  are  well  illustrated  in  cases  published  in  the  follow- 
ing general  orders:  G.  O.  5,  War  Department,  1857;  G.  O.  183,  ibid.,  1862;  G.  O.  18,  134,  146,  189,  204, 
229,  282,  317,  ibid.,  1863;  G.  O.  27,  64,  ibid.,  1864;  G.  C.  M.  O.  90,  114,  272,  279,  ibid.,  1864;  G.  O.  53,  1,  107, 
124,  126,  134,  191,  421,  ibid.,  1865. 

6  See  case  in  G.  O.  5,  War  Department,  1857,  in  which  a  soldier  was  sentenced  to  be  hung  upon  con- 
viction of  misbehavior  before  the  enemy  on  the  occasion  of  a  fight  with  Indians. 

cSee  Samuel,  692;  Hough,  Practice,  336. 

dSee  G.  O.  67,  War  Department,  1861;  also  the  following  orders  of  that  Department  publishing  and 
approving  sentences  of  civilians  tried  and  convicted  under  these  articles:  G.  O  76  175  250,  371,  of 
1863;  G.  O.  51,  of  1864;  G.  C.  M.  O.  106,  157,  of  1864;  G.  C.  M.  O.  260,  671,  of  1865 

e  XIII  Opin.  Attf.  Gen.,  472. 

/Admitting  this  construction  to  be  warranted  so  far  as  relates  to  acts  committed  on  the  theater  of 
war  or  within  a  district  under  martial  law,  it  is  to  be  noted  that  it  is  the  effect  of  the  leading  ad- 
judged cases  to  preclude  the  exercise  of  the  military  jurisdiction  over  this  class  of  offenses  when 
committed  by  civilians  in  places  not  under  military  government  or  martial  law.  See,  especially, 
Ex  parte  Milligan,  4  Wallace,  121-123;  Jones  v.  Seward.,  Barb.,  563. 


982  MILITARY   LAWS    OF   THE   UNITED   STATES. 


ART.  46.  Whosoever  holds  correspondence  with,  or  gives 

46  Art.  War.    intelligence  to,  the  enemy,  either  directly  or  indirectly^ 

shall  suffer  death,  or  such  other  punishment  as  a  court- 
martial  may  direct.1 

47  A?t!0war.        ART.  47.  Any  officer  or  soldier  who,  having  received 
is?  vy  IV^fs  C  Pay  '  or  havmg  been  duly  enlisted  in  the  service  of  the 

United  States,  deserts  the  same,  shall,  in  time  of  war,  suf- 
fer death,  or  such  other  punishment  as  a  court-martial  may 
direct;  and  in  time  of  peace,  any  punishment,  excepting 
death,  which  a  court-martial  may  direct.2 

otherwise  made  manifest.  No  such  intent  is  so  expressed  or  made  manifest.  Per- 
sons not  belonging  to  the  military  establishment  may  be  proceeded  against  for  the 
acts  mentioned  in  the  article,  but  it  is  by  virtue  of  the  power  of  another  jurisdiction, 
namely,  martial  law;  and  martial  law  does  not  owe  its  existence  to  legislation,  but 
to  necessity.  The  scope  of  these  articles  under  the  legislation  of  1776,  apparently 
extending  their  application  to  civilians,  seems  to  have  become  modified  on  the 
adoption  of  the  Constitution.  Ibid.,  par.  58,  note  5. 

During  the  late  war  all  inhabitants  of  insurrectionary  States  were  prima  facie  ene- 
mies in  the  sense  of  this  and  the  succeeding  article,  (a)  A  citizen  of  an  insurgent 
State  who  entered  the  United  States  military  service  became  of  course  no  longer  an 
enemy.  So  held  of  a  lieutenant  of  the  First  East  Tennessee  Cavalry.  Ibid.,  par.  59. 
For  a  case  in  which  a  citizen  of  Maryland  was  convicted  of  relieving  the  enemy  in 
violation  of  this  article,  see  G.  O.  76,  A.  G.  O.,  of  1863. 

It  is  no  less  a  relieving  an  enemy  under  this  article  that  the  money,  etc.  ,  furnished 
is  exchanged  for  some  commodity,  as  cotton,  valuable  to  the  other  party.  Dig.  Opin. 
J.  A.  G.,  par.  60. 

The  act  of  "releiving  the  enemy"  contemplated  by  this  article  is  distinguished 
from  that  of  trading  with  the  enemy  in  violation  of  the  laws  of  war,  the  former 
being  restricted  to  certain  particular  forms  of  relief,  while  the  latter  includes  every 
kind  of  commercial  intercourse  not  expressly  authorized  by  the  Government.  Ibid.  , 
par.  61. 

1  Held  that  the  offense  of  holding  correspondence  with  the  enemy  was  completed 
by  writing  and  putting  in  progress  a  letter  to  an  inhabitant  of  an  insurrectionary  State 
during  the  late  war,  it  not  being  deemed  essential  to  this  offense  that  the  letter  should 
reach  its  destination.  (6)     Ibid.,  par.  62. 

It  is  essential,  however,  to  the  offense  of  giving  intelligence  to  the  enemy  that 
material  information  should  actually  be  communicated  to  him;  the  communication 
may  be  verbal,  in  writing,  or  by  signals.  Ibid.,  par.  63. 

2  Desertion  is  an  unauthorized  absenting  of  himself  from  the  military  service,  by  an 
officer  or  soldier,  with  the  intention  of  not  returning.     In  other  words,  it  is  the  viola- 
tion of  military  discipline  familiarly  known  as  absence  without  leave  (whether  con- 
sisting in  an  original  absenting  without  authority,  or  in  an  overstaying  of  a  defined 
leave  of  absence)  accompanied  by  an  animus  manendi,  or  non  revertendi;  this  ani- 
mus constituting  the  gist  of  the  offense.     In  order  to  establish  the  commission  of  the 
specific  offense,  both  these  elements  —  the  fact  of  the  unauthorized  voluntary  with- 
drawal, and  the  intent  permanently  to  abandon  the  service  —  must  be  proved.     The 
intent  may  be  inferred,  not  indeed  from  the  fact  of  absenting  alone,  but  from  the 
circumstances  attending  this  fact,  and  here  the  duration  of  the  absence  is  especially 
material.     Thus  the  circumstance  that  the  absence  has  been  exceptionally  protracted 
and  quite  unexplained  will,  in  general,  furnish  a  presumption  of  the  existence  of  the 
necessary  intent.     An  unauthorized  absence,  however,  of  a  few  hours,  terminated  by 
a  forcible  apprehension,  may,  under  certain  situations,  be  sufficient  evidence  of  such 
intent  and  thus  proof  of  a  desertion;  wrhile  an  absence  for  a  considerable  interval, 

a  See  the  opinion  of  the  United  States  Supreme  Court  (frequently  since  reiterated  in  substance)  as 
given  by  Grier,  J.,  in  the  "  Prize  Cases,"  2  Black,  666  (1862);  and  by  Chase,  C.  J.,  in  the  cases  of  Mrs. 
Alexander's  Cotton  and  The  Venice,  2  Wallace,  274,  418  (1864).  In  the  latter  case  the  Chief  Justice 
observes:  "  The  rule  which  declares  that  war  makes  all  the  citizens  or  subjects  of  one  belligerent 
enemies  of  the  Government  and  of  all  the  citizens  o  r  subjects  of  the  other,  applies  equally  to  civil 
and  to  international  wars."  That  an  insurrectionary  State  was  no  less  "  enemy's  country,"  though 
in  the  military  occupation  of  the  United  States,  with  a  military  governor  appointed  by  the  President, 
see  opinion  by  Field,  J.,  in  Coleman  v.  Tennessee,  7  Otto,  516,  517. 

6  Compare  Hensey's  Case,  1  Burrow,  642;  Stone's  Case,  6  Term,  527;  Samuel,  580. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  983 

unattended  by  circumstances  indicating  a  purpose  to  separate  permanently  from  the 
service,  or  to  dissolve  the  pending  engagement  of  the  soldier,  may  be  proof  simply 
of  the  minor  included  offense.  In  order  to  determine  whether  or  not  the  officer  or 
soldier  absented  himself  with  the  intent  not  to  return,  i.  e.,  whether  his  offense  was 
desertion  or  absence  without  leave,  all  the  circumstances  connected  with  his  leaving, 
absence,  and  return  (whether  compulsory  or  voluntary)  must  be  considered  together. 
Each  case  must  be  governed  by  its  own  peculiar  facts,  and  no  general  rule  on  the 
subject  can  be  laid  down.  Ibid.,  par.  1053. 

That  a  soldier  has  been  charged  With  a  desertion  is  no  evidence  that  he  has  com- 
mitted the  offense.  Thus,  held  that  the  mere  fact  that  a  soldier,  absent  without 
authority,  had  been  arrested  and  returned  to  his  regiment  as  a  deserter,  was  110  proof 
whatever  of  the  offense  charged.  So,  held  that  a  mere  entry  on  a  morning  report 
book,  descriptive  roll,  or  other  official  statement  or  return  that  a  soldier  deserted  on 
a  certain  day  was  not  legal  evidence  of  a  desertion  by  him,  but  was  evidence  only 
that  he  had  been  charged  with  desertion,  (a)  So,  a  report  from  the  Adjutant-General's 
Office  containing  extracts  from  the  muster  rolls  of  a  regiment  on  which  a  soldier  of 
the  same  was  noted  as  having  deserted  on  a  certain  date,  held  incompetent  evidence 
of  the  fact  of  desertion  upon  the  trial  of  the  soldier  for  that  offense.  (6)  Similarly 
held  that  the  mere  statement  of  a  first  sergeant,  given  as  testimony  on  the  trial  of  a 
soldier  of  his  company  charged  with  desertion,  that  the  accused  "deserted"  at  a 
certain  time  and  place,  was  insufficient  as  proof  of  the  offense  charged,  being,  indeed, 
but  an  assertion  of  a  conclusion  of  law.  In  such  cases  it  is  for  the  witness  simply  to 
state  the  facts  and  circumstances,  so  far  as  known  to  him,  attending  the  act  charged, 
it  being  the  province  of  the  court  alone  to  arrive  at  the  conclusion  that  the  offense 
has  been  committed.  To  convict  a  deserter  upon  an  accusation  merely,  however 
formally  and  officially  the  same  may  be  made,  would  be  as  unwarranted  in  law  as  it 
would  be  unjust  in  fact.  Ibid.,  par.  1056. 

The  nature  of  the  offense  of  desertion  is  well  illustrated  in  cases  of  escape.  The 
mere  fact  that  a  soldier  while  awaiting  trial  or  sentence,  or  while  under  sentence  (and 
not  discharged  from  the  service),  escapes  from  his  confinement  is  not  proof  of  a 
desertion  on  his  part,  since  he  may  have  had  in  view  some  minor  object,  such  as  the 
procuring  of  liquor,  etc.(c)  But  an  escape,  followed  by  a  considerable  absence, 
especially  if  the  soldier  is  obliged  to  be  forcibly  apprehended,  is  strong  presumptive 
evidence  of  the  existence  of  the  intent  necessary  to  constitute  the  crime.  So,  though 
the  absence  involved  may  be  comparatively  brief,  the  circumstances  accompanying 
the  escape  or  attending  the  apprehension  may  be  such  as  to  justify  an  equally  strong 
presumption.  An  escape,  with  intent  not  only  to  evade  confinement,  but  to  quit  the 
service,  while  the  party  is  held  awaiting  proceedings  for  desertion,  is  of  course  a 
second  or  additional  desertion. 

As  to  the  nature  of  the  offense  which  may  be  involved,  there  is  properly  no  sub- 
stantial distinction  between  an  escape  while  awaiting  trial  or  sentence  and  an  escape 
while  in  confinement  under  sentence.  An  escape,  indeed,  from  an  imprisonment 
imposed  by  sentence  would  probably  be  more  likely  to  be  characterized  by  an  animus 
non  revertendi  than  an  escape  from  a  merely  preliminary  confinement  in  arrest.  So 
an  escape  from  confinement  while  awaiting  trial  upon  a  grave  charge,  which  must 
entail,  upon  conviction,  a  severe  punishment,  would  naturally  be  more  generally  so 
characterized  than  an  escape  from  an  arrest  upon  a  charge  of  inferior  consequence. 

Undoubtedly,  in  the  great  majority  of  cases,  escape  is  desertion;  the  precedents, 
however,  show  that  it  is  not  necessarily  so,  and  upon  the  mere  fact  arone  that  a 
soldier  has  liberated  himself  from  military  custody  it  is  not  just  to  convict  him  of 
having  designed  to  dissolve  his  contract  and  permanently  abandon  the  military  serv- 
ice. Of  course,  an  escape  from  legal  military  custody  is  always  an  offense,  and  the 
soldier  who  has  escaped  may  (where  his  act  does  not  amount  to  a  desertion)  be 
brought  to  trial  for  such  offense  as  "conduct  to  the  prejudice  of  good  order  and  mili- 
itary  discipline." 

It  need  hardly  be  added  that  an  escape  from  imprisonment  under  sentence,  effected 
by  a  party  who  has  been  dishonorably  discharged  under  the  same  sentence,  can  not 
constitute  a  desertion  or  other  offense,  the  party  at  the  time  of  escape  being  no 
longer  in  the  military  service.  Ibid.,  par.  1057. 

Held  to  be  no  defense  to  a  charge  of  desertion  that  the  accused,  at  the  time  of  the 

a  Compare  G.  C.  M.  O.,  33,  Department  of  the  Missouri,  1875. 

&  Compare  Hanson  v.  S.  Scituate,  115  Mass.,  336. 

cSee  a  case  of  this  nature  (an  escaping  in  order  to  obtain  liquor)  in  G.  0.,  32,  Department  of  the 
South,  1873;  and  compare  the  case  in  G.  O.,  87,  Department  of  the  South,  1872,  in  which  a  conviction 
of  desertion  is  disapproved  on  the  ground  that  the  evidence  showed  "merely  an  escape  from  the 
guardhouse,  without  intention  to  leave  the  service  or  the  vicinity  of  the  post."  And  see  in  this  con- 
nection .Samuel,  324,  where  to  be  "discovered,"  after  a  short  absence,  "in  the  pursuit  of  some  acci- 
dental temporary  object,  though  perhaps  otherwise  illicit,"  is  instanced  as  not  indicating  an  intent, 
by  the  offender,  "to  sever  himself  from  the  service." 


984  MILITARY    LAWS    OF   THE    UNITED    STATES. 

enlistment  which  he  is  charged  with  having  abandoned,  was  an  unapprehended 
deserter  from  the  Army,  an  enlistment  of  a  deserter  being  not  void  but  voidable  only. 
Ibid.,  par.  1058. 

It  is  no  defense  to  a  charge  of  desertion  that  the  soldier  was  induced  to  abandon 
the  service  by  reason  of  ill  treatment,  want  of  proper  food,  etc. ;  such  circumstances 
can  only  palliate,  not  excuse,  the  offense  committed.  So,  in  a  case  of  a  Swiss,  who, 
having  enlisted  in  our  Army,  deserted  after  two  years  of  service,  held  that  it  was  no 
defense  (though,  under  the  circumstances,  matter  of  extenuation)  that  his  act  had 
been  induced  by  an  intense  nostalgia  or  maladie  du  pays.  So,  held,  in  a  case  of  a 
desertion  by  a  German,  that  the  fact  that  he  had  received  a  notification  from  the 
military  authorities  of  the  North  German  Empire  to  report  at  home  for  military 
duty  under  the  penalty  of  being  considered  as  a  deserter  from  the  German  army 
constituted  no  defense  to  a  desertion  committed  by  him  from  our  service,  (a)  Ibid., 
par.  1059. 

It  is,  however,  a  complete  answer  to  a  charge  of  desertion  before  a  court-martial 
that  the  accused  has  previously  been  "restored  to  duty  without  trial,"  as  sanctioned 
by  paragraph  143,  Army  Regulations  of  1901,  provided  he  has  been  so  restored  by 
competent  authority,  i.  e.,  the  commander  who  would  have  been  authorized  to  con- 
vene a  general  court  for  his  trial;  otherwise,  however,  when  so  restored  by  a  superior 
not  duly  authorized.  Ibid.,  par.  1060. 

REWARDS. 

The  reward  of  $30  made  payable  by  paragraph  135,  Army  Regulations,  is  not  due 
merely  on  the  apprehension  of  a  deserter;  he  must  also  be  delivered  "to  the  proper 
military  authority  at  a  military  station,  or  at  some  convenient  point  as  near  thereto  as 
can  be  agreed  upon."  (6)  The  fact  of  the  offer  of  a  reward  for  the  arrest  of  a  deserter 
does  not  authorize  a  breach  of  the  peace  or  commission  of  an  illegal  act  in  making 
the  arrest. (c)  Ibid.,  par.  1071. 

The  amount  of  the  reward— to  cite  from  G.  O.,  325,  of  1863— is  in  full  "for  all 
expenses  incurred  in  apprehending,  securing,  and  delivering  a  deserter. "  Disburse- 
ments made  by  a  civilian,  where  no  arrest  is  effected,  are  at  his  own  risk,  and  can 
not  legally  be  reimbursed  by  the  military  authorities.  Ibid. ,  par.  1072. 

The  legal  liability  imposed  upon  the  soldier  by  paragraph  137,  Army  Regulations, 
to  have  the  amount  of  the  award  stopped  against  his  pay,  is  quite  independent  of 
the  punishment  which  may  be  imposed  upon  him  by  sentence  of  court-martial  on 
conviction  of  the  desertion.  Such  stoppage  is  incident  upon  the  conviction  (d)  and 
need  not  be  directed  in  the  sentence;  courts-martial,  indeed,  have  sometimes  assumed 
to  impose  it,  like  an  ordinary  forfeiture  of  pay,  but  its  insertion  in  the  sentence  adds 
nothing  to  its  legal  effect.  Ibid.,  par.  1073. 

Where  a  soldier,  charged  with  desertion,  is  acquitted,  or  where,  if  convicted,  his 
conviction  is  disapproved  by  the  competent  reviewing  authority,  he  can  not  legally 
be  made  liable  for  the  amount  of  a  reward  paid  or  payable  for  his  arrest  as  a  deserter, 
since  in  such  cases  he  is  not  a  deserter  in  law.  Ibid.,  par.  1074. 

Where  a  soldier  for  whose  apprehension  as  a  supposed  deserter  the  legal  reward 
has  been  paid  is  subsequently  brought  to  trial  upon  a  charge  of  desertion  and  is 
found  guilty  not  of  desertion,  but  only  of  the  lesser  and  distinct  offense  of  absence 
without  leave,  he  clearly  can  not  legally  be  held  liable  for  the  reward  by  a  stoppage 
of  the  amount  against  nis  pay.  In  such  a  case  the  instrumentality  resorted  to  by 
the  United  States  for  determining  the  nature  of  his  offense — the  court-martial — hav- 
ing pronounced  that  it  was  not  desertion,  the  Government  is  bound  by  the  result, 
and  to  visit  upon  him  a  penalty  to  which  a  deserter  only  can  be  subject  would  be 
grossly  arbitrary  and  wholly  unauthorized.  Moreover,  such  action  would  be  directly 

a  As  to  the  principle  of  the  right  of  expatriation,  as  asserted  in  our  public  law,  see  section  1999, 
Revised  Statutes. 

b  The  actual  payment  of  the  compensation  in  such  cases  is  authorized  by  the  annual  Army  appro- 
priation acts,  which,  in  appropriating  for  the  incidental  expenses  of  the  Quartermaster's  Department, 
include  as  an  item  "  for  the  apprehension,  securing,  and  delivering  of  deserters,  and  the  expenses 
incident  to  their  pursuit." 

cSee,  in  this  connection,  Clay  v.  United  States,  Devereux,  25,  in  which  an  officer  who,  under  the 
orders  of  a  superior,  had,  without  previously  procuring  proper  authority  to  enter  and  search  from  a 
civil  magistrate,  broke  into  a  dwelling  house  for  the  purpose  of  securing  the  arrest  of  certain  desert- 
ers, was  held  to  have  committed  an  unjustifiable  trespass,  and  his  claim  to  be  reimbursed  by  the 
United  States  for  the  amount  of  a  judgment  recovered  against  him  on  account  of  his  illegal  act  was 
disallowed  by  the  Courtof  Claims.  Held  by  the  Attorney-General  October  12, 1894  (confirming  the  views 
of  the  Judge- Advocate-General),  "  that  the  right  to  forcibly  enter  into  private  houses,  as  asserted  by 
Adjutant-General's  circular  No.  6,  of  1885,  does  not  exist."  And  see  par.  2  of  Circ.  No.  12,  H.  Q.  A., 
1894,  revoking  Circ.  No.  6,  of  1885. 

dSee.  to  a  similar  effect,  the  recent  opinion  of  the  Attorney-General  referred  to  in  the  next  note. 


MILITARY    LAWS    OF   THE   UNITED   STATES.  985 

at  variance  with  the  terms  of  paragraph  124  of  the  Army  Regulations,  which  fixes 
such  liability  upon  the  soldier  tried  in  the  event  only  of  his  conviction  of  desertion,  (a) 
unless,  indeed,  the  sentence  of  the  court  expressly  forfeits  the  amount.  (6)  Ibid., 
par.  1075. 

Where  a  civil  official,  having  made  an  arrest  of  a  deserter,  concealed  him  from  the 
military  authorities  and  afterwards  permitted  or  connived  at  his  escape,  recom- 
mended that  the  Attorney-General  be  requested  to  instruct  the  proper  United  States 
district  attorney  to  initiate  proceedings  under  section  5455,  Revised  Statutes.  Ibid., 
1092. 

To  entitle  a  person  (under  paragraph  135,  Army  Regulations  of  1901)  to  the  reward 
for  the  arrest  of  a  deserter  ( c )  the  party  arrested  must  be  still  a  soldier.  Though  at  the 
time  of  the  arrest  the  period  of  his  term  of  enlistment  may  have  expired,  or  he  may 
be  under  sentence  of  dishonorable  discharge,  yet  if  he  has  not  been  discharged  in  fact, 
the  official  duly  making  the  arrest,  etc.,  on  account  of  a  desertion  committed  before 
the  end  of  his  term  becomes  entitled  to  the  payment  of  the  reward  specified  in  the 
regulations.  Similarly  held,  where  the  soldier,  arrested  when  at  large  as  a  deserter, 
had  been  sentenced  to  confinement  (without  discharge)  and  had  escaped  therefrom. 
Ibid.,  par.  1076. 

The  soldier  arrested  must  be  a  deserter  and  legally  liable  as  such.  If  he  has  been 
judicially  determined  to  be  not  a  deserter,  as  where  he  has  been  convicted  of  absence 
without  leave  only,  or  if,  in  view  of  the  limitation  of  the  one  hundred  and  third  arti- 
cle, he  has  a  legaldefense  to  a  prosecution  for  desertion,  the  reward  is  not  payable 
for  his  apprehension.  Ibid.,  par.  1077. 

Where  the  soldier  when  arrested  had  been  absent  but  three  days,  and  was  still  in 
uniform,  and  had  not  been  reported  or  dropped  as  a  deserter,  and  his  company  com- 
mander had  not  the  "  conclusive  evidence  "  of  his  "intention  not  to  return,"  referred 
to  in  paragraph  132,  Army  Regulations  of  1889  (p.  133  of  1895,  144  of  1901),  held  that 
there  was  not  sufficient  evidence  that  he  was  a  deserter  to  justify  the  payment  of  the 
reward  for  his  arrest  and  delivery.  Ibid.,  par.  1078. 

The  arrest  made  must  be  a  legal  one.  Thus  held  that  the  reward  was  not  payable 
for  an  arrest  made  on  the  soil  of  Mexico,  involving  a  violation  of  the  territorial  rights 
of  that  sovereignty.  An  act  done  in  violation  of  law  can  not  be  the  basis  of  a  legal 
claim.  Ibid.,  par.  1080. 

Where  the  deserter  was  not  arrested  by,  but  surrendered  himself  to,  the  civil  offi- 
cial, who  in  good  faith  took  him  into  custody  and  securely  held  and  duly  delivered 
him,  advised  that  there  had  been  a  substantial  apprehension  (for  the  purpose  of 
reward)  and  that  the  reward  was  properly  payable.  Ibid.,  par.  1081. 

The  delivery  should  be  personal  and  manual  on  the  part  of  the  civil  official.  Where 
a  soldier  who  had  deserted  was  sentenced  to  a % penitentiary  as  a  horse  thief,  and  at 
the  end  of  his  term  of  imprisonment  a  United  States  marshal  caused  information  that 
he  was  a  deserter  to  be  conveyed  to  the  commander  of  a  neighboring  military  post, 
who  thereupon  had  him  airested  and  brought  to  the  post,  held  that  the  marshal  was 
not  entitled  to  claim  the  reward.  Ibid.,  par.  1082. 

So,  where  a  civil  official  merely  informed  a  captain  of  artillery  that  two  soldiers 
serving  in  his  battery  were  deserters  from  the  battalion  of  engineers,  held  that,  though 
such  information  was  correct,  the  official  was  not  entitled  to  the  reward;  and  that 
the  amount  of  the  same,  which  had  been  erroneously  paid  him  on  the  certificate  of 
the  captain,  should  be  charged  against  the  latter  under  paragraph  736,  Army  Regu- 
lations of  1901.  Ibid.,  par.  1083. 

The  reward  should  be  withheld  where  there  is  evidence  of  collusion  between  the 
alleged  deserter  and  the  civil  official.  Advised  that  a  suspicion  of  such  collusion  was 
properly  entertained  in  a  case  where  the  soldier,  after  an  absence  of  but  a  few  days, 
voluntarily  surrendered  himself,  at  or  near  the  post  of  delivery,  to  a  policeman, 
who  turned  him  over,  without  expense  or  difficulty,  to  the  military  authorities,  who 
did  not  treat  him  as  a  deserter,  but  caused  him  to  be  charged,  tried,  and  convicted 
as  an  absentee  without  leave  only.  Ibid.,  par.  1086. 

An  officer  of  the  customs,  empowered  by  law  to  make  arrests  of  persons  violating 
the  revenue  laws,  but  having  no  such  general  authority  as  is  ordinarily  possessed  by 
peace  officers  "to  arrest  offenders"  (according  to  the  terms  of  the  act  of  October  1, 
1890,  authorizing  certain  civil  officials  to  arrest- deserters),  held  not  entitled  to  be 
paid  the  regulation  reward  for  the  apprehension,  etc.,  of  a  deserter  from  the  Army. 
Ibid.,  par.  1087. 

Held  that  a  justice  of  the  peace  of  Idaho  was  not,  by  the  laws  of  that  State,  a  peace 

a  This  conclusion  was  concurred  in  by  the  Attorney-General  in  XVI  Opins.,  474. 

6  SeeG.O.,38,  of  1890. 

c  The  Army  Regulations,  so  far  as  it  fixes  the  amount  of  the  "reward,"  has  been  superseded  by 
the  provision  of  the  recent  Army  appropriation  acts  of  August  6,  1894,  and  February  12,  1895,  to  the 
effect  that  the  sum  paid  shall  not  be  "greater  than  ten  dollars." 


986  MILITARY    LAWS    OF   THE    UNITED   STATES. 


ART-  48-  Every  soldier  who  deserts  the  service  of  the 
.  United  States  shall  be  liable  to  serve  for  such  period  as 
o/ie^'S'.       8^^  w*tn  *^e  time  ne  may  nave  served  previous  to  his 
p<478Art.  war.    desertion,  amount  to  the  full  term  of  his  enlistment;  and 

officer  or  authorized  to  arrest  offenders,  and  was  therefore  not  within  the  terms  of 
the  act  of  October  1,  1890,  or  legally  entitled  to  be  paid  the  reward  for  the  arrest, 
etc.,  of  a  deserter.  Such  justice  may  by  his  warrant  authorize  and  thus  cause  arrests, 
but  actual  arrests  pertains,  under  the  laws  of  the  State,  to  another  class  —  sheriffs, 
constables,  city  mashals,  and  policemen.  Similarly  held  in  regard  to  an  Indian  who 
brought  in  a  deserter  to  a  military  post  in  North  Dakota,  he  having  no  authority 
under  the  laws  of  that  State  to  make  arrests.  But  held  that  a  member  of  the  Indian 
police,  established  under  the  regulations  of  the  Indian  Office,  was  a  civil  officer  hav- 
ing authority  to  arrest  offenders,  and  was  entitled  to  the  reward  for  the  arrest  of  a 
deserter.  [See  Circular  No.  12  (H.  A.),  1894.]  Ibid.,  par.  1088. 
.  Circular  No.  11  (H.  A.),  1883,  declares  that  the  reward  shall  not  be  paid  where  the 
deserter,  at  the  time  of  arrest,  "is  serving  in  some  other  branch  of  the  Army,"  etc. 
Thus  held  that  the  reward  was  not  payable  for  the  arrest  of  a  deserter  from  the  cav- 
alry who,  subsequently  to  his  desertion,  had  enlisted  in  an  infantry  regiment,  in  which 
he  was  serving  at  the  date  of  the  arrest.  Ibid.,  par.  1091. 

A  deserter  is  not  chargeable,  under  paragraph  137,  Army  Regulations  of  1901, 
with  the  expenses  of  transportation  therein  specified,  if  his  conviction  has  been  duly 
disapproved,  such  disapproval  being  tantamount  to  an  acquittal.  Ibid.,  par.  1065. 

The  expense  of  the  transportation  of  a  convicted  deserter,  incurred  in  the  course  of 
the  execution  of  his  sentence,  is  not  chargeable  against  the  deserter  under  paragraph 
137,  Army  Regulations  of  1901,  but  must  be  borne  by  the  United  States.  Ibid., 
par.  1068. 

Every  desertion  includes  an  absence  without  leave.  Upon  a  trial  for  desertion 
the  accused  is  tried  also  for  the  absence  without  leave  involved  in  the  offense 
charged,  (a)  If  acquitted,  without  reservation,  of  the  desertion,  he  is  acquitted  also 
of  the  lesser  offense.  If  convicted,  as  he  may  be  (see  FINDING,  section  8),  of  the  lesser 
offense  only,  under  a  charge  of  the  greater,  he  is  acquitted  in  law  of  the  latter. 
Ibid.,  par.  1093. 

The  right  of  the  United  States  to  arrest  and  bring  to  trial  a  deserter  is  paramount 
to  any  right  of  control  over  him  by  a  parent  on  the  ground  of  his  minority.  (6) 
Ibid.,  par.  1094. 

Enlisting  in  the  enemy's  army  by  prisoner  of  war  is  desertion,  unless  submitted 
to  as  a  last  resort  to  save  life  or  escape  extreme  suffering,  or  to  obtain  freedom.  Thus, 
held  in  a  case  of  a  United  States  soldier  who  entered  the  service  of  the  enemy  from 
Andersonville,  Ga.,  in  the  late  war,  that  the  burden  of  pr,oof  was  on  him  to  establish 
that  he  resorted  to  such  enlistment  with  design  of  effecting  his  escape  and  rejoining 
his  own  army;  and  that  his  abandoning  such  enlistment  and  coming  within  our  lines 
at  the  first  opportunity  was  material  evidence  of  such  a  design.  Ibid.,  par.  1095. 

A  soldier  who  had  been  extradited  from  Mexico  solely  on  a  charge  of  theft,  held 
not  liable  to  trial  as  a  deserter;  the  principle  that  a  person  extradited  on  account  of 
a  certain  alleged  offense  is  exempt  from  trial  on  any  other  criminal  offense  (c)  being 
deemed  applicable  where  the  other  offense  is  a  military  one.  A  deserter  from 
our  Army  can  not,  in  the  absence  of  any  international  convention  allowing  it, 
legally  be  arrested  as  such  in  Mexico  and  brought  thence  into  Texas.  Ibid.,  par. 
1096. 

The  amenability  to  trial  of  a  deserter  from  an  enlistment  in  the  Army  is  not 
affected  by  the  fact  that  when  he  enlisted  he  was  a  deserter  from  the  Marine  Corps. 
Ibid.,  par.  1097. 

Held  that  a  deserter  from  a  volunteer  regiment  was,  after  the  disbandment  of  the 
Volunteer  Army,  no  longer  amenable  to  the  military  jurisdiction,  having  become 
thereupon  a  civilian.  Ibid.,  par.  1098. 

A  civil  employee  of  the  Quartermaster  Department  does  not  become  liable  as  a 
deserter  by  abandoning  his  employment.  Ibid.,  par.  1099. 

The  fact  that  a  soldier  has  been  dropped  from  the  rolls  as  a  deserter  is  not  legal 
evidence  to  prove  the  fact  of  desertion  on  a  trial  for  that  offense.  Ibid.  ,  par.  1056. 

a  See  XIII  Opins.  Att.  Gen.,  460. 

&In  re  Cosenow,  ?7  Fed.,  668;  In  re  Kaufman,  41  Fed.,  876.    And  compare  In  re  Morrissey,  137 
U.  S.,  157. 
cU.  S.  v.  Rauscher,  119  U.  S.,  407. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  987 

such  soldier  shall  be  tried  by  a  court-martial  and  punished, 
although  the  term  of  his  enlistment  may  have  elapsed  pre- 
vious to  his  being  apprehended  and  tried.1 

ART.  49.  Any  officer  who,  having  tendered  his  resigna-2 t  y^p'afe.'8' 
tion,  quits  his  post  or  proper  duties,  without  leave  and    49  Art-  War- 
with  intent  to  remain  permanently  absent  therefrom,  prior 
to  due  notice  of   the   acceptance  of   the  same,  shall  be 
deemed  and  punished  as  a  deserter. 

ART.  50.  No  noncommissioned  officer   or  soldier  shall  other 
enlist  himself  in  any  other  regiment,  troop,  or%company  ^ge0"1 
without  a  regular  discharge  from  the  regiment,  troop,  or    ' 
company  in  which  he  last  served,  on  a  penalty  of  being 
reputed  a  deserter  and  suffering  accordingly.2    And  in  case 

1  The  liability  to  make  good  to  the  United  States  the  time  lost  by  desertion, 
enjoined  by  the  first  clause  of  this  article,  is  independent  of  any  punishment  which 
may  be  imposed  by  a  court-martial,  on  conviction  of  the  offense,  it  need  not,  there- 
fore, be  adjudged  or  mentioned  in  terms  in  a  sentence,  (a)     If  the  conviction  is  disap- 
proved, the  legal  status  of  the  accused  is  the  same  as  if  he  had  been  acquitted,  and 
the  obligation  of  additional  service  is  of  course  not  incurred.     Ibid.,  par.  64. 

Where  a  deserter  was  sentenced  to  imprisonment  for  the  "balance  of  his  term," 
held  that  he  was  not  absolved  from  the  obligation  to  make  good  time  lost;  these 
works  referring  to  the  balance  of  the  term  of  his  original  enlistment.  Ibid.,  par.  65. 

The  time  passed  by  a  deserter  in  confinement  under  sentence  can  not  be  computed 
as  a  part  of  the  period  required  by  the  article  to  be  made  good  to  the  United  States, 
such  time  not  being  a  time  of  military  service,  but  of  punishment.  Nor  can  the 
period  of  confinement  be  credited  where  the  sentence  is  remitted  before  it  is  fully 
executed.  So  time  passed  by  the  deserter  in'  arrest  or  confinement  (or  in  hospital) , 
while  waiting  trial  or  action  upon  his  sentence,  can  not  be  computed.  Ibid.,  par.  66. 

The  enforcement  of  the  liability,  where  enforced  at  all,  is  generally  postponed  till 
after  the  execution  of  the  punishment  (if  any)  imposed  upon  the  deserter  by  his  sen- 
tence. A  deserter  may  still  be  required  to  make  good  the  time  included  in  his  unau- 
thorized absence  from  the  service,  although  his  term  of  enlistment  has  expired 
pending  a  term  of  confinement  adjudged  him  by  court-martial  on  conviction  of  his 
offense,  provided  he  has  not  been  discharged.  Ibid.,  par.  67. 

The  United  States  may  waive  the  liability  imposed  by  the  first  clause  of  the  arti- 
cle. It  is,  in  fact,  waived  where  the  deserter,  without  being  required  to  perform  the 
service,  is  discharged  by  one  of  the  officials  authorized  by  article  4  to  discharge  sol- 
diers. So  it  is  waived  where  the  soldier  is  adjudged  to  be  dishonorably  discharged 
by  sentence  of  court-martial  and  this  punishment  is  duly  approved  and  thereupon 
executed.  Ibid.,  par.  68. 

The  liability  to  trial  and  punishment  imposed  by  the  second  clause  of  the  article 
is  subject  to  the  limitation  of  prosecutions  prescribed  by  article  103.  Ibid.,  par.  69. 

The  contract  of  enlistment  is  for  military  service  for  a  term  of  years,  and  when 
interrupted  by  the  soldier's  desertion  remains  incomplete  and  subject  to  specific  per- 
formance. While  some  authorities  hold  that  the  obligation  to  make  good  time  lostf 
by  desertion  attaches  only  upon  conviction,  the  weight  of  authority  and  the  practice 
are  to  the  effect  that  the  punishment  for  desertion  and  the  obligation  to  complete 
the  contract  of  enlistment  are  separate  and  distinct,  and  that  the  restoration  of  a 
deserter  to  duty  without  trial  does  not  relieve  him  from  the  obligation  to  complete 
his  contract.  This  obligation  continues,  though  the  statute  of  limitation  has  taken 
effect  in  his  case  or  has  been  successfully  pleaded  in  bar  on  a  trial  by  court-martial. 
Ibid.,  par.  70. 

2  This  article,  in  its  first  clause,  does  not  create  a  specific  offense,  or  particular  kind 
of  desertion,  or  an  offense  distinct  from  the  desertion  made  punishable  in  the  forty- 
seventh  article,  but  declares  in  effect  that  a  soldier  who  "abandons  his  regiment  shall 
be  deemed  none  the  less  a  deserter  although  he  may  forthwith  reenlist  in  a  new  regi- 

aSee  G.  O.  21,  Department  of  the  Lakes,  1873;  G.  O.  94,  Department  of  the  Missouri,  1867;  G.  C.M.  O. 
74,  Department  of  the  East,  1873.  The  old  ruling  contra  (see  G.  O.  26,  45,  Headquarters  of  Army,  1843) 
may  be  regarded  as  abandoned  in  our  law  and  practice. 


988  MILITARY    LAWS    OF    THE    UNITED   STATES. 

any  officer  shall  knowingly  receive  and  entertain  such  non- 
commissioned officer  or  soldier,  or  shall  not,  after  his  being 
discovered  to  be  a  deserter,  immediately  confine  him  and 
give  notice  thereof  to  the  corps  in  which  he  last  served, 
the  said  officer  shall,  by  a  court-martial,  be  cashiered. 

^Advising to de-     ART.  51.  Any  officer  or  soldier  who  advises  or  persuades 
May  29*  1830*  c  anJ  otner  officer  or  soldier  to  desert  the  service  of  the 

iss, v. 4, p. 418.     United  States,  shall,  in  time  of  war,  suffer  death,  or  such 

other  punishment  as  a  court-martial  may  direct;  and  in 

time  of  jpeace,  any  punishment  excepting  death  which  a 

court-martial  may  direct.1 

Misconduct  at     ART.  52.  It  is  earnestly  recommended  to  all  officers  and 

divine  service.  . 

52  Art.  war.  soldiers  diligently  to  attend  divine  service.  Any  officer 
who  behaves  indecently  or  irreverently  at  any  place  of 
divine  worship  shall  be  brought  before  a  general  court- 
martial,  there  to  be  publicly  and  severely  reprimanded  by 
the  president  thereof.  Any  soldier  who  so  offends  shall, 
for  his  first  offense,  forfeit  one-sixth  of  a  dollar;  for  each 
further  offense  he  shall  forfeit  a  like  sum,  and  shall  be  con- 
fined twenty-f our  hours.  The  money  so  forfeited  shall  be 
deducted  from  his  next  pay,  and  shall  be  applied,  by  the 

ment.  It  does  hot  render  the  act  of  reenlistment  a  desertion,  but  simply  makes  the 
reenlistment,  under  the  circumstances  indicated,  prima  facie  evidence  of  a  desertion 
from  the  previous  enlistment  from  which  the  soldier  has  not  been  discharged,  or, 
more  accurately,  evidence  of  an  intent  not  to  return  to  the  same,  (a)  The  object  of 
the  provision,  as  it  originally  appears  in  the  British  code,  apparently  was  to  preclude 
the  notion,  that  might  otherwise  have  been  entertained,  that  a  soldier  would  be 
excused  from  repudiating  or  departing  from  his  original  contract  of  enlistment  pro- 
vided he  presently  renewed  his  obligation  in  a  different  portion  of  the  military 
force. (6)  Ibid.,  par.  73. 

Held,  that  an  enlisted  marine,  who  abandoned  the  Marine  Corps  without  a  dis- 
charge and  enlisted  in  the  Army,  could  not  be  "reputed  a  deserter"  according  to 
the  terms  of  this  article;  but  advised  that  he  be  turned  over  to  the  commandant  of 
that  corps  for  the  proper  disposition  and  action.  Ibid.,  par.  74. 

Where  a  soldier  enlisted  in  a  certain  regiment,  after  being  officially  notified  that 
he  was  duly  discharged  from  a  previous  enlistment,  but  without  having  received  the 
written  certificate  and  evidence  of  his  discharge,  which,  by  mistake  or  accident,  had 
not  been  delivered  to  him  as  required  by  article  4,  held,  that  he  could  not  properly 
be  "  reputed"  or  charged  as  a  deserter.  Ibid.,  par.  75. 

An  enlistment  in  violation  of  this  article  is  not  void  but  voidable  at  the  option  of 
the  United  States  only.  Until  so  avoided  service  under  it  is  valid  service.  On  a 
trial  for  an  offense  committed  during  such  enlistment,  a  plea  by  the  accused,  in  bar 
of  trial,  that  this  enlistment,  being  fraudulent  on  his  part,  is  void,  should  not  be  sus- 
tained. Ibid.,  par.  76. 

1 A  declaration,  made  by  one  soldier  to  another,  of  a  willingness  to  desert  with  him 
in  case  he  should  decide  to  desert,  held  not  properly  an  advising  to  desert,  in  the 
sense  of  this  article.  To  constitute  the  offense  of  advising  to  desert,  it  is  not  essen- 
tial that  there  should  have  been  an  actual  desertion  by  the  party  advised.  But  held 
otherwise  as  to  the  offense  of  persuading  to  desert;  to  complete  this  offense  the  per- 
suasion should  have  induced  the  act.  (c)  Dig.  Opin.  J.  A.  G.,  par.  77. 

a  See  the  similar  view  expressed  m  G.  C.  M.  O.  129,  Department  of  the  Missouri,  1872;  G.  C.  M.  O. 
77,  ibid.,  1874. 

6  See  Samuel,  330,  331. 

c  Compare  Hough  (Practice),  172,  and  cases  in  G.  O.  23,  Department  of  the  Missouri,  1862;  G.  C.  M. 
O.  11,  152,  ibid.,  1868. 


MILITARY    LAWS    OF   THE   UNITED   STATES.  989 

captain  or  senior  officer  of  his  troop,  battery,  or  company, 
to  the  use  of  the  sick  soldiers  of  the  same. 

ART.  53.  Any  officer  who  uses  any  profane  oath  or  exe- 
cration  shall,  for  each  offense,  forfeit  and  pay  one  dollar. 
Any  soldier  who  so  offends  shall  incur  the  penalties  pro- 
vided in  the  preceding  article;  and  all  moneys  forfeited 
for  such  offenses  shall  be  applied  as  therein  provided. 

ART.  54.  Every  officer  commanding-  in  quarters,  garri- 
son,  or  on  the  march  shall  keep  good  order,  and,  to  the 
utmost  of  his  power,  redress  all  abuses  or  disorders  which 
may  be  committed  by  any  officer  or  soldier  under  his  com- 
mand; and  if,  upon  complaint  made  to  him  of  officers  or 
soldiers  beating  or  otherwise  ill  treating  any  person,  dis- 
turbing fairs  or  markets,  or  committing  any  kind  of  riot, 
to  the  disquieting  of  the  citizens  of  the  United  States,  he 
refuses  or  omits  to  see  justice  done  to  the  offender  and 
reparation  made  to  the  party  injured,  so  far  as  part  of  the 
offender's  pay  shall  go  toward  such  reparation,  he  shall  be 
dismissed  from  the  service,  or  otherwise  punished,  as  a 
court-martial  may  direct.1 

1  While  this  article  would  certainly  appear  to  contemplate  the  making  of  reparation 
for  injuries  done  to  the  persons  of  citizens  ratherthan  forinjuries  done  to  their  property, 
yet  advised,  in  view  of  the  precedents,  that  it  might  properly  be  regarded  as  within 
the  equity  of  the  article  to  indemnify  a  citizen  for  wanton  injury  done  to  his  property 
by  a  soldier  or  soldiers,  by  means  of  a  stoppage  against  his  or  their  pay,  summarily 
ordered  upon  investigation  by  the  commanding  officer,  (a)  In  a  few  cases  a  stoppage 
of  the  pay  of  an  entire  regiment,  for  damage  to  private  property  committed  by  its 
members,  has  been  sanctioned  as  authorized  under  the  general  remedial  provisions 
of  this  article.  Dig.  Opin.  J.  A.  G.,  par.  78. 

The  stoppage  contemplated  is  quite  distinct  from  a  punishment  by  fine,  and  it  can 
not  affect  the  question  of  the  summary  reparation  authorized  by  the  article,  that  the 
offender  or  offenders  may  have  already  been  tried  for  the  offense  and  sentenced  to 
forfeiture  of  pay.  In  such  a  case,  indeed,  the  forfeiture,  as  to  its  execution,  would 
properly  take  precedence  of  the  stoppage.  On  the  other  hand,  where  the  stoppage 
is  first  duly  ordered  under  the  article,  it  has  precedence  over  a  forfeiture  subsequently 
adjudged  for  the  offense.  Ibid.,  par.,  79. 

It  does  not  affect  the  question  of  reparation  under  the  article  that  the  offender  or 
offenders  may  be  criminally  liable  for  the  injury  committed  or  may  have  been  pun- 
ished therefor  by  the  civil  authorities.  Ibid.,  47,  par.  80. 

Held  that  the  remedial  provision  of  this  article  could  not  be  enforced  in  favor  of 
military  persons,  or  in  favor  of  the  United  States,  or  to  indemnify  parties  for  property 
stolen  or  embezzled.  Ibid.,  par.  81. 

The  pay  of  the  offender  or  offenders  can  be  resorted  to  only  for  the  purpose  of  the 
"reparation."  A  military  commander  can  have  no  authority  to  add  a  further 
amount  of  stoppage  by  way  of  punishment.  Ibid. ,  par.  82. 

Held  that,  as  an  agency  for  assessing  the  amount  of  the  damage,  a  court-martial 
could  not  properly  be  substituted  for  the  board  directed  by  General  Orders  35,  Head- 
quarters of  the  Army,  1868,  to  be  convened  for  such  purpose.  Ibid.,  par.  83. 

The  procedure  under  this  article,  and  pursuant  to  General  Orders  35  of  1868,  is  as 

a  See  G.  O.  35,  Headquarters  of  Army,  1868,  construing  this  article,  and  prescribing  the  proceeding 
under  it,  reparation  for  injury  to  property  as  well  as  person  being  authorized.  The  article,  however, 
is  antiquated  in  form  and  indefinite  and  incomplete  in  its  provisions,  and  calls  for  repeal  or  amend- 
ment. For  some  of  the  principal  cases  in  which  it  has  been  applied  in  our  practice,  the  student  is 
referred  to  G.  O.  4,  Department  of  the  Ohio,  1863;  G.  O.  123,  Department  of  the  Gulf  1864;  G.  0. 161, 
Department  of  Washingt9n,  1865;  G.  O.  59,  ibid.,  1866;  G.  O.  74,  Department  of  Arkansas,  1865;  G.  O. 
48,  55,  Department  of  Louisiana,  1866;  G.  O.  6,  Department  of  the  Cumberland,  1867:  G.  0. 10,  Depart- 
ment of  the  South,  1870. 


990          .  MILITARY    LAWS    OF   THE    UNITED    STATES. 


ART-  55-  A11  officers  and  soldiers  are  to  behave  them 
outo0r^eerrsywith"se^ves  orderly  in  quarters  and  on  the  march;  and  whoever 
66  Art.  of  war.  commits  any  waste  or  spoil,  either  in  walks  or  trees,  parks, 
warrens,  fish-ponds,  houses,  gardens,  grain-fields,  inclos- 
ures,  or  meadows,  or  maliciously  destroys  any  property 
whatsoever  belonging  to  inhabitants  of  the  United  States 
(unless  by  order  of  a  general  officer  commanding  a  sepa- 
rate army  in  the  field),  shall,  besides  such  penalties  as  he 
may  be  liable  to  by  law,  be  punished  as  a  court-martial  may 
direct. 

pereonsbdSJ^     ART.  5*>.  Any  omcer  or  soldier  who  does  violence  to  any 

pr56Art?ofWar.  Person   bringing  provisions  or  other  necessaries  to  the 

camp,  garrison,  or  quarters  of  the  forces  of  the  United 

States  in  foreign  parts,   shall  suffer  death,  or  such  other 

punishment  as  a  court-martial  may  direct. 

gua?dcingasafe"     ART-  5^-  Whosoever,  belonging  to  the  armies   of  the 
Fe£ri3°i862*c!  United  States  in  foreign  parts,  or  at  any  place  within 
?;  the  United  States  or  their  Territories  during  rebellion 


2573-'jui5y3i  lie?'  against  the  supreme  authority  of  the  United  States,  forces 
C.32)v.i2,p.284:a  safeguard,  shall  suffer  death. 

durfngrebeiiion8     ART.  58.  In  time  of  war,  insurrection,  or  rebellion,  lar- 

75Msar3o8>v18i2;  p.  cenJ  5  robbery,  burglary  ,  arson,  mayhem,  manslaughter, 

c363;,JsU^  v3'i286p!  mur^ei%  assault  and  battery  with  an  intent  to  kill,  wound- 

^a^I^ViS!  mg>  by  shooting  or  stabbing,  with  an  intent  to  commit 

08  Art-ofWar-  murder,   rape,  or  assault  and  battery  with  an  intent  to 

commit  rape,  shall  be  punishable  by  the  sentence    of  a 

general  court-martial,  when  committed  by  persons  in  the 

military  service  of  the  United  States,  and  the  punishment 

in  any  such  case  shall  not  be  less  than  the  punishment 

provided,  for  the  like  offense,  by  the  laws  of  the  State, 

follows:  The  citizen  aggrieved  tenders  a  "complaint"  under  oath  charging  the  injury 
against  a  particular  soldier  or  soldiers,  described  byjiame  (if  known)  ,  regiment,  etc.  , 
and  accompanied  by  evidence  of  the  injury,  and  of  the  instrumentality  of  the  person 
or  persons  accused.  If  such  evidence  be  satisfactory,  the  commanding  officer  has 
the  damages  assessed  by  a  board,  and  makes  orders  for  such  stoppage  of  pay  as  will 
be  sufficient  for  the  "reparation"  enjoined  by  the  article.  The  commander  must 
have  a  proper  case  presented  to  him;  he  can  not  legally  proceed  sua  sponte.  Ibid., 
par.  84. 

Where  proof  was  duly  made  under  this  article  of  injury  done  by  some  persons  of  a 
command,  but  the  active  perpetrators  could  not  upon  .  investigation  be  determined, 
and  it  appeared  that  the  entire  command  was  present  and  implicated,  held  that  the 
stoppage  might  legally  be  made  against  all  the  individuals  present.  Ibid.,  par.  85. 

It  would  not  be  a  sound  construction  of  the  article  to  extend  the  specified  measure 
of  redress  to  other  than  the  specified  cases.  Its  strict  construction  would  indeed 
limit  the  specific  redress  to  acts  of  violence  against  the  person,  but  the  weight  of 
American  authority  extends  it  to  acts  of  violence  against  property  afso.  Further 
than  this  the  authorities  do  not  go,  holding,  for  example,  that  it  is  not  applicable  to 
cases  of  larceny  and  embezzlement.  Therefore  held  that  to  make  a  stoppage  of  pay 
against  enlisted  men  to  reimburse  the  keeper  of  a  restaurant  for  food  ordered  by  them 
and  not  paid  for  would  be  wholly  unauthorized  by  the  terms,  scope,  or  intent  of  the 
article.  Ibid.,  par.  86. 


MILITARY    LAWS    OF  ,THE    UNITED    STATES.  991 

Territory,  or   district  in  which    such  offense  may  have 
been  committed.1 

ART.  59.  When  any  officer  or  soldier  is  accused  of  a  capi- 
tal crime,  or  of  any  offense  against  the  person  or  property 
of  any  citizen  of  any  of  the  United  States,  which  is  pun- 
ishable by  the  laws  of  the  land,  the  commanding  officer, 
and  the  officers  of  the  regiment,  troop,  battery,  company, 
or  detachment,  to  which  the  person  so  accused  belongs,  are 
required,  except  in  time  of  war,  upon  application  duly 
made  by  or  in  behalf  of  the  party  injured,  to  use  their 
utmost  endeavors  to  deliver  him  over  to  the  civil  mais~  e  °iSfl 


trate,  and  to  aid  the  officers  of  justice  in  apprehending  and 

securing  him,  in  order  to  bring  him  to  trial.  If,  upon  such    69  Art.  of  war. 

application,  any  officer  refuses  or  willfully  neglects,  except 

in  time  of  war,  to  deliver  over  such  accused  person  to  the 

civil  magistrates,  or  to  aid  the  officers  of  justice  in  appre- 

hending him,  he  shall  be  dismissed  from  the  service.2 

1  The  jurisdiction  conferred  by  this  article  upon  military  courts  has  been  held  by 
the  highest  judicial  authority  to  be  not  exclusive,  but  concurrent  merely  with  that 
of  the  civil  tribunals,  (a)     The  word  "shall"  in  the  term  "shall  be  punishable"  is 
construed  as  equivalent  to  "may."  (6)     (Dig.  Opin.  J.  A.  G.,  par.  87.) 

In  framing  a  charge  under  this  article  it  will  not  in  general  be  essential  to  allege 
in  connection  with  the  date  of  the  offense  or  to  show  by  evidence  that  the  act  was 
committed  at  a  time  of  war,  etc.  ,  this  being  a  fact  of  which  a  court  will  ordinarily 
properly  take  judicial  notice,  (c)  Ibid.,  par.  88. 

Held  (November,  1865)  that  military  courts  were  still  empowered  to  exercise  the 
jurisdiction  conferred  by  this  article,  the  status  belli  not  having  yet  been  declared  to 
be  terminated,  either  by  the  Executive  or  Congress.  A  court-martial,  of  course, 
could  have  no  authority  whatever  to  decide  whether  the  war  was  ended.  (Ibid., 
par.  89.) 

When  a  sentence  adjudged  by  a  court  convened  by  the  authority  of  this  article 
imposed  a  punishment  of  less  severity  than  that  provided  for  the  same  offense  by  the 
law  of  the  State  in  which  the  offense  was  committed  (as  imprisonment  where  the  law 
of  the  State  required  the  death  penalty),  held  that  such  a  sentence  was  unauthorized 
and  inoperative.  But  though  the  punishment  must  not  be  "less,"  it  may  legally  be 
of  greater  severity  than  that  provided  by  the  local  statute.  Held  that  the  court,  in 
imposing  punishment,  should  be  governed  by  the  local  law  (so  far  as  required  by  the 
article)  ,  although  the  offense  was  committed  in  a  State  whose  ordinary  relations  to 
the  General  Government  had  been  suspended  by  a  state  of  war  or  insurrection.  (d) 
Ibid.,  par.  90.  See  also  paragraphs  91-93,  ibid. 

2  This  article  is  a  recognition  of  the  general  principle  of  the  subordination  of  the 
military  to  the  civil  power,  (e)  and  its  main  purpose  evidently  is  to  facilitate,  in  cases 
of  offenders  against  the  local  civil  statutes  who  happen  to  be  connected  with  the 
Army,  the  execution  of  those  statutes,  where,  as  citizens,  such  persons  remain  legally 
amenable  to  arrest  and  trial  thereunder.     Protection  of  military  persons  from  civil 
arrest  is  not  the  object  of  this  article.     (Ibid.,  par.  94.  ) 

The  commanding  officer,  before  surrendering  the  party,  is  entitled  to  require  that 
the  "application"  shall  be  so  specific  as  to  identify  the  accused  and  to  show  that  he 
is  charged  with  a  particular  crime  or  offense  which  is  within  the  class  described  in 
the  article.  Where  it  is  doubtful  whether  the  application  is  made  in  good  faith  and 

aColeman  v.  Tennessee,  7  Otto,  513.  And  see  People  v.  Gardiner,  6  Parker,  143;  G.  O.  29,  Depart- 
ment of  the  Northwest,  1864;  G.  O.  32,  Departmentment  of  Louisiana,  1866. 

b  People  v.  Gardiner,  ante. 

cSee  the  application  of  this  principle  to  the  fact  of  the  existence  of  the  late  war  of  the  rebellion 
in  Justice  Field's  charge  to  the  grand  jury  in  U.  S.  v.  Greathouse,  4  Sawyer,  457. 

dThat  the  Southern  States  during  the  late  war  were  "at  no  time  out  of  the  pale  of  Uw  Union,"  see 
White  v.  Hart,  13  Wallace,  646. 

eSee  the  declaration  of  this  principle  in  the  case  of  Dow  v.  Johnson,  10  Otto,  169.  '' 


992  MILITARY   LAWS    OF   THE   UNITED    STATES. 

in  the  interests  of  law  and  justice,  the  commander  may  demand  that  the  application 
be  especially  explicit  and  be  sworn  to;  and  in  general  the  preferable  and,  indeed, 
only  satisfactory  course  will  be  to  require  the  production,  if  practicable,  of  a  due  and 
formal  warrant  or  writ  for  the  arrest  of  the  party,  (a)  The  application  required  by 
the  article  should  be  made  in  a  case  where  the  crime  was  committed  by  the  party 
before  he  entered  the  military  service  equally  as  where  it  was  committed  by  him 
while  in  the  service.  (6)  In  the  former  case  a  more  exact  identification  may  perhaps 
reasonably  be  required.  Ibid.,  par.  95. 

The  provisions  of  this  article  are  applicable  only  when  the  officer  or  soldier  is 
accused  of  a  crime  or  offense  "which  is  punishable  by  the  laws  of  the  land;"  i.  e., 
by  the  public  law — statutes  or  constitution — of  the  particular  State. (c)  Ibid., 
par.  96. 

The  article  is  not  applicable  to  a  case  of  an  offense  committed  against  the  laws  of 
the  United  States,  as,  for  instance,  the  statutes  prohibiting  the  introduction  of  liquor 
into  the  Indian  country.  Nor  is  it  applicable  to  a  case  of  an  offense  committed  in 
a  place  over  and  within  which  the  jurisdiction  of  the  United  States  is  exclusive,  (d) 
Ibid.,  par.  97. 

The  party  should  be  surrendered  upon  proper  application,  though  the  offense  be 
one  of  which  a  military  court  has  jurisdiction  concurrently  with  the  civil  courts, 
unless,  indeed,  the  military  jurisdiction  has  already  duly  attached  (by  means  of 
arrest  or  service  of  charges  with  a  view  to  trial),  in  which  case  the  prisoner  may  be 
surrendered  or  not  as  the  proper  authority  may  determine.  A  soldier  under  a  sen- 
tence of  confinement  imposed  by  court-martial  can  not,  in  general,  properly  be  sur- 
rendered under  this  article.  In  such  a  case  the .  civil  authorities  should  regularly 
defer  their  application  till  the  military  punishment  has  been  executed  or  remitted,  (e) 
Where  a  soldier,  duly  surrendered  under  this  article  and  allowed  to  go  on  bail,  was 
thereupon  returned  to  duty,  held  that  it  was  within  the  spirit  of  the  article  for  the 
department  commander  to  instruct  the  commanding  officer  of  such  soldier  to  cause 
him  to  appear  for  trial  at  the  proper  time.  Ibid.,  par.  98. 

An  officer  or  soldier  accused  as  indicated  by  the  article,  though  he  may  be  willing 
and  may  desire  to  surrender  himself  to  the  civil  authorities,  or  to  appear  before  the 
civil  court,  should  not  in  general  be  permitted  to  do  so,  but  should  be  required  to 
await  the  formal  application.  Ibid.,  par.  100. 

In  view  of  the  obligation  devolved  by  this  article  upon  officers  of  the  Army,  a  post 
commander  would  properly  be  required  to  apprehend  and  hold  for  surrender  to  the 
civil  authorities  a  soldier  who,  having  been  once  surrendered  under  the  article,  had 
escaped  and  returned  to  the  post.  (/)  Ibid.  53,  par.  8. 

The  term  "any  of  the  United  States,"  employed  in  this  article,  held  properly  to 
include  any  and  all  of  the  political  members  of  our  governmental  system,  and  to 
embrace  an  organized  Territory  equally  as  a  State.  Ibid.,  par.  101. 

The  article  is  directory,  not  jurisdictional.  It  does  not  limit  the  action  to  be  taken 
by  the  military  authorities  to  cases  where  the  application  is  made  by  the  party;  it 
may  be  made  in  his  behalf.  It  does  not  place  a  soldier  who  has  committed  a  crime 
and  been  indicted  therefor  beyond  the  reach  of  the  civil  power  if  the  person  injured 
does  not  apply  for  his  surrender.  In  a  case — one  of  murder,  for  example — where 
there  can  be  no  personal  application,  the  State  properly  takes  the  place  of  the  indi- 
vidual. And  so  in  all  other  cases  where  an  indictment  has  been  found  or  a  wrarrant 
of  arrest  has  been  issued,  the  State,  with  which  resides  the  jurisdiction  and  the  power 
to  prosecute,  may  make  the  demand,  and  upon  its  demand  it  is  the  duty  of  the  com- 
manding officer  to  surrender  the  party  charged.  Ibid.,  par.  102. 

The  article  contemplates  only  cases  in  which  an  "officer  or  soldier  is  accused," 
etc.  So,  held  that  it  did  not  apply  to  a  case  of  a  civilian  (Chinese)  laundry  man 
employed  and  residing  at  a  military  post  accused  of  a  civil  crime.  While  it  would 
be  equally  desirable  that  the  surrender  should  be  made  in  such  a  case,  such  sur- 

all  Opin.  Att.  Gen.,  10. 

6  See  G.  O.  29,  Department  of  the  Northwest,  1864,  where  it  is  remarked  that  there  is  an  especial 
obligation  to  surrender  the  soldier  where  the  crime  was  committed  by  him  before  entering  the  mili- 
tary service. 

c  As  to  the  meaning  of  the  term  "laws  of  the  land,"  especially  with  reference  to  municipal  ordi- 
nances, see  Vanzantv.  Waddell,  2  Yerger,  270;  State  Bk.  v.  Cooper,  ibid.,  605;  Horn  v.  People,  26 
Mich.,  228.  In  XXI  Opin.  Att.  Gen.,  88  (published  in  circular  15,  A,.  G.  O.,  1894),  it  was  held  that  a 
municipal  ordinance  is  within  the  expression  "  laws  of  the  land,"  as  used  in  the  fifty-ninth  article  of 
war,  and  that  a  soldier  violating  such  an  ordinance  and  escaping  to  a  military  reservation  should  be 
delivered  to  the  civil  authorities  for  trial  on  demand. 

d  It  is  further  held,  in  Ex  parte  McRoberts,  16  Iowa,  603,  that  the  provisions  of  the  article  apply 
only  to  officers  and  soldiers  while  within  the  immediate  control  and  jurisdiction  of  the  military 
authorities,  anjL.therefore  do  not  apply  to  a  case  of  a  soldier  absent  on  furlough;  but  that  such  a 
soldier,  pendingiiis  furlough,  may  be  arrested  in  the  same  manner  as  any  civilian. 

cCompare  VI  Opin.  Att.  Gen.,  423. 

/See  a  case  to  a  similar  effect  published  in  G.  O.  7,  Department  of  the  South,  1871. 


MILITARY   LAWS    OF   THE    UNITED    STATES.  993 

ART.  60.  Any   person   in   the  military  service  of   the    certain  crimes 

J  of  fraud  against 

United  States  who  makes  or  causes  to  be  made  any  claim  the    united 

States 

against  the  United  States,  or  any  officer  thereof,  knowing    Mar!  2,  ises,  c. 

'  ,    J  &  67,s.l,v.l2,p.696. 

such  claim  to  be  talse  or  fraudulent;  or  GO  Art.  of  war. 

Who  presents  or  causes  to  be  presented  to  any  person  cli^mking    false 
in  the  civil  or  military  service  thereof,  for  approval  or  pay-  fa£e  claim ting 
ment,  any  claim  against  the  United  States  or  any  officer 
thereof,  knowing  such  claim  to  be  false  or  fraudulent;  or 

Who  enters  into  any  agreement  or  conspiracy  to  defraud  obtf£T™aeymeS 
the  United  States  by  obtaining,  or  aiding  others  to  obtain,  of  false  claim. 
the  allowance  or  payment  of   any  false    or  fraudulent 
claim;  or 

Who,  for  the  purpose  of  obtaining,  or  aiding  others  to  False  paper, 
obtain,  the  approval,  allowance,  or  payment  of  any  claim 
against  the  United  States,  or  against  any  officer  thereof, 
makes  or  uses,  or  procures  or  advises  the  making  or  use  of, 
any  writing  or  other  paper,  knowing  the  same  to  contain 
any  false  or  fraudulent  statement;  or 

Who,  for  the  purpose  of  obtaining,  or  aiding  others  to  perjury. 
obtain,  the  approval,  allowance,  or  payment  of  any  claim 
against  the  United  States  or  any  officer  thereof,  makes, 
or  procures  or  advises  the  making  of,  any  oath  to  any 
fact  or  to  any  writing  or  other  paper,  knowing  such  oath 
to  be  false;  or1 

render  would  be  a  matter  of  comity,  not  of  official  duty  under  the  article.     Ibid., 
par.  103. 

This  article  does  not  apply  to  the  service  by  a  sheriff  on  an  officer  or  soldier  of  a 
subpoena  to  appear  as  a  witness  before  a  civil  court.  In  such  a  case,  indeed,  the 
civil  official  should,  as  a  matter  of  comity,  apply  first  to  the  post  commander,  whether 
or  not  the  post  be  within  the  exclusive  jurisdiction  of  the  United  States.  It  will 
then  be  for  the  commander,  in  comity,  to  facilitate  the  service  and  to  issue  the  neces- 
sary permit  or  order  to  enable  and  cause  the  officer  or  soldier  to  attend  the  court. 
Ibid.,  par.  104. 

This  article  does  not  apply  to  a  charge  of  introducing  liquor  into  the  Indian  coun- 
try or  to  a  reservation,  exclusive  jurisdiction  over  which  has  been  ceded  to  the  United 
States.  (Ibid.,  par.  97.)  Its  application  in  time  of  war  is  discretionary  with  the 
military  authorities.  Ibid.,  par.  105. 

1  The  offense  known  as  the  duplicating  of  pay  rolls,  where  it  involves,  as  it  gener- 
ally does,  a  presenting  or  a  causing  to  be  presented  of  a  false  or  fraudulent  claim 
against  the  United  States,  is  properly  chargeable  under  this  article.  Ibid.,  par.  107. 

When  an  officer  who  had  been  sentenced  to  forfeit  all  pay  due,  but  whose  sentence 
had  not  yet  been  approved  or  published,  presented  pay  accounts  to  the  paymaster 
for  his  pay  and  received  the  amount  of  the  same,  held  that  he  was  not  triable  for  the 
offense  of  presenting  a  fraudulent  claim  under  this  article.  Ibid.,  par.  108. 

Where  a  soldier,  in  order  to  procure  his  discharge  from  the  service  and  the  pay- 
ment thereupon  of  a  considerable  amount  not  in  fact  due  him,  forged  the  name  of 
his  commanding  officer  on  a  discharge  paper  and  a  "final  statement"  paper,  and 
presented  the  same  to  a  paymaster,  held  that  he  was  chargeable  with  offenses  defined 
in  the  second,  fourth,  and  sixth  paragraphs  of  this  article.  Ibid.,  par.  109. 

Where  a  disbursing  officer,  having  caused  a  creditor  of  the  United  States  to  sign 
a  receipt  in  frlank,  paid  him  a  less  sum  than  was  due  him,  and  afterwards  inserted 
the  true  amount  due  in  the  receipt,  so  as  to  obtain  credit  with  the  United  States  for 

22924—08 63 


994  MILITARY    LAWS    OF    THE    UNITED    STATES. 

Forgery.  Who,  for  the  purpose  of  obtaining,  or  aiding  others  to 

obtain,  the  approval,  allowance,  or  payment  of  any  claim 
against  the  United  States  or  any  officer  thereof,  forges  or 
counterfeits,  or  procures  or  advises  the  forging  or  counter- 
feiting of,  any  signature  upon  any  writing  or  other  paper, 
or  uses,  or  procures  or  advises  the  use  of,  any  such  signa- 
ture, knowing  the  same  to  be  forged  or  counterfeited;  or 1 
Delivering  less     Who,  having  charge,  possession,  custody,  or  control  of 
ceipt  calls  for.    any  money  or  other  property  of  the  United  States,  f  ur- 

the  greater  sum,  held  that  he  was  chargeable  with  the  offense  defined  in  the  seventh 
paragraph  of  this  article.     Ibid.  56,  par.  5. 

Where  an  officer,  by  collusion  with  a  contractor,  who  had  contracted  for  the  deliv- 
ery of  military  supplies,  received  for  a  pecuniary  consideration  from  the  latter  a  less 
amount  of  supplies  than  the  United  States  was  entitled  to  under  the  contract,  while 
at  the  same  time  giving  him  a  voucher  certifying  on  its  face  the  delivery  of  the 
whole  amount,  held  that  such  officer  was  chargeable  with  an  offense  of  the  class 
defined  in  the  eighth  paragraph  of  this  article.  Ibid.,  par.  110. 

The  offense  of  stealing,  indicated  in  the  9th  paragraph  of  this  article,  consists  in  a 
larceny  of  "property  of  the  United  States  furnished  or  intended  for  the  military 
service."  Except  in  time  of  war  larceny  of  other  property  can  be  charged  as  a  mili- 
tary offense  only  when  cognizable  under  Article  62,  as  prejudicing  good  order  and 
military  discipline.  Ibid.,  par.  113. 

Section  5494,  Revised  Statutes,  provides  that  the  refusal  of  any  person  charged 
with  the  disbursement  of  public  moneys  promptly  to  transfer  or  disburse  the  funds 
in  his  hands  "upon  the  legal  requirement  of  an  authorized  officer,  shall  be  deemed, 
upon  the  trial  of  any  indictment  against  such  person  for  embezzlement,  as  prima  facie 
evidence  of  such  embezzlement."  Applying  this  rule  to  a  military  case,  it  is  clear 
that,  in  the  event  of  such  a  refusal  by  a  disbursing  officer  of  the  Army,  the  burden 
of  proof  would  be  upon  him  to  show  that  his  proceeding  was  justified,  and  that  it 
would  not  be  for  the  prosecution  to  show  what  had  become  of  the  funds.  So,  where 
an  acting  commissary  of  subsistence  on  being  relieved  failed  to  turn  over  the  public 
moneys  in  his  hands  to  his  successor  or  to  his  post  commander  when  ordered  to  do 
so,  or  to  produce  such  moneys,  exhibit  vouchers  for  the  same,  or  otherwise  account 
for  their  use,  when  so  required  by  his  department  commander;  held  that  he  was 
properly  charged  with  and  convicted  of  an  intent  to  defraud  the  United  States.  It  is 
the  act  of  the  misappropriation  described  itself  which  constitutes  the  offense,  irre- 
spective of  the  purpose  or  motive  of  such  act.  Ibid.,  par.  114. 

Where  an  officer  of  the  quartermaster  department  used  teams,  tools,  and  other 
public  property,  in  his  possession  as  such  officer,  in  erecting  buildings,  etc.,  for  the 
benefit  of  an  association,  composed  mainly  of  civilians,  of  which  he  was  a  member; 
held  that  he  was  properly  chargeable  with  a  misappropriation  of  property  of  the 
United  States.  And  similarly  held  of  a  loaning  by  such  an  officer  of  public  property 
(corn)  to  a  contractor,  for  the  purpose  of  enabling  him  to  fill  a  contract  made  with 
the  United  States  through  another  officer,  (a)  The  fact  that  a  practice  exists  in  a  post 
or  other  command  of  making  a  use  (not  authorized  by  regulation  or  order)  of  govern- 
ment property  for  private  purposes,  or  of  loaning  it  in  the  prospect  of  a  prompt  return, 
can  constitute  no  defense  to  a  charge  for  such  act  as  an  offense  under  this  article. 
Such  practice,  however,  if  sanctioned,  though  improperly,  by  superior  authority, 
may  be  shown  in  evidence  in  mitigation  of  sentence.  Ibid.,  par.  112. 

A  charge  of  embezzlement  under  this  article  would  not  lie  where  the  money  or 
property  embezzled  was  not  public  money,  but  belonged  to  the  post,  company,  or 
exchange  funds;  such  money  not  being  public  money  within  the  scope  of  article  60. 
G.  C.  M.  O.  27,  War  Dept,,  1872;  see,  also,  G.  C.  M.  O.  4,  ibid.,  1873. 

Under  the  grant  of  jurisdiction  to  a  court-martial  conferred  by  the  60th  Article  of 
War,  providing  that  any  person  in  the  military  service  who  misappropriates  any 
money  of  the  United  States,  ' '  furnished  or  intended  for  the  military  service  thereof, ' ' 
shaU  be  punished,  etc.,  such  a  court  has  no  power  to  convict  an  officer  of  the  Army 
for  misappropriating  money  appropriated  by  Congress  for  the  improvement  of  rivers 
and  harbors.  In  re  Carter,  97  Fed.  Rep.,  496.  Such  a  conviction,  however,  may 
be  had  where  the  misappropriation  of  such  funds  is  charged  as  a  violation  of  article 
62.  Ibid. 


a  See  G.  C.  M.  O.  46,  Hd.  Qrs.  Army, 


MILITARY    LAWS    OF   THE    UNITED   STATES.  995 

nished  or  intended  for  the  military  service  thereof,  know- 
ingly delivers,  or  causes  to  be  delivered,  to  any  persons 
having  authority  to  receive  the  same,  any  amount  thereof 
less  than  that  for  which  he  receives  a  certificate  or  receipt; 
or 

Who,  being  authorized  to  make  or  deliver  any  paper  wgjjjjf  rekSS^ 
certifying  the  receipt  of  any  property  of  the  United  States, ing  truth  of- 
furnished  or  intended  for  the  military  service  thereof, 
makes,  or  delivers  to  any  person,  such  writing,  without 
having   full   knowledge  of  the  truth   of  the   statements 
therein  contained,  and  with  intent  to  defraud  the  United 
States;  or1 

Who  steals,  embezzles,  knowingly  and  willfully  misap-  Wrongfuiiynslh- 
propriates,  applies  to  his  own  use  or  benefit,  or  wrongfully  mgl  etc- 
or  knowingly   sells  or  disposes  of  any  ordnance,  arms, 
equipments,    ammunition,    clothing,    subsistence  stores, 
money,  or  other  property  of  the  United  States,  furnished 
or  intended  for  the  military  service  thereof;  or1 

Who  knowingly  purchases,  or  receives  in  pledge  for  any  m? J^J  PuJ>olic 
obligation  or  indebtedness,  from  any  soldier,  officer,  orerty- 

1  Where  a  quartermaster  used  temporarily  with  his  private  carriage  a  pair  of  Gov- 
ernment horses  in  his  charge,  held  that  he  was  not  properly  chargeable  with  embez- 
zlement, but  with  the  offense,  under  this  article,  of  "knowingly  applying  to  his  own 
use  and  benefit  property  of  the  United  States,  furnished  for  the  military  service." 
Dig.  Opin.  J.  A.  G.,  par.  115. 

The  misappropriation  specified  in  the  article  need  not  be  an  appropriation  for  the 
personal  profit  of  the  accused.  The  words  "to  his  own  use  or  benefit"  qualify  only 
the  term  "applies."  Ibid.,  par.  116. 

In  charging  a  stealing,  embezzlement,  misappropriation,  etc.,  under  this  article,  it 
is  not  necessary  to  allege  that  the  funds  or  property  were  "furnished  or  intended  for 
the  military  service;"  it  is  sufficient  if  this  fact  appears  from  the  evidence,  and  in 
most  cases  it  will  be  inferable  from  the  very  nature  of  the  property  itself — as  where, 
for  example,  the  same  consists  of  "quartermaster  stores,"  " subsistence  stores, "  "ord- 
nance stores,"  etc.  (a)  Ibid.,  par.  119. 

In  charging  embezzlement  under  this  article,  it  is  not  necessary,  if  the  fact  suffi- 
ciently appears  from  other  allegations,  to  aver  in  terms  in  the  specification  that  the 
money  or  property  was  "furnished  or  intended  for  the  military  service  of  the  United 
States."  Ibid.,  58  par.  14. 

Repeated  false  statements  of  the  accused  relative  to  the  public  moneys  for  which 
he  was  accountable  are  competent  evidence  going  to  sustain  a  charge  of  embezzle- 
ment under  this  article.  Ibid.,  par.  120. 

The  application  or  operation  of  this  article  is  in  no  manner  affected  by  the  enact- 
ment of  March  3,  1875,  chapter  144,  constituting  embezzlement  of  public  property  a 
felony  and  making  it  triable  by  a  United  States  court,  such  act  being  a  purely  civil 
statue.  Ibid.,  par.  121. 

Where  an  officer,  for  the  purpose  of  obtaining  the  allowance  of  a  fraudulent  claim 
against  the  United  States,  willfully  induced  another  to  make  to  the  United  States  a 
lease  of  premises  for  public  use,  containing  a  false  and  fraudulent  statement,  held  that 
he  was  chargeable  with  an  offense  of  the  class  specified  in  the  fourth  paragraph  of 
this  article.  Ibid.,  par.  122. 

a  Whether  this  provision  in  subjecting  officers  and  soldiers  discharged,  mustered  out,  etc.,  and 
become  civilians,  to  trial  by  court-martial  in  the  same  manner  as  if  they  were  a  part  of  the  Army  is 
constitutional  is  a  question  which  is  believed  not  to  have  been  judicially  passed  upon.  Probably 
originally  inserted  in  the  act  of  March  2,  1863  (from  which  the  article  is  repeated)  as  in  the  nature 
of  a  war  measure,  it  was  in  fact  relied  upon  as  giving  jurisdiction  in  but  a  small  number  of  cases 
even  during  the  war,  and  since  that  period  no  case  is  known  in  which  the  exceptional  jurisdiction 
conferred  has  been  taken  advantage  of. 


996  MILITARY    LAWS    OF    THE    UNITED    STATES. 

other  person  who  is  a  part  of  or  employed  in  said  forces 
or  service,  any  ordnance,  arms,  equipments,  ammunition, 
clothing,  subsistence  stores,  or  other  property  of  the 
United  States,  such  soldier,  officer,  or  other  person  not 
having  lawful  right  to  sell  or  pledge  the  same, 

Shall,  on  conviction  thereof,  be  punished  by  fine  or  im- 
prisonment, or  by  such  other  punishment  as  a  court-martial 
may  adjudge,  or  by  any  or  all  of  said  penalties.  And  if 
any  person,  being  guilty  of  any  of  the  offenses  aforesaid, 
while  in  the  military  service  of  the  United  States,  receives 
his  discharge,  or  is  dismissed  from  the  service,  he  shall 
continue  to  be  liable  to  be  arrested  and  held  for  trial  and 
sentence  by  a  eourt-martial,  in  the  same  manner  and  to 
the  same  extent  as  if  he  had  not  received  such  discharge 
nor  been  dismissed.  Act  of  March  2,  1901  (31  Stat.  L., 
951). 

coSgTnotllclr     ART.  61-  Any  officer  who  is  convicted  of  conduct  unbe- 
anedi  A^orwJr.  coming  an  officer  and  a  gentleman  shall  be  dismissed  from 
the  service.1 

1  To  constitute  an  offense  under  this  article  the  conduct  need  not  be  ' '  scandalous 
and  infamous."  These  words,  contained  in  the  original  article  of  1775,  were  dropped 
in  the  form  adopted  in  1806.  Nor  is  it  essential  that  the  act  should  compromise  the 
honor  of  the  officer,  (a)  It  is  only  necessary  that  the  conduct  should  be  such  as  is 
at  once  disgraceful  or  disreputable  and  manifestly  unbefitting  both  an  officer  of  the 
Army  and  a  gentleman.  (6)  An  act,  however,  which  is  only  slightly  discreditable  is 
not,  in  practice,  made  the  subject  of  a  charge  under  this  article.  The  article,  in 
making  the  punishment  of  dismissal  imperative  in  all  cases,  evidently  contemplates 
that  the  conduct,  while  unfitting  the  party  for  the  society  of  men  of  a  scrupulous 
sense  of  decency  and  honor,  shall  exhibit  him  as  unworthy  to  hold  a  commission  in 
the  Army.  Dig.  Opin.  J.  A.  G.,  par.  123. 

Knowingly  making  to  a  superior  a  false  official  report  held  chargeable  under  this 
article.  So  of  a  deliberately  false  official  certificate  as  to  the  truth  or  correctness  of 
an  official  voucher,  roll,  return,  etc.  So  of  any  deliberately  false  official  statement, 
written  or  verbal,  of  a  material  character.  So  where  an  officer  caused  the  sergeant 
of  the  guard  to  enter  in  the  guard  book  a  false  official  report  that  he  (the  officer)  had 
duly  visited  the  guard  at  certain  hours  as  officer  of  the  day,  when  he  had  in  fact  been 
guilty  of  a  neglect  of  duty  in  this  particular,  and  thereupon  himself  signed  such  re- 
port and  submitted  it  to  his  post  commander,  held  that  his  conduct  was  chargeable 
as  an  offense  under  this  article.  Ibid.,  par.  124. 

The  following  acts,  committed  in  a  particular  case,  held  to  be  offenses  within  this 
article:  Preferring  false  accusations  against  an  officer;  attempting  to  induce  an  officer 
to  join  in  a  fraud  upon  the  United  States;  attempt  at  subornation  of  perjury.  Ibid., 
par.  125.  For  other  acts  chargeable  under  this  article  see  paragraphs  126-131,  Ibid. 

To  justify  a  charge  under  this  article  it  is  not  necessary  that  the  act  or  conduct  of 
the  officer  should  be  immediately  connected  with  or  should  directly  affect  the  mili- 
tary service.  It  is  sufficient  that  it  is  morally  wrong  and  of  such  a  nature  that,  while 
dishonoring  or  disgracing  him  as  a  gentlemen,  it  compromises  his  character  and  posi- 
tion as  an  officer  of  the  Army.  Ibid.,  par.  132. 

Thus,  though  a  mere  neglect  on  the  part  of  an  officer  to  satisfy  his  private  pecun- 
iary obligations  will  not  ordinarily  furnish  sufficient  grounds  for  charges  against  him, 
yet  where  the  debt  has  been  dishonorably  incurred — as  where  money  has  been  bor- 

aG.  O.  25,  Department  of  the  Missouri,  1867. 

6  "An  officer  of  the  Army  is  bound  by  the  law  to  be  a  gentleman."  Attorney-General  Cushing, 
VI  Opins. ,  417.  See  definitions  or  partial  definitions  of  the  class  of  offenses  contemplated  by  this  article 
in  G.  O.  45,  Army  of  the  Potomac,  1864;  G.  O.  29.  Department  of  California,  1865;  G.  O.  7,  Department 
of  the  Lakes,  1872,  G.  C.  M.  0. 69.,  Department  of  the  East,  1870;  G.  C.  M.  0. 41,  Headquarters  of  Army, 
1879. 


MILITARY   LAWS    OF   THE   UlSnTED   STATES.  997 

rowed  under  false  promises  or  representations  as  to  payment  or  security,  or  where 
the  nonpayment  has  been  accompanied  by  such  circumstances  of  fraud,  deceit,  eva- 
sion, denial  of  indebtedness,  etc.,  as  to  amount  to  dishonorable  conduct — the  continued 
nonpayment,  in  connection  with  the  facts  or  circumstances  rendering  it  dishonorable, 
may  properly  be  deemed  to  constitute  an  offense  chargeable  under  this  article,  (a) 
Ibid.,  par.  133. 

Where  an  officer,  in  payment  of  a  debt,  gave  his  check  upon  a  bank,  representing 
at  the  same  time  that  he  had  funds  there,  when  in  fact,  as  he  was  well  aware,  he 
had  none,  held  that  he  was  amenable  to  a  charge  under  this  article.  Ibid.,  par.  134. 

Neglect  or  refusal  to  pay  honest  debts  may  constitute  an  offense  under  this  article 
where  so  repeated  or  persistent  as  to  furnish  reasonable  ground  for  inferring  that  the 
officer  designs  or  desires  to  avoid  or  indefinitely  defer  a  settlement.  This  especially 
where  the  debts  are  due  to  soldiers  for  money  borrowed  from  or  held  in  trust  for 
them.  Ibid.,  par.  135.  See  also  par.  138,  ibid. 

An  indifference  on  the  part  of  an  officer  to  his  pecuniary  obligations,  of  so  marked 
and  inexcusable  a  character  as  to  induce  repeated  just  complaints  to  his  military 
commander  or  the  Secretary  of  War  by  his  creditors,  and  to  bring  discredit  and 
scandal  upon  the  military  service,  held  to  constitute  an  offense  within  the  purview  of 
this  article.  (6)  Ibid.,  par.  136. 

Where  certain  officers  of  a  colored  regiment  made  a  practice  of  loaning  to  men  of 
the  regiment  small  amounts  of  money,  for  which  they  charged  and  received  in  pay- 
ment at  the  rate  of  two  dollars  for  one  at  the  next  pay  day,  held  that  they  were 
properly  convicted  of  a  violation  of  this  article.  Ibid.,  par.  137. 

Where  an  officer  stationed  in  Utah  was  married  there  by  a  Mormon  official  to  a 
female,  with  whom  he  lived  as  his  wife,  although  having  at  the  same  time  a  legal 
wife  residing  in  the  States,  held  that  he  might  properly  be  brought  to  trial  by  general 
court-martial  for  a  violation  of  this  article.  So  held  of  an  officer  who  committed 
bigamy  by  publicly  contracting  marriage  in  the  United  States  while  having  a  legal 
wife  living  in  Scotland  whom  he  had  abandoned.  Ibid.,  par.  139. 

Abusing  and  assaulting  his  wife  by  an  officer  at  a  military  post,  held  chargeable 
as  an  offense  under  this  article.  Ibid.,  par.  140. 

The  institution  by  an  officer  of  fraudulent  proceedings  against  his  wife  for  divorce, 
and  the  manufacture  of  false  testimony  to  be  used  against  her  in  the  suit,  in  connec- 
tion with  an  aoandonment  of  her  and  neglect  to  provide  for  her  support,  held  to  con- 
stitute ''conduct  unbecoming  an  officer  and  a  gentleman"  in  the  sense  of  this  article. 
Ibid.,  par.  141. 

According  to  the  accepted  principle  of  interpretation,  by  which  articles  of  war 
enjoining  a  specific  punishment  or  punishments  are  held  to  be  in  this  particular 
both  mandatory  and  exclusive,  no  sentence  other  than  one  of  simple  dismissal  can 
legally  be  adjudged  upon  a  conviction  under  this  article.  A  sentence  which  adds  to 
dismissal  any  other  penalty  or  penalties,  as  disqualification  for  office,  forfeiture  of 
pay,  imprisonment,  etc.,  is  valid  and  operative  only  as  to  the  dismissal,  and  as  to  the 
rest  should  be  formally  disapproved  as  being  unauthorized  and  of  no  effect.  Ibid., 
par.  142. 

The  use  of  abusive  language  toward  a  commanding  officer  may  constitute  an 
offense  under  this  article.  But,  both  as  a  matter  of  correct  pleading  and  because 
the  twentieth  article  authorizes  a  punishment  less  than  dismissal,  the  language 
should  be  so  particularized  as  to  show  that  it  constituted  an  offense  more  grave  than 
the  mere  disrespect  which  is  the  subject  of  the  latter  article.  A  specification  not  thus 
setting  forth  and  characterizing  the  epithets  or  words  employed  will  be  subject  to  a 
motion  to  make  definite  or  strike  out.  Ibid.,  par.  143. 

The  mere  acceptance  by  an  officer  of  compensation  from  private  parties  (civilians) 
whom,  by  permission  of  his  superior,  he  assists  in  a  private  undertaking,  though  it 
may  be  an  indelicate  act,  is  not  an  offense  under  this  article.  Of  the  propriety  of 
such  conduct  an  officer  must  judge  for  himself.  Ibid.,  par.  144. 

See,  as  to  the  duplication  of  pay  accounts,  ibid. ,  pars.  145,  146. 

Held  that  a  continued  neglect,  without  adequate  excuse,  to  satisfy  a  pecuniary 
obligation  long  overdue,  after  specific  assurance  given  of  speedy  payment,  was  a 
dishonorable  act,  constituting  an  offense  under  this  article.  Ibid.,  par.  138. 

a  Cases  of  officers  made  amenable  to  trial  by  court-martial,  under  this  article,  fbr  the  nonfulfillment 
of  pecuniary  obligations  to  other  officers,  enlisted  men,  post  traders,  and  civilians,  are  found  in  the 
following  general  orders  of  the  War  Department  and  Headquarters  of  the  Army:  No.  87,  of  1866;  Nos. 
3,  55,  64,  of  1869;  No.  15,  of  1870,  No.  17,  of  1871;  Nos.  22,  46,  of  1872;  No.  10,  of  1*873;  Nos.  25,  50,  68,  82, 
Of  1874;  No.  25,  of  1875;  No.  100,  of  1876:  No.  46,  of  1877. 

ft  See,  on  the  subject  of  these  complaints,  the  circular  issued  originally  from  the  War  Department 
(A.  G.  O.)  on  February  8, 1872,  in  which  the  Secretary  of  War  "declares  his  intention  to  bring  to  trial 
by  court-martial,"  under  the  sixty-first  article  of  war,  "any  officer  who,  after  due  notice,  shall  fail  to 
quiet  such  claims  against  him." 


998  MILITARY    LAWS    OF   THE    UNITED    STATES. 


ART-  62-  A11  crimes  not  capital,  and  all  disorders  and 
-neglects,  which  officers  and  soldiers  may  be  guilty  of,  to 
02  Art.  war.  ^ne  prejudice  of  good  order  and  military  discipline,  though 
not  mentioned  in  the  foregoing  articles  of  war,  are  to  be 
taken  cognizance  of  by  a  general,  or  a  regimental,  garri- 
son, or  field  officers'  court-martial,  according  to  the  nature 
and  degree  of  the  offense,  and  punishable  at  the  discretion 
of  such  court.1 

1  The  word  "crimes"  in  this  article,  distinguished  as  it  is  from  "neglects"  and 
"disorders,"  means  military  offenses  of  a  more  serious  character  than  these,  includ- 
ing such  as  are  also  civil  crimes,  as  homicide,  robbery,  arson,  larceny,  etc.  "Capi- 
tal" crimes  (i.  e.,  crimes  capitally  punishable),  including  murder,  or  any  grade  of 
murder  made  capital  by  statute,  can  not  be  taken  cognizance  of  by  courts-martial 
under  this  article.  (As  to  the  jurisdiction  of  courts-martial  in  cases  of  murder,  etc., 
in  time  of  war,  see  art.  58,  supra,  note.)  A  crime  which  is  in  fact  murder,  and  capiv 
tal  by  statute  of  the  United  States  or  of  the  State  in  which  committed,  can  not  be 
brought  within  the  jurisdiction  of  a  court-martial  under  this  article  by  charging  it 
as  "manslaughter,  to  the  prejudice,"  etc.,  or  simply  as  "conduct  to  the  prejudice," 
etc.  If  the  specification  or  the  proof  shows  that  the  crime  was  murder  and  a 
capital  offense,  the  court  should  refuse  to  take  jurisdiction,  or  to  find  or  sentence. 
If  it  assume  to  Jo  so,  the  proceedings  should  be  disapproved  as  unauthorized  and 
void.  Ibid.,  par.  148. 

The  term  "to  the  prejudice  of  good  order  and  military  discipline"  qualifies,  accord- 
ing to  the  accepted  interpretation,  the  word  "  crimes"  as  well  as  the  words  "disor- 
ders and  neglects.  "  Thus,  the  crime  of  larceny  (sometimes  charged  as  "theft"  or 
"stealing")  is  held  chargeable  under  this  article  when  it  clearly  affects  the  order 
and  discipline  of  the  military  service.  Stealing,  for  example,  from  a  fellow-soldier 
or  from  an  officer  (or  stealing  of  public  money  or  other  public  property  where  the 
offense  is  not  more  properly  a  violation  of  article  60),  is  generally  so  chargeable. 
And  so  of  any  other  crime  (not  capital)  the  commission  of  which  has  prejudiced 
military  discipline,  as,  for  example,  manslaughter  (or  homicide  not  amounting  to 
murder)  of  a  soldier;  assault  with  intent  to  kill  a  fellow-soldier;  forgery  of  the  name 
of  a  disbursing  or  other  military  officer  to  a  Government  check  or  draft,  or  forgery 
of  an  officer's  name  to  a  check  on  a  bank  (and  this  whether  or  not  anything  was  in 
fact  lost  by  the  Government  or  the  bank  or  officer);  forgery  in  signing  the  name  of 
a  fellow-soldier  to  a  certificate  of  indebtedness  to  a  sutler,  or  to  an  order  on  a  pay- 
master; embezzlement  or  misappropriation  of  the  property  of  an  officer  or  soldier.a 
Ibid.,  par.  149. 

Where  an  offense  is  specifically  provided  for  in  any  of  the  Articles  of  War  prior  to 
the  sixty-second,  the  grant  of  jurisdiction  to  a  court-martial  to  try  and  punish  such 
offense  is  conferred  by  the  particular  article  which  mentions  it,  .and  not  by  the  gen- 
eral language  of  the  sixty-second  article,  providing  for  the  trial  and  punishment  of 
offenses  not  capital,  and  all  disorders,  etc.,  though  not  mentioned  in  the  preceding 
articles.  In  re  Carter,  97  Fed.  Rep.,  496. 

A  crime,  disorder,  or  neglect,  cognizable  under  this  article,  may  be  charged  either 
by  its  name  simply,  as  "larceny,"  "drunkenness,"  "neglect  of  "duty,"  etc.  ;  or  by 
its  name  with  the  addition  of  the  words,  "to  the  prejudice  of  good  order  and  mili- 
tary discipline;"  or  simply  as  "conduct  to  the  prejudice  of  good  order  and  military 
discipline;"  or  as  "  violation  of  the  sixty-second  article  of  war."  It  is  immaterial 
in  which  form  the  charge  is  expressed,  provided  the  specification  sets  forth  facts  con- 
stituting an  act  prejudicial  to  good  order  and  military  discipline.  Whenever  the 
charge  and  specification  taken  together  make  out  a  statement  of  an  act  clearly  thus 
prejudicial,  etc.,  the  pleading  will  be  regarded  as  substantially  sufficient  under  this 
general  article.  Ibid.,  par.  151. 

A  charge  of  "conduct  to  the  prejudice,"  etc.,  with  a  specification  setting  forth 
merely  trials  and  convictions  of  the  accused  for  previous  offenses,  is  not  a  pleading 
of  an  offense  under  this  article,  or  of  any  military  offense.  So  of  a  charge  of  "habit- 
ual drunkenness,  to  the  prejudice,"  etc.,  with  a  specification  setting  forth  instances  in 
which  the  accused  has  been  sentenced  for  acts  of  drunkenness.  Such  charges,  indeed, 

a  For  cases  falling  within  the  scope  of  this  article  see  Dig.  Opin.  J.  A.  G.,  paragraphs  149,  150,  and 
]59;  for  cases  not  coming  under  the  terms  of  the  article  see  ibid.,  par.  160. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  999 

ART.  63.  All  retainers  to  the  camp,  and  all  persons  serv-  camptainersof 
ing  with  the  armies  of  the  United   States  in   the  field,    63  Art-  War- 
though  not  enlisted  soldiers,  are  to  be  subject  to  orders, 
according  to  the  rules  and  discipline  of  war.1 

are  in  contravention  of  the  principle  that  a  party  shall  not  be  twice  tried  for  the  same 
offense.  So,  a  specification  under  the  charge  of  " conduct  to  the  prejudice,"  etc., 
which  sets  forth  not  a  distinct  offense,  but  simply  the  result  of  an  aggregation  of  simi- 
lar offenses,  is  insufficient  in  law.  Where  the  specifications  to  such  a  charge,  in  a 
case  of  an  officer,  set  forth  that  the  accused  was  "frequently"  drunk,  "frequently" 
absented  himself  without  authority  from  his  command,  etc.,  held  that  these  specifi- 
cations were  properly  struck  out  by  the  court  on  the  motion  of  the  accused.  In  such 
a  case  the  only  correct  pleading  is  a  general  charge  under  this  article,  with  specifica- 
tions setting  forth — each  separately — some  particular  and  specific  instance  of  offense. 
Ibid.,  par.  152. 

Whether  acts  committed  against  civilians  are  offenses  within  this  article  is  a  ques- 
tion to  be  determined  by  the  circumstances  of  each  case,  and  in  regard  to  which  no 
general  rule  can  be  laid  down.  If  the  offense  be  committed  on  a  military  reservation, 
or  other  premises  occupied  by  the  Army,  or  in  its  neighborhood,  so  as  to  be — so  to 
speak — in  the  constructive  presence  of  the  Army;  or  if  committed  by  an  officer  or 
soldier  while  on  duty,  particularly  if  the  injury  is  done  to  a  member  of  the  com- 
munity whom  the  offender  is  specially  required  to  protect;  or  if  committed  in  the 
presence  of  other  soldiers,  or  while  the  offender  is  in  uniform;  or  if  the  offender  use 
his  military  position  or  that  of  another  for  the  purpose  of  intimidation  or  other 
unlawful  influence  or  object — the  offense  will,  in  general,  properly  be  regarded  as  an 
act  prejudicial  to  good  order  and  military  discipline,  and  cognizable  by  a  court-martial 
under  this  article.  The  judgment  on  the  subject  of  a  court  of  military  officers,  experts 
as  to  such  cases,  confirmed  by  the  proper  reviewing  commander,  should  be  reluctantly 
disturbed.  As  to  a  charge  of  embezzlement  of  public  funds  charged  under  this  article, 
see  Dig.  Opin.  J.  A.  G.,  par.  154,  with  notes  thereon.  See  also  G.  C.  M.  O.  34,  H.  Q. 
Army,  1866;  Carter  v.  McLaughry,  105  Fed.  Rep.,  614;  S.  O.  172,  A.  G.  O.,  1899; 
In  re  Carter,  97  Fed.  Rep.,  496. 

*To  determine  when  an  army  is  "in  the  field"  is  to  decide  the  question  raised. 
These  words  imply  military  operations  with  a  view  to  an  enemy.  Hostilities  with 
Indians  seem  to  be  as  much  within  their  meaning  as  any  other  kind  of  warfare.  To 
enable  the  officers  of  an  army  to  preserve  good  order  and  discipline  is  the  object  of 
this  article,  and  these  may  be  as  necessary  in  the  face  of  hostile  savages  as  in  the  front 
of  any  other  enemy.  When  an  army  is  engaged  in  offensive  or  defensive  operations,  I 
think  it  is  safe  to  say  that  it  is  an  army  "in  the  field." 

To  decide  exactly  where  the  boundary  line  runs  between  civil  and  military  juris- 
diction, as  to  the  civilians  attached  to  an  army,  is  difficult;  but  it  is  quite  evident  that 
they  are  within  military  jurisdiction,  as  provided  for  in  said  article,  when  their 
treachery,  defection,  or  insubordination  might  endanger  or  embarrass  the  army  to 
which  they  belong  in  its  operations  against  what  is  known  in  military  phrase  as  "an 
enemy."  Possibly  the  fact  that  troops  found  in  a  region  of  country  chiefly  inhabited 
by  Indians,  and  remote  from  the  exercise  of  civil  authority,  may  enter  into  the 
description  of  "an  army  in  the  field."  Persons  who  attach  themselves  to  an  expe- 
dition against  hostile  Indians  may  be  understood  as  agreeing  that  they  will  submit 
themselves,  for  the  time  being,  to  military  control.  XIV  Opin.  Att.  Gen.  22,  G.  0. 
17,  A.  G.  O.,  1872. 

The  accepted  interpretation  of  this  article  is  that  it  subjects  (in  time  of  war)  the 
classes  of  persons  specified  not  only  to  military  discipline  and  government  in  general, 
but  also  to  the  jurisdiction  of  courts-martial  (upon  the  theory,  probably,  that  they 
are  thus  made,  for  tbre  time  being,  a  part  of  the  Army).  Individuals,  however,  of 
the  class  termed  ' '  retainers  to  the  camp, ' '  or  officers'  servants  and  the  like,  as  well  as 
camp  followers  generally,  have  rarely  been  subjected  to  trial  in  our  service.  For 
breaches  of  discipline  committed  by  them  the  punishment  has  generally  been  expul- 
sion from  the  limits  of  the  camp  and  dismissal  from  employment.  Dig.  Opin.  J.  A. 
G.,  par.  161. 

The  discipline  authorized  by  the  article  has  mainly  been  applied  to  the  description 
of  "persons  serving  with  the  armies  of  the  United  States  in  the  field" — that  is  to 
say,  civilians  serving  in  a  quasi-military  capacity  in  connection  with  troops,  in  time 
of  war  and  on  its  theater.  Thus,  during  the  late  war,  civilians  of  the  following 
classes  were,  in  repeated  cases,  held  amenable,  under  this  article,  to  the  military 
jurisdiction,  and  subjected  to  trial  and  punishment  by  courts-martial:  Teamsters 


1000  MILITARY    LAWS    OF    THE    UNITED    STATES. 


pp:  ART<  64'  The  officers  and  soldiers  of  any  troops,  whether 
i863,2c87^ai,  v.  ^ilitia  or  others,  mustered  and  in  pay  of  the  United  States 
]264-Art.'  war.  sna^  a^  all  times  and  in  all  places  be  governed  by  the 

Articles  of  War  and  shall  be  subject  to  be  tried  by  courts- 

martial.1 

employed  with  wagon  trains,  watchmen,  laborers,  and  other  employees  of  the  quar- 
termaster, subsistence,  engineer,  ordnance,  provost-marshal,  etc.,  departments;  am- 
bulance drivers;  telegraph  operators;  interpreters;  guides;  paymasters'  clerks; 
veterinary  surgeons;  "contract"  surgeons,  nurses,  and  hospital  attendants;  conductors 
and  engineers  of  railroad  trains  operated  upon  the  theater  of  war  for  military  purposes; 
officers  and  men  employed  on  Government  transports,  etc.  But  the  mere  fact  of 
employment  by  the  Government  pending  a  general  war  does  not  render  the  civil 
employee  so  amenable.  The  employment  must  be  in  connection  with  the  army  in 
the  field  and  on  the  theater  of  hostilities.  Ibid.  ,  par.  162. 

Held  (June,  1863)  that  the  force  employed  in  the  "ram  fleet"  on  Western  waters 
was  properly  a  contingent  of  the  Army  rather  than  of  the  Navy,  and  accordingly  that 
civilian  commanders,  pilots,  and  engineers  employed  upon  such  fleet  during  the  war 
and  before  the  enemy  were  persons  serving  with  the  armies  in  the  field  in  the  sense 
of  this  article,  and  therefore  amenable  to  trial  by  court-martial.  Ibid.,  par.  163. 

Civil  employees  of  the  United  States  serving  with  the  army  in  the  field  during 
active  warfare  with  hostile  Indian  tribes  held  amenable  to  trial  by  court-martial 
under  this  article.  A  civilian  who  acted  as  guide  to  a  command  operating  in  a  hostile 
movement  during  an  Indian  war  held  so  triable.  Ibid.,  par.  164. 

The  j  urisdiction  authorized  by  this  article  can  not  be  extended  to  civilians  employed 
in  connection  with  the  Army  in  time  of  peace,  nor  to  civilians  employed  in  such  con- 
nection during  the  period  of  an  Indian  war  but  not  on  the  theater  of  such  war.  In 
view  of  the  limited  theater  of  Indian  wars,  this  exceptional  jurisdiction  is  to  be 
extended  to  civilians,  on  account  of  offenses  committed  during  such  wars,  with  even 
greater  caution  than  in  a  general  war.  Ibid.,  par.  165. 

Civilians  can  not  legally  be  subjected  to  military  jurisdiction  by  the  authority  of 
this  article  after  the  war  (whether  general  or  against  Indians),  pending  which  their 
offenses  were  committed,  has  terminated.  The  jurisdiction,  to  be  lawfully  exercised, 
must  be  exercised  during  the  status  belli.  Ibid.,  par.  166. 

A  civil  employee  of  the  United  States  in  time  of  peace  is  most  clearly  not  made 
amenable  to  the  military  jurisdiction  and  trial  by  court-martial  by  the  fact  that  he 
is  employed  in  an  office  connected  with  the  administration  of  the  military  branch  of 
the  Government.  Such  employment  does  not  make  him  a  part  of  the  military  estab- 
lishment, nor  is  his  offense,  however  nearly  it  may  affect  the  military  service,  "a 
case  arising  in  the  land  forces  '  '  in  the  sense  of  article  5  of  the  amendments  to  the 
Constitution.  So  held  (June,  1877)  that  a  civilian  clerk  employed  in  time  of  peace 
in  the  office  of  the  chief  quartermaster  at  San  Francisco  was  manifestly  not  amena- 
ble, under  this  article  or  otherwise,  to  trial  by  court-martial  for  the  embezzlement 
or  misapplication  of  Government  funds  appropriated  for  the  Quartermaster  De- 
partment, (a)  And  remarked  that  if  this  official  could  be  made  liable  to  such  juris- 
tion,  all  the  male  and  female  clerks  employed  in  the  War  Department  might  upon  the 
same  principle  be  held  thus  amenable  f  or  offenses  against  the  Government  committed 
in  connection  with  their  duties.  And  so  held  in  the  case  of  a  civilian  clerk  employed 
at  Camp  Robinson,  Nebraska,  charged  with  conspiring  with  contractors  to  defraud 
the  United  States,  the  post  not  being  within  the  theater  of  any  Indian  war  or  hos- 
tilities pending  at  the  period  of  the  offense.  (6)  Ibid.,  par.  167. 

Held  (April,  1877)  that  superintendents  of  national  cemeteries,  being  no  part  of  the 
Army,  but  civilians  (see  section  4874,  Revised  Statutes),  were  clearly  not  amenable 
to  military  jurisdiction  or  trial  under  this  article  or  otherwise,  (c)  Ibid.,  par.  168. 

1  It  is  a  general  principle,  confirmed  by  this  article,  that  military  offenses  are  not 
territorial  (see  Manual  for  Courts-Martial,  p.  14).  So  held  that  an  officer  who  exhib- 
ited himself  in  an  intoxicated  condition  at  a  public  ball  in  Mexico,  though  not  pres- 
ent in  any  military  capacity,  was  amenable  for  his  offense  to  the  jurisdiction  of  a 
court-martial  in  Texas.  Ibid.,  par.  169;  Houston  v.  Moore,  5  Wh.,  20. 

a  See  the  confirmatory  opinion  in  this  case  of  the  Attorney-General  of  May  15,  1878,  XVI  Opin.,  139. 
6  See  opinion,  to  a  similar  effect,  of  the  Attorney-General  of  June  15,  1878,  XVI  Opins.,  48. 
cSee,  to  the  same  effect,  the  opinion  of  the  Attorney-General  referred  to  in  note  o. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  1001 


ART.  65.  Officers  charged  with  crime l  shall  be  arrested 

cr 
65  Art.  War. 


and  confined  in  their  barracks,  quarters,  or  tents,  and  de- crimes- 


prived  of  their  swords  by  the  commanding  officer.  And 
any  officer  who  leaves  his  confinement  before  he  is  set  at 
liberty  by  his  commanding  officer  shall  be  dismissed  from 
the  service.2 

ART.  66.  Soldiers  charged  with  crimes  shall  be  confined    soldiers  ac- 

0  cused  of  crimes. 

until  tried  by  court-martial  or  released  DJ  proper  author-    66  Art.  war. 
ity.3 

ART.  67.  No  provost-marshal,  or  officer  commanding  a  on^rgeivingpris~ 
guard,  shall  refuse  to  receive  or  keep  any  prisoner  com-    67  Art-  War- 
mitted  to  his  charge  by  an  officer  belonging  to  the  forces  of 
the  United  States;  provided  the  officer  committing  shall, 

1  The  term  "  crime  "  is  here  employed  in  a  general  sense,  referring  to  offenses  of  a 
military  character  as  well  as  to  those  of  a  civil  character  which  are  cognizable  by 
court-martial,  (a)     An  offense  in  violation  of  this  article  is  only  committed  when  an 
officer  confined  in  "close  arrest"  to  his  quarters  leaves  the  same  without  authority. 
A  breach  of  a  mere  formal  arrest  or  of  any  arrest  not  accompanied  by  confinement 
to  quarters  would  be  an  offense  not  within  this  article,  but  under  article  62.     Ibid., 
par.  170. 

Simply  disobeying  an  order  to  proceed  and  report  in  arrest  to  a  certain  commander 
held  not  an  offense  chargeable  under  this  article.  Ibid.,  par.  171. 

2  Where  an  officer  in  close  arrest  was  permitted  by  his  commanding  officer  to  leave 
temporarily  his  confinement,  held  that  his  delaying  his  return  for  a  brief  period 
beyond  the  time  fixed  therefor  did  not  properly  constitute  an  offense  under  this 
article.     Ibid.,  par.  172. 

Though  any  unauthorized  leaving  of  his  confinement  by  an  officer  in  close  arrest 
is,  strictly,  a  violation  of  the  article,  it  would  seem  in  view  of  the  severe  mandatory 
punishment  prescribed  that  an  officer  should  not  in  general  be  brought  to  trial  under 
the  same  unless  his  act  was  of  a  reckless  or  deliberately  insubordinate  character. 
Ibid.,  par.  173. 

It  is  no  defense  to  a  charge  of  breach  of  arrest  in  violation  of  this  article  that  the 
accused  is  innocent  of  the  offense  for  which  he  was  arrested.  (6)  It  is  a  defense, 
however,  that  subsequently  to  the  original  confinement  the  accused  has  been  put  on 
duty  or  allowed  to  go  on  duty,  provided  that  before  the  breach  assigned  he  has  not 
been  duly  rearrested  and  reconfined.(c)  Ibid.,  78,  par.  5. 

The  requirement  of  this  article  that  an  offender  "shall  be  dismissed"  is  held  to  be 
exclusive  of  any  other  punishment.  A  sentence  of  dismissal  with  forfeiture  of  pay 
is  unauthorized  and  inoperative  as  to  the  forfeiture,  and  as  to  this  should  be  disap- 
proved. Ibid.,  par.  174.  See  61st  article.  See  also  the  title  "Arrest  and  confine- 
ment" in  the  chapter  entitled  MILITARY  TRIBUNALS.  For  a  case  arising  under  this 
article  in  which  breach  of  arrest  was  charged  see  G.  O.,  No.  198,  A.  G.  O.  of  1863. 

3  Soldiers  held  in  military  arrest,  while  they  may  be  subjected  to  such  restraint  as 
may  be  necessary  to  prevent  their  escaping  or  committing  violence,  can  not  legally 
be  subjected  to  any  punishment.     The  imposition  of  punishment  upon  soldiers  while 
thus  detained  has  been  on  several  occasions  emphatically  denounced  by  department 
commanders. (d)     Dig.  Opin.  J.  A.  G.,  par.  175. 

The  word  * '  crimes  ' '  as  used  in  this  article  is  construed  to  mean  serious  military 
offenses.  So  that  a  soldier  will  not  properly  be  ' '  confined ' '  where  not  charged  witn 
one  of  the  more  serious  of  the  military  offenses — in  other  words,  where  charged  only 
with  an  offense  of  a  minor  character  Ibid.,  par.  176.  See  the  title  "Arrest  and 
confinement"  in  the  chapter  entitled  MILITARY  TRIBUNALS. 

a  Compare  Wolton  v.  Gavin,  16  Ad.  &  El.,  66,  68;  Simmons,  sec.  360. 

b Hough  (Practice),  494. 

c Hough  (Precedents),  19. 

dSee,  for  example,  the  remarks  of  such  commanders  in  G.  O.,  23,  Department  of  the  East,  1863;  G.  O., 
26,  Department  of  California,  1866;  G.  O.,  23,  Department  of  the  Lakes,  1870;  G.  O.,  106,  Department 
of  Dakota,  1871.  And  compare  remarks  of  Justice  Story  in  Steere  v.  Field,  2  Mason,  516, 


1002  MILITARY    LAWS    OF   THE    UNITED    STATES. 

at  the  same  time,  deliver  an  account  in  writing,  signed  by 
himself,  of  the  crime  charged  against  the  prisoner.1 

on^rsportof  pris"  ART-  68.  Every  officer  to  whose  charge  a  prisoner  is 
68  Art.  war.  committed  shall,  within  twenty-four  hours  after  such  com- 
mitment, or  as  soon  as  he  is  relieved  from  his  guard,  report 
in  writing,  to  the  commanding  officer,  the  name  of  such 
prisoner,  the  crime  charged  against  him,  and  the  name  of 
the  officer  committing  him;  and  if  he  fails  to  make  such 
report,  he  shall  be  punished  as  a  court-martial  may  direct. 

on^r^fh^Fau-     ART.  69.  Any  officer  who  presumes,  without  proper  au- 

th69lrt.ewt?.es'  thority , to  release  any  prisoner  committed  to  his  charge,  or 
suffers  any  prisoner  so  committed  to  escape,  shall  be  pun- 
ished as  a  court-martial  may  direct.2 

confinement  °f     ART-  7o-  No  officer  or  soldier  put  in  arrest  shall  be  con- 

70  Art.  wiir.    tinued  in  confinement  more  than  eight  days,  or  until  such 

time  as  a  court-martial  can  be  assembled.3 
copyof  charges     ART.  71.  When  an  officer  is  put  in  arrest  for  the  purpose 

and  time  of  trial.  .  r 

2ooUsyiiV8i2' c'       ^na^  except  at  remote  military-  posts  or  stations,  the 
595!  officer  by  whose  order  he  is  arrested  shall  see  that  a  copy 

71  Art.  War.  *J 

of  the  charges  on  which  he  is  to  be  tried  is  served  upon 
him  within  eight  days  after  his  arrest,  and  that  he  is  brought 
to  trial  within  ten  days  thereafter,  unless  the  necessities 
of  the  service  prevent  such  trial;  and  then  he  shall  be 
brought  to  trial  within  thirty  days  after  the  expiration  of 
said  ten  days.  If  a  copy  of  the  charges  be  not  served, 
or  the  arrested  officer  be  not  brought  to  trial,  as  herein 
required,  the  arrest  shall  cease.  But  officers  released  from 
arrest,  under  the  provisions  of  this  article,  may  be  tried, 

'In  the  English  case  of  Wolton  v.  Gavin  (16  Ad.  and  EL,  70)  it  was  decided  that 
4 '  a  commanding  officer  receiving  a  soldier  charged  with  desertion  by  a  noncommis- 
sioned officer,  who  delivered  a  written  signed  charge  of  the  same,  is  justified  under 
this  article  in  detaining  such  soldier.  He  is  bound  to  receive  the  prisoner  under  the 
article  of  war  and  he  is  not  liable  to  an  action  for  so  doing.  It  makes  no  difference 
whether  the  crime  be  civil  or  military.  The  fact  that  a  man  is  prima  facie  a  soldier, 
and  enlisted,  is  sufficient  to  bring  him  under  the  article  of  war.  The  duty  of  receiv- 
ing arises  eo  instanti — as  soon  as  he  is  presented. 

If  such  imprisonment  proves  illegal,  the  committing  officer  becomes  responsible, 
the  duty  of  the  officer  commanding  the  guard  being  ministerial  merely.  See,  in  this 
connection,  the  case  of  McCall  v.  McDowell,  1  Abbott,  212. 

2 General  Order  42  of  1901,  fixing  the  maximum  punishments,  appoints  different 
limits  of  punishment  for  willfully  and  for  negligently  allowing  an  escape  as  separate 
offenses.  A  charge  for  suffering  an  escape  under  this  article  should  therefore  indi- 
cate, in  the  specification,  whether  the  act  is  alleged  to  be  willful  or  negligent  only. 
Ibid.,  79,  par.  1. 

3  Detaining  soldiers  in  arrest  for  long  and  unreasonable  periods,  when  it  is  practica- 
ble to  bring  them  to  trial,  is  arbitrary  and  oppressive,  and  in  contravention  both  of 
the  letter  and  spirit  of  this  article.  Whether  the  delay  in  any  case  is  to  be  regarded 
as  so  far  unreasonable  as  properly  to  subject  the  commander  responsible  therefor 
to  military  charges  or  a  civil  action  must  depend  upon  the  circumstances  of  the  situa- 
tion and  the  exigencies  of  the  service  at  the  time,  (a)  Ibid.,  par.  177  See  the  title 
"Arrest  and  confinement,"  in  the  chapter  entitled  MILITARY  TRIBUNALS. 

a  Compare  Blabe's  Case,  2  Maule  &  Sel.,  428;  Bailey  v.  Warden,  4  ibid.,  400. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  1003 

whenever  the  exigencies  of  the  service  shall  permit,  within 
twelve  months  after  such  release  from  arrest.1 

ART.  72.  Any  general  officer  commanding  an  army,  a 
territorial  division,  or  a  department,  or  colonel  command- 
ing  a  separate  department,  may  appoint  general  courts-  \^t  v!£,p!i2i?' 
martial  whenever  necessary.     But  when  any  such  com-    72  Artt  War> 
rnander  is  the  accuser  or  prosecutor  of  any  officer  under 
his  command,  the  court  shall  be  appointed  by  the  Presi- 
dent, and  its  proceedings  and  sentence  shall  be  sent  directly 
to  the  Secretary  of  War,  by  whom  they  shall  be  laid  before 
the  President  for  his  approval  or  orders  in  the  case.2     Act 
of  July  5, 1884  (%3  Stat.  Z.,  121). 

1  Though  an  officer,  in  whose  case  the  provisions  of  this  article  in  regard  to  serv- 
ice of  charges  and  trial  have  not  been  complied  with,  is  entitled  to  be  released  from 
arrest,  he  is  not  authorized  to  release  himself  therefrom.  If  he  be  not  released  in 
accordance  with  the  article,  he  should  apply  for  his  discharge  from  arrest,  through 
the  proper  channels  to  the  authority  by  whose  order  the  arrest  was  imposed,  or  other 
proper  superior.  Dig.  Opin.  J.  A.  G.,  par.  178. 

The  term  ''within  ten  days  thereafter"  held  to  mean  after  his  arrest.  Ibid., 
par.  179. 

The  fact  that  cases  of  officers  put  in  arrest  "at  remote  military  posts  or  stations" 
are  excepted  from  the  application  of  the  article  does  not  authorize  an  abuse  of  the 
power  of  arrest  in  these  cases.  And  where,  in  such  a  case,  an  arrest,  considering 
the  facilities  of  communication  with  the  department  headquarters  and  other  circum- 
stances, was  in  fact  unreasonably  protracted  without  trial,  held  that  the  officer  was 
entitled  to  be  released  from  arrest  upon  a  proper  application  submitted  for- the  pur- 
pose. Ibid.,  par.  181. 

2 See  the  title  "Constitution  and  composition  of  general  courts-martial,"  in  the 
chapter  entitled  MILITARY  TRIBUNALS.  See  also  Mullan  v.  U.  S.,  23  Ct.  Cls.,  34. 

Prior  to  the  amendment  of  this  article  by  the  act  of  July  5,  1884,  a  colonel  com- 
manding a  department  was  not  authorized,  as  such,  to  convene  a  general  court; 
otherwise,  however,  of  a  colonel  assigned  by  the  President  to  the  command  of  a 
department  according  to  his  brevet  rank  of  brigadier  or  major-general.  Dig.  Opin. 
J.  A.  G.  82,  par.  4. 

The  objection  that  the  convening  commander  was  the  "accuser"  or  "prosecutor" 
of  the  accused,  being  one  going  to  the  legal  constitution  of  the  court,  may  be  raised 
before  the  court  at  any  stage  of  its  proceedings.  (Or  it  may  be  taken  to  the  review- 
ing officer  with  a  view  to  his  disapproving  the  proceedings,  or  may  be  made  to  the 
President,  after  the  approval  and  execution  of  the  sentence,  with  a  view  to  having 
the  same  declared  invalid,  or  to  the  obtaining  of  other  appropriate  relief.)  Regu- 
larly, however,  the  objection,  if  known  or  believed  to  exist,  should  be  taken  at  or 
before  the  arraignment.  If  the  objection  is  not  admitted  by  the  prosecution  to 
exist,  the  accused  is  entitled  to  prove  it  like  any  other  issue.  Ibid.  84,  par.  8. 

The  provision  of  this  article  (and  of  article  73)  that  when  the  convening  com- 
mander is  "accuser  or  prosecutor"  the  court  shall  be  convened  by  the  President  or 
"next  higher  commander,"  being  expressly  restricted  to  general  courts,  has,  of 
course,  no  application  to  regimental  or  garrison  courts.  (But  see  Summary  court. ) 
The  same  principle,  however,  will  properly  be  applied  to  proceedings  before  these 
courts  if  it  can  be  done  without  serious  embarrassment  to  the  service.  Ibid. ,  par.  189. 

A  general  court-martial,  convened  by  the  division  commander  (a  major-general) 
duly  acting  as  department  commander  in  the  absence  of  the  regular  department 
commander,  is  legally  convened  by  a  general  officer  commanding  a  department  in  the 
sense  of  this  article.  Ibid.,  par.  190. 

The  mere  fact  that  a  general  court-martial  is  convened  by  a  department  com- 
mander does  not  make  such  commander  an  "accuser  or  prosecutor"  in  the  sense  of 
this  article,  (a)  A  department  commander  is  not  an  "accuser  or  prosecutor"  when, 
upon  information  of  misconduct  duly  laid  before  him,  he  orders  the  acting  judge- 
advocate  of  the  department  or  the  colonel  commanding  the  regiment  to  proceed 
to  bring  the  offender  to  trial,  this  being  a  part  of  his  due  and  regular  supervision  and 
command.  Ibid.  84,  par.  11. 

a  See  XVI  Opin.  Att.  Gen.,  109. 


1004  MILITARY    LAWS    OF   THE    UNITED   STATER. 


gJSt°gen7erftl      ^RT-  ^.   *n  ^me  °^  war  ^e  commander  of  a  division, 

tfm^oTwa?111101'  of  a  separate  brigade  of  troops,  shall  be  competent  to 

i2DpeC33o4>1861'v  'appoint  a  general   court-martial.     But  when  such  corn- 

is  Art.  war.    mander  js  the  accuser  or  prosecutor  of  any  person  under 

his  command,  the  court  shall  be  appointed  by  the  next 

higher  commander.1 

cates.dgeadv°      ART.  74.  Officers  who  may  appoint  a  court-martial  shall 
74  Art.  war.    ke  competent  to  appoint  a  judge-advocate  for  the  same.2 


p278l     That  whenever  a  court-martial  shall  sit  in  closed  session 


the  judge-advocate  shall  withdraw,  and  when  his  legal 
advice  or  his  assistance  in  referring  to  recorded  evidence 
is  required  it  shall  be  obtained  in  open  court.  Sec.  2,  act 
of  July  27,  1892  (27  Stat.  L.,  278). 

ART.  75.  General  courts-martial  may  consist  of  any  num- 
m?5Art.  war.    ^er  °*  officers  from  five  to  thirteen,  inclusive;  but  they 
shall  not  consist  of  less  than  thirteen  when  that  number 
can  be  convened  without  manifest  injury  to  the  service.3 
mmSr^o?^!     ^ET<  ^'  When  the  requisite  number  of  officers  to  form 
P°7S6  Art.  war     a  general  court-martial   is   not  present  in   any  post  or 
detachment,  the  commanding  officer  shall,  in  cases  which 
require  the  cognizance  of  such  a  court,  report  to  the  com- 
manding officer  of  the  department,  who  shall  thereupon 
order  a  court  to  be  assembled  at  the  nearest  post  or  depart- 
ment at  which  there  may  be  such  a  requisite  number  of 
officers,  and  shall  order  the  party  accused,  with  necessary 
witnesses,  to  be  transported  to  the  place  where  the  said 
court  shall  be  assembled. 

ce?segSliar  wCt     ^RT-  ^'  Officers  of  the  Regular  Army  shall  not  be  com- 
^T^Art  "^M"    Petent  to  sit  on  courts-martial  to  try  the  officers  or  sol- 
diers of  other  forces,  except  as  provided  in  Article  78.* 

1  See  note  2,  to  article  72,  supra.     See  also,  as  to  the  powers  of  certain  commanders 
in  this  regard,  paragraphs  192-198,  ibid. 

2  See  the  title  "Judge-advocate,"  in  the  chapter  entitled  MILITARY  TRIBUNALS. 

3  Where,  in  the  course  of  a  trial,  the  number  of  the  members  of  a  general  court- 
martial  is  reduced  by  reason  of  absence,  challenge,  or  the  relieving  of  members,  the 
court  may  legally  proceed  with  its  business  so  long  as  five  members,  the  minimum 
quorum,  remain;  otherwise  where  the  number  is'  thus  reduced  below  five.     Dig.  Opin. 
J.  A.  G.,  par.  201. 

While  a  number  of  members  less  than  five  can  not  be  organized  as  a  court  or  pro- 
ceed with  a  trial,  they  may  perform  such  acts  as  are  preliminary  to  the  organization 
and  action  of  the  court.  Less  than  five  members  may  adjourn  from  day  to  day,  and 
where  five  are  present  and  one  of  them  is  challenged  the  remaining  four  may  deter- 
mine upon  the  sufficiency  of  the  objection.  Ibid.,  par.  202. 

A  court  reduced  to  four  members,  and  thereupon  adjourning  for  an  indefinite 
period,  does  not  dissolve  itself.  In  adjourning  it  should  report  the  facts  to  the  con- 
vening authority  and  await  his  orders.  He  may  at  any  time  complete  it  by  the 
addition  of  a  new  member  or  members  and  order  it  to  reassemble  for  business. 
Ibid.,  par  203. 

Where  a  court,  though  reduced  by  the  absence  of  members,  operation  of  challenges, 
etc.,  to  below  five  members,  yet  proceeds  with  and  concludes  the  trial,  its  further 
proceedings,  including  its  finding  and  sentence  (if  any),  are  unauthorized  and  inop- 
erative. Ibid.,  par.  204.  See  also  paragraphs  205-207,  ibid. 

4  See  note  1,  article  72,  ante. 


MILITARY   LAWS    OF   THE    UNITED   STATES.  1005 


ART.  78.  Officers  of  the  Marine  Corps,  detached  for  serv-  R 
ice  with  the  Army  by  order  of  the  President,  may  be  asso-l™  Asso- 
ciated with  officers  of  the  Regular  Army  on  courts  -martial    jj^^ig^ 
for  the  trial  of  offenders  belonging-  to  the  Regular  Army,  ^32>  s-  2>  v-  4.  P- 
or  to  forces  of  the  Marine  Corps  so  detached;  and  in  such 
cases  the  orders  of  the  senior  officer  of  either  corps,  who 
may  be  present  and  duly  authorized,  shall  be  obeyed.1 

ART.  79.  Officers  shall  be  tried  only  by  general  courts-    officers  triable 
martial,  and  no  officer  shall,  when  it  can  be  avoided,  be  courts-martial 
tried  by  officers  inferior  to  him  in  rank.2 

ART.  80.  The  commanding  officer  of  each  garrison,  fort,  cojjte  summary 
or  other  place,  regiment  or  corps,  detached  battalion,  or30Jun|^.i898,v. 
company,  or  other  detachment  in  the  Army,  shall  have 
power  to  appoint  for  such  place  or  command,  or  in  his  dis- 
cretion for  each  battalion  thereof,  a  summary  court  to 
consist  of  one  officer  to  be  designated  by  him,  before  whom 
enlisted  men  who  are  to  be  tried  for  offenses,  such  as  were 
prior  to  the  passage  of  the  act  to  promote  the  adminis- 
tration of  justice  in  the  Army,  approved  October  first, 
eighteen  hundred  and  ninety,  cognizable  by  garrison  or 
regimental  courts-martial,  and  offenses  cognizable  by  field 
officers  detailed  to  try  offenders  under  the  provisions  of  the 
eightieth  and  one  hundred  and  tenth  articles  of  war,  shall 
be  brought  to  trial  within  twenty-four  hours  of  the  time  of 
the  arrest,  or  as  soon  thereafter  as  practicable,  except  when 
the  accused  is  to  be  tried  by  general  court-martial;  but 
such  summary  court  may  be  appointed  and  the  officer 
designated  by  superior  authority  when  by  him  deemed 
desirable;  and  the  officer  holding  the  summary  court  shall 
have  power  to  administer  oaths  and  to  hear  and  determine 
such  cases,  and  when  satisfied  of  the  guilt  of  the  accused 

1  See  note  1,  article  72,  ante. 

2  Whether  the  trial  of  an  officer  by  officers  of  an  inferior  rank  can  be  avoided  or 
not  is  a  question  not  for  the  accused  or  the  court,  but  for  the  officer  convening  the 
court;  and  his  decision  (as  indicated  by  the  detail  itself  as  made  in  the  convening 
order)  upon  this  point,  as  upon  that  of  the  number  of  members  to  be  detailed,  is 
conclusive.     An  officer,  therefore,  can  not  successfully  challenge  a  member  because 
merely  of  being  of  a  rank  inferior  to  his  own.     Dig.  Opin.  J.  A.  G.,  par.  210. 

The  statement  sometimes  added  in  orders  convening  courts-martials  to  the  effect 
that  "no  officers  other  than  those  named  can  be  detailed  without  injury  to  the  serv- 
ice" is  as  superfluous  and  unnecessary  for  the  purpose  of  excusing  the  detailing  of 
officers  junior  to  the  accused  as  it  is  for  accounting  for  the  fact  that  less  than  the 
maximum  number  have  been  selected  for  the  court.  Ibid.,  89,  par.  2. 

At  the  opening  of  a  trial  by  court-martial  it  was  objected  by  the  accused  that  nine 
of  the  thirteen  members  as  detailed  were  his  inferiors  in  rank,  and  that  the  detailing 
of  such  inferiors  could  have  been  '  '  avoided  '  '  without  prejudice  to  the  service.  Held, 
that  the  objection  was  properly  overruled  by  the  court.  Whether  such  a  detail 
'  '  can  be  avoided  "  is  a  question  to  be  determined  by  the  convening  authority  alone, 
and  one  upon  which  his  determination  is  conclusive  (a).  Ibid.,  par.  211. 

a  See  Mullan  v.  U.  S.,  140  U.  S.,  240. 


1006  MILITARY    LAWS    OF    THE    UNITED   STATES. 

adjudge  the  punishment  to  be  inflicted,  which  said  punish- 
ment shall  not  exceed  confinement  at  hard  labor  for  one 
month  and  forfeiture  of  one  month's  pay,  and,  in  the  case 
of  a  noncommissioned  officer,  reduction  to  the  ranks  in 
addition  thereto;1  that  there  shall  be  a  summary  court 
record  kept  at  each  military  post  and  in  the  field  at  the 
headquarters  of  the  proper  command,  in  which  shall  be 
entered  a  record  of  all  cases  heard  and  determined  and  the 
action  had  thereon;  and  no  sentence  adjudged  by  said 
summary  court  shall  be  executed  until  it  shall  have  been 
approved  by  the  officer  appointing  the  court,  or  by  the 
officer  commanding  for  the  time  being:  Provided,  That 
when  but  one  commissioned  officer  is  present  with  a  com- 
mand he  shall  hear  and  finally  determine  such  cases:  And 
provided  further,  That  no  one  while  holding  the  privileges 
of  a  certificate  of  eligibility  to  promotion  shall  be  brought 
before  a  summary  court,  and  that  noncommissioned  officers 
shall  not,  if  they  object  thereto,  be  brought  to  trial  before 
summary  courts  without  the  authority  of  the  officer  com- 
petent to  order  their  trial  by  general  court-martial,  but 
shall  in  such  cases  be  brought  to  trial  before  garrison, 
regimental,  or  general  courts-martial,  as  the  case  may  be.8 
Act  of  June  18, 1898  (30  Stat.  L.,  483). 

******* 

The  commanding  officers  authorized  to  approve  the  sen- 
tences of  summary  courts  and  superior  authority  shall 
have  power  to  remit  or  mitigate  the  same.  Sec.  3,  ibid. 

Post  and  other  commanders  shall,  in  time  of  peace,  on 
the  last  day  of  each  month,  make  a  report  to  the  depart- 
ment headquarters  of  the  number  of  cases  determined  by 
summary  court  during  the  month,  setting  forth  the  offenses 
committed  and  the  penalties  awarded,  which  report  shall 
be  filed  in  the  office  of  the  judge-advocate  of  the  depart- 
ment, and  may  be  destroyed  when  no  longer  of  use.  Sec. 
4,  ibid. 

*  *  *  *  *  *  * 

This  act  shall  take  effect  sixty  days  after  its  passage.2 
Sec.  7,  ibid. 

Regimental     ART.  81.  Every  officer  commanding  a  regiment  or  corps 
c°juiy  17, 1862,  c.  shall,  subject  to  the  provisions  of  article  eighty,  be  com- 

201,  s.  7,  v.  12,  p.  J  .  v      . 

598.  petent  to  appoint,  for  his  own  regiment  or  corps,  courts- 

1  For  an  extension  of  the  power  of  this  court  to  punish,  see  article  83,  post. 

2  This  enactment  replaces  the  Eightieth  article  of  war,  which  was  expressly  repealed 
by  section  2  of  the  act  of  June  18,  1898  (30  Stat.  L.,  483). 


MILITAKY    LAWS    OF    THE    UNITED   STATES.  1007 

martial,  consisting  of  three  officers,  to  try  offenses  not 
capital.1 

AET.  82.  Every  officer  commanding  a  garrison,  fort,  or  Garrison  courts. 
other  place,  where  the  troops  consist  of  different  corps,  201,  s.  7,  v.  i2,V 

,  .    '  A.    ,         .    ,  ^  '598;  Feb.  18, 1875, 

shall,  subject  to  the  provisions  of  article  eighty,  be  cc  m-  v.  is,  p.  sis. 
petent   to   appoint,    for   such    garrison   or   other  place, 
courts-martial,  consisting  of  three  officers,  to  try  offenses 
not  capital.2 

ART.  83.  Regimental  and  garrison  courts-martial  and    Jurisdiction  of 

,    .,     n  .   ,.          ,  field  officers', 

summary  courts  detailed  under  existing  laws  to  try  en- regimental,  and 

..    .     ,  ..    .  garrison  courts. 

listed  men  shall  not  have  power  to  try  capital  cases  or    July  17, 1862, c. 

.        .  j        /E  f     11    1_  201'  S-  7'  V-   12'   P- 

commissioned,  officers,  but  snail  nave  power  to  award  pun-  598. 

^  AY        ,  .    ,  March  2,  1901, 

ishment  not  to  exceed  confinement  at  hard  labor  for  three  v.  si,  P.  951. 
months  or  forfeiture  of  three  months'  pay,  or  both,  and 
in  addition  thereto,  in  the  case  of  noncommissioned  offi- 
cers, reduction  to  the  ranks,  and  in  the  case  of  first-class 
privates  reduction  to  second-class  privates:  Provided, 
That  a  summary  court  shall  not  adjudge  confinement  and 
forfeiture  in  excess  of  a  period  of  one  month,  unless  the 
accused  shall  before  trial  consent  in  writing  to  trial  by 
said  court,  but  in  any  case  of  refusal  to  so  consent  the  trial 
may  be  had  either  by  general,  regimental,  or  garrison 
court-martial,  or  by  said  summary  court,  but  in  case  of 
trial  by  said  summary  court  without  consent  as  aforesaid, 
the  court  shall  not  adjudge  confinement  or  forfeiture  of 
pay  for  more  than  one  month.3  Act  of  March®,  1901  (31 
Stat.  L.,  951}. 

ART.  84.  The  judge-advocate  shall  administer  to  each .  oath  of  mem- 
,    „  bers  of   courts- 

member  of  the  court,  before  they  proceed  upon  any  trial,  BaJ{JllL7  1892  v 
the  following  oath,  which  shall  also  be  taken  by  all  mem- 27«  P-  278' 

»  .  84  Art;*  IT  ftr* 

bers  of  regimental  and  garrison  courts-martial:  "  You, 
A  B,  do  swear  that  you  will  well  and  duly  try  and  deter- 
mine^ according  to  evidence,  the  matter  now  before  you, 
between  the  United  States  of  America  and  the  prisoner  to 
be  tried,  and  that  you  will  duly  administer  justice,  with- 
out partiality,  favor,  or  affection,  according  to  the  pro- 
visions of  the  rules  and  articles  for  the  government  of  the 
armies  of  the  United  States^  and  if  any  doubt  should  arise, 
not  explained  by  said  articles,  then  according  to  your  con- 
science, the  best  of  your  understanding,  and  the  custom  of 

1See  the  title  "Regimental  courts-martial,"  in  the  chapter  entitled  MILITARY 
TRIBUNALS.  The  eightieth  article  was  repealed  by  the  act  of  March  2,  1901  (31  Stat. 
L.,  951). 

2 See  the  title  "  The  summary  court,"  in  the  chapter  entitled  MILITARY  TRIBUNALS. 

3  See  also,  as  to  the  power  of  the  summary  court  to  punish,  the  act  of  June  18, 1898 
(30  Stat.  L.  483),  article  80,  ante. 


1008  MILITAEY    LAWS    OF    THE    UNITED    STATES. 

war  in  like  cases  ;  and  you  do  further  swear  that  you  will 
not  divulge1  the  sentence  of  the  court  until  it  shall  be  pub- 
lishedby  the  proper  authority,  except  to  the  judge-advocate; 
neither  will  you  disclose  or  discover  the  vote  or  opinion  of 
any  particular  member  of  the  court-martial,  unless  requi/red 
to  give  evidence  thereof,  as  a  witness,  by  a  court  of  justice* 
in  a  due  course  of  law.  /So  help  you  God" 3  Act  of  July 
07,  1898  (27  Stat.  L.,  278). 

1  The  only  case  which  has  been  met  with  in  which  the  members  of  a  court-martial 
have  been  required  to  disclose  their  votes  by  the  process  of  a  civil  court  is  that  of  In 
re  Mackenzie,  1  Pa.  Law  J.  R.,  356,  in  which  the  members  of  a  naval  court-martial 
were  compelled,  against  their  objections,  to  state  their  votes  as  given  upon  the  find- 
ings at  a  particular  trial. 

*In  the  present  corresponding  British  article  the  words  "or  a  court-martial"  are 
added  after  the  words  "a  court  of  justice." 

3  This  article  makes  the  administering  to  the  court  of  the  form  of  oath  thereby  pre- 
scribed an  essential  preliminary  to  its  entering  upon  a  trial  (a).  Until  the  oath  is 
taken  as  specified,  the  court  is  not  qualified  "to  try  and  determine."  The  arraign- 
ment of  a  prisoner  and  reception  of  his  plea — which  is  the  commencement  of  the 
trial — before  the  court  is  sworn  is  without  legal  effect.  The  article  requires  that  the 
oath  shall  be  taken  not  by  the  court  as  a  whole,  but  by  "each  member."  Where, 
therefore,  all  the  members  are  sworn  at  the  same  time,  the  judge-advocate  will  pref- 
erably address  each  member  by  name,  thus:  "  You,  A  B,  C  D,  E  F,  etc.,  do  swear," 
etc.  A  member  added  to  the  court,  after  the  members  originally  detailed  have  been 
duly  sworn,  should  be  separately  sworn  by  the  judge-advocate  in  the  full  form  pre- 
scribed by  the  article;  otherwise  he  is  not  qualified  to  act  as  a  member  of  the  court. 
A  member  who  prefers  it  may  be  affirmed  instead  of  sworn.  See  section  1,  Revised 
Statutes.  Dig.  Opin.  J.  A.  G.,  par.  225. 

The  members  are  sworn  to  try  and  determine  the  matter  before  them  at  the  time 
of  the  administering  of  the  oath.  In  a  case,  therefore,  where,  after  the  court  had 
been  sworn  and  the  accused  had  been  arraigned  and  had  pleaded,  an  additional 
charge,  setting  forth  a  new  and  distinct  offense,  was  introduced  into  the  case,  and  the 
accused  was  tried  and  convicted  upon  the  same,  held  that  as  to  this  charge  the  pro- 
ceedings were  fatally  defective,  the  court  not  having  been  sworn  to  try  and  deter- 
mine such  charge  (o).  Ibid.,  par.  226. 

It  is  a  departure  from  the  engagement  expressed  in  the  body  of  the  oath — to  try 
and  determine  according  to  evidence,  and  administer  justice  according  to  the  Articles 
of  War,  etc. — for  a  court-martial  to  determine  a  case  either  upon  personal  knowledge 
of  the  facts  possessed  by  the  members  and  not  put  in  evidence,  or  according  to  the 
private  views  of  justice  of  the  members  independently  of  the  provisions  of  the 
code  (c).  Ibid.,  97,  par.  3. 

Where  the  vote  of  each  member  of  the  court  upon  one  of  several  specifications 
upon  which  the  accused  was  tried  was  stated  in  the  record  of  trial,  held  that  such 
statement  was  a  clear  violation  of  the  oath  of  the  court,  though  it  did  not  affect  the 
validity  of  the  proceedings  or  sentence.  A  statement  in  the  record  of  trial  to  the 
effect  that  all  the  members  concurred  in  the  finding  or  in  the  sentence,  while  it  does 
not  vitiate  the  proceedings  or  sentence,  is  a  direct  violation  of  the  oath  prescribed 
by  this  article.  See  sixty-second  article.  Ibid.,  par.  227. 

The  disclosing  of  the  finding  and  sentence  to  a  clerk  by  permitting  him  to  remain 
with  the  court  at  the  final  deliberation  and  enter  the  judgment  in  the  record  is  a 
violation  of  the  oath  and  a  grave  irregularity,  though  one  which  does  not  affect  the 
validity  of  the  proceedings  or  sentence.  Ibid.,  par.  229. 

The  words  "a  court  of  justice"  are  deemed  to  mean  a  civil  or  criminal  court  of 
the  United  States,  or  of  a  State,  etc.,  and  not  to  include  a  court-martial.  A  case  can 
hardly  be  supposed  in  which  it  would  become  proper  or  desirable  for  a  court-martial 
to  inquire  into  the  votes  or  opinions  given  in  closed  court  by  the  members  of  another 
similar  tribunal.  Ibid.,  98,  par.  6. 

a  See,  in  this  connection,  G.  O.  16,  H.  A.,  1880,  which,  in  directing  that  judge-advocates  shall  be 
detailed  for  regimental  and  garrison,  as  well  as  general,  courts-martial,  rescinds  G.  O.  49  of  1871,  pre- 
scribing a  special  form  of  oath  for  the  former  courts,  and  thus  provides  for  their  taking  the  due  and 
regular  oath  recited  in  article  84. 

6  See  G.  C.  M.  O.  39,  War  Department,  1867;  G.  0. 13,  Northern  Department,  1864. 

cCompare  G.  O.  21,  Department  of  the  Ohio,  1866;  G.  C.  M.  O.  41,  Department  of  Texas,  1874. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  1009 


ART.  85.  When  the  oath  has  been  administered  to  the 
members  of  a  court-martial,  the  president  of  the  court  shall    85  Art-  War* 
administer  to  the  judge-advocate,  or  person  officiating  as 
such,  an  oath  in  the  following  form: 

4  You,  A  J2,  do  swear  that  you  will  not  disclose  or  dis- 
cover the  vote  or  opinion  of  any  particular  member  of  the 
court-martial,  unless  retired  to  give  evidence  thereof,  as 
a  witness,  by  a  court  of  justice,  in  due  course  of  lawj  nor 
divulge  the  sentence  of  the  court  to  any  but  the  proper 
authority  until  it  shall  be  duly  disclosed  by  the  sam^e.  So 
kelp  you  God." 

ART.  86.  A  court-martial  may  punish,  at  discretion,  any  cou?^™131     °f 
person  who  uses  any  menacing  words,  signs,  or  gestures, 
in  its  presence,  or  who  disturbs  its  proceedings  by  any  riot 
or  disorder.1 

ART.  87.  All  members  of  a  court-martial  are  to  behave  m^^gvior  of 
with  decency  and  calmness.  87  Art-  War- 

ART.  88.  Members  of  a  court-martial  may  be  challenged  prisone?nges  by 
by  a  prisoner,  but  only  for  cause  stated  to  the  court.    The    88  Art-  War- 
court  shall  determine  the  relevancy  and  validity  thereof, 


1  Contempts,  broadly  considered,  are  of  two  kinds  —  direct  and  constructive.  Con- 
tempts committed  in  the  presence  of  the  court,  sitting  judicially,  or  so  near  as  to 
interfere  with  the  orderly  course  of  procedure,  are  direct  contempts.  Contempts 
committed,  not  in  presence  of  the  court,  but  which  tend,  by  their  operation,  to 
interrupt,  obstruct,  embarrass,  or  prevent  the  due  and  orderly  administration  of 
justice,  are  constructive  contempts.  Indianapolis  Water  Co.  v.  The  American  Straw- 
board  Co.,  75  Fed.  Rep.,  972.  Over  the  former,  direct  contempts  courts-martial  are 
endowed  with  jurisdiction  by  the  terms  of  the  eighty-sixth  Article  of  War;  in 
respect  to  the  latter,  constructive  contempts,  when  committed  by  persons  not  sub- 
ject to  military  jurisdiction,  courts-martial  are  without  jurisdiction. 

The  power  of  a  court-martial  to  punish,  under  this  article,  being  confined  practi- 
cally to  acts  done  in  its  immediate  presence,  (a)  such  a  court  can  have  no  authority 
to  punish  as  for  a  contempt  a  neglect  by  an  officer  or  soldier  to  attend  as  a  witness 
in  compliance  with  a  summons,  (b)  Dig.  Opin.  J.  A.  G.,  par.  230. 

A  court-;  iiartial  has  none  of  the  common-law  power  to  punish  for  contempt  vested 
in  the  ordinary  courts  of  justice,  but  only  such  authority  as  is  given  it  by  this  article. 
Thus,  lidd  that  a  court-martial  would  not  be  authorized  to  punish  as  for  a  contempt, 
under  this  article  (or  otherwise),  a  civilian  witness  duly  summoned  and  appearing 
before  it.  but,  when  put  on  the  stand,  declining  (without  disorder)  to  testify.  Ibid., 
par.  231.  See  also  XVIII  Opin.  Atty.  Gen.,  278. 

Where  a  contempt  within  the  description  of  this  article  has  been  committed,  and 
the  court  deems  it  proper  that  the  offender  shall  be  punished,  the  proper  course 
is  to  suspend  the  regular  business,  and,  after  giving  the  party  an  opportunity  to  be 
heard,  explain,  etc.,(c)  to  proceed,  if  the  explanation  is  insufficient,  to  impose  a 
punishment,  resuming  thereupon  the  original  proceedings.  The  action  taken  is 
properly  summary,  a  formal  trial  not  being  called  for.  Close  confinement  in  quarters 
or  in  the  guardhouse  during  the  trial  of  the  pending  case,  or  forfeiture  of  a  reason- 
able amount  of  pay,  has  been  the  more  usual  punishment.  Instead  of  proceeding 
against  a  military  person  for  a  contempt  in  the  mode  contemplated  by  this  article, 
the  alternative  course  may  be  pursued  of  bringing  him  to  trial  before  a  new  court 
on  a  charge  for  a  disorder  under  article  62.  (d)  Ibid.,  par.  233. 

alt  was  held  by  the  teecretary  of  War  in  the  case  of  Lieutenant-Colonel  Backenstos  (G.  O.  14,  War 
Department,  1860)  that  a  court-martial  had,  under  this  article,  no  power  to  punish  its  own  members. 

b  As  to  the  power  of  courts  of  inquiry  to  punish  for  contempt,  see  one  hundred  and  fifteenth  article 
and  note. 

cSee  G.  C.  M.  O.  37,  Fourth  Military  District,  1868. 

d  Compare  Samuel,  634;  Simmons,  sec.  434.  The  latter  course  has  not  infrequently  been  adopted  in 
our  practice. 

22924—08  -  64 


1010  MILITARY    LAWS    OF   THE    UNITED    STATES. 

and  shall  not  receive  a  challenge  to  more  than  one  member 
at  a  time. 1 


1  This  article  authorizes  the  exercise  of  the  right  of  challenge  before  all  courts 
except  field  officers'  courts  and  summary  courts.  These  courts  are  not  subject  to 
be  challenged,  because,  being  composed  of  but  one  member,  there  is  no  authority 
provided  which  is  competent  to  pass  upon  the  validity  of  the  challenge.  Ibid' 
par.  234. 

It  is  ordinarily  a  sufficient  ground  of  challenge  to  a  member  that  he  is  the  author 
of  the  charges  and  is  a  material  witness  in  the  case.  The  mere  fact  that  he  is  to  be 
a  witness  is  not,  in  general,  to  be  held  sufficient.  Ibid.,  par.  235 

The  mere  fact  that  a  member  signed  or  formally  preferred  the  charges  is  not  suffi- 
cient ground  of  objection,  since  he  may  have  done  so  ministerially  or  by  the  order 
of  a  superior.  But  where  a  member,  upon  investigation  or  otherwise,  has  initiated 
or  preferred  the  charges  as  accuser,  or  as  prosecutor  has  caused  them  to  be  brought  to 
trial,  he  is  properly  subject  to  challenge.  Thus,  that  a  member  had  originated  and 
preferred  the  charge  for  a  disobedience  of  his  own  order  was  held  good  cause  of 
challenge.  So  in  a  case  of  a  trial  $or  an  assault  upon  an  officer,  the  fact  that  the 
officer  upon  whom  the  assault  was  committed,  and  who  was  the  prosecuting  witness, 
was  a  member  of  the  court  was  held  to  constitute  complete  cause  of  challenge  to 
him  as  member.  Ibid., -par.  236. 

That  a  member  is  the  regimental  or  company  commander  of  the  accused  does  not 
per  Be  constitute  sufficient  ground  of  challenge.  But  such  ground  may  exist  where 
the  commander  has  preferred  the  charges  or  where  the  relations  between  him  and 
the  accused  have  been  such  as  to  give  rise  to  a  presumption  of  prejudice.  Ibid., 
par.  237. 

Where  a  member,  before  the  trial,  has  expressed  an  opinion,  based  upon  a  knowl- 
edge of  the  facts,  that  the  accused  would  be  convicted  whichever  way  he  might 
plead,  held  that  he  had  clearly  prejudged  the  case  and  that  the  court  should  have 
sustained  an  objection  taken  to  him  by  the  accused,  although  upon  being  challenged 
he  declared  that  he  was  without  predjudice.  (a)  Ibid.,  par.  238.  In  re  Bird,  2 
Sawyer,  33. 

A  member,  on  being  challenged  for  prejudice,  declared  that  he  did  not  consider 
the  accused  (an  officer)  a  gentleman,  and  would  not  associate  with  him,  and  that  be 
had  stated  so;  but  he  added  at  the  same  time  that  he  was  not  prejudiced  for  or 
against  him.  Held,  especially  as  one  of  the  charges  was  "conduct  unbecoming  an 
officer  and  a  gentleman,"  that  the  challenge  was  improperly  overruled  by  the  court. 
Dig.  Opin.  J.  A.  G  ,  par.  239. 

It  is  not  good  ground  of  challenge  to  a  member  that  he  is  junior  in  rank  to  the  accused, 
nor  is  it  sufficient  ground  that  the  member  will  gain  a  step  or  "file"  in  the  line  of 
promotion  if  the  accused  is  dismissed.  It  is,  however,  a  sufficient  cause  of  challenge 
to  a  member  that  if  the  accused  (an  officer)  ba  convicted  and  sentenced  to  be  dis- 
missed, the  member  will  be  forthwith  entitled  to  promotion.  Ibid.,  par.  240. 

Held  sufficient  ground  of  challenge  to  a  member  of  a  court-martial  that  he  had  pre- 
viously taken  part  in  an  investigation  of  the  same  case  before  a  court  of  inquiry, 
though  such  court  did  not  express  a  formal  opinion.  Ibid. ,  par.  24 1 . 

Held  good  ground  of  challenge  to  a  member  of  a  court-martial  in  a  case  of  alleged 
theft  by  a  soldier  that  such  member  had  been  a  member  of  a  previous  court  of  inquiry 
which  had  investigated  the  case  and  fixed  the  misappropriation  of  the  property  upon 
the  accused.  Ibid.,  par.  242. 

Held  that  the  members  of  a  court-martial  who  had  composed  a  previous  court  by 
which  the  same  accused  had  been  tried  for  the  same  act,  though  under  a  different 
charge,  were  all  subject  to  be  set  aside  on  challenge.  Ibid.,  par.  243. 

It  is  not  necessary  (though  usual  and  proper)  for  a  member  to  withdraw  from  the 
court  room  on  being  challenged  and  pending  the  deliberation  on  the  objection.  Ibid. , 
par.  244. 

Courts  should  be  liberal  in  passing  upon  challenges,  but  should  not  entertain  an 
objection  which  is  not  specific,  or  allow  one  upon  its  mere  assertion  by  the  accused, 
without  proof  and  in  the  absence  of  any  admission  on  the  part  of  the  member,  (b) 
A  positive  declaration  by  the  challenged  member  to  the  effect  that  he  has  no  preju- 

aSee  this  opinion  as  adopted  by  the  President  in  G.  C.  M.  O.  (5(1,  Headquarters  of  Army,  1879. 

5 See  G  C  M.  O.  66,  War  Department,  1875.  The  challenge,  the  allowance  of  which  by  the  court  in 
General  Twiggs's  case  was  disapproved  in  G.  O.  4,  War  Department,  1858,  was  simply  a  general  objection 
to  the  member  by  the  accused  on  account  of  "some  unpleasant  circumstances  growing  out  ot  their 
official  relations,"  no  specific  allegation  of  bias  being  made  and  the  member  himself  expressly  dis- 
claiming any  feeling  of  prejudice. 


MILITARY    LAWS    OF    THE    UNITED   STATES.  1011 

dice  or  interest  in  the  case  will,  in  general,  in  the  a'  sence  of  material  evidence  in 
support  of  the  objection,  justify  the  court  in  overruling  it.  Ibid.,  par.  245. 

Where,  before  arraignment,  the  accused  (an  officer),  without  having  personal 
knowledge  of  the  existence  of  ground  of  challenge  to  a  member,  had  credible  hearsay 
information  of  its  existence,  held  that  he  should  properly  have  raised  the  objection 
before  the  members  were  sworn,  and  that  the  court  was  not  in  error  in  refusing  to 
allow  him  to  take  it  at  a  subsequent  stage  of  the  trial.  Ibid.,  par.  246. 

The  fact  that  a  sufficient  cause  of  challenge  exists  against  a  member,  but  through 
ignorance  of  his  rights,  is  not  taken  advantage  of  by  the  accused,  or  if  asserted  is 
improperly  overruled  by  the  court,  can  affect  in  no  manner  the  validity  in  law  of  the 
proceedings  or  sentence,  though  it  may  sometimes  properly  furnish  occasion  for  a 
disapproval  of  the  proceedings,  etc.,  or  a  remission  in  whole  or  in  part  of  the  sen- 
tence, (a)  Ibid.,  par.  247. 

At  the  trial  of  an  officer  in  1853,  the  accused  challenged  a  member  of  the  court 
"for  bias,  prejudice,  and  malice."  The  challenged  member  thereupon  stated  "that 
he  had  no  prejudice  or  bias  against  the  accused  which  could  in  the  remotest  degree 
interfere  with  his  doing  justice  in  the  case,"  but,  "being  challenged,  he  requested  to 
be  relieved  from  sitting  on  the  court,"  which  the  court  refused,  and  overruled  the 
challenge.  The  accused  then  requested  that  the  member  might  be  put  on  his  voir 
dire  in  order  that  he  might  examine  him  as  to  the  extent  of  any  prejudice  he  might 
.entertain,  which  application  the  court  also  refused.  This  refusal  of  the  right  of  an 
accused  person  to  place  a  challenged  member  on  his  voir  dire,  in  order  to  ascertain 
whether  the  grounds  of  challenge  advanced  by  him  were  or  were  not  sufficient,  was 
disapproved  by  the  Secretary  of  War  upon  the  ground  that  "an- accused  is  now 
allowed  in  all  cases,  for  the  better  security  of  an  impartial  trial,  to  show  the  mind  of 
the  juror  by  examining  him  before  the  court,  and  the  only  exception  is  where  the 
cause  of  the  challenge  goes  to  the  disgrace  or  discredit  of  the  juror."  G.  O.  No.  21, 
WarDept.,  of  1853. 

The  article  impos*es  no  limitation  upon  the  exercise  of  the  right  of  challenge  other 
than  that  "more  than  one  member  shall  not  be  challenged  at  a  time."  Thus  while 
the  panel,  or  the  court  as  a  whole,  Is  not  subject  to  challenge,  yet  all  the  members 
may  be  challenged  provided  they  are  challenged  separately.  The  article  contains  no 
authority  for  challenging  the  judge-advocate.  Dig.  Opin.  J.  A.  G.,  par.  248. 

In  the  case  of  an  enlisted  man  tried  in  1875,  the  judge-advocateof  the  court  was  the 
principal  witness  against  the  prisoner  and  was  directly  interested  in  his  conviction. 
In  this  case  it  was  remarked  by  the  reviewing  officer  (the  Secretary  of  War)  that 
"it  was  not  contemplated  that  a  prisoner  would  be  brought  to  trial  before  this  court 
on  charges  which  raised  the  question  whether  its  judge-advocate  had  not  himself 
been  guilty  of  official  misconduct.  But  such  was  the  fact  in  this  case.  The  judge- 
advocate  had  a  personal  interest  in  the  conviction  of  the  prisoner  and  was  also  the 
principal  witness  against  him."  Under  such  circumstances  the  officer  should  have 
applied  to  the  proper  authority  to  be  relieved  from  duty  as  judge-advocate.  The 
proceedings  were  disapproved.'  G.  C.  M.  O.  No.  41,  War  Dept,  1875;  see  also  G. 
C.  M.O.  66,  1875. 

The  court  of  itself  can  not  excuse  a  member  in  the  absence  of  a  challenge.  A 
member  not  challenged  but  considering  himself  disqualified  can  be  relieved  only 
by  application  to  the  convening  authority.  -Dig.  Opin.  J.  A.  G.,  par  249. 

An  accused  challenged  the  entire  court  on  the  ground  that  the  convening  officer 
was  "accuser."  Held  properly  overruled;  the  array  can  not  be  challenged  at  mili- 
tary law.  The  article  declares  that  "the  court  *  *  shall  not  receive  a  challenge 
to  more  than  one  member  at  a  time. "  Ibid.,  par.  250. 

A  court-martial  can  not  relieve  or  "excuse"  a  member  except  upon  a  challenge 
duly  interposed  and  sustained  under  this  article.  The  fact  that  a  member  has  been 
absent  from  the  court  for  several  days  and  has  not  heard  the  testimony  meanwhile 
taken  constitutes  no  legal  ground  for  excusing  him  by  the  court.  Ibid.,  par.  251. 

An  accused  objected  to  a  member  on  the  ground  that  some  time  before  he  had  had 
a  disagreement  with  the  member  and  thought  that  he  "might  be  prejudiced.  "  The 
member  declared  that  he  was  conscious  of  no  prejudice  whatever,  but  that,  on  the 

aSee  opinion  of  the  Attorney- General  of  January  19,  1878  (XV  Opins.,  432),  in  which  the  opinion, 
expressed  by  the  Judge- Ad  vocate-General  in  the  most  recent  of  the  cases  upon  which  this  paragraph 
is  based— that  the  fact  that  one  of  the  charges  upon  which  the  accused  was  convicted  was  preferred 
by  a  member  of  the  court  who  also  testified  as  a  witness  on  the  trial  (but  who,  though  clearfvsubiect 
toobiection,  was  not  challenged  by  the  accused)  could  not  affect  the  validity  of  thl  sentence  of  dis- 
missal after  the  same  had  been  duly  confirmed— is  concurred  in  by  the  Attornev-General.  And  to  a 
similar  effect  see  Keyesr.  U.  S.,  15  Ct.  Cls.,  532. 

In  G.  C.  M.  O.  88,  Department  of  Dakota,  1878.  the  point  is  noticed  that  where  a  challenge  interposed 
by  the  accused  has  been  improperly  disallowed  a  subsequent  plea  of  guilty  is  not  to  be  treated  ;i>  a 
waiver  of  the  advantage  to  which  he  may  be  entitled  by  reason  of  the  improper  ruling. 


1012  MILITARY    LAWS    OF   THE    UNITED    STATES. 


in|rmStlrstand"     ^KT-  89-  When  a  prisoner,  arraigned  before  a  general 

89  Art.  war.    court-rnartial,  from  obstinacy  and  deliberate  design,  stands 

mute,  or  answers  foreign  to  the  purpose,  the  court  may 
proceed  to  trial  and  judgment  as  if  the  prisoner  had 
pleaded  not  guilty. 

cated  prosecutor  ART.  90.  The  judge-advocate,  or  some  person  deputed 
prisoner  nsel  for  ^v  nmi>  or  by  ^ne  general  or  officer  commanding  the  Army, 

90  Art.  war.    detachment,  or  garrison,  shall  prosecute  in  the  name  of  the 

United  States,  but  when  the  prisoner  has  made  his  plea,  he 
shall  so  far  consider  himself  counsel  for  the  prisoner  as  to 
object  to  any  leading  question  to  any  of  the  witnesses,  and 
to  any  question  to  the  prisoner  the  answer  to  which  might 
tend  to  criminate  himself. 

catetog\vithdraw      Whenever  a  court-martial  shall  sit  in  closed  session  the 

SoS  closed  ses"  judge-advocate  shall  withdraw,  and  when  his  legal  advice 

isllfv^T^p^m  or  his  assistance  in  referring  to  recorded  evidence  is  re- 

quired it  shall  be  obtained  in  open  court.     Section  2,  act 

of  July  27,  1892  (27  Stat.  Z.,  278). 

tiorfS  oaths.  rt'  That  judge-advocates  of  departments  ^and  of  courts- 
W2*v*y??p7vrs  martial,  and  the  trial  officers  of  summary  courts,  are  hereby 
authorized  to  administer  oaths  for  the  purposes  of  the  ad- 
ministration of  military  justice,  and  for  other  purposes  of 
military  administration.  Section  ^  act  jf  July  27,  1892 
(27  Stat.  Z.,  278). 

M«5°8iti:i868  c  ART.  91.  The  depositions  of  witnesses  residing  beyond 
736s'  27>>v'  12>  p'  tne  limits  of  the  State,  Territory,  or  district  in  which  any 

91  Art.  war.    militaiy  court  may  be  ordered  to  sit,  if  taken  on  reasonable 

notice  to  the  opposite  party  and  duly  authenticated,  may  be 
read  in  evidence  before  such  court  in  cases  not  capital.1 

contrary,  his  feelings  toward  the  accused  were  friendly.  Held  that  the  court  erred 
in  sustaining  the  challenge.  Ibid.,  par.  252. 

The  accused  wrere  Indian  scouts,  charged  with  mutiny.  Some  of  the  members  of 
the  court,  though  disclaiming  any  prejudice  against  the  accused  personally,  were 
aware  that  they  were  present  at  the  outbreak,  and  were  fully  apprised,  from  their 
own  personal  presence  or  knowledge  of  the  circumstances,  that  the  mutiny,  whjch 
had  involved  homicide,  constituted  a  most  aggravated  offense  of  the  class.  Held 
that  as  these  members  could  scarcely  avoid  applying  their  impressions  to  the  accused 
when  shown  to  be  connected  with  the  disorder,  they  would  fairly  have  been  subject 
to  objection  as  triers.  Ibid.,  par.  253. 

A  mere  general  opinion  in  regard  to  the  impropriety  of  acts  such  as  those  charged 
against  the  accused,  unaccompanied  by  any  opinion  as  to  his  guilt  or  innocence  on  the 
charges,  is  not  a  sufficient  ground  of  objection  under  this  article.  Ibid.,  par.  254. 

*A  deposition  can  not  be  read  in  evidence  in  a  capital  case  as  in  a  case  of  a  viola- 
tion of  article  21,  or  a  case  of  a  spy,  or  one  of  desertion  in  time  of  war;  otherwise  in 
a  case  of  desertion  in  time  of  peace.  Nor  is  the  deposition  admissible  of  a  witness 
who  resides  in  the  State,  etc.,  within  which  the  court  is  held,  except  by  consent. 
Dig.  Opin.  J.  A.  G.,  par.  256. 

In  a  case  tried  in  1875  the  court  refused  to  allow  the  accused  time  to  confer  with  his 
counsel  for  the  purpose  of  preparing  cross-interrogatories  to  be  propounded  to  wit- 
nesses whose  depositions  were  to  be  taken  at  the  instance  of  the  prosecution.  As  the 
defense  was  not  prejudiced  by  the  error  of  the  court,  the  findings  were  Approved. 
The  most  ample  opportunity  should  always  be  afforded  the  party  on  trial  for  such 
purpose.  G.  C.  M.  0.  No.  26,  War  Dept.,  1875. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  1013 

ART.  92.  All  persons  who  give  evidence  before  a  court-  ne2*th  of  wit" 
martial  shall  be  examined  on  oath,  or  affirmation,  in  the 
following  form:  "You  swear  (or  affirm)  that  the  evidence 
you  shall  give,  in  tlie  case  now  in  hearing,  shall  be  the 
truth,  the  whole  truth^  and  nothing  hut  the  truth.  80  help 
you  6W."1 

ART.  93.  A  court-martial  shall  for  reasonable  cause,    K^nacrf' 
grant  a  continuance  to  either  party,  for  such  time,  and  as 
often,  as  may-  appear  to  be  just:  Provided,  That  if  the 
prisoner  be  in  close  confinement,  the  trial  shall  not  be 
delayed  for  a  period  longer  than  sixty  days.2 

ART.  95.  Members  of  a  court-martial,  in  giving  their  jn°.rder  of  vot* 
votes,  shall  begin  with  the  youngest  in  commission.  95  Art,  war. 

ART.  96.  No  person  shall  be  sentenced  to  suffer  death    sentence  of 
except  by  the  concurrence  of  two-thirds  of  the  members  of    96  Art,  war. 
a  general  court-martial,  and  in  the  cases  herein  expressly 
mentioned.3 

1  This  article  prescribes  a  single  specific  form  of  oath  to  be  taken  by  all  witnesses. 
The  Constitution,  however  (article  1   of  amendment),  has  provided  "that  Congress 
shall  make  no  law  prohibiting  the  free  exercise  of  religion.     Where,  therefore,  the 
prescribed  form  is  not  in  accordance  with  the  religious  tenets  of  a  witness,  he  should 
be  permitted  to  be  sworn  according  to  the  ceremonies  of  his  own  faith  or  as  lie  may 
deem  binding  on  his  conscience.  ( a)     Dig.  Opin.  J.  A.  G.,  par.  274,  note  2. 

The  article  does  not  prescribe  by  whom  the  oath  shall  be  administered.  By  the 
custom  of  the  service  it  is  administered  by  the  judge-advocate.  (And  see  now  the 
provision  of  the  act  of  July  27,  1892,  sec.  4.)  When  the  judge-advocate  himself 
takes  the  witness  stand,  he  is  properly  sworn  by  the  president  of  the  court,  Ibid., 
par.  274. 

A  witness  wrho  has  once  been  sworn  and  has  testified  is  not  required  to  be  resworn 
on  being  subsequently  recalled  to  the  stand  by  either  party.  The  reswearing,  how- 
ever, of  such  a  witness  will  not  affect  the  legal  validity  of  the  proceedings  or  sentence. 
Ibid.,  par.  274,  note  2. 

2  In  making  an  application  for  a  continuance  or  postponement  under  this  article, 
on  account  of  the  absence  of  a  witness,  the  form  of  affidavit  prescribed  in  paragraph 
887  of  the  Army  Regulations  should  in  general  be  substantially  observed.    But  while 
the  court  may  refuse  the  application  if  this  regulation  be  not  followed,  it  may,  in  its 
discretion,  refrain  from  insisting  that  the  same  be  strictly  complied  with,  and  accept 
a  modified  form.  (6)     It  should,  however,  in  all  cases  require  that  the  desired  evi- 
dence appear  or  be  shown  to  be  material,  and  not  merely  cumulative,  (c)  and  that  to 
await  its  production  will  not  delay  the  trial  for  an  unreasonable  period.     It  should 
also,  in  general,  before  granting  the  continuance,  be  assured  that  the  absence  of  the 
witness  is  not  owing  to  any  neglect  on  the  part  of  the  applicant.     This  feature,  how- 
ever, will  not  be  so  much  insisted  upon  in  military  as  in  civil  cases,  (d}   Ibid.,  108,  par.  1. 
See,  also,  the  title  "Continuances"  in  the  chapter  entitled  MILITARY  TRIBUNALS. 

Article  94  w^as  repealed  by  the  act  of  March  2,  1901  (31  Stat.  L.,  951). 

3  Though  it  has  sometimes  been  viewed  otherwise,  it  is  deemed  quite  clear  upon 
the  terms  of  the  present  article  that  it  is  not  necessary  to  the  legality  of  a  death 
sentence  that  two-thirds  of  the  court  should  have  concurred  in  the  finding  as  well 
as  the  sentence,  (e)  .  Further,  in  the  absence  of  any  requirement  to  that  effect  in  the 

a  See  1  Greenl.  Ev.,  sec.  371;  O'Brien,  260. 

bit  is  not  the  practice  of  courts-martial  to  admit  counter  affidavits  from  the  opposite  party  as  to  what 
the  absent  witness  would  testify.  And  as  to  the  civil  practice,  see  Williams  v.  State,  6  Nebraska,  334. 

cCompare  People  v.  Thompso'n,  4  Cal.,  238;  Parkers.  State,  55  Miss.,  414. 

d  A  military  accused  can  not  be  charged  with  laches  in  not  procuring  the  attendance  at  his  trial  of 
a  witness  who  is  prevented  from  being  present  by  superior  military  authority.  Thus  in  a  case  in  G. 
O.  63,  Department  of  Dakota,  1872,  an  accused  soldier  was  held  entitled  to  a  continuance  till  the 
return  of  material  witnesses  then  absent  on  an  Indian  expedition. 

e  Compare  Heighten,  120. 


1014  MILITARY    LAWS    OF    THE    UNITED    STATES. 


ART-  97.  No  person  in  the  military  service  shall,  under 
;  l*  4>  v<  12>  the  sentence  of  a  court-martial,  be  punished  by  confine- 
97  Art.  war.  menf;  {n  a  penitentiary,  unless  the  offense  of  which  he  may 
be  convicted  would,-  by  some  statute  of  the  United  States, 
or  by  some  statute  of  the  State,  Territory,  or  District  in 
which  such  offense  may  be  committed,  or  by  the  common 
law,  as  the  same  exists  in  such  State,  Territory,  or  Dis- 
trict, subject  such  convict  to  such  punishment.1 


article,  it  is  not  deemed  essential  to  the  validity  of  the  sentence  that  the  record 
should  state  the  fact  that  two-thirds  of  the  court  concurred  therein.  The  practice, 
however,  has  been  to  add  such  a  statement.  (a)  Ibid.,  112,  par.  1. 

A  sentence  of  death  imposed  by  a  court-martial,  upon  a  conviction  of  several  dis- 
tinct offenses,  will  be  authorized  and  legal  if  any  one  of  such  offenses  is  made  capi- 
tally punishable  by  the  Articles  of  War,  although  the  other  offenses  may  not  be  so 
punishable.  Ibid.,  par.  285. 

A  court-martial,  in  imposing  a  death  sentence,  should  not  designate  a  time  or  place 
for  its  execution,  such  a  designation  not  being  within  its  province,  but  pertaining 
to  that  of  the  reviewing  authority.  If  it  does  so  designate,  this  part  of  the  sentence 
may  be  disregarded  and  a  different  time  or  place  fixed  by  the  commanding  general. 
Ibid.,  par.  286. 

Where  a  death  sentence  imposed  by  a  court-martial  has  been  directed  by  the  proper 
authority  to  be  executed  on  a  particular  day,  and  this  day,  owing  to  some  exigency 
of  the  service,  has  gone  by  without  the  sentence  being  executed,  it  is  competent  for 
the  same  authority,  or  his  proper  superior,  to  name  another  day  for  the  purpose, 
the  time  of  its  execution  being  an  immaterial  element  of  this  punishment.  (6)  Ibid., 
par.  288. 

1  This  article,  by  necessary  implication,  prohibits  the  imposition  of  confinement  in 
a  penitentiary  as  a  punishment  for  offenses  of  a  purely  or  exclusively  military  char- 
acter —  such  as  desertion,  for  example,  (c)  Ibid.,  par.  288. 

A  sentence  of  penitentiary  confinement  in  a  case  of  a  purely  military  offense  is 
wholly  unauthorized  and  should  be  disapproved.  Effect  can  not  be  given  to  such  a 
sentence  by  commuting  it  to  confinement  in  a  military  prison  or  to  some  other  pun- 
ishment which  would  be  legal  for  such  offense.  Nor  in  a  case  of  such  an  offense  can 
a  severer  penalty,  as  death,  be  commuted  to  confinement  in  a  penitentiary.  Ibid., 
par.  289. 

Nor  can  penitentiary  confinement  be  legalized  as  a  punishment  for  purely  military 
offenses  by  designating  a  penitentiary  as  a  "military  prison"  and  ordering  the  con- 
finement there  of  soldiers  sentenced  to  imprisonment  on  conviction  of  such  offenses. 
Ibid.,  par.  290. 

An  offense  charged  as  "  conduct  to  the  prejudice  of  good  order  and  military  dis- 
cipline," which,  however,  is  in  fact  a  larceny,  (d)  embezzlement,  violent  crime,  or 
other  offense  made  punishable  with  penitentiary  confinement  by  the  law  of  the 
State,  etc.,  may  legally  be  visited  with  this  punishment.  Ibid.,  par.  291. 

The  term  "penitentiary"  as  employed  in  this  article  has  reference  to  civil  prisons 
only,  as  the  penitentiary  of  the  United  States  or  District  of  Columbia  at  Washington, 

a  In  the  case  of  an  enlisted  man,  tried  by  a  general  court-martial  for  a  violation  of  the  twenty-first 
Articleof  War,  the  record  failed  to  show  affirmatively  that  two-thirds  of  the  members  concurred  in  the 
imposition  of  the  death  sentence;  the  sentence  was  therefore  disapproved  by  the  President.  G.  O.  172, 
A.  G.  O.,  1862.  See,  also,  G.  O.  18,  A.  G.  O.,  1863. 

b  It  was  held  by  the  Supreme  Court  in  Coleman  v.  Tennessee  (7  Otto,  519,  520)  that  a  soldier  who 
had  been  convicted  of  murder  and  sentenced  to  death  by  a  general  court-martial  in  May,  1865.  but 
the  execution  of  whose  sentence  had  been  meanwhile  deferred,  by  reason  of  hisescape  and  the  pend- 
ency of  civil  proceedings  in  his  case,  might  at  the  date  of  the  ruling  (October  term,  1878)  "  be  delivered 
up  to  the  military  authorities  of  the  United  States,  to.be  dealt  with  as  required  by  law." 

More  recently  (May,  1879;  XVI  Opins.,349)  it  has  been  held  in  this  case  by  the-  Attorney-Genera]  that 
the  death  sentence  might  legally  be  executed  notwithstanding  the  fact  that  the  soldier  had  mean- 
while been  discharged  from  the  service,  .such  discharge,  while  formally  separating  the  party  from 
the  Army,  being  viewed  as  not  affecting  his  legal  status  as  a  military  convict.  But,  in  view  of  all  the 
circumstances  of  the  case,  it  was  recommended  that  the  sentence  be  commuted  to  imprisonment  for 
life  or  a  term  of  years. 

cSee  G.  O.  4,  War  Department,  1867;  also  the  action  taken  in  cases  in  the  following  general  orders: 
G.  O.  21,  Department  of  the  Platte,  1866:  G.  O.  21,  ibid.,  1871;  G.  O.  44,  Eighth  Army  Corps,  1862;  G.  C. 
M.  O.  34,  35,  43,  46,  72,  73,  Department  of  the  Missouri,  1870. 

d  In  a  case  of  larceny  the  court  should  inform  itself  as  to  whether  the  value  of  the  property  stolen 
be  not  too  small  to  permit  a  penitentiary  confinement  for  the  offense.  under  the  local  law.  See  G.  O. 
44,  Eighth  Army  Corps,  1862;  G.  C.  M.  O.  63,  Department  of  the  Platte,  1872. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  1015 


ART.  98.   No  person  in  the  military  service  shall  be  pun- 
ished  by  flogging,  or  by  branding,  marking,  or  tattooing 

On  the  body.  c.  316,  s.  2,  v.  17,  p.  261.      98  Art.  War. 

the  public;  prisons  or  penitentiaries  of  the  different  States,  and  the  "penitentiaries 
erected  by  the  United  States"  (see  section  1892,  Revised  Statutes)  in  most  of  the 
Territories.  The  military  prison  at  Leavenworth  is  not  a  penitentiary  in  the  sense 
of  the  article.  The  term"  "State  (or  State's)  prison"  in  a  sentence  is*  equivalent  to 
penitentiary.  Ibid.,  par.  292. 

A  military  prisoner  duly  sentenced  or  committed  to  a  penitentiary  1  >ecomes  subject 
to  the  government  and  rules  of  the  institution.  Ibid.,  par.  293. 

Where  a  soldier  is  sentenced  to  be  confined  in  a  penitentiary,  the  proper  reviewing 
authority  may  legally  designate  for  the  execution  of  the  punishment  any  State  or 
Territorial  penitentiary  within  his  command.  Where  there  is  no  such  penitentiary 
available  for  the  purpose,  or  desirable  to  be  resorted  to,  he  will  properly  submit  the 
case  to  the  Secretary  of  War  for  the  designation  of  a  proper  penitentiary.  Ibid.,  114, 
par.  7 

A  court-martial,  in  imposing  by  its  sentence  the  punishment  of  confinement  in  a 
penitentiary,  is  not  required  to  follow  the  statute  of  the  United  States  or  of  the  State, 
etc.,  as  to  the  term  of  the  confinement.  It  may  adjudge,  at  its  discretion,  a  less  or  a 
greater  term  than  that  affixed  by  such  statute  to  the  particular  offense.  At  the  same 
time  the  court  will  often  do  well  to  consult  the  statute,  as  indicating  a  reasonable 
measure  of  punishment  for  the  offense.  Ibid.,  par.  294. 

Where  a  court-martial  specifically  sentences  an  accused  to  confinement  in  a  "mili- 
tary prison,"  he  can  not  legally  be  committed  to  a  penitentiary,  although  such  form 
of  imprisonment  would  be  authorized  by  the  character  of  his  offense.  But  where  a 
sentence  of  confinement  is  expressed  in  general  terms,  as  where  it  directs  that  the 
accused  shall  be  confined  '  '  in  such  place  or  prison  as  the  proper  authority  may  order,  '  ' 
or  in  terms  to  such  effect,  held  that  the  same  may,  under  this  article,  legally  be  exe- 
cuted by  the  commitment  of  the  party  to  a  penitentiary,  to  be  designated  by  the 
reviewing  officer  or  Secretary  of  War,  provided,  of  course,  the  offense  is  of  such  a 
nature  as  to  warrant  this  form  of  punishment.  Ibid.,  par.  295. 

Held  that  penitentiary  confinement  could  not  legally  be  adjudged  upon  a  conviction 
of  a  violation  of  the  twenty-first  article,  alleged  in  the  specification  to  have  consisted 
,in  the  lifting  up  of  a  weapon  (a  pistol)  against  a  commanding  officer  and  discharging 
it  at  him  with  intent  to  kill.  By  charging  the  offense  under  this  article  the  Govern- 
ment elected  to  treat  it  as  a  purely  military  offense,  subject  only  to  a  military  punish- 
ment. So,  upon  a  conviction  of  joining  in  a  mutiny,  in  violation  of  article  22,  held 
that  a  sentence  of  confinement  in  a  penitentiary  would  not  be  legal  although  the 
mutiny  involved  a  homicide,  set  forth  in  the  specification  as  an  incidental  aggravat- 
ing circumstance.  To  have  warranted  such  a  punishment  in  either  of  these  cases 
the  Government  should  have  treated  the  act  as  a  "crime,"  and  charged  and  brought 
it  to  trial  as  such  under  article  62.  Ibid.,  par.  296. 

Where  the  act  is  charged  as  a  crime  under  article  62,  and  charge  and  specification 
taken  together  show  an  offense  punishable  with  confinement  in  a  penitentiary  by  the 
law  of  the  locus  of  the  crime,  the  sentence  may  legally  adjudge  such  a  punishment. 
So  held  in  a  case  where  charge  and  specification  together  made  out  an  allegation  of 
perjury  under  section  5392,  Revised  Statutes.  Ibid.,  par.  297. 

"Obtaining  money  under  false  pretenses"  is  punishable  by  confinement  in  a  peni- 
tentiary by  the  laws  of  Arizona.  A  sentence  of  court-martial  imposing  this  punish- 
ment, on  conviction  of  an  offense  of  this  description  committed  in  this  Territory, 
charged  an  a  crime  under  article  62,  held  authorized  by  article  97.  Ibid.,  par.  298. 

A  conviction  of  a  larceny  of  property  of  such  slight  value  as  not  to  authorize  this 
punishment  under  the  local  law  would  not  warrant  a  sentence  of  confinement  in  a 
penitentiary.  In  a  case  of  larceny  the  court  should  inform  itself  as  to  whether  the 
value  of  the  property  stolen  be  not  too  small  to  permit  of  penitentiary  confinement 
for  the  offense  under  the  law  of  the  State,  etc.  (a)  Ibid.,  115,  par.  13. 

A  punishment  of  confinement  in  a  penitentiary,  where  legal,  may  be  mitigated  to 
confinement  in  a  military  prison  or  at  a  military  post.  Ibid.,  par.  299. 

A  discharged  soldier,  serving  a  sentence  of  confinement  in  a  State  or  Territorial 
penitentiary,  still  remains  under  military  control,  at  least  so  far  as  that  his  sentence 
may,  by  competent  military  authority,  or  by  the  President,  be  remitted,  or  may  be 
mitigated  —  as,  for  example,  to  confinement  in  a  military  prison  or  at  a  military  post. 
Ibid.,  par.  300. 


i  See  G.  O.  44,  Eighth  Army  Corps,  1862;  G.  C.  M.  O.  63,  Department  of  the  Platte,  1872. 


1016  MILITARY    LAWS    OF    THE    UNITED    STATES. 

^jg!      ART.   99.    No  officer  shall  be  discharged  or  dismissed 


C6 


99  Art.  war.    from  the  service,  except  by  order  of  the  President,  or  by 
i76Uisy6  V^J?'  p'  sentence  of  a  general  court-martial;  and  in  time  of  peace 
no  officer  shall  be  dismissed,  except  in  pursuance  of  the 
sentence  of  a  court-martial,  or  in  mitigation  thereof.1 

1  Dismissal  by  Executive  order  is  quite  distinct  from  dismissal  by  sentence.  The 
latter  is  a  punishment;  the  former  is  removal  from  office,  (a)  The  power  to  dismiss, 
which,  as  being  an  incident  to  the  power  to  appoint  public  officers,  had  been  regarded 
since  1789  as  vested  in  the  President  by  the  Constitution,  (6)  was  for  the  first  time  in 
1866  (by  the  act  of  July  13  of  that  year,  reenacted  in  the  second  clause  of  the  pres- 
ent ninety-ninth  article  of  war  and  in  section  1229,  Revised  Statutes)  ,  expressly 
divested  by  Congress  in  so  far  as  respects  its  exercise  in  time  of  peace,  (c)  By  the 
statute  law  it  is  now  authorized  only  in  time  of  war.  During  the  late  war  it  was 
exercised  in  a  great  number  of  cases,  sometimes  for  the  purpose  of  summarily  rid- 
ding the  service  of  unworthy  officers,  sometimes  in  the  form  of  a  discharge  or  muster- 
out  of  officers  whose  services  were  no  longer  required.  The  distinction  between 
this  species  of  dismissal  and  dismissal  by  sentence  is  illustrated  by  the  fact  that  the 
former  has,  with  the  sanction  of  legal  authority,  been  repeatedly  ordered  in  caaes 
where  a  court-martial  has  previously  acquitted  the  officer  of  the  very  offenses  on 
account  of  which  the  summary  action  has  been  resorted  to.  (d)  Dig.  Opin.  J.  A.  G., 
par.  1203. 

The  Executive,  in  summarily  dismissing  an  officer,  can  not  at  the  same  time  deprive 
him  of  pay  due.  Nor  can  the  right  of  an  officer  to  his  pay,  for  any  period  prior  to  a 
summary  dismissal  ordered  in  his  case,  be  divested  by  dating  back  of  the  order  of 
dismissal.  Such  an  order  can  not  be  made  to  relate  back  so  as  to  affect  the  status 
or  rights  of  the  officer  as  they  existed  before  the  date  of  the  taking  effect  of  the 
dismissal.  Ibid.,  par.  1213. 

A  summary  dismissal  "by  order  of  the  Secretary  of  War"  is  in  law  the  act  of  the 
President,  (e)  Ibid.,  par.  1205. 

A  department  or  army  commander  can  have,  of  course,  no  authority  to  summarily 
dismiss  or  discharge  an  officer  from  the  military  service.  But  where,  in  a  case  of  a 
regular  officer,  this  authority  was  in  fact  exercised,  and  the  President,  treating  his 
office  as  vacant,  proceeded  to  fill  the  vacancy  by  a  new  appointment,  held  that  he  had 
made  the  dismissal  his  own  act  and  legalized  the  same.  (/)  So  where  (in  1863)  an 
officer  of  volunteers  was  dismissed  by  the  order  of  an  army  commander,  which  was 
never  ratified  in  terms  by  the  President,  but  a  successor,  appointed  to  the  vacancy  by 
the  governor  of  the  State,  was  accepted  and  mustered  in  by  the  United  States,  held 
(in  1880)  that  the  dismissal  was  to  be  regarded  as  having  been  substantially  ratified 
and  legalized.  So  an  unauthorized  dismissal,  by  order  of  a  regular  officer,  may  be  in 
effect  made  operative  by  a  subsequent  appointment  and  confirmation  of  a  successor, 
as  in  Blake's  case.  Ibid.,  par.  1206. 

A  summary  dismissal  of  an  officer  does  not  properly  take  effect  until  the  order 
of  dismissal  or  an  official  copy  of  the  same  is  delivered  to  him,  or  he  is  otherwise 
officially  notified  of  the  fact  of  the  dismissal.  Ibid.,  par.  1204. 

Held  that  it  could  not  affect  the  operation  of  an  order  summarily  dismissing  an 
officer  as  "second  lieutenant"  that,  before  its  being  communicated  to  him  by  being 
promulgated  to  the  regiment,  he  had  become  by  promotion  a  first  lieutenant.  Ibid., 
par.  1211. 

A  dismissal  of  an  officer  by  Executive  order  does  not  operate  to  disqualify  him  for 
reappointment  to  military  office,  or  for  appointment  to  civil  office  under  the  United 
States.  Ibid.,  par.  1212. 

There  can  be  no  revocation  of  a  duly  executed  order  of  dismissal,  however  unmerited 
or  injudicious  the  original  act  may  be  deemed  to  have  been.  For,  distinct  as  dis- 
missal by  order  is,  in  its  nature,  from  dismissal  by  sentence  (see  section  1,  ante),  the 
effect  of  the  proceeding  in  divesting  the  office  is  the  same  in  each  case.  An  officer 
dismissed  by  an  order,  though  his  dismissal  may  have  involved  no  disgrace,  is 
assimilated  to  an  officer  dismissed  by  sentence  in  so  far  that  he  is  completely  relegated 

a  See  VII  Opins.  Att.  Gen.,  251. 

bSee,  as  among  the  principal  authorities  on  this  subject,  Commonwealth  ?'.  Bussier,  5  Sergt.  & 
Rawle,  461;  Ex  parte  Hennen,  13  Peters,  258,  259;  United  States  v.  Guthrie,  17  Howard,  307;  IV  Opins. 
Att.  Gen.,  1,  609-613;  VI  id..  5-6;  VII  id.,  251;  VIII  id..  230-232;  XII  id.,  424-426;  Sergeant,  Const,  Law., 
373;  2  Story's  Corns.,  sec.  1537,  note;  1  Kent's  Corns.,  310;  2  Marshall's  Washington,  162. 

cSee  XVI  Opins.  Att.  Gen.,  315. 

dSee  XII  Opins.  Att.  Gen.,  427. 

eSee  XII  Opins.  Att.  Gen.,  421;  McElrath  v.  United  States,  12  Ct.  Cls.  202. 

/See  opinion  of  Att.  Gen.  (XVI  Opins.,  298),  noted  under  article  106. 


MTLTTAEY    LAWS    OF    THE    UNITED    STATES.  1017 

ART.  100.   When  an  officer  is  dismissed  from  the  service  0^^^^ 
for  cowardice  or  fraud  the  sentence  shall  further  direct  |^ucdowardice  or 
that  the  crime,  punishment,  name,  and  place  of  abode  of    10°Art.  war. 
the  delinquent  shall  be  published  in  the  newspapers  in  and 
about  the  camp,  and  in  the  State  from  which  the  offender 
came  or  where  he  usually  resides;  and  after  such  publica- 
tion it  shall  be  scandalous  for  an  officer  to  associate  with 
him.1 

to  a  civil  status,  having  in  law  no  nearer  or  other  relation  to  the  military  service 
than  has  any  civilian  who  has  never  been  in  the  Army.  Thus  an  order  assuming 
to  revoke  a  legal  order  of  dismissal  is  as  unauthorized  as  it  is  ineffectual.  The 
original  dismissal  is  an  act  done  which  can  not  be  undone,  and  the  order,  which  is 
the  evidence  of  it,  is  therefore  incapable  of  revocation  or  recall,  (a)  Nor  can  that 
be  effected  indirectly  which  can  not  legally  be  done  directly.  An  officer  dismissed 
by  Executive  order  can  not  be  relieved  by  being  allowed  to  resign  or  be  retired,  or 
by  being  granted  an  honorable  discharge.  For,  in  order  to  be  discharged,  etc. ,  from 
the  Army,  he  must  first  be  in  the  Army,  and  there  is  but  one  mode  by  which  an 
officer  once  legally  separated  from  the  Army  can  be  put  into  it,  viz,  by  a  new 
appointment  according  to  the  Constitution,  (b)  Ibid.,  par.  1214. 

That  a  summary  dismissal  is  not  revocable  by  an  Executive  order  is  established 
law.  Where  an  officer  duly  summarily  dismissed  in  July,  1863,  and  subsequently 
restored  by  an  order  assuming  to  revoke  the  order  of  dismissal,  procured  to  be  passed 
by  Congress  in  1890  an  act  recognizing  his  restoration  as  legal,  which,  however,  was 
vetoed  by  the*  President,  held  that  his  status  was  that  of  a  person  who  had  been 
illegally  in  the  military  service  since  the  date  of  the  order  of  so-called  revocation. 
Ibid.,  par.  1215. 

AVhere,  by  the  direction  of  the  President,  an  order  was  issued  canceling  the 
muster-in  of  a  volunteer  officer  on  account  of  facts  indicating  that  he  was  not  a  fit 
person  to  hold  a  commission,  held  that  this  was  a  legal  exercise  of  the  authority  of 
summary  dismissal  for  cause  vested  in  the  President  by  the  act  of  July  17,  1862. 
Ibid.,  par.  1210. 

The  President  had  not  the  same  power  of  dismissal  in  the  case  of  a  volunteer  officer 
as  he  has  in  that  of  a  regular  officer.  This  for  the  reason  that  the  tenure  of  office 
of  the  former  is  for  a  fixed  term  and  for  a  limited  time  only;  the  power  to  dismiss  is 
thus,  in  his  case,  not  an  incident  of  the  appointing  power,  (c)  But  the  President  was 
invested  with  a  special  power  of  dismissal  of  volunteer  officers  b  v  the  act  of  Congress 
of  July  17,  1862.  Ibid.,  par.  1210. 

Held  that  the  ruling  in  Blake's  case  (103  U.  S.  231)  was  applicable,  and  that  the 
office  of  an  army  officer  might  legally  be  vacated  by  the  appointment  and  commission 
of  a  successor,  although  between  the  office  of  the  original  officer  and  that  of  the 
successor  there  may  have  intervened  a  tenure  by  a  third  officer.  Ibid.,  par.  1207. 

Thus  (1)  Captain  A  was  dismissed  from  his' office  without  legal  authority;  (2) 
Captain  B,  an  unassigned  officer,  was  assigned  to  the  captaincy  of  A,  and  held  it  till 
his  own  resignation,  one  year  and  three  months  later;  (3)  Lieutenant  C  was  then 
promoted  and  appointed  to  the  office  and  his  appointment  was  confirmed.  Held 
that  Lieutenant  C  was  the  legal  incumbent  of  the  office.  Ibid.,  par.  1207. 

Held  that  the  ruling  of  the  Supreme  Court  in  the  case  of  Blake  was  not  applicable 
to  volunteer  officers  of  State  organizations,  and  that  a  governor  of  a  State,  who  had 
duly  appointed  a  certain  volunteer  officer  in  a  regiment,  was  not  empowered  to  dis- 
miss him  by  simply  appointing  to  the  same  office,  commissioning,  and  causing  to  be 
mustered  into  the  United  States  service  another  person.  Ibid.,  par.  1208. 

Held  that  it  was  quite  evidently  the  intention  of  Congress  in  the  act  of  July  15, 

1870,  section  12,  that  the  commission  held  by  the  officers  who  remained  unassigned 
on  January  ],  1871,  should  cease  on  that  day.     No  action  on  the  part  of  a  mustering 
officer  was  required  to  carry  the  law  into  effect,  as  is  shown  by  G.  0.1,  of  January  2, 

1871,  in  which  the  separation  from  the  service  on  January  1  of  the  unassigned  officers 
was  formerly  announced.     Ibid.,  par.  1217. 

lThe  terms  "cowardice"  and  "fraud"  employed  in  this  article  may  be  considered 

aSee  IV  Opins.  Att.  Gen.,  124;  XII  id.,  424-428;  XIV  id.,  520;  XV  id.,  658.  A  contrary  view  expressed 
by  the  Court  of  Ciaims,  in  its  earlier  period,  in  a  series  of  cases  (see  Smith  r.  United"states,  2  Ct.  Cls. 
206;  Winters  v.  United  States,  3  id.,  136:  Barnes  v.  United  States,  4  id.  216-  Montgomery  v.  United 
States,  5  id'.,  93)  was  finally  practically  abandoned  in  McElrath  v.  United  States  12  id.,  201. 

&See  VIII  Opins.  Att.  Gen.,  235;  XII  id.,  421;  XIII  id.,  5;  McElrath  v  United  States  12  Ct.  Cls  202 

cSee  Mechen  on  Public  Officers,  p.  283,  sec.  445. 


1018  MILITARY    LAWS    OF    THE    UNITED    STATES. 

office?'snpSayn  °f     ART.  101.   When  a  court-martial  suspends  an  officer  from 
101  Art.  war.  command,1  it  may  also  suspend  his  pay  and  emoluments  for 
the  same  time,  according  to  the  nature  of  his  offense.2 

as  referring  mainly  to  the  offenses  made  punishable  by  articles  42  and  60.  With 
these,  however,  may  be  regarded  as  included  all  offenses  in  which  fraud  or  cowardice 
is  necessarily  involved,  though  the  same  be  not  expressed  in  terms  in  the  charge  or 
specifications.  Ibid.,  par.  301.  See  also  In  re  Carter,  97  Fed.  Rep.,  496. 

Though  the  injunction  of  the  article  as  to  the  direction  to  be  added  in  the  sentence 
should  of  course  regularly  be  complied  with,  a  failure  so  to  comply  will  not  affect 
the  validity  of  the  punishment  of  dismissal  adjudged  by  the  sentence,  (a)  The 
declaration  of  the  article  that  after  the  publication  "it  shall  be  scandalous  for  an 
officer  to  associate  with"  the  dismissed  officer,  though  it  has  in  a  few  cases(6)  been 
incorporated  in  the  sentence,  is  not  intended  to  be,  and  should  not  be,  so  expressed 
by  the  court.  Ibid.,  par.  302. 

1  The  punishment  of  suspension,  as  imposed  by  sentence,  is  usually  in  the  form  of  a 
suspension  from  rank,  or  from  command,  for  a  stated  term,  sometimes  accompanied 
by  a  suspension  from  pay  for  the  same  period.     Suspension  from  rank  includes  sus- 
pension from  command.     Ibid.,  par.  2408. 

A  suspension  from  rank  does  not  affect  the  right  of  the  officer  to  his  office.  He 
retains  the  same  as  before,  and,  as  an  officer,  remains  subject  as  before  to  military 
control  as  well  as  to  the  jurisdiction  of  a  court-martial  for  any  military  offense  com- 
mitted pending  the  term  of  suspension,  (c)  Ibid.,  par.  2409.  " 

The  effect  of  a  suspension  from  rank  (besides  detaching  the  officer  from  the  per- 
formance of  the  duties  incident  to  his  rank)  is  to  deprive  him  of  any  right  of  promo- 
tion to  a  vacancy  in  a  higher  grade,  occurring  pending  the  term  of  suspension,  and 
which  he  would  have  been  entitled  to  receive  by  virtue  of  seniority  had  he  not  been 
suspended,  such  right  accruing  to  the  officer  next  in  rank.  But  no  such  loss  of  pro- 
motion is  incident  to  a  mere  suspension  from  command.  Ibid.,  par.  2410. 

Suspension  from  rank  does  not,  however,  deprive  the  officer  of  the  right  to  rise  in 
files  in  his  grade — upon  the  promotion,  for  example,  of  the  senior  officer  of  such 
grade.  The  number  of  an  officer  in  the  list  of  his  grade  is  not  an  incident  of  his 
rank,  but  of  his  appointment  to  office  as  conferred  and  dated,  and,  as  we  have  seen, 
suspension  does  not  affect  the  office.  Moreover,  loss  of  files  is  a  continuing  punishment, 
and  if  held  to  be  involved  in  suspension  from  rank,  the  result  would  be  that,  for  an 
indefinite  period  after  the  term  of  suspension  had  expired,  the  officer  would  remain 
under  punishment,  the  sentence  imposed  by  the  court  being  thus  added  to  in  execu- 
tion, contrary  to  a  well-known  principle  of  military  law.  Ibid.,  par.  2411. 

It  is  further  the  effect  of  a  suspension  from  rank  that  the  officer  loses  for  the  time 
the  minor  rights  and  privileges  of  priority  and  precedence  annexed  to  rank  or  com- 
mand. Among  these  is  the  right  to  select  quarters  relatively  to  other  officers.  And 
where  quarters  are  to  be  selected  by  several  officers,  one  of  whom  is  under  sentence 
of  suspension  from  rank,  the  suspended  officer  necessarily  has  the  last  choice.  Or 
rather  he  has  no  choice,  but  quarters  are  assigned  him  by  the  commander;  for,  being 
still  an  officer  of  the  Army,  though  without  rank,  he  is  entitled  to  sonte  quarters. 
But  advised  that  an  officer  sentenced  to  be  suspended  from  rank  could  not,  because  of 
such  suspension  alone,  be  deprived  of  quarters  previously  duly  selected,  and  occupied 
at  the  time  of  the  suspension,  such  a  sentence  not  affecting  a  right  previously  accrued 
and  vested.  Ibid.,  par.  2412. 

Suspension  from  rank  does  not  involve  a  status  of  confinement  or  arrest.  In  sen- 
tencing an  officer  to  be  suspended  from  rank,  it  is,'  indeed,  not  unusual  for  the  court 
to  require  that  he  be  confined  during  the  term  of  suspension  to  his  proper  station, 
or  that  of  his  regiment,  etc.,  i.  e.,  that  the  sentence  be  executed  there.  Where  this 
is  not  done,  while  the  suspended  officer  is  not  entitled  to  a  leave  of  absence,  it  can 
not  affect  the  execution  of  his  sentence  to  grant  him  one,  and  leaves  of  absence  are 
not  infrequently  granted  under  such  circumstances.  Ibid.,  par.  2414. 

Suspension  from  rank  or  command  does  not  involve  a  loss  or  authorize  a  stoppage 
of  pay  for  the  period  of  suspension,  (d)  Pay  can  not  be  forfeited  by  implication. 
Unless,  therefore,  the  sentence  imposes  a  suspension  from  rank  (or  command)  "  and 
pay,"  or  in  terms  to  that  effect,  the  suspended  officer  remains  as  much  entitled  to 
his  pay  as  if  he  had  not  been  suspended  at  all,  and  to  require  him  to  forfeit  any  pay 
would  be  adding  to  the  punishment  and  illegal.  Ibid.,  par.  2415. 

2  Where,  however,  the  suspension  is  in  terms  extended  by  the  sentence  to  pay,  the 

a  Note  the  action  taken  in  the  case  published  in  G.  C.  M.  O.  27,  War  Department,  1872. 
b  As  in  cases  published  in  G.  O.  (A.  and  I.  G.  O.)  of  May  13,  1820;  G.  O.  168,  Department  of  the  Mis- 
souri,*1865. 

cSee  V  Opins.  Att.  Gen.,  740;  VI  id.,  715. 
dSee  IV  Opins.  Att.  Gen.,  444;  VI  id.,  203. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  1019 

ART.  102.  No  person  shall   be  tried  a  second  time  for  tJ 
the  same  offense. l  c  H» Art.or  war. 


pay  id  forfeited  absolutely,  not  merely  withheld.  And  all  the  pay  is  forfeited,  unless 
otherwise  expressly  indicated  in  the  sentence.  The  forfeiture  imposed  by  a  sentence 
of  suspension  from  rank  (or  command)  and  pay  for  a  designated  term  is  a  forfeiture 
of  the  pay  of  that  specific  term,  the  suspension  of  the  rank  and  that  of  the  pay  being 
coincident.  Under  such  a  sentence  the  officer  can  not  legally  be  deprived  of  pay  due 
for  a  period  prior  to  the  suspension.  Where  an  officer  was  sentenced  to  suspension 
from  rank  and  pay  for  six  months,  held  that  his  entire  pay  for  those  months  was 
absolutely  forfeited,  notwithstanding  that  the  pay  of  officers  of  his  grade  was  increased 
by  statute  pending  the  term.  Ibid.,  par.  2417. 

A  sentence  of  suspension  from  rank  and  pay  does  not  affect  the  right  of  the  officer 
to  the  allowances  which  are  no  part  of  his  pay,  (a)  as  the  allowance  for  rent  of  quar- 
ters, as  also  the  allowance  for  fuel,  or  rather  right  to  purchase  fuel  at  reduced  rate. 
Ibid.,  par.  2418. 

The  status  of  an  officer  under  suspension  is  the  same  whether  such  suspension  has 
been  imposed  directly  by  sentence  or  by  way  of  commutation  for  a  more  severe  pun- 
ishment. Thus,  where  a  sentence  of  dismissal  was  commuted  to  suspension  from 
rank  or  half  pay  for  one  year,  held  that  the  officer,  while  forfeiting  the  rights  and 
privileges  of  rank  and  command  during  such  term,  was  yet  amenable  to  trial  by 
court-martial  for  a  military  offense  committed  pending  the  same.  Ibid.,  par.  2419. 

Where  an  officer,  when  under  a  sentence  of  suspension,  is  ordered  by  the  com- 
mander who  approved  the  sentence,  or  some  higher  competent  authority,  to  resume 
his  command  or  the  peformance  of  his  regular  military  duty,  such  order  will,  in  gen- 
eral, operate  as  a  constructive  remission  of  the  punishment  and  thus  terminate  the 
suspension.  (6)  Ibid.,  par.  2420. 

A  sentence,  "  to  be  suspended  from  the  Military  Academy,"  in  a  case  of  a  cadet, 
practically  severs  him  from  the  military  service  as  a  cadet  during  the  term  of  the 
suspension.  It  is  usually  added  in  such'a  sentence  that  at  the  end  of  such  term  the 
party  is  to  join  the  next  lower  class.  Ibid.,  par.  2416. 

Like  dismissal,  suspension  takes  effect  upon  and  from  notice  of  the  approval  of  the 
sentence  officially  communicated  to  the  officer,  either  by  the  promulgation  of  the 
same  at  his  station,  or,  where  he  is  absent  therefrom  by  authority,  by  the  delivery 
to  him  of  a  copy  of  the  order  of  approval  or  other  form  or  official  personal  notification 
of  the  fact  of  the  approval.  Ibid.,  par.  2423. 

Suspension,  as  a  punishment  for  a  noncommissioned  officer,  is  not  authorized  in 
terms  in  article  101,  nor  is  it  contemplated  in  the  Army  Regulations.  It  has  been 
adjudged  in  but  rare  cases,  (c)  and  can  not  be  regarded  as  sanctioned  by  principle  or 
usage.  Ibid.,  733,  par  15. 

Suspension  not  divesting  the  officer  of  his  office  or  commission,  but  simply  holding 
in  abeyance  the  rights  and  functions  attached  to  his  rank  or  command,  he  properly 
reverts,  when  the  term  of  the  punishment  is  completed,  to  his  former  rank  and  the 
command  attached  thereto,  and  continues  to  hold  and  exercise  the  same  as  before  his 
arrest  of  trial.  Ibid.,  733,  par  16. 

Under  existing  usage  (1892)  an  officer  suspended  by  sentence  from  rank  and  com- 
mand is  deemed  entitled  to  retain  his  quarters.  But  such  rule  may,  in  some  cases, 
work  a  considerable  inconvenience  as  well  as  prejudice  to  discipline,  as  where,  for 
example,  the  suspended  officer  is  a  post  commander,  and  continues,  pending  the 
term  of  his  suspension,  and  while  another  officer  has  succeeded  him  as  commander, 
to  occupy  the  proper  commanding  officer's  quarters.  An  army  regulation  prescrib- 
ing that  an  officer  in  such  a  status  shall  not  be  entitled  to  retain  or  to  select  quarters 
by  virtue  of  rank,  but  shall  have  assigned  him  any  quarters  that  are  available  at  his 
late  station  or  elsewhere,  advised  as  desirable  to  be  adopted.  Ibid.,  par  2413. 

Under  the  ruling  of  the  Secretary  of  War,  as  published  in  circular  No.  3  (A.  G.  O. ), 
1888,  an  officer  under  suspension,  but  not  required  by  his  sentence  to  be  "confined 
to  the  limits  of  his  post,"  is  not  entitled  to  forage  for  his  horse  or  horses  during  the 
term  of  his  suspension.  Ibid.,  par.  2424. 

JThe  Constitution  (Article  V  of  the  amendments)  declares  that  "no  person  shall 
be  subjected,  for  the  same  offense,  to  be  twice  put  in  jeopardy  of  life  or  limb."  The 
United  States  courts,  in  treating  the  term  "put  in  jeopardy  "  as  meaning  practically 
tried,  hold  that  the  "jeopardy"  indicated  "can  be  interpreted  to  mean  nothing 
short  of  the  acquittal  or  conviction  of  the  prisoner  and  the  judgment  of  the  court 
thereon. "  (d)  So,  held  that  the  term  "tried,"  employed  in  this  article,  meant  duly 

aMcNaghten,  27. 
fcSeeMcNaghten,  22. 

cSee  G.  C.  M.  O.  3,  Department  of  the  East,  1872. 

dU.  S.  v.  Haskell,  4  Wash.  C.  C.,  409.  And  see  U.  S.  v.  Shoemaker,  2  McLean,  114;  U.  S.  v  Gilbert,  2 
Sumner,  19;  U.  S.v  Perez,  9  Wheaton,  579;  1  Opin.  Att.  Gen.,  294. 


1020  MILITARY    LAWS    OF    THE    UNITED    STATES. 

ART.  103.  No  person   shall   be  liable  to  be  tried   and 


tioio'3  Art.  war.  punished  by  a  general  court-martial  for  any  offense  which 
appears  to  have  been  committed  more  than  two  years 
before  the  issuing  of  the  order  for  such  trial,  unless,  by 


prosecuted,  before  a  court-martial,  to  a  final  conviction  or  acquittal;  and,  therefore, 
that  an  officer  or  soldier,  after  having  been  duly  convicted  or  acquitted  by  such  a 
court,  could  not  be  subjected  to  a  second  military  trial  for  the  same  offense  except 
by  and  upon  his  own  waiver  and  consent.  For,  that  the  accused  may  waive  objec- 
tion to  a  second  trial  was  held  by  Attorney-General  Wirt  in  1818,  (a)  and  has  since 
been  regarded  as  settled  law.  Dig.  Opin.  J.  A.  G.,  par.  303. 

Where  an  officer  or  soldier  has  been  duly  acquitted  or  convicted  of  a  specific  offense 
he  can  not,  against  his  consent,  be  brought  to  trial  for  a  minor  offense  included 
therein,  and  an  acquittal  or  conviction  of  which  was  necessarily  involved  in  the 
finding  upon  the  original  charge.  Thus,  a  party  convicted  or  acquitted  of  a  desertion 
can  not  afterwards  be  brought  to  trial  for  an  absence  without  leave  committed  in  and 
by  the  same  act.  Ibid.,  par.  304. 

Held  that  there  was  no  "second"  trial,  in  the  sense  of  the  article,  in  the  following 
cases,  viz:  Where  the  party,  after  being  arraigned  or  tried  before  a  court  which  was 
illegally  constituted  or  composed,  or  was  without  jurisdiction,  was  again  brought  to 
trial  before  a  competent  tribunal;  where  the  accused,  having  been  arraigned  upon 
and  having  pleaded  to  certain  charges,  was  rearraigned  upon  a  new  set  of  charges 
substituted  for  the  others,  which  were  withdrawn;  where  one  of  several  distinct 
charges  upon  which  the  accused  had  been  arraigned  was  withdrawn  pending  the 
trial,  and  the  accused,  after  a  trial  and  finding  by  the  court  upon  the  other  charges, 
was  brought  to  trial  anew  upon  the  charge  thus  withdrawn;  where,  after  pro- 
ceedings commenced,  but  discontinued  without  a  finding,  the  accused  was  brought 
to  trial  anew  upon  the  same  charge;  where,  after  having  been  acquitted  or  con- 
victed upon  a  certain  charge  which  did  not  in  fact  state  the  real  offense  committed, 
the  accused  was  brought  to  trial  for  the  same  act,  but  upon  a  charge  setting  forth 
the  true  offense;  where  the  accused  was  brought  to  trial  after  having  had  his  case 
fully  investigated  by  a  different  court,  which,  however,  failed  to  agree  in  a  finding 
and  was  consequently  dissolved  ;(  6  )  where  the  first  court  was  dissolved  because 
reduced  below  five  members  by  the  casualties  of  the  service  pending  the  trial; 
where,  for  any  cause,  there  was  a  "mistrial,"  or  the  trial  first  entered  upon  was 
terminated,  or  the  court  dissolved,  at  any  stage  of  the  proceedings  before  a  final 
acquittal  or  conviction.  Ibid.,  par.  305. 

Where  an  officer  or  soldier,  having  been  acquitted  or  convicted  of  a  criminal 
offense  by  a  civil  court,  is  brought  to  trial  by  a  court-martial  for  a  military  offense 
involved  in  his  criminal  act,  he  can  not  plead  "a  former  trial,"  in  the  sense  of  this 
article.  So,  where  the  trial  for  the  military  offense  has  preceded,  he  can  not  plead 
autrefois  acquit  or  convict  to  an  indictment  for  the  civil  crime  committed  in  and  by 
the  same  act.  (c)  Ibid.,  par  306. 

Where  the  accused  has  been  once  duly  convicted  or  acquitted,  he  has  been  "tried" 
in  the  sense  of  the  article,  and  can  not  be  tried  again  against  his  will,  though  no 
action  whatever  be  taken  upon  the  proceedings  by  the  reviewing  authority,  or  though 
the  proceedings,  findings  (and  sentence,  if  any),  be  wholly  disapproved  by  him.  (d) 
It  is  immaterial  whether  the  former  conviction  or  acquittal  is  approved  or  disapproved. 
Ibid.,  par.  307. 

That  an  accused  has  been,  in  the  opinion  of  the  reviewing  authority,  inadequately 
sentenced,  either  by  a  general  or  an  inferior  court,  can  not  except  hi.-  case  from  the 
application  of  this  article;  though  insufficiently  punished,  he  can  not  be  tried  again 
for  the  same  offense.  Ibid.,  par.  308. 

Where  an  officer,  who  had  killed  a  superior  officer  in  an  altercation  at  a  military 
post,  was  brought  to  trial  before  a  civil  court  on  a  charge  of  murder  and  acquitted,  and 
was  subsequently  arraigned  before  a  court-martial  for  the  offense  against  military 
discipline  involved  in  his  criminal  act,  held  that  a  plea  of  former  trial  interposed  by 
him  was  properly  overruled  by  the  court.  Ibid.,  par.  309. 

A  soldier  was  convicted  of  "manslaughter,"  but  the  findings  and  sentence  were 
disapproved.  He  was  then  brought  to  trial  on  a  charge  of  mutiny,  as  committed  on 
the  occasion  of  the  homicide,  the  latter  being  alluded  to  in  the  specification  as  an 
incidental  circumstance  of  aggravation,  and  was  found  guilty  and  sentenced.  Held 
that  the  accused  was  not,  in  the  sense  of  this  article,  '  '  tried  u  second  time  for  the 

a  I  Opin.  Att.  Gen.,  233.    And  see  also  VI,  ibid.,  205. 

b  See  U.  S.  v.  Perez,  9  Wheat,,  579. 

c  See  VI  Opin.  Att.  Gen.,  413,  506. 

d  Compare  Macomb,  section  169;  O'Brien,  277;  Rules  for  Bombay  Army,  45. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  1021 

reason  of  having  absented  himself,  or  of  some  other  mani- 
fest impediment,  he  shall  not  have  been  amenable  to  justice 
within  that  period.1 

No  person  shall  be  tried  or  punished  by  a  court-martial  a^jjjlljjf1  etc * " 
for  desertion  in  time  of  peace  and  not  in  the  face  of  an 

same  offense,"  the  mutiny  not  consisting  in  the  act  of  homicide,  but  constituting  a 
distinct  offense.     Ibid.,  par.  310. 

There  can  not,  in  view  of  this  article,  be  a  second  trial  where  the  offense  is  really 
the  same,  though  it  may  be  charged  under  a  different  description  and  under  a  differ- 
ent article  of  war.  Thus,  where  the  Government  elects  to  try  a  soldier  under  the 
thirty -second  article  for  "absence  without  leave,"  or  under  the  forty^second  for 
''lying  out  of  quarters,"  and  the  testimony  introduced  develops  the  fact  that  the 
offense  was  desertion,  the  accused,  after  an  acquittal  or  conviction,  can  not  legally 
be  brought  a  second  time  to  trial  for  the  same  absence  charged  as  a  desertion.  Ibid., 
par.,  311. 

1  The  prohibition  of  the  article  relates  only  to  prosecutions  before  general  courts- 
martial;  it  does  not  apply  to  trials  before  inferior  courts.  So  courts  of  inquiry  may 
be  convened  without  regard  to  the  period  which  has  elapsed  since  the  dates  of  the 
act  or  acts  to  be  investigated.  Nor  does  the  limitation  apply  to  the  hearing  of  com- 
plaints by  regimental  courts  under  article  30.  Dig.  Opin.  J.  A.  G.,  par.  318;  VI 
Opin.  Att.  Gen.,  239. 

In  view  of  this  article,  it  is  the  duty  of  the  Government  to  prosecute  an  offender 
within  a  reasonable  time  after  the  commission  of  the  offense.  Dig.  Opin.  J.  A.  G., 
par.  319. 

It  has  been  held,  under  the  original  article,  that  an  officer  or  soldier  could  not  be 
legally  arrested,  with  a  view  to  trial,  where  more  than  two  years  (in  which  he  was 
amenable  to  justice)  had  elapsed  since  his  offense.  Ibid.,  123,  par.  7. 

The  limitation  is  properly  matter  of  defense  to  be  specially  pleaded  and  proved,  (a) 
By  pleading  guilty  the  accused  is  assumed  to  waive  the  rignt  to  plead  the  limitation 
by  a  special  plea  in  bar.  But,  under  a  plea  of  not  guilty,  the  limitation  may  be  taken 
advantage  of  by  evidence  showing  that  it  has  taken  effect.  Ibid.,  par.  320. 

By  the  absence  referred  to  in  the  original  article,  in  the  term  "unless  by  reason  of 
having  absented  himself,"  is  believed  to  be  intended,  not  necessarily  an  absence  from 
the  United  States,  but  an  absence  by  reason  of  a  "fleeing  from  justice,"  analogous  to 
that  specified  in  section  1045,  Revised  Statutes,  which  has  been  held  to  mean  leaving 
one's  home,  residence,  or  known  abode  within  the  district,  or  concealing  one's  self 
therein,  with  intent  to  avoid  detection  or  punishment  for  the  offense  against  the 
United  States.  (6)  Thus  held  that,  in  a  case  other  than  desertion,  it  was  not  essential 
or  the  prosecution  to  be  prepared  to  prove  that  the  accused  had  been  beyond  the 
territorial  jurisdiction  of  the  United  States  in  order  to  save  the  case  from  the  opera- 
tion of  the  limitation.  Ibid.,  par.  321. 

A  court-nlartial,  in  a  case  of  an  offense  other  than  desertion,  sustained  a  plea  of  the 
statute  of  limitations  in  bar  of  trial  for  the  reason  that  the  judge-advocate  could  pro- 
duce no  evidence  to  show  that  the  accused  was  not  within  the  territorial  jurisdiction 
of  the  United  States  during  his  absence.  Held  that  such  showing  was  not  necessary, 
and  that  it  was  sufficient  that  the  absence  should  be  any  unauthorized  absence  froin 
the  military  service  whereby  the  absentee  evades  and  for  the  time  escapes  trial. 
This  construction  of  the  term  "absented  himself"  in  the  article  corresponds  to  that 
placed  on  the  words  "fleeing  from  justice,"  as  used  in  the  statutes  of  the  United 
States  to  designate  those  whom  the  statutes  of  limitation  for  the  prosecution  of 
crimes  do  not  protect.  Ibid.,  par.  322. 

In  the  case  of  an  enlisted  man  charged  with  desertion,  the  act  of  desertion  having 
been  committed  more  than  ten  years  prior  to  the  reference  of  the  charges  for  trial, 
the  accused  pleaded  the  statute  of  limitations  in  bar  of  trial.  The  court  declined  to 
entertain  the  plea,  and,  regarding  the  statement  of  the  accused  as  an  instance  of 
answering  "foreign  to  the  purpose,"  proceeded  with  the  trial  as  if  a  plea  of  not 
guilty  had  been  entered.  As  no  action  was  taken  by  the  court  upon  the  plea  of  the 
accused,  and  no  testimony  taken  at  the  trial  with  a  view  to  establish  his  identity, 
the  proceedings,  finding,  and  sentence  were  disapproved  bv  the  Secretarv  of  War. 
G.  C.  M.  0.  No.  44,  A.  G.  O.,  1884. 


a  In  re  Bogart.  2  Sawyer,  397;  In  re  Waite,  17  Fed.  Rep.,  723;  In  re  Davison,  21  ibid.,  618;  In  re  Zim- 
merman, 30,  ibid.,  176;  Peoples  Price  (Michigan).  41 N  W.  Rep.,  853;  State  v.  Strong,  39  La.  Ann.,  1081; 
G.  O.  22,  A.  G.  O.,  1893.  See,  also,  U.  S.  v.  Cooke,  17  Wallace,  168. 

6  U.  S.  v.  O'Brien,  2  Dillon,  381;  U.  S.  v.  White,  5  Cranch  C.  C.,  38,  73-  I  Gould  and  Tucker,  Notes 
on  Revised  Statutes,  349. 


1022  MILITAEY    LAWS    OF    THE    U1STITED    STATES. 

enemy,  committed  more  than  two  years  before  the  arraign- 

Apreiiioi89o  v  ment  of  such  person  for  such  offense,  unless  he  shall  inean- 

26, p. 54.  while  have  absented  himself  from  the  United  States,  in 

which  case  the  time  of  his  absence  shall  be  excluded  in 
limitation."  g  of  computing  the  period  of  the  limitation:  Provided,  That 

said  limitation  shall  not  begin  until  the  end  of  the  term  for 

which  said  person  was  mustered  into  the  service.     Act  of 

April  11, 1890(26  Stat.  L.,  54). 
sentPeSce°  v  * *  °f     ART.  104.  No  sentence  of  a  court-martial  shall  be  carried 


27p 
* 


78.7'  189a*  v'  into  execution  until  the  same  shall  have  been  approved  by 
Art-  War-  the  officer  ordering  the  court,  or  by  the  officer  commanding 
for  the  time  being.  1     Act  of  July  #7,  1892  (27  Stat.  L.  ,  278). 
ofCTea?hatsen-     ART.  105.  No  sentence  of  a  court-martial  inflicting  the 
teju?y  IT  1862  c  punishment  of  death  shall  be  carried  into  execution  until 
IS;  Mar  Vise?'  ^  shall  have  been  confirmed  by  the  President,  except  in 
735?  'July'  2,'  lie?,'  ^ne  cases  °^  persons  convicted  in  time  of  war  as  spies, 
<yi5,s.i,v.i3,p.  mutineers,  deserters,  or  .  murderers,  and  in  the  cases  of 
IDS  Art.  war.  guerrilla  marauders  convicted  in  time  of  war  of  robbery, 
burglary,  arson,  rape,  assault  with  intent  to  commit  rape, 
or  of  violation  of  the  laws  and  customs  of  war;  and  in 
such  excepted  cases  the  sentence  of  death  may  be  carried 
into  execution  upon  confirmation  by  the  commanding  gen- 
eral in  the  field  or  the  commander  of  the  department,  as 
the  case  may  be.  l 
confirmation      ART.  106.   In  time  of  peace  no  sentence  of  a  court-martial 

of  dismissals  in  r 

tiTo60irteJwar  Directing  the  dismissal  of  an  officer  shall  be  carried  into 
execution  until  it  shall  have  been  confirmed  by  the  Presi- 
dent.1 

di?£SnSSol  bn-      ART.  107.  No  sentence  of  a  court-martial  appointed  by 

gaoecC24ri86i  <•  tne  Commander  of  a  division  or  of  a  separate  brigade  of 

3>  io72Art?3war    troops  directing  the  dismissal  of  an  officer  shall  be  carried 

into  execution  until  it  shall  have  been  confirmed  by  the 

general  commanding  the  army  in  the  field  to  which  the 

division  or  brigade  belongs.2 

^ee  the  title  "The  Reviewing  Authority"  in  the  chapter  entitled  MILITARY 
TRIBUNALS. 

2For  instances  in  which  the  proceedings  in  important  cases  were  disapproved  by 
the  President  on  account  of  their  not  having  been  reviewed  by  the  officer  ordering 
the  court,  see  G.  O.  55,  A.  G.  0.,  1863;  ibid.,  101,  1863;  ibid.,  168,  1863,  and  180,  1863'. 

In  view  of  the  provisions  of  the  one  hundred  and  sixth  and  this  article,  held  that 
when  in  time  of  war  a  department  commander  is  the  reviewing  authority,  no  confirma- 
tion of  a  sentence  of  dismissal  by  higher  authority  is  necessary,  but  when  a  division 
or  separate  brigade  commander  is  the  reviewing  authority,  such  sentence  must  be 
confirmed  by  the  general  commanding  the  army  in  the  field  to  which  the  division 
or  brigade  belongs.  And  in  the  latter  case,  if  the  division  or  brigade  does  not  belong 
to  a  separate  army  in  the  field,  the  commanding  general  of  the  Army  of  the  United 
States  would  be  the  proper  confirming  authority,  within  the  meaning  of  this  article. 
Dig.  Opin.  J.  A.  G.,  par.  338. 


MILITAKY    LAWS    OF   THE    UNITED    STATES.  1023 


ART.  108.  No  sentence  of  a  court-martial,  either  in 
of  peace-or  in  time  of  war,  respecting  a  general  officer  shall  rei5|CArntf  War. 
be  carried  into  execution  until  it  shall  have  been  confirmed 
by  the  President.1 

ART.  109.  All  sentences  of  a  court-martial  may  be  con-  ^8?™  Sd™ 
firmed  and  carried  into  execution  by  the  officer  ordering  inf0g°S;  war. 
the  court,  or  by  the  officer  commanding  for  the  time  being, 
where  confirmation  by  the  President  or  by  the  command- 
ing general  in  the  field  or  commander  of  the  department 

is  not  required  by  these  articles.2 

•*#*•*•*•** 

ART.  111.  Any  officer  who  has  authority  to  carry  into  ses^Penncsie°sn  $ 
execution  the  sentence  of  death  or  of  dismissal  of  an  officer  Jj^jf  or  dls" 
may  suspend  the  same  until  the  pleasure  of  the  President    m  ^rt-  War- 
shall  be  known,  and  in  such  case  he  shall  immediately 
transmit  to  the  President  a  copy  of  the  order  of  suspen- 
sion, together  with  a  copy  of  the  proceedings  of  the  court.3 

ART.  112.  Every  officer  who  is  authorized  to  order  amftf^^n  **$ 
general  court-martial  shall  have  power  to  pardon  or  miti-  seJ^yC17^1862)  c. 
gate  any  punishment  adjudged  by  it,  except  the  punish-  |°J»  s-  7-  v-  12-  P- 
ment  of  death  or  of  dismissal  of  an  officer.  Every  officer  n-  Art-  War- 
commanding  a  regiment  or  garrison  in  which  a  regimental 

jSee  the  title  "The  Reviewing  Authority"  in  the  chapter  entitled  MILITARY 
TRIBUNALS. 

2  The  One  hundred  and  tenth  Article  of  War,  originally  enacted  as  section  7  of  the 
act  of  July  27,  1862  (12  Stat.  L.,  598),  and  as  amended  by  the  act  of  July  27,  1892  (27 
Stat.  L.,  278),  was  repealed  by  the  act  of  June  18,  1898,  which  substituted  the  new 
summary   court   for  the  old  summary  court,  having  jurisdiction   for  the  trial  of 
enlisted  men  for  minor  offenses  committed  in  time  of  peace,  and  for  the  field  officers' 
court,  having  similar  jurisdiction  in  time  of  war. 

Where  the  reviewing  officer  deems  that  the  proceedings  of  the  court  are  in  any 
material  particular  erroneous  or  ill  advised,  his  proper  course  in  general  will  be  to 
reconvene  the  court  for  the  purpose  of  having  the  defect  corrected,  at  the  same  time 
furnishing  it  with  the  grounds  of  his  opinion.  Thus,  if  he  regards  the  sentence 
inadequate,  he  should,  in  reassembling  the  court  for  a  revision  of  the  same,  state  the 
reasons  why  he  considers  it  to  be  disproportionate  to  the  amount  of  criminality 
involved  in*  the  offense.  But  although  he  can  not  compel  the  court  to  adopt  his 
views  in  regard  to  the  supposed  defect,  he  may,  in  a  proper  case,  express  his  formal 
disapprobation  of  their  neglect  to  do  so.  Thus  where  a  court-martial,  on  being  recon- 
vened, with  a  view  of  giving  it  an  opportunity  to  modify  a  sentence  manifestly  too 
lenient  for  the  offense  found,  decided  to  adhere  to  the  sentence  as  adjudged,  and, 
on  being  again  reassembled  to  consider  further  grounds  presented  by  the  reviewing 
commander  for  the  infliction  of  a  severer  penalty,  again  declined  "to  increase  the 
punishment,  held  that  it  was  within  the  authority  of  the  reviewing  officer,  and  would 
be  no  more  than  proper  and  dignified  for  him,  in  taking  final  action  upon  the  case, 
to  reflect  upon  the  refusal  of  the  court  as  ill  judged  and  as  having  the  effect  to  impair 
the  discipline  and  prejudice  the  interest  of  the  military  service.  Ibid.,  par.  2231. 

3  An  officer  suspending  the  execution  of  a  sentence  for  the  action  of  the  President 
under  this  article  should  first  formally  approve  the  same.     Simply  to  forward  the 
proceedings,  stating  that  the  sentence  has  been  suspended,  is  incomplete  and  irregute  r. 
If  the  commander  dix<tj>i>i'orei!  the  sentence,  he  should  not,  of  course,  suspend  and 
trasmit  under  this  article,  since  there  remains  nothing  for  the  President  to  act  upon. 
Ibid.,  par.  389. 

Where  a  case  is  submitted  to  the  President  for  his  action  under  this  article,  he 
may  approve  or  disapprove  the  sentence  in  whole  or  in  part,  and,  if  approving,  may 
exercise  the  power  of  remission  or  mitigation.  Ibid.,  par.  340. 


MILITARY    LAWS    OF    THE    UNITED    STATES. 

or  garrison  court-martial  may  be  held,  shall  have  power 
to  pardon  or  mitigate  any  punishment  which  such  court 
may  adjudge.1 

foward3idin  to     ART-  113-  Every  judge-advocate,  or   person  acting  as 

General  >dvocate  "  such,  at  any  general  court-martial,  shall,  with  as  much 

2oiluss  sV^iS'  expedition  as  the  opportunity  of   time  and   distance   of 

us  Art.  w»r.  pjace  may  admit,  forward  the  original  proceedings  and 

sentence  of  such  court  to  the  Judge-Advocate-General  of 

the  Army,  in  whose  office  they  shall  be  carefully  preserved.2 

to^acopyentitled     ART.  114.  Every  party  tried  by  a  general  court-martial 

114  In.  war.  ghgj^  upon  demand  thereof,  made  by  himself  or  by  any 

person  in  his  behalf,  be  entitled  to  a  cop}^  of  the  proceed- 

ings and  sentence  of  such  court.2 

qu^ry,rthow  or-  ART.  115.  A  court  of  inquiry,  to  examine  into  the  nature 
115'  Art.  war.  of  any  transaction  of,  or  accusation  or  imputation  against, 
any  officer  or  soldier,  may  be  ordered  by  the  President  or 
by  any  commanding  officer;  but,  as  courts  of  inquiry  may 
be  perverted  to  dishonorable  purposes,  and  may  be  em- 
ployed, in  the  hands  of  weak  and  envious  commandants, 
as  engines  for  the  destruction  of  military  merit,  they  shall 
never  be  ordered  by  any  commanding  officer,  except  upon 
a  demand  by  the  officer  or  soldier  whose  conduct  is  to  be 
inquired  of.3 
Members  of  ART.  116.  A  court  of  inquiry  shall  consist  of  one  or 

court  of  inquiry.  J 

116  Art.  war.  mOre  officers,    riot   exceeding   three,   and  a  recorder,   to 

reduce  the  proceedings  and  evidence  to  writing.8 

be^S5i0re?ord"     ART.  117.  The   recorder   of   a   court   of   inquiry  shall 
®ug!ycourt  of  in~  admin  ister   to   the   members  the   following   oath:  "  You 

117  Art.  war.  wen  and  truly  examine  and  inquire,  according  to  the 


evidence,  into  the  matter  now  before  you,  without  partiality  ', 
favor,  affection,  prejudice,  or  hope  of  reward:  So  help  you 
God.  "  After  which  the  president  of  the  court  shall  admin- 
ister to  the  recorder  the  following  oath:  "  You,  A  B,  do 
swear  that  you  will,  according  to  your  best  abilities,  accu* 
rately  and  impartially  record  the  proceedings  of  the  court 
and  the  evidence  to  be  given  in  the  case  in  hearing:  So  help 
you  God.™ 

ta*SSSfanSi      ART-  118t  A  court  of  inquiry,  and  the  recorder  thereof, 

<iuiry-  shall  have  the  same  power  to  summon  and  examine  wit- 

nesses as  is  given  to  courts-martial  and  the  judge-advocates 

!See  the  title,  "  The  Reviewing  Authority,"  in  the  chapter  entitled  MILITARY  TRIBU- 
NALS. Sec.  5  of  the  act  of  July  27,  1892  (27  Stat.  L.,  281),  provides  "that  com- 
manding officers  authorized  to  approve  the  sentences  of  summary  courts  shall  have 
the  power  to  remit  or  mitigate  the  same."  See  also  note  to  par.  2,  "The  pardoning 
power." 

3  See  the  title,  "  The  Record,"  in  the  chapter  entitled  MILITARY  TRIBUNALS. 

3  See  the  title,  "  Courts  of  Inquiry,"  in  the  chapter  entitled  MILITARY  TRIBUNALS. 


MILITAKY    LAWS    OF   THE    UNITED   STATES.  1025 

thereof.     Such  witnesses  shall  take  the  same  oath  which  75Msa273'v18§p; 
is   taken    by  witnesses  before   courts-martial,1    and    the  ^9^a^^'v18g; 
party  accused  shall  be  permitted  to  examine  and  cross- P'/fgirt .war. 
examine  them,  so  as  fully  to  investigate  the  circumstances 
in  question.2 

ART.  119.  A  court  of  inquiry  shall  not  give  an  opinion  g£$™i™'' when 
on  the  merits  of  the  case  inquired  of   unless   specially    119Art- War- 
ordered  to  do  so.2 

ART.  120.  The  proceedings  of  a  court  of  inquiry  must  be  tionUo?proceed- 
authenticated  by  the  signatures  of  the  recorder  and  the  {^.of  court  of 
president  thereof,    and    delivered    to    the    commanding    120Art-War- 
officer.2 

ART.  121.  The  proceedings  of  a  court  of  inquiry  may  be  co^Hfe1Jfqgusir°yf 
admitted  as  evidence  by  a  court-martial,  in  cases  not  capi- 
tal nor  extending  to  the  dismissal  of  an  officer:  Provided, 
That  the  circumstances  are  such  that  oral  testimony  can 
not  be  obtained.2 

ART.  122.  If,  upon  marches,  guards,  or  in  quarters,  dif- 
ferent corps  of  the  Army  happen  to  join  or  do  duty  together,  9JJP8  happen  to 
the  officer  highest  in  rank  of  the  line  of  the  Army,  Marine    122  Art- War* 
Corps,  or  militia,  by  commission,  there  on  duty  or  in  quar- 
ters, shall  command  the  whole,  and  give  orders  for  what  is 
needful  to  the  service,  unless  otherwise  specially  directed 
by  the  President,  according  to  the  nature  of  the  case.3 
.  ART.  123.  In  all  matters  relating  to  the  rank,  duties,  v5urSeer    oS?- 
and  rights  of  officers,  the  same  rules  and  regulations  shall  ^lingQ  assanJo 
apply  to  officers  of  the  Regular  Army  and  to  volunteers  raMa're2C'i867  c 
commissioned  in,  or  mustered  into  said  service,  under  the^'8-2'  v-14»  P- 
laws  of  the  United  States,  for  a  limited  period.3  123  Art.  war. 

ART.  124.  Officers  of  the  militia  of  the  several  States, 
when  called  into  the  service  of  the  United  States,  shall  on 
all  detachments,  courts-martial,  and  other  duty  wherein  unjjfaerr  ^mi 
they  m&y  be  employed  in  conjunction  with  the  Regular  or  ^  s-  2>  v- 14>  P- 
Volunteer  forces  of  the  United  States,  take  rank  next  after    124  Art- War- 
all  officers  of  the  like  grade  in  said  Regular  or  Volunteer 
forces,  notwithstanding  the  commissions  of  such  rnilitia 
officers  may  be  older  than  the  commissions  of  the  said  offi- 
cers of  the  Regular  or  Volunteer  forces  of  the  United 
States.3 

ART.  125<  In  case  of  the  death  of  any  officer,  the  niajorce^cee^|^g  °m" 
of  his  regiment,  or  the  officer  doing  the  major's  duty,  or    125  Art.  war. 
the  second  officer  in  command  at  any  post  or  garrison,  as 

1  So  in  the  roll. 

2  See  the  title  "  Courts  of  Inquiry,"  in  the  chapter  entitled  MILITARY  TRIBUNALS. 

3  See  chapter  entitled  RANK  AND  COMMAND,  ETC. 

22924—08 65 


1026  MILITARY    LAWS    OF   THE    UNITED   STATES. 

the  case  may  be,  shall  immediately  secure  all  his  effects 
then  in  camp  or  quarters,  and  shall  make  and  transmit 
to  the  office  of  the  Department  of  War,  un  inventory 
thereof. l 

dieres?ee^ts.so1"  ART-  126.  In  case  of  the  death  of  any  soldier,  the  com- 
ae Art.  war.  man(jjng.  officer  of  his  troop,  battery,  or  company  shall 
immediately  secure  all  his  effects  then  in  camp  or  quar- 
ters, and  shall,  in  the  presence  of  two  other  officers, 
make  an  inventory  thereof,  which  he  shall  transmit  to  the 
office  of  the  Department  of  War. 

ce?sffedctoffifcedres     ART-  12^-  Officers  charged  with  the  care  of  the  effects 
be  accounted  fo?  °^  deceased  officers  or  soldiers  shall  account  for  and  deliver 
127  Art.  war.  faQ  same,  or  the  proceeds  thereof,  to  the  legal  representa- 
tives of  such  deceased  officers  or  soldiers.     And  no  officer 
so  charged  shall  be  permitted  to  quit  the  regiment  or  post 
until  he  has  deposited  in  the  hands  of  the  commanding 
officer  all  the  effects  of  such  deceased  officers  or  soldiers 
not  so  accounted  for  and  delivered.2 

toAbeTub°iishedr     ART*  128'  The  foregoing  articles  shall  be  read  and  pub- 
months  to  every  ^sne^  once  m  every  six  months,  to  every  garrison,  regi- 
ref2meArt.ewar.  ment?  troop,  or  company  in  the  service  of  the  United  States, 
and  shall  be  duly  observed  and  obeyed  by  all  officers  and 
soldiers  in  said  service. 

ip^io  isoe  c      ^EC*  1343.   All  persons  who,  in  time  of  war,  or  of  rebel- 
37i-SFeb  Is  18^2'  ^on  agamst  the  supreme  authority  of  the  United  States, 
a402-5Mar  1$  ^sea' sna^  ^e  f  ound  lurking  or  acting  as  spies,  in  or  about  any 
P.'?!?  s'  ^' v<  12'  °*  ^e  fortifications,  posts,  quarters,  or  encampments  of 
any  of  the  armies  of  the  United  States,  or  elsewhere,  shall 
be  triable  by  a  general  court-martial,  or  by  a  military  com- 
mission, and  shall,  on  conviction  thereof,  suffer  death. 

1  See  the  title  "Deceased  Officers,'1  in  the  Chapter  entitled  COMMISSIONED  OFFICERS. 

2  This  article,  in  connection  with  the  two  preceding  articles,  provides  for  the  securing 
of  the  effects  of  deceased  officers  and  soldiers,  making  inventory  of  the  same,  and 
accounting  for  them  to  the  proper  legal  representative,  etc.     These  articles  have 
special  reference  to  cases  of  deaths  of  military  persons  while  in  active  service  in  the 
field  or  at  remote  military  posts,  and  their  provisions  apply  only  to  such  effects  as 
are  left  by  the  deceased  "in  camp  or  quarters."     See  articles  125  and  126.     An 
attempt  by  the  commander,  etc. ,  to  secure  effects  left  elsewhere  would  not  be  within 
the  authority  here  given  and  might  subject  the  officer  to  the  liability  of  an  admin- 
istrator; such  a  proceeding  would  not  therefore  be  advisable,  (a)     Upon  accounting 
to  the  duly  qualified  legal  representative,  as  directed  in  the  article,  the  responsibility 


remains  at  the  request  of  his  relatives,  were  sent  to  them  on  a  Mississippi  steamboat. 
Wages  being  due  to  the  employee  at  the  time  of  his  death,  the  disbursing  officer 
paict  out  of  these  the  charges  of  the  transportation  and  turned  over  the  balance  to 
the  man's  heirs.  Held,  in  view  of  the  tenor  and  effect  of  this  article,  that  the  dis- 
position of  the  funds  in  this  case  was  erroneous,  and  that  the  full  wages  due  (with- 
out deduction)  should  have  been  accounted  for  to  the  "legal  representatives"  of  the 
deceased.  Ibid.,  140,  par.  2. 

a  Compare  Samuel,  669;  Hough  (Practice),  558. 


APPENDICES. 

i       1.  THE  GENEVA  CONVENTION  OF  1864. 

II.  ADDITIONAL  ARTICLES  OF  OCTOBER  20,  1868. 
III.  ADDITIONAL  AGREEMENT  OF  JULY  29, 1899,  FOR  THE  ADAPTATION 
OF  THE  RULES  OF  THE  GENEVA  CONVENTION  TO  MARITIME 
WARFARE. 

IV.  THE  AMERICAN  NATIONAL  RED  CROSS. 

V.  THE  ARMY  REORGANIZATION  ACT  OF  FEBRUARV  2,  1901. 
VI.  MAXIMUM  PUNISHMENT  ORDER. 

VII.  INSTRUCTIONS  FOR  THE  GOVERNMENT  OF  THE  ARMIES  OF  THE 
UNITED   STATES  IN  THE  FIELD  (GENERAL  ORDERS  No.  100, 
WAR  DEPARTMENT,  OF  1863). 
VIII.  CIVIL  SERVICE  RULES. 


1027 


TREATIES,  CONVENTIONS,  AND  AGREEMENTS. 


AMELIORATION  OF  THE  CONDITION  OF  THE  WOUNDED 
IN  TIME  OF  WAR. 

Convention  between  the  United  States,  Baden,  Switzerland,  Aus-'22' 1864- 
Belgium,  Denmark,  Spain,  France,  Hesse,  Italy,  Neth- 
erlands, Portugal,  Prussia,  Wurtemberg,  Sweden,  Greece, 
Great  Britain,  Mecklenburg -Schwerin,  Turkey,  Bavaria, 
Austria,  Russia,  Persia,  Roumania,  Salvador,  Montene- 
gro, Servia,  Bolivia,  Chili,  Argentine  Republic,  Japan 
and  Peru;  with  additional  articles:  For  the  amelioration 
of  the  wounded  in  armies  in  the  field;  concluded  August 
22,  1864,;  acceded  to  ly  the  President  March  1, 1882;  ac- 
cession concurred  in  by  the  Senate  March  16,  1882;  pro- 
claimed as  to  the  original  convention,  hut  with  reserve  as 
to  the  additional  articles,  July  26,  1882. 1 


President's  ratification  of  the  act  of  accession,  as  transmitted  to  Berne  and 
exchanged  for  the  ratifications  of  the  other  signatory  and  adhesory  powers,  embraces 
the  French  text  of  the  convention  of  August  22,  1864,  and  the  additional  articles  of 
October  20,  1868.  The  French  text  is  therefore,  for  all  international  purposes,  the 
standard  one. 

The  several  contracting  parties  to  the  said  convention  exchanged  the  ratifications 
thereof  at  Geneva,  on  the  22d  day  of  June,  1865. 

The  several  states  hereinafter  named  have  signified  their  adherence  to  the  above 
convention,  in  virtue  of  Article  IX,  on  the  dates  as  noted  in  the  following  list: 

Sweden  December  13,  1864. 

Greece January  5-17,  1865. 

Great  Britain February  18,  1865. 

Mecklenburg-Schwerin March  9,  1865. 

Turkey July  5,  1865. 

Wurtemberg June  2,  1866. 

Hesse June  22,  1866. 

Bavaria June  30,  1866. 

Austria July  21,  1866. 

Russia May  10-22,  1867. 

Persia t December  5,  1874. 

Roumania November  18-30,  1874. 

Salvador December  30,  1874. 

Montenegro November  17-29,  1875. 

Servia March  24,  1876. 

Bolivia October  16,  1879. 

Chili November  15,  1879. 

Argentine  Republic November  25,  1879. 

Peru April  22,  1880. 

1029 


1080 


MILITARY    LAWS    OF    THE    UNITED   STATES. 


ARTICLE    I.    Ambulances 
prot°erc1ednandand  military  hospitals  shall 
etc.1  d  inviolate-  be  acknowledged  to  be  neu- 
ter, and,  as  such,  shall  be 
protected  and  respected  b}^ 
belligerents  so  long  as  any 
sick    or    wounded    may   be 
therein. 

Exception.  Such  neutrality  shall  cease 
if  the  ambulances  or  hospi- 
tals should  be  held  by  a  mil- 
itary force. 

etc%Pspected  as     ART' IL  Persons  employed 
neutrals.  jn  hospitals  and  ambulances, 

comprising  the  staff  for  su- 
perintendence, medical  serv- 
ice,administration, transport 
of  wounded,  as  well  as  chap- 
lains, shall  participate  in  the 
benefit  of  neutrality,  whilst 
so  employed,  and  so  long  as 
there  remain  any  wounded  to 
bring  in  or  to  succor. 

II.  The  persons  des- 


article  may,  even  after  occu- 
pation by  the  enemy,  con- 
tinue to  fulfill  their  duties  in 
the  hospital  or  ambulance 
which  the}r  serve,  or  may 
withdraw  in  order  to  rejoin 
the  corps  to  which  they 
belong. 

Under  such  circumstances, 
when  these  persons  shall 
cease  from  their  functions, 
they  shall  be  delivered  by  the 
occupying  army  to  the  out- 
posts of  the  enemy. 

ART.    IV.  As   the   equip- 

pr^pertyoniy.tement  of  military  hospitals 
remains  subject  to  the  laws 
of  war,  persons  attached  to 
such  hospitals  can  not,  in 
withdrawing. cany  away  any 


ARTICLE  I.  Les  ambu- 
lances et  les  hopitaux  niili- 
taires  seront  reconnus  neu- 
tres,  et,  comme  tels,  proteges 
et  respectes  par  les  bellige- 
rants  aussi  longtemps  qu'il 
s'y  trouvera  des  malades  ou 
des  blesses. 

La  neutralite  cesserait,  si 
ces  ambulances  ou  ces  hopi- 
taux etaient  gardes  par  une 
force  militaire. 

ART.  II.  Le  personnel  des 
hopitaux  et  des  ambulances, 
comprenant  1'intendance,  les 
services  de  sante,  d'adminis- 
tration,  de  transport  des 
blesses,  ainsi  que  les  aumo- 
niers,  participera  au  benefice 
de  la  neutralite  lorsqu'il 
fonctionnera,  et  tant  qu'il 
restera  des  blesses  a  relever 
ou  a  secourir. 

ART.  III.  Les  personnes 
designees  dans  1'article  pre- 
ce*dentpourront,  memeapres 
Poccupation  par  Fennemi, 
continuer  a  remplir  leurs 
fonctions  dans  1'hopital  ou 
Tambulance  qu'elles  desser- 
vent,  ou  se  retiror  pour  re- 
joindre  le  corps  auquel  elles 
appartien  nent . 

Dans  ces  circonstances, 
lorsque  ces  personnes  cesse- 
ront  leurs  fonctions,  elles 
seront  remises  aux  avant- 
postes  ennemis,  par  les  soins 
de  1'armee  occupante. 

ART.  IV.  Le  materiel  des 
hopitaux  militaires  demeu- 
rant  soumis  aux  lois  de  la 
guerre,  les  personnes  at- 
taches a  ces  hopitaux  en 
pourront,  en  se  retirant,  em- 


MILITARY    LAWS    OF    THE    UNITED    STATES. 


1031 


articles  but  such  as  are  their 
private  property. 

Under  the  same  circum- 
stances an  ambulance  shall, 
on  the  contrary,  retain  its 
equipment. 

ART.  V.  Inhabitants  of  the 
country  who  may  bring  help 
to  the  wounded  shall  be  re- 
spected, and  shall  remain 
free.  The  generals  of  the 
belligerent  Powers  shall 
make  it  their  care  to  inform 
the  inhabitants  of  the  appeal 
addressed  to  their  humanity, 
and  of  the  neutrality  which 
will  be  the  consequence  of  it. 

Any  wounded  man  enter- 
tained and  taken  care  of  in 
a  house  shall  be  considered 
as  a  protection  thereto.  Any 
inhabitant  who  shall  have 
entertained  wounded  men  in 
his  house  shall  be  exempted 
from  the  quartering  of 
troops,  as  well  as  from  a  part 
of  the  contributions  of  war 
which  may  be  imposed. 

ART.  VI.  Wounded  or  sick 
soldiers  shall  be  entertained 
and  taken  care  of,  to  what- 
ever nation  they  may  belong. 

Commanders-in-chief  shall 
have  the  power  to  deliver 
immediately  to  the  outposts 
of  the  enemy  soldiers  who 
have  been  wounded  in  an 
engagement,  when  circum- 
stances permit  this  to  be 
done,  and  with  the  consent 
of  both  parties. 

Those  who  are  recognized, 
after  their  wounds  are 


porter  que  les  objets  qui  sont 
eur  propriete  particuliere. 

Dans  les  rnemes  circon- 
stances,  aucontraire,  1'ambu- 
lance  conservera  son  mate*- 
riel. 

ART.  V.   Les  habitants  du    Persons   serv- 

ing the  wounded 
pays    qui    porteront    SeCOUrS  to  remain  free. 

aux  blesses  seront  respecte*s, 
et  demeureront  libres.  Les 
ge*neraux  des  Puissances 
belligerantes  auront  pour 
mission  de  prevenir  les  habi- 
tants de  Pappel  fait  a  leur 
humanite,  et  de  la  neutralite 
qui  en  sera  la  consequence. 


Tout  blesse  recueilli  et 
soigne  dans  une  rnaison  J  Defected  to 
s  e  r  v  i  r  a  de  sauvegarde. 
L'habitant  qui  aura  recueilli 
chez  lui  des  blesses  sera  dis- 
pense du  logement  des 
troupes,  ainsi  que  d'une 
partie  des  contribution?  de 
guer  ue  qui  seraient  impose*es. 


ART.    VI.    Les  militaires    soldiers  sick  or 

wounded  of  any 

blesses   ou    malades    seront  nation  t(>be  re- 

heved  and  cared 

recueilhs  et  soignes,  a  quel-  for 
que  nation  qu'ils  appartien- 
dront. 

Les  Commandants-en-chef  Del*vei  of 
auront  la  faculte  de  remettre 
immediatement  aux  avant- 
postes  ennemis,  les  militaires 
blesses  pendant  le  combat, 
lorsque  les  circonstances  le 
permettront  et  du  consente- 
ment  des  deux  partis. 


, 

wounded,  etc. 


Seront  renvoyes  dans  leurs  pf  °}$*  fedinf°0a; 
pays  ceux  qui,  apres  gu6ri-ff0^etobe8ent 


1032 


MILITARY    LAWS    OF   THE    UNITED   STATES. 


healed,  as  incapable  of  serv-    son,    seront   reconnus   inca- 
ing,  shall    be  sent   back  to    pables  de  servir. 


their  country. 

returnndltkms  °f  Theothersmay  also  be  sent 
back,  on  condition  of  not 
again  bearing  arms  during 
the  continuance  of  the  war. 


Rv"""»1  i  on  >i 
etc..  10.  aveabMi 
lute  neutrality. 


Hospital,  am- 
bulance, and 
evacuation  flag, 
etc.  - 


Arm- badge. 


Flag  and  arm- 
badge  to  bear  red 
cross,  etc. 


Execution  of 
details  of  con- 
vention. 


Evacuations,  together  with 
the  persons  under  whose  di- 
rections they  take  place,  shall 
be  protected  by  an  absolute 
neutrality. 

ART.  VII.  A  distinctive 
and  uniform  flag  shall  be 
adopted  for  hospitals,  ambu- 
lances and  evacuations.  It 
must,  on  every  occasion,  be 
accompanied  by  the  national 
flag.  An  arm-badge  (bras- 
sard) shall  also  be  allowed 
for  individuals  neutralized, 
but  the  delivery  thereof  shall 
be  left  to  military  author- 
ity. 

The  flag  and  the  arnubadge 
shall  bear  a  red  cross  on  a 
white  ground. 

ART.  VIII.  The  details  of 
execution  of  the  present  con- 
vention shall  be  regulated 
by  the  commanders-in -chief 
of  belligerent  armies, accord- 
ing to  the  instructions  of 
their  respective  govern- 
ments,and  in  conformity  with 
the  general  principles  laid 
down  in  this  convention.1 


Les  autres  pourront  etre 
egalement  renvoyes,  a  la  con- 
dition de  ne  pas  reprendre 
les  armes  pendant  la  dureV 
de  la  guerre. 

Les  evacuations,  avec  la 
personnel  qui  les  dirige, 
seront  co'uvertes  par  une 
neutral  ite  absolue. 

ART.  VII.  Un  drapeau  dis- 
tinctif  et  uniforme  sera 
adopte  pour  les  hopitaux,  les 
ambulances  et  les  evacua- 
tions. II  devra  etre,  en  toute 
circonstance,  accompagne  du 
drapeau  national.  Un  bras- 
sard sera  egalement  admis 
pour  le  personnel  neutralise, 
mais  la  delivrance  en  sera 
laissee  a  Pautorite  militaire. 

Le  drapeau  et  le  brassard 
porteront  croix  rouge  sur 
fond  blanc. 

ART.  VIII.  Les  details 
d'execution  de  la  presente 
convention  seront  regies  par 
les  Commandants  en  chef 
des  armees  belligerantes,  d'a- 
pres  les  instructions  de  leurs 
Gouvernements  repectifs,  et 
conformement  aux  principes 
generaux  enonces  dans  cette 
convention. 


REGULATIONS. 

1.  All  persons  connected  with  the  Medical  Department  of  the  Army  in  the  field. 
or  referred  to  in  Article  II  of  the  treaty,  shall  wear  habitually  during  the  war,  on 
the  left  sleeve  of  the  coat,  midway  between  the  shoulder  and  elbow,  a  brassard  or 
arm  badge,  consisting  of  a  red  cross  on  a  white  ground. 

2.  All  hospitals,  ambulances,  and  field  stations  of  the  Medical  Department  will 
habitually  display  the  Red  Cross  flag  accompanied  by  the  national  flag. 

3.  Permits,  in  duplicate,  for  civilians  to  be  present  with  the  Army  in  the  service 
of  the  Medical  Department  may  be  given  by  authority  of  a  division  commander;  one 


MILITARY    LAWS    OF    THE    UNITED   STATES. 


1033 


ART.  IX.  The  high  con- 
tracting Powers  have  agreed 
to  communicate  the  present 
convention  to  those  Govern- 
ments which  have  not  found 
it  convenient  to  send  pleni- 
potentiaries to  the  Interna- 
tional Conference  at  Geneva, 
with  an  invitation  to  accede 
thereto;  the  protocol  is  for 
that  purpose  left  open. 

ART.  X.  The  present  con- 
vention shall  be  ratified,  and 
the  ratifications  shall  be  ex- 
changed at  Berne,  -in  four 
months,or  sooner, if  possible. 

In  faith  whereof  the  respec- 
tive Plenipotentiaries  have 
signed  it  and  have  affixed 
their  seals  thereto. 

Done  at  Geneva,  the 
twenty-second  day  of  the 
month  of  August  of  the  year 
one  thousand  eight  hundred 
and  sixty -four. 
[L.  s.]  General  G.  H.  Du- 

FOUR. 

[L.  s.J  G.  MOYNIER. 
[L.  s.]  Dr.  LEHMANN. 
[L.  s.]  Dr.  ROBERT  VOLZ. 
[L.  s.]  STEINER. 


Protocol  to  re- 
main open,  etc. 

Ratification. 


ART.  IX.  Les  hautes  Puis- 
sances  contractantes  sont  ^Jj 
convenues  de  communiquer  to  convention 
la  presente  convention  aux 
Gouvernements  qui  n'ont  pu 
envoyer  des  Plenipoten- 
tiaires  a  la  Conference  inter- 
nationale  de  Geneve,  en  les 
invitant  a  y  acceder;  le 
protocole  est  a  cet  eff'et  laisse 
ouvert. 

ART.  X.  La  presente  con- 
vention  sera  ratified,  et 
les  ratifications  en  seront 
echangees  a  Berne,  dans 
1'espace  de  quatre  mois,  ou 
plus  tot  si  faire  se  peut. 

En  foi  de  quoi  les  Plenipo-    signatures. 
tentiaires     respectifs     1'ont 
signee   et   y  ont   appose  le 
cachet  de  leurs  armes. 

Fait  a  Geneve,  le  vingt- 
deuxieme  jour  du  mois  d'aout 
de  Pan  mil  huit-cent  soixante- 
quatre. 

[L.  s.]  General    G.    H.   Du- 

FOUR. 

[L.  s.]  G.  MOYNIER. 
[L.  s.]  Dr.  LEHMANN. 
[L.  s.]  Dr.  ROBERT  VOLZ. 
[L.  s.]  STEINER. 


cer° 


copy  of  the  permit  will  be  retained  by  the  person  neutralized  and  its  duplicate 
should  be  forwarded  promptly  to  the  Chief  Surgeon  of  the  Army. 

4.  Persons  neutralized  under  this  authority  will  report  themselves  at  once  to  the 
chief  surgeon  of  division  for  instructions. 

5.  The  wearing  of  the  arm  brassard  by  any  person  not  officially  neutralized  is  pro- 
hibited.    G.  0.  47,  A.  G.  O.,  1898. 

Hospital  ships. — The  following  instructions  were  also  promulgated  in  respect  to  the 
hospital  ship  Relief: 

"The  steamship  recently  purchased  for  the  use  of  the  Medical  Department  of  the 
Army  as  a  hospital  ship  will  be  named  the  Relief.,  In  accordance  with  the  terms  of 
the  Geneva  Convention  the  Geneva  Cross  flag  will  be  carried  at  the  fore  whenever 
the  national  flag  is  flown,  and  the  neutrality  of  the  vessel  will  at  all  times  be  pre- 
served. 

"  No  guns,  ammunition,  or  articles  contraband  of  war,  except  coal  or  stores  neces- 
sary for  the  movement  of  the  vessel,  shall  be  placed  on  board;  nor  shall  the  vessel 
be  used  as  a  transport  for  the  carrying  of  dispatches,  officers  or  men  not  sick  or  dis- 
abled, other  than  those  belonging  to  the  Medical  Department."  G.  O.fiS,  A.  G.  O., 
1898. 

Similar  instructions  were  also  issued  by  the  United  States  Navy  Department. 


1084 


MILITARY    LAWS    OF    THE    UNITED   STATES. 


[L.  s.  ]  VISSCHERS.  [L.  s.J 

|L.  s.]  FENGER.  [L.  s.] 

[L.  s.]  J.    HERIBERTO    GAR-  L.  s.J 

CIA  DE  QUEVEDO. 

[L.  s.J  OH.  JAGERSCHMIDT.  [L.  s.] 

[L.  s.]  S.  DE  PREVAL.  [L.  s.] 

[-L,  8.]    BOUDIER.  [L.  S.} 

[L.  S.]    BRODRUCK.  [L.  S.J 

[»L.  s.]  CAPELLO.  [L.  s.] 

[L.  s.]  F.  BAROFFIO.  [L.  s.] 

[L.  s.]  WESTENBERG.  [L.  s.] 

[L.  s.J  Josri  ANTONIO  MAR-  [L.  s.] 

QUES. 

[L.  s.]  DE  KAMPTZ.  [L.  s.J 

[L.  S.J    LCEFFLER.  [L.  S.] 

[L.  s.J  BITTER.  [L.  s.J 

[L.  s.J  Dr.  HAHN.  [L.  s.] 


VISSCHERS. 

FENGER. 

J.  HERIBERTO  GAR- 
CIA DK  QUEVEDO. 

CH.  JAGERSCHMIDT. 

S.  DE  PREVAI,. 

BOUDIER. 

BRODRUCK. 

CAPELLO. 

F.  BAROFFIO. 

WESTENBERG. 

Jos£  ANTONIO  MAR- 
QUES. 

DE  KAMPTZ. 

LCEFFLER. 

RITTER. 

Dr.  HAHN. 


ADDITIONAL    ARTICLES. 


Proposed  ex-      The  governments  of  North  Ger- 
tension  of  provi- 
sions of  conven-  many,    Austria,    Baden,    Bavaria. 

thenseaam  ™  Belgium,  Denmark,  France,  Great 
Britain,  Italy,  the  Netherlands, 
Sweden  and  Norway,  Switzerland, 
Turkey,  and  Wiirtemburg,  desir- 
ing to  extend  to  armies  on  the  sea 
the  advantages  of  the  Convention 
concluded  at  Geneva  the  22d  of 
August,  1864,  for  the  amelioration 
of  the  condition  of  wounded  sol- 
diers in  armies  in  the  field,  and  to 
further  particularize  some  of  the 
stipulations  of  the  said  Conven- 
tion, have  named  for  their  com- 
missioners: 

ARTICLE  I.  The    persons    desig- 
nated  in  Article  II.  of  the  Conven- 

bulances;    their  tkm  shall,  after  the  occupation  hv 
release  and   de-  J 

parture.  the  enemy,  continue  to  fulfil  their 

duties,  according  to  their  wants, 
to  the  sick  and  wounded  in  the 
ambulance  or  the  hospital  which 
they  serve.  When  they  request  to 
withdraw,  the  commander  of  the 
occupying  troops  shall  fix  the  time 
of  departure,  which  he  shall  only 


Rights  of  em 


Les  Gouvernements  de  1'Alle- 
magne  du  Nord,  de  FAutriche, 
Bade,  la  Baviere,  la  Belgique,  le 
Danemark,  la  France,  la  Grande 
Bretagne,  F  Italic,  les  Pays-Bas, 
Suede  et  Norv6ge,  la  Suisse,  la 
Turquie,  le  Wurtemberg,  d^sirant 
£tendre  aux  armies  de  mer  les 
avantages  de  la  Convention  con- 
clue  a  Geneve,  le  22  aout  1864,  pour 
F  amelioration  du  sort  des  mili- 
taires  blesses  dans  les  armees  en 
campagne,  et  preciser  da  vantage 
quelques-unes  des  stipulations  de 
la  dite  Convention,  ont  nomme 
pour  leurs  Commissaires: 

ARTICLE  I.  Le  personnel  design^ 
dans  F  article  deux  de  la  Conven- 
tion continuera,  apres  F  occupation 
par  Fennemi,  a  donner  dans  la 
mesure  des  besoins,  ses  soins  aux 
malades  et  aux  blesses  de  Farnbu- 
lance  on  de  Fh6spital  qu'il  dessert. 
Lorsqu'il  demanderaa  se  retirer, 
le  commandant  des  troupes  occu- 
pantes  fixera  le  moment  de  ce  de- 
part, qu'il  ne  pourra  toutefois 


1  On  the  20th  of  October,  1868,  the  above  additional  articles  were  proposed  and 
signed  at  Geneva  on  behalf  of  Great  Britain,  Austria,  Baden,  Bavaria,  Belgium,  Den- 
mark, France,  Italy,  Netherlands,  North  Germany,  Sweden  and  Norway,  Switzer- 
land, Turkey,  and  Wurtemberg. 


MILITARY    LAWS    OF    THE    UNITED    STATES. 


1035 


be  allowed  to  delay  for  a  short 
time  in  case  of  military  necessity. 

ART.  II.  Arrangements  will  have 
to  be  made  by  the  belligerent  pow- 
ers to  ensure  to  the  neutralized1 
person,  fallen  into  the  hands  of  the 
army  of  the  enemy,  the  entire  en- 
joyment of  his  salary. 

ART.  III.  Under  the  conditions 
provided  for  in  Articles  I.  and  IV. 
of  the  Convention,  the  name  "am- 
bulance ' ' ]  applies  to  field  hospitals 
and  other  temporary  establish- 
ments, which  follow  the  troops  on 
the  field  of  battle  to  receive  the 
sick  and  wounded. 

ART.  IV.  In  conformity  with  the 
spirit  of  Article  V.  of  the  Conven- 
tion, and  to  the  reservations  con- 
tained in  the  protocol  of  1864,  it  is 
explained  that  for  the  appointment 
of  the  charges  relative  to  the  quar- 
tering of  troops,  and  of  the  con- 
tributions of  war,  account  only 
shall  be  taken  in  an  equitable 
manner  of  the  charitable  zeal  dis- 
played by  the  inhabitants. 

ART.  V.  In  addition  to  Article 
VI.  of  the  Convention,  it  is  stipu- 
lated that,  with  the  reservation  of 
officers  whose  detention  might  be 
important  to  the  fate  of  arms  and 
within  the  limits  fixed  by  the  sec- 
ond paragraph  of  that  article,  the 
wounded  fallen  into  the  hands  of 
the  enemy  shall  be  sent  back  to 
their  country,  after  they  are  cured, 
or  sooner  if  possible,  on  condition, 
nevertheless,  of  not  again  bearing 
arms  during  the  continuance  of 
the  war. 


differer  que  pour  une  courte  dureV 
en  cas  de  ne"cessite"s  militaires. 

ART.  II.  Des  dispositions  de- 
vront  etre  prises  par  les  Puissances  in  enemy's 
belligerantes  pour  assurer  au  per- 
sonnel neutralise,  tombe"  entre  les 
mains  de  1'armee  ennemie,  la  jouis- 
sance  integrate  de  son  traitement. 

ART.   III.    Dans   les   conditions     Definition  of 

the   term    "am- 
prevues  par  les  articles  un  et  qua-  bulance." 

tre  de  la  Convention,  la  denomina- 
tion d' ambulance  s' applique  aux 
hopitaux  de  campagne  et  autres 
e"tablissements  temporaires  q  u  i 
suivent  les  troupes  sur  les  champs 
de  bataille  pour  y  recevoir  des 
malades  et  des  blesses. 

ART.  IV.  ConformSment  a  1'es- q£^^*°0J 
prit  de  1' article  cinq  de  la  Conven-  troops,  and  con- 
tion  et  aux  reserves  mentionne"es tn       >ns'  etc' 
au  Protocole  de  1864,  il  est  expli- 
que"  que   pour   la  repartition  des 
charges  relatives  au  logement  de 
troupes  et  aux   contributions  de 
guerre,  il  ne  sera  tenu  compte  que 
dans  la  mesure  de  l'equit£  du  zele 
charitable  deploye"  par  les   habi- 
tants. 

ART.  V.  Par  extension  del'arti- founded. obe 
cle  six  de  la  Convention,   il   est  country  on  con- 
stipule'  que  sous  la  reserve  des  offi-  again  "bearing 
ciers  dont  la  possession  importerait arms  in  the  war. 
au  sort  des  armes,  et  dans  les  li- 
mites  fix£es  par  le  deuxieme  para- 
graphe  de  cet  article,  les  blesses 
tombe"s  entre  les  mains  de  1'  ennemi, 
lors  meme  qu'ils  ne  seraient  pas 
reconnus  incapables  de  servir,  de- 
vront  etre  renvoyes  dans  leur  j^ays 
apres  leur  guerison,  ou  plus  tot  si 
faire  se  peut,  il  la  condition  toute- 
fois  de  ne  pas  reprendre  les  armes 
pendant  la  dur6e  de  la  guerre. 


[Articles  concerning  Hit  Marine.]          Articles  concernant  la  Marine. 


ART.  VI.  Les  embarcations  qui,     Boats  picking 
N    ,  .  ,  M  _         up     the     ship- 

si  leurs  nsques  et  perils,  pendant  wrecked      or 


ART.  VI.  The   boats   which,  at 
their  own  risk  and  peril,  during 

and  after  an  engagement  pick  up     et  apres  le  combat,  recueillent  ou  wounded'  etc- 
the  shipwrecked  or  wounded,  or    qui,  ayant  recueilli  des  naufrages 
which   having  picked    them   up,     ou  des  blesses,  les  portent  &  bord 


1This  interpretation  is  of  especial  importance  in  the  United  States,  where  the  term 
"ambulance"  is  generally  applied  to  a  vehicle  for  the  transportation  of  the  sick  and 
wounded. 


1036 


MILITARY    LAWS    OF    THE    UNITED    STATES. 


staff  of 


convey  them  on  board  a  neutral  or 
hospital  ship,  shall  enjoy,  until  the 
accomplishment  of  their  mission, 
the  character  of  neutrality,  so  far 
as  the  circumstances  of  the  engage- 
ment and  the  position  of  the  ships 
engaged  will  permit. 

The  appreciation  of  these  circum- 
stances is  entrusted  to  the  human- 
ity of  all  the  combatants.  The 
wrecked  and  wounded  thus  picked 
and  saved  must  not  serve  again 
during  the  continuance  of  the  war. 

ART-    VIL   The  reliSioUS>   med- 
a  cap-  ical,  and  hospital  staff  of  any  cap- 
tured vessel  de- ,         •,  ,  j     i        j  •, 
clared  neutral,    tured  vessel  are  declared  neutral, 

and,  on  leaving  the  ship,  may  re- 
move the  articles  and  surgical 
instruments  which  are  their  pri- 
vate property. 

ART.  VIII.  The  staff  designated 
in  the  preceding  article  must  con- 
tinue to  fulfil  their  functions  in  the 
captured  ship,  assisting  in  the  re- 
moval of  the  wounded  made  by  the 
victorious  party;  they  will  then  be 
at  liberty  to  return  to  their  coun- 
try, in  conformity  with  the  second 
paragraph  of  the  first  additional 
article. 

The  stipulations  of  the  second 
additional  article  are  applicable 
to  the  pay  and  allowance  of  the 
staff. 

Captured  hos-     ART.  IX.  The  militarv  hospital 
pital  ships  to  re-    . 
main  under  mar- ships  remain  under  martial  law  in 

a11  that  concerns  their  stores;  they 
become  the  property  of  the  captor, 
but  the  -latter  must  not  divert 
them  from  their  special  appropri- 
ation during  the  continuance  of 
the  war.1 


Duties  of  staff 
officers,  etc. 


Pay  and  allow 
ance  of  staff. 


other  purposes. 


d'un  navire  soit  neutre,  soit  hos- 
pitalier,  jouiront  jusqu'ji  1'accom- 
plissement  de  leur  mission  de  la 
part  de  neutrality  que  les  circon- 
stances  du  combat  et  la  situation 
des  navires  en  conflit  permettront 
de  leur  appliquer. 

L'appeciation  de  ces  circon- 
stances  estconfiee  a  1'humanite  de 
tous  les  combattants.  Les  nauf  ra- 
g£s  et  les  blesses  ainsi  recueillis  et 
sauves  no  pourront  servir  pendant 
la  duree  de  la  guerre. 

ART.  VII.  Le  personnel  religi- 
eux,  medical  et  hospitalier  de  tout 
batiment  capture^  est  declare  neu- 
tre. II  emporte,  en  quittant  le 
navire,  les  objets  et  les  instruments 
de  chirurgie  qui  sont  sa  propriety 
particuliere. 

*  ART.  VIII.  Le  personnel  d^signe 
dans  1'article  precedent  doit  con- 
tinuer  a  remplir  ses  fonctions  sur 
la  batiment  capture,  concourir 
aux  Evacuations  de  blesses  faites 
par  le  vainqueur,  puis  il  doit  etre 
libre  de  rejoindre  son  pays,  con- 
formement  au  second  paragraphe 
du  premier  article  additionnel  ci- 
dessus. 

Les  stipulations  du  deuxieme 
article  additionnel  ci-dessus  sont 
applicables  au  traitement  de  ce 
personnel. 

ART.  IX.  Les  batiments  hopi- 
taux  militaires  restent  soumis  aux 
lois  de  la  guerre,  en  ce  qui  concerne 
leur  materiel;  ils  deviennent  la 
propriete  du  capteur,  mais  celuici 
ne  pourra  les  d^tourner  de  leur 
affection  spe"ciale  pendant  la  duree 
de  la  guerre. 


1  In  the  published  English  text,  from  which  this  version  of  the  Additional  Articles 
is  taken,  the  following  paragraph  (marked  in  brackets)  appears  in  continuation  of 
Article  IX.  It  is  not,  however,  found  in  the  original  French  text  adopted  by  the 
Geneva  conference  October  20,  1868: 

[The  vessels  not  equipped  for  fighting,  which,  during  peace,  the  Government  shall 
have  officially  declared  to  be  intended  to  serve  as  floating  hospital  ships,  shall,  how- 
ever, enjoy  during  the  war  complete  neutrality,  both  as  regards  stores,  and  also  as 
regards  their  staff,  provided  their  equipment  is  exclusively  appropriated  to  the  special 
service  on  which  they  are  employed.] 

By  an  instruction  sent  to  the  United  States  minister  at  Berne,  January  20,  1883,  the 
right  is  reserved  to  omit  this  paragraph  from  the  English  text,  and  to  make  any 
other  necessary  corrections,  if  at  any  time  hereafter  the  Additional  Articles  shall  be 
completed  by  the  exchange  of  the  ratifications  hereof  between  the  several  signatory 
and  adhering  powers. 


MILITARY    LAWS    OF    THE    UNITED    STATES. 


1037 


ART.  X.  Any  merchantman,  to 
whatever  nation  she  may  belong, 
charged  exclusively  with  removal 
of  sick  and  wounded,  is  protected 
by  neutrality,  but  the  mere  fact, 
noted  on  the  ship's  books,  of  the 
vessel  having  been  visited  by  an 
enemy's  cruiser,  renders  the  sick 
and  wounded  incapable  of  serv- 
ing during  the  continuance  of  the 
war.  The  cruiser  shall  even  have 
the  right  of  putting  on  board  an 
officer  in  order  to  accompany  the 
convoy,  and  thus  verify  the  good 
faith  of  the  operation. 

If  the  merchant  ship  also  car- 
ries a  cargo,  her  neutrality  will 
still  protect  it,  provided  that  such 
cargo  is  not  of  a  nature  to  be  con- 
fiscated by  the  belligerents. 
• 

The  belligerents  retain  the  right 
to  interdict  neutralized  vessels 
from  all  communication,  and  from 
any  course  which  they  may  deem 
prejudicial  to  the  secrecy  of  their 
operations.  In  urgent  cases  spe- 
cial conventions  may  be  entered 
into  between  commanders-in- 
chief,  in  order  to  neutralize  tem- 
porarily and  in  a  special  manner 
the  vessel  intended  1  or  the  removal 
of  the  sick  and  wounded. 

ART.  XI.  Wounded  or  sick  sail- 
ors and  soldiers,  when  embarked, 
to  whatever  nation  they  may  be- 
long, shall  be  protected  and  taken 
care  of  by  their  captors. 

Their  return  to  their  own  coun- 
try is  subject  to  the  provisions  of 
Article  VI.  of  the  Convention,  and 
of  the  additional  Article  V. 

ART.  XII.  The  distinctive  flag 
to  be  used  with  the  national  flag, 
in  order  to  indicate  any  vessel  or 
boat  which  may  claim  the  benefits 
of  neutrality,  in  virtue  of  the 
principles  of  this  Convention,  is  a 
white  flag  with  a  red  cross.  The 
belligerents  may  exercise  in  this 
respect  any  mode  of  verification 
which  they  may  deem  necessary. 


ART.  X.  Tout  batiment  de  coin-  segm 
merce  a  quelque  nation  qu'il  ap-  hospital  duty  to 
partienne,    charge"    exclusivement 


de  blessed  et  de  malades  dont  il  enemy's  cruiser 

rendering   sick 
opere  1  evacuation,  est  convert  par  and  wounded  in- 


la  neutralite;  mais  le  fait  seul 
la  visite,  noting  sur  le  journal  du  ice- 
bord,  par  un  crosieur  ennemi,  rend 
les  blesses  et  les  malades  incapa- 
ble de  servir  pendant  la  duree  de 
la  guerre.  Le  croiseur  aura  me'me 
le  droit  de  mettre  4  bord  un  com- 
missaire  pour  accompagner  le  con- 
voi  et  verifier  ainsi  la  bonne  foi  de 
1'  operation. 

Si    le    batiment    de    commerce    Cargo  of  mer- 
contenait  en  outre  un  chargement,  feezed;  Sh\v  he  n*- 
la  neutralite  le  couvrirait  encore  Provis°- 
pourvu  que  ce  chargement  ne  fut 
pas  de  nature  a  e"tre  confisque  par 
le  bellige"rant. 

Les  bellig^rants  conservent  le  .Right  of  bel- 
droit  d'interdire  aux  batiments  hger€ 
neutralises  toute  communication 
et  toute  direction  qu'ils  jugeraient 
nuisibles  au  secret  de  leurs  opera- 
tions. Dans  les  cas  urgents,  des 
conventions  particuliSres  pourront 
etre  faites  entre  les  commandants- 
en-chef  pour  neutraliser  momenta- 
n&nentd'une  maniere  speciale  les 
na  vires  destined  a  1'  Evacuation  des 
blesses  et  des  malades. 

ART.  XI.  Les  marins  et  les  mili-     Wounded     or 

sick  sailors  and 
taires  embarques,  blesses  on  ma-  soldiers,     when 

lades,  a  quelque  nation  qu'ils  ap-  eD 
partiennent,    seront    protege's    et 
soignes  par  les  capteurs. 

Leur    repatriement  est   soumis     Return  to  na- 

fUj          j      i,   ^L-  i       •     tlve  country. 
aux  prescriptions  de  1  article  six 

de  la  Convention  et  de   1'  article 
cinq  additionnel. 

ART.  XII.  Ledrapeaudistinctifwlwhhi;te   Jiag 

a  joindre  au  pavilion  national  pour  etc.,  used  by  yes-1 

indiquer  un  navire  ou  une  embar-  neutrality.121  * 

cation  quelconque  qui  reclame  le 

benefice  de  la  neutralite,  en  vertu 

des  principes  de  cette  Convention, 

est  le  pavilion  blanc  a  croix  rouge. 

Les    belligerants    exercent  &   cet 

egard  toute  verification  qu'ils  ju- 

gent  necessaire. 


1038 


MILITARY    LAWS    OF   THE    UNITED    STATES, 


Military  hos- 
pitals painted         .         .  , 
white,  etc.  distinguished 


Military  hospital  ships  shall  be 
by  being    painted 
white  outside,  with  green  strake. 


Hospital  ships, 
etc.,  and  staff  to 
be  treated  as 
neutral. 


Flag  sign,  etc 
of  neutrality. 


Aid  and  assist- 
ance to  wounded 
and  wrecked  bel- 
ligerents, with- 
out distinction  of 
nationality. 


•  Rights  of  bel- 
ligerents to  con- 
trol and  visit  ves- 
sels, etc. 


Wounded  and 
wrecked  picked 
up,  etc.,  cai:  not 
be  reclaimed. 


ART.  XIII.  The  hospital  ships 
which  are  equipped  at  the  ex- 
pense of  the  aid  societies,  recog- 
nized by  the  governments  signing 
this  Convention,  and  which  are 
furnished  with  a  commission  ema- 
nating from  the  sovereign,  who 
shall  have  given  express  authority 
for  their  being  fitted  out,  and 
with  a  certificate  from  the  proper 
naval  authority  that  they  have 
been  placed  under  his  control  dur- 
ing their  fitting  out  and  on  their 
final  departure,  and  that  they 
were  then  appropriated  solely  to 
the  purpose  of  their  mission,  shall 
be  considered  neutral,  as  well  as 
the  whole  of  their  staff.  They 
shall  be  recognized  and  protected 
by  the  belligerents. 

They  shall  make  themselves 
known  by  hoisting,  together  with 
their  national  flag,  the  white  flag 
with  a  red  cross.  The  distinctive 
mark  of  their  staff,  while  perform- 
ing their  duties,  shall  be  an  armlet 
of  the  same  colors.  The  outer 
painting  of  these  hospital  ships 
shall  be  white,  with  red  strake. 

These  ships  shall  bear  aid  and 
assistance  to  the  wounded  and 
wrecked  belligerents,  without  dis- 
tinction of  nationality. 

They  must  take  care  not  to  in- 
terfere in  any  way  with  the  move- 
ments of  the  combatants.  Dur- 
ing and  after  the  battle  they  must 
do  their  duty  at  their  own  risk 
and  peril. 

The  belligerents  shall  have  the 
right  of  controlling  and  visiting 
them;  they  will  be  at  liberty  to 
refuse  their  assistance,  to  order 
them  to  depart,  and  to  detain 
them  if  the  exigencies  of  the  case 
require  such  a  step. 

The  wounded  and  wrecked 
picked  up  by  these  ships  cannot 
be  reclaimed  by  either  of  the  com- 


Les  batiments  hopitaux  rnili- 
taires  seront  distingu£s  par  une 
peinture  exterieure  blanche  avec 
batterie  verte. 

ART.  XIII.  Les  navires  hospita- 
liers,  equipes  aux  frais  des  soci6- 
t£s  de  secours  reconnues  par  les 
Gouvernements  signataires  de 
cette  Convention,  pourvus  de  com- 
mission emanee  du  Souverain  qui 
aura  donne  1'autorisation  expresse 
de  leur  armement,  et  d'un  docu- 
ment de  1'autorite"  maritime  com- 
pe"tente,  stipulant  qu'ils  ont  ete 
soumis  a  son  controle  pendant  leur 
armement  et  a  leur  depart  final, 
et  qu'ils  etaient  alors  uniquement 
appropri£s  au  but  de  leur  mission, 
seront  considers  comme  neutres 
ainsi  que  tout  leur  personnel.  Us 
seront  respecters  et  proteges  par 
les  belligerants. 


Us  se  leront  reconnaitre  en  his- 
sant  avec  leur  pavilion  national, 
le  pavilion  blanc  a  croix  rouge. 
La  marque  distinctive  de  leur  per- 
sonnel dans  1'exercice  de  ses  fonc- 
tions  sera  un  brassard  aux  m4mes 
couleurs;  leur  peinture  exterieure 
sera  blanche  avec  batterie  rouge. 

Ces  navires  porteront  secours  et 
assistance  aux  blesses  et  aux 
naufrag£s  des  belligerants  sans 
distinction  de  nationality. 

Us  ne  devront  gener  en  aucune 
maniere  les  mouvements  des  com- 
battants.  Pendant  et  apres  le 
combat,  ils  agiront  a  leurs  risques 
et  perils. 

Les  belligerants  auront  sur  eux 
le  droit  de  controle  et  de  visite; 
ils  pourront  refuser  leur  concours, 
leur  enjoindre  de  s'eloigner  et  les 
d6tenir  si  la  gravite  des  circon- 
stances  1'exigeait. 

Les  blessed  et  les  nauf  rages 
recueillis  par  ces  navires  ne  pour- 
ront etre  reclames  par  aucun  des 


MILITAEY    LAWS    OF   THE    UNITED    STATES. 


1039 


batants,  and  they  will  be  required 
not  to  serve  during  the  continu- 
ance of  the  war. 

ART.  XIV.  In  naval  wars  any 
strong  presumption  that  either 
belligerent  takes  advantage  of 
the  benefits  of  neutrality,  with 
any  other  view  than  the  interest 
of  the  sick  and  wounded,  gives  to 
the  other  belligerent,  until  proof 
to  the  contrary,  the  right  of  sus- 
pending the  Convention,  as  re- 
gards such  belligerent. 

Should  this  presumption  be- 
come a  certainty,  notice  may  be 
given  to  such  belligerent  that  the 
Convention  is  suspended  with  re- 
gard to  him  during  the  whole  con- 
tinuance of  the  war. 

ART.  XV.  The  present  act  shall 
be  drawn  up  in  a  single  original 
copy,  which  shall  be  deposited  in 
the  Archives  of  the  Swiss  Confed- 
eration. 

An  authentic  copy  of  this  Act 
shall  be  delivered,  with  an  invi- 
tation to  adhere  to  it,  to  each  of 
the  signatory  Powers  of  the  Con- 
vention of  the  22d  of  August, 
1864,  as  well  as  to  those  that  have 
successively  acceded  to  it. 

In  faith  whereof,  the  under- 
signed commissaries  have  drawn 
up  the  present  project  of  addi- 
tional articles  and  have  apposed 
thereunto  the  seals  of  their  arms. 

[Done  at  Geneva,  the  twentieth 
day  of  the  month  of  October,  of  the 
year  one  thousand  eight  hundred  and 
sixty-eight.]  l 

VON  B.CEDER. 
F.  LCEFFLER. 
KOHLER. 

DR.  MUNDY. 

STEINER. 

DR.  DOMPIERRE. 

VlSSCHERS. 

J.  B.  G.  GALIPFE. 

A.  COUPVENT   DBS   BoiS. 

H.  DE  PREVAL. 


combattants,  et  il  leursera  impose 
de  ne  pas  servir  pendant  la  duree 
de  la  guerre. 

ART.    XIV.    Dans    les    guerres    Rights  of  bel- 
...  ,     .  ligerents  to  sus- 

mantimes,    toute  forte    presomp-pend     conven- 
tion   que    Tun    des    belligerants tion- etc- 
profite  du  benefice  de  la  neutralite 
dans  un  autre  interet  que  celui 
des  blesses  et  des  malades,  permet 
a     P  autre     bellige>ant,      jusqu'a 
preuve  du  contraire,  de  suspendre 
la  Convention  a  son  egard. 

Si    cette    presomption    devient    Notice  of  sus- 
pension of  Con- 
une  certitude,  la  Convention  peut  vention,  etc.   to 

meme  lui  etre  d6nonce"e  pour  toute  be  glven< 
la  duree  de  la  guerre. 


ART.  XV.  Le  present  acte  sera .  Act  embodied 

.   in   one   original 
dresse  en  un  seul  exemplaire  on-  copy  and  depos- 

ginal  qui  sera  depose  aux  archives  j^swfss 
de  la  Confederation  suisse.  eration. 


Une  copie  authentique  de  cet    Au  then  tic  copy 

Vfi.      ,  .,.      .,      to  be  delivered 

acte  sera  dehvree,  avec,  1  in  vita-  to  signatory  pow- 

tion  d'y  adherer,  a  chacune  desers'etc- 
Puissances  signataires  de  la  Con- 
vention du  22  aout  1864,  ainsi  qu'a 
celles  qui  y  ont    successivement 
acced4. 

En  foi  de  quoi  les  Commissaires 
soussignes  ont  dresse  le  present 
Projet  d' articles  additionnels  et  y 
ont  appos£  le  cachet  de  leurs 
armes. 

Fait  &  Geneve  le  vingtieme  jour    seals  of  com- 
du  mois  d'octobre  de  1'an  mil  huit  missaries. 
cent  soixante-huit.1 

VON    R(EDBB. 

F.  LCEFFLER. 

KOHLER. 

DR.  MUNDY. 

STEINER. 

DR.  DOMPIERRE.' 

VlSSCHERS. 

J.  B.  G.  GALIFFE. 

A.  COUPVENT  DES  BOIS. 

H.  DE  PREVAL. 


1  The  proclamation  of  the  President  of  the  United  States  promulgating  the  original 
treaty  and  the  articles  additional  thereto  bears  date  July  26,  1882  (22  Stat.  L.,  126). 


1040  MILITARY    LAWS    OF    THE    UNITED    STATES. 

JOHN  SAVILLE  LUMLEY.  JOHN  SAVILLE  LUMLEY. 

H.  R.  YELVERTON.  H.  R.  YELVERTON. 

D.  FELICE  BAROFFIO.  D.  FELICE  BAROFFIO. 

PAOLO  COTTRAU.  PAOLO  COTTRAT. 

H.  A.  VAN  KARNEBEEK.  H.  A.  VAN  KARNEHEEK. 

WESTENBERG.  WESTENBERG. 

F.  N.  STAAFF.  F.  N.  STAAFF. 
D.  H.  DUFOUR.  G.  H.  DUFOUR. 

G.  MOYNIER.  G.  MOYNIER. 

DR.  S.  LEHMANN.  DR.  S.  LEHMANN. 

HU.SNY.  HUSNY. 

DR.  C.  HAHN.  DR.  C.  HAHN. 

DR.  FICHTE.  DR.  FICHTE. 


AGEEEMENT  FOR  THE  ADAPTATION  OF  MAR- 
ITIME  WARFARE  TO  THE  RULES  OF  THE 
GENEVA  CONVENTION  OF  AUGUST  22,  1864. 

ART.  I.  Military  hospital  ships — that  is,  ships  con- 
structed or  fitted  out  by  States  especially  and  solely  with 
a  view  to  give  assistance  to  the  sick,  wounded,  and  ship- 
wrecked, the  names  of  which  shall  have  been  communi- 
cated to  the  belligerent  powers  at  the  opening  or  during 
the  continuance  of  hostilities,  and  in  every  case  before 
being  placed  in  service,  are  to  be  respected  and  may  not 
be  captured  during  the  continuance  of  hostilities.  These 
vessels  are  not  assimilated  to  ships  of  war  in  matters  per- 
taining to  their  sojourn  in  neutral  ports. 

ART.  II.  Hospital  ships  equipped  wholly  or  in  part  at 
the  expense  of  private  individuals,  or  aid  societies  which 
have  been  officially  recognized,  are  equally  to  be  respected 
and  exempted  from  capture,  if  the  belligerent  power  to 
which  they  are  attached  has  given  them  an  official  com- 
mission, and  has  notified  their  names  to  the  adverse  power 
at  the  opening  of  hostilities,  or  during  their  progress,  but 
in  every  case  before  being  placed  in  service.  These  ships 
shall  carry  a  document  from  competent  authority  declar- 
ing that  they  have  been  subjected  to  its  inspection  during 
their  equipment  and  at  their  final  departure. 

ART.  III.  Hospital  ships  equipped  wholly  or  in  part  at 
the  expense  of  private  individuals,  or  societies  officially 
recognized  by  neutral  states,  are  to  be  respected  and 
exempted  from  capture,  if  the  neutral  power  to  which  they 
are  subject  issues  commissions  to  them,  and  notifies  their 
names  to  the  belligerent  powers  at  the  outbreak  of  hostili- 
ties or  during  their  continuance,  but  in  all  cases  before 
being  placed  in  service. 

ART.  IV.  Ships  mentioned  in  Articles  I,  II,  and  III  shall 
carry  aid  and  assistance  to  the  sick,  wounded,  and  ship- 
wrecked individuals  of  the  belligerent  armies  without  dis- 
tinction of  nationality.  The  governments  agree  not  to 
use  these  ships  for  any  warlike  purpose.  These  ships 
shall  not  embarrass  in  any  manner  the  movements  of  the 

22924—08 66  1041 


1042  MILITARY    LAWS    OF   THE    UNITED    STATES. 

combatants.  During  and  after  the  combat  they  shall  act 
at  their  own  risk  and  hazard.  Belligerents  shall  have  the 
right  to  visit  and  inspect  them;  they  may  refuse  assistance 
to  them,  or  require  them  to  remove  to  a  distance,  or 
impose  upon  them  a  fixed  sailing  course,  and  may  place  a 
commissioner  on  board;  they  may  even  detain  them  if  cir- 
cumstances demand  it.  As  far  as  possible  orders  given  by 
belligerents  to  hospital  ships  shall  be  entered  in  their  log 
books. 

ART.  V.  Military  hospital  ships  shall  be  distinguished 
by  an  exterior  coloring  of  white  with  a  green  horizontal 
band  of  about  one  meter  and  a  half  in  width.  Ships  men- 
tioned in  Articles  II  and  III  shall  be  distinguished  by  an 
exterior  coloring  of  white  with  a  red  horizontal  band  of 
about  one  meter  and  a  half  in  width.  The  small  boats  of 
the  ships  just  mentioned,  as  well  as  the  small  boats  which 
may  be  employed  in  hospital  service,  shall  be  distinguished 
by  similar  painting.  All  hospital  ships  shall  be  recognized 
by  hoisting  with  their  national  flags  the  red  cross  embla- 
zoned upon  the  white  flag,  as  prescribed  by  the  Geneva 
Convention. 

AKT.  VI.  Commercial  vessels,  yachts,  or  neutral  small 
boats  conve}ring  or  receiving  sick,  wounded,  or  ship- 
wrecked persons  are  not  liable  to  capture  for  engaging  in 
such  transport;  but  they  remain  liable  to  capture  for  any 
violations  of  neutrality  which  they  may  have  committed. 

ART.  VII.  The  personnel  of  the  medical  and  hospital 
service,  including  chaplains,  of  every  captured  vessel,  is 
inviolable  and  can  not  be  made  prisoners  of  war.  They 
carry  away  with  them,  on  quitting  the  ship,  the  surgical 
instruments  and  appliances  which  are  their  personal  prop- 
erty. These  persons  shall  continue  to  perform  their  func- 
tions so  long  as  may  be  necessary,  and  they  may  be 
withdrawn  when  the  commander  in  chief  deems  such  with- 
drawal possible.  Belligerents  are  to  secure  to  such  persons 
who  may  fall  into  their  hands  the  full  enjoyment  of  their 
salaries. 

ART.  VIII.  Persons  in  the  military  or  naval  service,  to 
whatever  nation  they  may  belong,  who  are  sick,  wounded, 
or  shipwrecked,  shall  be  protected  and  cared  for  by  their 
captors. 

ART.  IX.  Sick,  wounded,  and  shipwrecked  persons  in 
the  service  of  a  belligerent  who  fall  into  the  hands  of  the 
enemy  become  prisoners  of  war.  It  is  for  the  enemy  to 
decide,  according  to  the  circumstances  of  the  case,  whether 


MILITARY    LAWS    OF   THE    UNITED    STATES.  1043 

it  is  expedient  to  hold  them,  to  send  them  to  a  port  of  their 
own  nation,  or  to  a  neutral  port,  or  even  to  a  port  of  the 
enemy.  In  the  last  case  the  prisoners  so  returned  to  their 
country  can  not  serve  during*  the  continuance  of  the  war. 

ART.  X.  Sick,  wounded,  or  shipwrecked  persons  who 
are  sent  to  a  neutral  port,  with  the  consent  of  the  local 
authority,  shall,  unless  .a  contrary  arrangement  be  entered 
into  between  the  neutral  state  and  the  belligerents,  be 
subjected  to  such  restraint  by  the  neutral  state  that  it  will 
be  impossible  for  them  to  again  take  part  in  the  opera- 
tions of  the  war.  The  expenses  cf  hospital  treatment  and 
internment  of  the  sick,  wounded,  and  shipwrecked  shall 
be  borne  by  the  state  to  which  they  belong. 

ART.  XL  The  rules  contained  in  the  foregoing  article 
are  obligatory  only  upon  the  contracting  powers  in  the 
event  of  war  between  two  or  more  of  them.  The  said 
rules  shall  cease  to  be  obligatory  from  the  instant  when, 
in  a  war  between  contracting  powers,  a  noncontracting 
power  joins  one  of  the  belligerents. 

ART.  XII.  The  present  Convention  shall  be  ratified  with 
the  briefest  possible  delay.  The  ratifications  shall  be 
deposited  at  The  Hague;  a  minute  shall  be  prepared,  on 
the  deposit  of  each  ratification,  of  which  a  properly  authenti- 
cated copy  shall  be  transmitted,  through  diplomatic  chan- 
nels, to  each  of  the  contracting  powers. 

ART.  XIII.  Nonsignatory  powers  who  have  accepted 
the  Geneva  Convention  of  August  22,  1864,  are  permitted 
to  adhere  to  this  Convention.  To  that  end  they  shall  make 
known  their  adhesion  to  the  contracting  powers  by  a  noti- 
fication in  writing,  addressed  to  the  Government  of  the 
Netherlands,  and,  communicated  by  it  to  all  of  the  other 
contracting  powers. 

ART.  XIV.  If  it  should  happen  that  one  of  the  high  con- 
tracting parties  should  disavow  the  present  Convention, 
such  disavowal  shall  not  become  operative  until  one  year 
after  it  shall  have  been  notified,  in  writing,  to  the  Govern- 
ment of  the  Netherlands  and  immediately  communicated 
by  the  latter  to  all  of  the  other  high  contracting  powers. 
This  disavowal  shall  be  operative  only  in  respect  to  the 
power  which  shall  have  given  notice  of  it. 

Done  at  The  Hague  this  29th  day  of  July,  1899. 


THE  AMERICAN  NATIONAL  RED  CROSS. 

Whereas  on  the  twenty-second  of  August,  eighteen  hun 
dred  and  sixty -four,  at  Geneva,  Switzerland,  plenipoten- 
tiaries respective!}^  representing  Italy,  Baden,  Belgium, 
Denmark,  Spain,  Portugal,  France,  Prussia,  Saxony,  and 
Wurtemburg,  and  the  Federal  Council  of  Switzerland 
agreed  upon  ten  articles  of  a  treaty  or  convention  for  the 
purpose  of  mitigating  the  evils  inseparable  from  war;  of 
suppressing  the  needless  severity  and  ameliorating  the  con- 
dition of  soldiers  wounded  on  the  field  of  battle;  and  par- 
ticularly providing,  among  other  things,  in  effect,  that 
persons  emploj^ed  in  hospitals,  and  in  affording  relief  to 
the  sick  and  wounded,  and  supplies  for  this  purpose,  shall 
be  deemed  neutral  and  entitled  to  protection;  and  that  a 
distinctive  and  uniform  flag  shall  be  adopted  for  hospitals 
and  ambulances,  and  convoys  of  sick  and  wounded,  and  an 
arm  badge  for  individuals  neutralized;  and 

Whereas  said  treaty  has  been  ratified  by  all  of  said 
nations,  and  by  others  subsequently,  to  the  number  of 
forty-three  or  more,  including  the  United  States  of  Amer- 
ica; and 

Whereas  a  permanent  organization  is  an  agency  needed 
in  every  nation  to  carry  out  the  purposes  of  said  treaty, 
and  especially  to  secure  supplies  and  to  execute  the  humane 
objects  contemplated  by  said  treaty,  with  the  power  to 
adopt  and  use  the  distinctive  flag  and  arm  badge  specified 
by  said  treaty  in  article  seven,  on  which  shall  be  the  sign 
of  the  Red  Cross,  for  the  purpose  of  cooperating  with  the 
"Comite  International  de  Secours  aux  Militaires  Blesses" 
(International  Committee  of  Relief  for  the  Wounded  in 
War);  and 

Whereas,  in  accordance  with  the  requirements  of  customs 
of  said  international  body,  such  an  association,  adopting 
and  using  said  insignia,  was  formed  in  the  city  of  Wash- 
ington, District  of  Columbia,  in  July,  eighteen  hundred 
and  eigmty-one,  known  as  "The  American  National  Asso- 
ciation of  the  Red  Cross,"  and  reincorporated  April 
1044 


MILITAEY   LAWS    OF   THE    UNITED   STATES.  1045 

seventeenth,  eighteen  hundred  and  ninety-three,  under  the 
laws  of  the  District  of  Columbia;  and 

Whereas  it  is  believed  that  the  importance  of  the  work 
demands  a  reincorporation  by  the  Congress  of  the  United 
States:  Now,  therefore, 

Be  it  enacted  by  the  Senate  and  Hotise  of  Representatives 
of  the  United  States  of  America  in  Congress  assembled, 
That  Clara  Barton,  George  Kennan,  Julian  B.  Hubbell,  of 
the  District  of  Columbia;  Stephen  E.  Barton,  of  New  York; 
William  R.  Day,  of  Ohio;  Brainard  H.  Warner,  Ellen* 
Spencer  Mussey,  Alvey  A.  Adee,  of  the  District  of  Co- 
lumbia; Joseph  Sheldon,  of  Connecticut;  Charles  F.  Fair- 
child,  William  Letchwerth,  of  New  York  City;  Hilary  A. 
Herbert,  of  Alabama;  Joseph  Gardner,  Enola  Lee  Gard- 
ner, of  Bedford,  Indiana;  John  W.  Noble,  of  Saint  Louis, 
Missouri;  Richard  Olney,  of  Boston,  Massachusetts;  Alex- 
ander W.  Terrell,  of  Austin,  Texas;  Leslie  M.  Shaw, 
Benjamin  Tillinghast,  of  Iowa;  Abraham  C.  Kaufman,  of 
Charleston,  South  Carolina;  J.  B.  Vinet,  of  New  Orleans, 
Louisiana;  George  Gray,  of  Delaware;  Redfield  Proctor, 
of  Vermont;  George  F.  Hoar,  of  Massachusetts;  Charles 
A.  Russell,  of  Connecticut;  Robert  W.  Miers,  of  Indiana; 
George  C.  Boldt,  William  T.  Wardwell,  of  New  York; 
Daniel  Hastings,  J.  Wilkes  O'Neill,  of  Pennsylvania; 
Thomas  F.  Walsh,  of  Colorado;  John  G.  Lemmon,  of 
California;  Charles  C.  Glover,  Walter  S.  Woodward, 
Elizabeth  Kibbey,  Mabel  T.  Boardman,  Walter  Wyman, 
Sumner  I.  Kimball,  of  the  District  of  Columbia;  Edward 
Lowe,  of  Michigan;  Harriette  L.  Reed,  of  Boston,  Massa- 
chusetts; William  H.  Sears,  of  Lawrence,  Kansas;  John 
K.  Elwell,  of  Vinland,  Kansas;  E.  R.  Ridgely,  of  Pitts- 
burg,  Kansas;  James  Tanner,  John  Hitz,  S.  W.  Briggs, 
Cony  Curry,  Lizzie  W.  Calver,  Mary  A.  Logan,  Mary  L. 
Barton,  S.  B.  Hege,  and  Helena  H.  Mitchell,  of  Washing- 
ton, District  of  Columbia;  Emma  L.  Nichols,  of  Chilli- 
cothe,  Ohio;  Lenora  Halsted,  of  Saint  Louis,  Missouri; 
P.  V.  DeGraw,  of  Philadelphia,  Pennsylvania;  Walter  V. 
Phillips,  of  Bridgeport,  Connecticut,  and  their  associates 
and  successors,  are  hereby  created  a  body  corporate  and 
politic  in  the  District  of  Columbia. 

SEC.  2.  That  the  name  of  this  corporation  shall  be  "The 
American  National  Red  Cross,"  and  by  that  name  it  shall 
have  perpetual  succession,  with  the  power  to  sue  and  be 
sued  in  courts  of  law  and  equity  within  the  jurisdiction  of 
the  United  States;  to  have  and  to  hold  such  real  and  per- 


1046  MILITARY    LAWK    OF     1MK    UNITED    STATKS. 

sonal  estate  as  shall  be  convenient  and  necessary  to  carry 
out  the  purposes  of  this  corporation  hereinafter  set  forth, 
such  real  estate  to  be  limited  to  such  quantity  as  may  be 
necessary  for  official  use  or  office  buildings;  to  adopt  a 
seal  and  the  same  to  alter  and  destroy  at  pleasure;  and  to 
have  the  right  to  have  and  to  use,  in  carrying  out  its  pur- 
poses hereinafter  designated,  as  an  emblem  and  badge,  a 
Greek  red  cross  on  a  white  ground,  as  the  same  has  been 
described  in  the  treaty  of  Geneva,  August  twenty -second, 
*  eighteen  hundred  and  sixty -four,  and  adopted  by  the  sev- 
eral nations  acceding  thereto;  to  ordain  and  establish  by- 
laws and  regulations  not  inconsistent  with  the  laws  of  the 
United  States  of  America  or  any  State  thereof,  and  gen- 
erally to  do  all  such  acts  and  things  as  may  be  necessary 
to  carry  into  effect  the  provisions  of  this  Act  and  promote 
the  purposes  of  said  organization;  and  the  corporation 
hereby  created  is  designated  as  the  organization  which  is 
authorized  to  act  in  matters  of  relief  under  said  treaty. 
In  accordance  with  article  seven,  of  the  treaty,  the  delivery 
of  the  brassard  allowed  for  individuals  neutralized  in  time 
of  war  shall  be  left  to  military  authority. 

SEC.  3.  That  the  purposes  of  this  corporation  an*,  and 
shall  be — 

First.  To  furnish  volunteer  aid  to  the  sick  and  wounded 
of  armies  in  time  of  war,  in  accordance  with  the  spirit  and 
conditions  of  the  conference  of  Geneva  of  October,  eighteen 
hundred  and  sixty-three,  and  also  of  the  treaty  of  the  Red 
Cross,  or  the  treaty  of  Geneva  of  August  twenty-second, 
eighteen  hundred  and  sixty -four,  to  which  the  United 
States  of  America  gave  its  adhesion  on  March  first,  eight- 
een hundred  and  eighty-two. 

Second.  And  for  said  purposes  to  perform  all  the  duties 
devolved  upon  a  national  society  by  each  nation  which  has 
acceded  to  said  treaty. 

Third.  To  succeed  to  all  the  rights  and  property  which 
have  been  hitherto  held  and  to  all  the  duties  which  have 
heretofore  been  performed  by  the  American  National  Red 
Cross  as  a  corporation  duly  organized  and  existing  under 
the  laws  of  the  United  States  relating  to  the  District  of 
Columbia,  which  organization  is  hereby  dissolved. 

Fourth.  To  act  in  matters  of  voluntary  relief  and  in 

accordance  with  the   military   and  naval   authorities  as  a 

medium   of   communication    between    the    people    of  the 

United  States  of  America  and  their  armies,  and  to  act  in 

uch  matters  between  similar  national  societies  of  other 


MILITARY    LAWS    OF    THE    UNITED    STATES.  1047 

governments  through  the  "Comite  International  de  Se- 
cours  "  and  the  Government  and  the  people  and  the  armies 
of  the  United  States  of  America. 

Fifth.  And  to  continue  and  carry  on  a  system  of  na- 
tional and  international  relief  in  time  of  peace  "and  apply 
the  same  in  mitigating  the  sufferings  caused  by  pestilence, 
famine,  fire,  floods,  and  other  great  national  calamities. 

Sixth.  And  to  devise  and  carry  on  measures  for  pre- 
venting the  same,  and  generally  to  promote  measures  of 
humanity  and  the  welfare  of  mankind. 

SEC.  4.  That  from  and  after  the  passage  of  this  Act  it 
shall  be  unlawful  for  any  person  within  the  jurisdiction  of 
the  United  States  to  falsely  and  fraudulently  hold  himself 
out  as,  or  represent  or  pretend  himself  to  be  a  member 
of  or  an  agent  for  the  American  National  Red  Cross  for 
the  purpose  of  soliciting,  collecting,  or  recieving  money 
or  material;  or  for  any  person  to  wear  or  display  the  sign 
of  the  red  cross,  or  any  insignia  colored  in  imitation 
thereof,  for  the  fraudulent  purpose  of  inducing  the  belief 
that  he  is  a  member  of  or  an  agent  for  the  American 
National  Red  Cross.  If  any  person  violates  the  provi- 
sions of  this  section  he  shall  be  guilty  of  a  misdemeanor, 
and  shall  be  liable  to  a  fine  of  not  less  than  one  nor  more 
than  five  hundred  dollars,  or  imprisonment  for  a  term  not 
exceeding  one  year,  or  both,  for  each  and  every  offense. 
The  fine  so  collected  shall  be  paid  to  the  American  Na- 
tional Red  Cross.  The  appointment  of  the  chief  medical 
officer  shall  not  be  made  without  the  approval  in  writing 
of  the  Secretary  of  War. 

SEC.  5.  That  the  said  American  National  Red  Cross 
shall,  on  the  first  day  of  January  of  each  year,  make  and 
transmit  to  Congress  a  full,  complete,  and  itemized  report 
of  all  receipts  and  expenditures  of  whatever  kind,  and  of 
its  proceedings  during  the  preceding  year,  and  shall  also 
give  such  information  concerning  its  transactions  and 
affairs  as  the  Secretary  of  State  may  from  time  to  time  re- 
quire, and,  in  respect  of  all  business  and  proceedings  in 
which  it  may  be  concerned  in  conection  with  the  War  and 
Navy  Departments  of  the  Government,  shall  make  reports 
to  the  Secretary  of  War  and  to  the  Secretary  of  the  Navy, 
respectively. 

SEC.  6.  That  Congress  shall  have  the  right  to  repeal, 
alter,  or  amend  this  Act  at  any  time.  Act  of  June  6, 1900 
(31  Stat.  Z.,077). 


THE  ARMY    REORGANIZATION  ACT  OF  FEBRU- 
ARY 2,  1901. 

THE   ARMY   OF   THE   UNITED    STATES,  COMPOSITION. 

J?e  it  enacted  by  the  Senate  and  House  of  Representatives 
of  the  United  States  of  America  in  Congress  assembled, 
That  from  and  after  the  approval  of  this  Act  the  Ariny  of 
the  United  States,  including  the  existing  organizations, 
shall  consist  of  fifteen  regiments  of  cavalry,  a  corps  of 
artillery,  thirty  regiments  of  infantry,  one  Lieutenant- 
General,  six  major-generals,  fifteen  brigadier-generals,  an 
Adjutant-General's  Department,  an  Inspector-General's 
Department,  a  Judge- Advocate-General's  Department,  a 
Quartermaster's  Department,  a  Subsistence  Department, 
a  Medical  Department,  a  Pay  Department,  a  Corps  of  En- 
gineers, an  Ordnance  Department,  a  Signal  Corps,  the 
officers  of  the  Record  and  Pension  Office,  the  chaplains, 
the  officers  and  enlisted  men  of  the  Army  on  the  retired 
list,  the  professors,  corps  of  cadets,  the  army  detachments 
and  band  at  the  United  States  Militaiy  Academy,  Indian 
scouts  as  now  authorized  by  law,  and  such  other  officers 
and  enlisted  men  as  may  hereinafter  be  provided  for:  Pro- 
vided, That  when  a  vacancy  shall  occur  through  death, 
retirement,  or  other  separation  from  active  service  in  the 
office  of  storekeeper,  now  provided  for  b}7  law  in  the 
Quartermaster's  Department  and  Ordnance  Department, 
respectively,  said  office  shall  cease  to  exist.  Act  of  Feb- 
ruary 2,  1901  (31  Stat.  L.,  748). 

CAVALRY. 

That  each  regiment  of  cavalry  shall  consist  of  one  colonel, 
one  lieutenant-colonel,  three  majors,  fifteen  captains,  fif- 
teen first  lieutenants,  and  fifteen  second  lieutenants;  two 
veterinarians,  one  sergeant-major,  one  quartermaster-ser- 
geant, one  commissary-sergeant,  three  squadron  sergeants- 
major,  two  color-sergeants  with  rank,  pay,  and  allowances 
of  squadron  sergeant-major,  one  band,  and  twelve  troops 
organized  into  three  squadrons  of  four  troops  each.  Of 
1048 


MILITARY   LAWS    OF   THE   UNITED   STATES.  1049 

\ 

the  officers  herein  provided,  the  captains  and  lieutenants 
not  required  for  duty  with  the  troops  shall  be  available  for 
detail  as  regimental  and  squadron  staff  officers  and  such 
other  details  as  may  be  authorized  by  law  or  regulations. 
Squadron  adjutants  shall  receive  one  thousand  eight  hun- 
dred dollars  per  annum  and  the  allowances  of  first  lieuten- 
ants; squadron  quartermasters  and  commissaries  shall 
receive  one  thousand  six  hundred  dollars  per  annum  and 
the  allowances  of  second  lieutenants.  Each  cavalry  band 
shall  be  organized  as  now  provided  by  law.  Each  troop 
of  cavalry  shall  consist  of  one  captain,  one  first  lieutenant, 
one  second  lieutenant,  one  first  sergeant,  one  quartermaster- 
sergeant,  six  sergeants,  six  corporals,  two  cooks,  two  far- 
riers and  blacksmiths,  one  saddler,  one  wagoner,  two  trum- 
peters, and  forty-three  privates;  the  commissioned  officers 
to  be  assigned  from  among  those  hereinbefore  authorized: 
Provided,  That  the  President,  in  his  discretion,  may 
increase  the  number  of  corporals  in  any  troop  of  cavalry 
to  eight,  and  the  number  of  privates  to  seventy-six,  but 
the  total  number  of  enlisted  men  authorized  for  the  whole 
Army  shall  not  at  any  time  be  exceeded.  Sec.  2,  ibid. 

THE   ARTILLERY   CORPS. 

That  the  regimental  organization  of  the  artillery  arm  of 
the  United  States  Army  is  hereby  discontinued,  and  that 
arm  is  constituted  and  designated  as  the  Artillery  Corps. 
It  shall  be  organized  as  hereinafter  specified  and  shall 
belong  to  the  line  of  the  Army.  Sec.  3,  ibid. 

That  the  Artillery  Corps  shall  comprise  two  branches — 
the  coast  artillery  and  the  field  artillery.  The  coast  artil- 
lery is  defined  as  that  portion  charged  with  the  care  and 
use  of  the  fixed  and  movable  elements  of  land  and  coast 
fortifications,  including  the  submarine  mine  and  torpedo 
defenses;  and  the  field  artillery  as  that  portion  accompany- 
ing an  army  in  the  field,  and  including  field  and  light 
artillery  proper,  horse  artillery,  siege  artillery,  mountain 
artillery,  and  also  machine-gun  batteries:  Provided,  That 
this  shall  not  be  construed  to  limit  the  authority  of  the 
Secretary  of  War  to  order  coast  artillery  to  any  duty  which 
the  public  service  demands  or  to  prevent  the  use  of  machine 
or  other  field  guns  by  any  other  arm  of  the  service  under 
the  direction  of  the  Secretary  of  War.  Sec.  4?  ibid. 

That  all  officers  of  artillery  shall  be  placed  on  one  list, 
in  respect  to  promotion,  according  to  seniority  in  their 
several  grades,  and  shall  be  assigned  to  coast  or  to  field 


1050  MILITARY    LAWS   OF   THE   UNITED   STATES. 

artillery  according  to  their  special  aptitude  for  the  respec- 
tive services.     Sec.  5,  ibid. 

That  the  Artillery  Corps  shall  consist  of  a  Chief  of  Artil- 
lery, who  shall  be  selected  and  detailed  by  the  President 
from  the  colonels  of  artillery,  to  serve  on  the  staff  of  the 
general  officer  commanding  the  Army,  and  whose  duties 
shall  be  prescribed  by  the  Secretary  of  War;  fourteen  colo- 
nels, one  of  whom  shall  be  the  Chief  of  Artilley;  thirteen 
lieutenant-colonels,  thirty-nine  majors,  one  hundred  and 
ninety -five  captains,  one  hundred  and  ninety-five  first  lieu- 
tenants, one  hundred  and  ninety -five  second  lieutenants; 
and  the  captains  and  lieutenants  provided  for  in  this  section 
not  required  for  duty  with  batteries  or  companies  shall  be 
available  for  duty  as  staff  officers  of  the  various  artillery 
garrisons  and  such  other  details  as  may  be  authorized  by 
law  and  regulations;  twenty-one  sergeants-major,  with 
the  rank,  pay,  and  allowances  of  regimental  sergeants- 
major  of  infantry;  twenty-seven  sergeants-major,  with  the 
rank,  pay,  and  allowances  of  battalion  sergeants-major  of 
infantry;  one  electrician  sergeant  to  each  coast  artillery 
post  having  electrical  appliances;  thirty  batteries  of  field 
artillery,  one  hundred  and  twenty-six  batteries  of  coast 
artillery,  and  ten  bands  organized  as  now  authorized  by 
law  for  artillery  regiments:  Provided,  That  the  aggregate 
number  of  enlisted  men  for  the  artillery,  as  provided  under 
this  Act,  shall  not  exceed  eighteen  thousand  nine  hundred 
and  twenty,  exclusive  of  electrician  sergeants.  Sec.  6,  ibid. 

Twelve  of  the  veterinarians  herein  provided  for  may  be 
assigned  to  the  artillery.  Act  of  March  3,  1901  (31  Stat. 
Z.,  901). 

That  each  company  of  coast  artillery  shall  be  organized 
as  is  now  prescribed  by  law  for  a  battery  of  artillery :  Pro- 
vided, That  the  enlisted  strength  of  any  company  may  be 
fixed,  under  the  direction  of  the  Secretary  of  War,  accord- 
ing to  the  requirements  of  the  service  to  which  it  may  be 
assigned:  And  provided,  That  first-class  gunners  shall 
receive  two  dollars  a  month,  and  second-class  gunners  one 
dollar  per  month  in  addition  to  their  pay.  Sec.  7,  act  of 
February  2,  1901  (31  Stat.  L.,  749). 

That  each  battery  of  field  artillery  shall  be  organized  as 
is  now  prescribed  by  law,  and  the  enlisted  strength  thereof 
shall  be  fixed  under  the  direction  of  the  Secretary  of  War. 
Sec.  8,  ibid.  , 

That  the  increase  herein  provided  for  the  artillery  shall 
be  made  as  follows:  Not  less  than  twenty  per  centum  before 


MILITARY   LAWS   OF   THE   UNITED   STATES.  1051 

July  first,  nineteen  hundred  and  one,  and  not  less  than 
twenty  per  centum  each  succeeding  twelve  months  until 
the  total  number  provided  for  shall  have  been  attained. 
All  vacancies  created  or  caused  by  this  Act  shall  be  filled 
by  promotion  according  to  seniority  in  the  artillery  arm. 
Second  lieutenants  of  infantry  or  cavalry  may,  in  the  dis- 
cretion of  the  President,  be  transferred  to  the  artillery 
arm,  taking  rank  therein  according  to  date  of  commission, 
and  such  transfers  shall  be  subject  to  approval  by  a  board 
of  artillery  officers  appointed  to  pass  upon  the  capacity  of 
such  officers  for  artillery  service:  Provided,  That  the 
increase  of  officers  of  artillery  shall  be  only  in  proportion 
to  the  increase  of  men.  Sec.  9,  ibid. 

INFANTRY. 

That  each  regiment  of  infantry  shall  consist  of  one  colo- 
nel, one  lieutenant-colonel,  three  majors,  fifteen  captains, 
fifteeen  first  lieutenants,  and  fifteen  second  lieutenants; 
one  sergeant-major,  one  quartermaster-sergeant,  one  com- 
missary-sergeant, three  battalion  sergeants-major,  two 
color  sergeants,  with  rank,  pay,  and  allowances  of  bat- 
talion sergeants-major,  one  band,  and  twelve  companies, 
organized  into  three  battalions  of  four  companies  each. 
Of  the  officers  herein  provided,  the  captains  and  lieuten- 
ants not  required  for  duty  with  the  companies  shall  be 
available  for  detail  as  regimental  and  battalion  staff  offi- 
cers and  such  other  details  as  may  be  authorized  by  law  or  * 
regulations.  Battalion  adjutants  shall  receive  one  thou- 
sand eight  hundred  dollars  per  annum  and  the  allowances 
of  first  lieutenants,  mounted;  battalion  quartermasters 
and  commissaries  shall  receive  one  thousand  six  hundred 
dollars  per  annum  and  the  allowances  of  second  lieutenants, 
mounted.  Each  intantry  band  shall  be  organized  as  now 
provided  by  law.  Each  infantry  company  shall  consist  of 
one  captain,  one  first  lieutenant,  one  second  lieutenant,  one 
first  sergeant,  one  quartermaster-sergeant,  four  sergeants, 
six  corporals,  two  cooks,  two  musicians,  one  artificer,  and 
forty -eight  privates,  the  commissioned  officers  to  be  assigned 
from  those  hereinbefore  authorized:  Provided,  That  the 
President,  in  his  discretion,  may  increase  the  number  of 
sergeants  in  any  company  of  infantry  to  six,  the  number 
of  corporals  to  ten,  and  the  number  of  privates  to  one  hun- 
dred and  twenty-seven,  but  the  total  number  of  enlisted 
men  authorized  for  the  whole  Army  shall  not,  at  any  time, 
be  exceeded.  Sec.  10,  ibid. 


1052  MILITARY    LAWS    OP    THE    UNITED    STATES. 

ENGINEER   TROOPS. 

That  the  enlisted  force  of  the  Corps  of  Engineers  shall 
consist  of  one  band  and  three  battalions  of  engineers. 
The  engineers  band  shall  be  organized  as  now  provided 
by  law  for  bands  of  infantry  regiments.  Each  battalion 
of  engineers  shall  consist  of  one  sergeant-major,  one 
quartermaster- sergeant,  and  four  companies.  Each  com- 
pany of  engineers  shall  consist  of  one  first  sergeant,  one 
quartermaster-sergeant,  with  the  rank,  pay,  and  allow- 
ances of  sergeant,  eight  sergeants,  ten  corporals,  two 
musicians,  two  cooks,  thirty-eight  first-class  and  thirty- 
eight  second-class  privates:  Pwvided,  That  the  President 
may,  in  his  discretion,  increase  the  number  of  sergeants 
in  any  company  of  engineers  to  twelve,  the  number  of 
corporals  to  eighteen,  the  number  of  first-class  privates  to 
sixty-four,  and  the  number  of  second-class  privates  to 
sixty -four,  but  the  total  number  of  enlisted  men  author- 
ized for  the  whole  Army  shall  not,  at  any  time,  be  ex- 
ceeded: And  provided,  That  officers  detailed  from  the 
Corps  of  Engineers  to  serve  as  battalion  adjutants  and 
battalion  quartermasters  and  commissaries  shall,  while  so 
serving,  receive  the  pay  and  allowances  herein  authorized 
for  battalion  staff  officers  of  infantry  regiments.  Sec.  11^ 
ibid. 

CHAPLAINS. 

That  the  President  is  authorized  to  appoint,  by  and  with 
the  advice  and  consent  of  the  Senate,  chaplains  in  the 
Army,  at  the  rate  of  one  for  each  regiment  of  cavalry  and 
infantry  in  the  United  States  service  and  twelve  for  the 
corps  of  artillery,  with  the  rank,  pay,  and  allowances  of 
captains  of  infantry:  Provided,  That  no  person  shall  be 
appointed  a  chaplain  in  the  Regular  Army  who  shall  have 
passed  the  age  of  forty  years,  nor  until  he  shall  have 
established  his  fitness  as  required  by  existing  law:  And 
provided,  That  the  office  of  post  chaplain  is  abolished,  and 
the  officers  now  holding  commissions  as  chaplains,  or  who 
may  hereafter  be  appointed  chaplains,  shall  be  assigned  to 
regiments  or  to  corps  of  artillery.  Chaplains  may  be 
assigned  to  such  stations  as  the  Secretary  of  War  shall 
direct,  and  they  may  be  transferred,  as  chaplains,  from 
one  branch  of  the  service  or  from  one  regiment  to  another 
by  the  Secretary  of  War,  without  further  commission. 
When  serving  in  the  field,  chaplains  shall  be  furnished 


MILITAEY    LAWS    QF    THE    UNITED    STATES.  1053 

with  necessary  means  of  transportation  by  the  Quarter- 
master's Department.     Sec.  1%,  ibid. 

THE  ADJUTANT-GENERAL'S  DEPARTMENT. 

That  the  Adjutant-General's  Department  shall  consist  of 
one  Adjutant-General  with  the  rank  of  major-general,  and 
when  a  vacancy  shall  occur  in  the  office  of  Adjutant-General 
on  the  expiration  of  the  service  of  the  present  incumbent, 
by  retirement  or  otherwise,  the  Adjutant-General  shall 
thereafter  have  the  rank  and  pay  of  a  brigadier-general, 
five  assistant  adjutants-general  with  the  rank  of  colonel, 
seven  assistant  adjutants-general  with  the  rank  of  lieuten- 
ant-colonel, and  fifteen  assistant  adjutants-general  with  the 
rank  of  major:  Provided,  That  all  vacancies  created  or 
caused  by  this  section  shall,  as  far  as  possible,  be  filled  by 
promotion  according  to  seniority  of  officers  of  the  Adjutant- 
General's  Deparment.  Sec.  13,  ibid. 

THE  INSPECTOR-GENERAL'S  DEPARTMENT. 

That  the  Inspector-General's  Department  shall  consist  of 
one  Inspector-General  with  the  rank  of  brigadier-general, 
four  inspectors-general  with  the  rank  of  colonel,  four 
inspectors -general  with  the  rank  of  lieutenant-colonel,  and 
eight  inspectors-general  with  the  rank  of  major:  Provided, 
That  all  vacancies  created  or  caused  by  this  section  shall 
be  filled,  as  far  as  possible,  by  promotion  according  to 
seniority  of  officers  of  the  Inspector-General's  Department. 
Sec.  14,  ibid. 

Upon  the  occurrence  of  a  vacancy  in  the  grade  of  colo- 
nel in  the  Inspector-General's  Department  after  the  pres- 
ent lieutenant-colonels  therein  shall  have  been  promoted 
or  retired,  such  vacancy  shall  not  be  filled,  and  thereafter 
the  number  of  officers  authorized  for  that  department  shall 
be  as  follows:  One  inspector-general  with  the  rank  of 
brigadier-general;  three  inspectors-general  with  the  rank 
of  colonel;  four  inspectors-general  with  the  rank  of  lieu- 
tenant-colonel, and  nine  inspectors-general  with  the  rank 
of  major.  Act  of  March  3,  1901  (31  Stat.  L.,  899). 

THE  JUDGE-ADVOCATE-GENERAL'S  DEPARTMENT. 

That  the  Judge- Advocate-General's  Department  shall 
consist  of  one  Judge- Advocate-General  with  the  rank  of 
brigadier-general,  two  judge-advocates  with  the  rank  of 
colonel,  three  judge-advocates  with  the  rank  of  lieutenant- 


1054  MILITARY   LAWS    OF   THE   UNITED   STATES. 

colonel,  six  judge-advocates  with  the  rank  of  major,  and 
for  each  geographical  department  or  tactical  division  of 
troops  not  provided  with  a  judge-advocate  from  the  list 
of  officers  holding  permanent  commissions  in  the  Judge- 
Advocate-General's  Department  one  acting  judge-advocate 
with  the  rank,  pay,  and  allowances  of  captain,  mounted. 
Promotions  to  vacancies  above  the  grade  of  major,  created 
or  caused  by  this  Act,  shall  be  made,  according  to  senior- 
ity, from  officers  now  holding  commission  in  the  Judge- 
Advocate-General's  Department.  Vacancies  created  or 
caused  by  this  Act  in  the  grade  of  major  may  be  filled  by 
appointment  of  officers  holding  commissions  as  judge- 
advocate  of  volunteers  since  April  twenty-first,  eighteen 
hundred  and  ninety-eight.  Vacancies  which  may  occur 
thereafter  in  the  grade  of  major  in  the  Judge- Advocate- 
General's  Department  shall  be  filled  by  the  appointment 
of  officers  of  the  line,  or  of  persons  who  have  satisfactorily 
served  as  judge-advocates  of  volunteers  since  April  twenty- 
first,  eighteen  hundred  and  ninety-eight,  or  of  persons 
from  civil  life  who  at  date  of  appointment  are  not  over 
thirty-five  years  of  age  and  who  shall  pass  a  satisfactory 
examination  to  be  prescribed  by  the  Secretary  of  War. 

Acting  judge-advocates  provided  for  herein  shall  be 
detailed  from  officers  of  the  grades  of  captain  or  first 
lieutenant  of  the  line  of  the  Army  who  while  so  serving 
shall  continue  to  hold  their  commissions  in  the  arm  of  the 
service  to  which  they  permanently  belong.  Upon  comple- 
tion of  a  tour  of  duty  not  exceeding  four  years  they  shall  be 
returned  to  the  arm  in  which  commissioned,  and  shall  not 
be  again  detailed  until  they  shall  have  completed  two 
years'  duty  with  the  arm  of  the  service  in  which  commis- 
sioned. Sec.  15,  act  of  February  2, 1901  (31  Stat.  Z.,  751). 

THE  QUARTERMASTER'S  DEPARTMENT. 

That  the  Quartermaster's  Department  shall  consist  of 
one  Quaitermaster-General  with  the  rank  of  brigadier- 
general,  six  assistant  quartermasters-general  with  the  rank 
of  colonel,  nine  deputy  quartermasters-general  with  the 
rank  of  lieutenant-colonel,  twenty  quartermasters  with 
the  rank  of  major,  sixty  quartermasters  with  the  rank  of 
captain,  mounted;  the  military  storekeeper  now  provided 
for  by  law.  and  one  hundred  and  fifty  post  quartermaster- 
sergeants:  Provided,  That  all  vacancies  in  the  grade  of 
colonel,  lieutenant-colonel,  and  major  created  or  caused 


MILITARY    LAWS    OF    THE    UNITED   STATES.  1055 

by  this  section  shall  be  filled  by  promotion  according  to 
seniority,  as  now  prescribed  by  law.  That  to  fill  original 
vacancies  in  the  grade  of  captain  created  by  this  Act  in 
the  Quartermaster's  Department  the  President  is  author- 
ized to  appoint  officers  of  volunteers  commissioned  in  the 
Quartermaster's  Department  since  April  twenty-first, 
eighteen  hundred  and  ninety-eight:  Provided  further, 
That  the  President  is  authorized  to  continue  in  service, 
during  the  present  emergency,  for  duty  in  the  Philippine 
Islands  and  on  transports,  twenty-four  captains  and  assist- 
ant quartermasters  of  volunteers.  This  authority  shall 
extend  only  for  the  period  when  their  services  shall  be 
absolutely  necessary.  Sec.  16,  ibid. 

9 

THE   SUBSISTENCE    DEPARTMENT. 

That  the  Subsistence  Department  shall  consist  of  one 
Commissary -General  with  the  rank  of  brigadier-general, 
three  assistant  commissaries-general  with  the  rank  of 
colonel,  four  deputy  commissaries-general  with  the  rank 
of  lieutenant-colonel,  nine  commissaries  with  the  rank  of 
major,  twenty-seven  commissaries  with  the  rank  of  captain, 
mounted,  and  the  number  of  commissary-sergeants  now 
authorized  by  law,  who  shall  hereafter  be  known  as  post 
commissary-sergeants:  Provided,  That  all  vacancies  in  the 
grades  of  colonel,  lieutenant-colonel,  and  major,  created 
or  caused  by  this  section,  shall  be  filled  by  promotion, 
according  to  seniority,  as  now  prescribed  by  law.  That 
to  fill  original  vacancies  in  the  grade  of  captain,  created 
by  this  Act,  in  the  Subsistence  Department,  the  President 
is  authorized  to  appoint  officers  of  volunteers  commis- 
sioned in  the  Subsistence  Department  since  April  twenty- 
first,  eighteen  hundred  and  ninety-eight.  Sec.  17,  ibid. 

THE    MEDICAL    DEPARTMENT. 

That  the  Medical  Department  shall  consist  of  one  Sur- 
geon-General with  the  rank  of  brigadier-general,  eight 
assistant  surgeons- general  with  the  rank  of  colonel,  twelve 
deputy  surgeons-general  with  the  rank  of  lieutenant- 
colonel,  sixty  surgeons  with  the  rank  of  major,  two  hun- 
dred and  forty  assistant  surgeons  with  the  rank  of  captain 
or  first  lieutenant,  the  Hospital  Corps,  as  now  authorized 
by  law,  and  the  Nurse  Corps:  Provided,  That  all  vacancies 
in  the  grades  of  colonel,  lieutenant-colonel,  and  major 
created  or  caused  by  this  section  shall  be  filled  by  promo- 


1056  MILITARY   LAWS    OF   THE   UTTCTED   STATES. 

tion  according  to  seniority,  subject  to  the  examination 
now  prescribed  by  law:  And  provided,  That  the  period 
during  which  any  assistant  surgeon  shall  have  served  as  a 
surgeon  or  assistant  surgeon  in  the  Volunteer  Army  dur- 
ing the  war  with  Spain  or  since  shall  be  counted  as  a  por- 
tion of  the  five  years'  service  required  to  entitle  him  to 
rank  of  captain :  And  provided  also,  That  nothing  in  this 
section  shall  affect  the  relative  rank  for  promotion  of  any 
assistant  surgeon  now  in  the  service,  or  who  may  be  here- 
after appointed  therein,  as  determined  by  the  date  of  his 
appointment  or  commission  and  as  fixed  in  accordance  with 
existing  law  and  regulations:  Provided  further,  That  in 
emergencies  the  Surgeon-General  of  the  Army,  with  the 
approval  of  the  Secretary  of  War,  may  appoint  as  many 
contract  surgeons  as  may  be  necessary,  at  a  compensation 
not  to  exceed  one  hundred  and  fifty  dollars  per  month. 
That  on  or  after  the  passage  of  this  Act  the  President 
may  appoint  for  duty  in  the  Philippine  Islands,  fifty  sur- 
geons of  volunteers  with  the  rank  and  pay  of  major,  and 
one  hundred  and  fifty  assistant  surgeons  of  volunteers 
with  the  rank  and  pay  of  captain,  mounted,  for  a  period 
of  two  years:  Provided,  That  so  many  of  these  volunteer 
medical  officers  as  are  not  required  shall  be  honorably  dis- 
charged the  service  whenever  in  the  opinion  of  the  Sec- 
retary of  War  their  services  are  no  longer  necessary: 
Provided  further,  That  assistant  surgeons  in  the  Volun- 
teer Army  of  the  United  States  commissioned  by  the 
President  as  captains,  in  accordance  with  the  provisions  of 
an  Act  for  increasing  the  efficiency  of  the  Army  of  the 
United  States,  and  for  other  purposes,  approved  March 
second,  eighteen  hundred  and  ninety-nine,  shall  be  entitled 
to  the  pay  of  a  captain,  mounted,  from  the  date  of  their 
acceptance  of  such  commission,  as  prescribed  by  law: 
Provided,  That  the  Surgeon-General  of  the  Army,  with 
the  approval  of  the  Secretary  of  War,  be,  and  he  is  hereby, 
authorized  to  employ  dental  surgeons  to  serve  the  officers 
and  enlisted  men  of  the  Regular  and  Volunteer  Army,  in 
the  proportion  of  not  to  exceed  one  for  every  one  thou- 
sand of  said  Army,  and  not  exceeding  thirty  in  all.  Said 
dental  surgeons  shall  be  employed  as  contract  dental  sur- 
geons under  the  terms  and  conditions  applicable  to  army 
contract  surgeons,  and  shall  be  graduates  of  standard 
medical  or  dental  colleges,  trained  in  the  several  branches 
of  dentistry,  of  good  moral  and  professional  character, 
and  shall  pass  a  satisfactory  professional  examination: 


MILITARY    LAWS    OF    THE    UNITED    STATES.  1057 

Provided,  That  three  of  the  number  of  dental  surgeons 
to  be  employed  shall  be  first  appointed  by  the  Surgeon- 
General,  with  the  approval  of  the  Secretary  of  War,  with 
reference  to  their  fitness  for  assignment,  under  the  direc- 
tion of  the  Surgeon-General,  to  the  special  service  of  con- 
ducting the  examinations  and  supervising  the  operations 
of  the  others;  and  for  such  special  service  an  extra  com- 
pensation of  sixty  dollars  a  month  will  be  allowed:  Pro- 
vided further,  That  dental  college  graduates  now  em- 
ployed in  the  Hospital  Corps  who  have  been  detailed  for 
a  period  of  not  less  than  twelve  months  to  render  dental 
service  to  the  Army  and  who  are  shown  by  the  reports  of 
their  superior  officers  to  have  rendered  such  service  satis- 
factorily may  be  appointed  contract  dental  surgeons  with- 
out examination:  Provided,  That  the  Secretary  of  War 
be  authorized  to  appoint  in  the  Hospital  Corps,  in  addi- 
tion to  the  two  hundred  hospital  stewards  now  allowed  by 
law,  one  hundred  hospital  stewards:  Provided,  That  men 
who  have  served  as  hospital  stewards  of  volunteer  regi- 
ments or  acted  in  that  capacity  during  and  since  the  Span- 
ish-American war  for  more  than  six  months  may  be  ap- 
pointed hospital  stewards  in  the  Regular  Army:  And 
provided  further ;  That  all  men  so  appointed  shall  be  of 
good  moral  character  and  shall  have  passed  a  satisfactory 
mental  and  physical  examination.  Sec.  18,  ibid. 

THE    NURSE    COUPS    (FEMALE). 

That  the  Nurse  Corps  (female)  shall  consist  of  one  Super- 
intendent, to  be  appointed  by  the  Secretary  of  War,  who 
shall  be  a  graduate  of  a  hospital  training  school  having  a 
course  of  instruction  of  not  less  than  two  years,  whose 
term  of  office  may  be  terminated  at  his  discretion,  whose 
compensation  shall  be  one  thousand  eight  hundred  dollars 
per  annum,  and  of  as  many  chief  nurses,  nurses,  and  re- 
serve nurses  as  may  be  needed.  Reserve  nurses  may  be 
assigned  to  active  duty  when  the  emergency  of  the  service 
demands,  but  shall  receive  no  compensation  except  when 
on  such  duty:  Provided,  That  all  nurses  in  the  Nurse 
Corps  shall  be  appointed  or  removed  by  the  Surgeon- 
General,  with  the  approval  of  the  Secretary  of  War;  that 
they  shall  be  graduates  of  hospital  training  schools,  and 
shall  have  passed  a  satisfactory  professional,  moral,  men- 
tal, and  physical  examination:  And  provided,  That  the 
Superintendent  and  nurses  shall  receive  transportation  and 
22924—08 67 


1058  MILITAEY   LAWS    OF   THE    UNITED   STATES. 

necessary  expenses  when  traveling  under  orders;  that  the 
pay  and  allowances  of  nurses,  and  of  reserve  nurses,  when 
on  active  service,  shall  be  forty  dollars  per  month  when 
on  duty  in  the  United  States  and  fifty  dollars  per  month 
when  without  the  limits  of  the  United  States.  They  shall 
be  entitled  to  quarters,  subsistence,  and  medical  attendance 
during  illness,  and  they  may  be  granted  leaves  of  absence 
for  thirty  days,  with  pay,  for  each  calendar  year;  and, 
when  serving  as  chief  nurses,  their  pay  may  be  increased 
by  authority  of  the  Secretary  of  War,  such  increase  not 
to  exceed  twenty-five  dollars  per  month.  Payments  to  the 
Nurse  Corps  shall  be  made  by  the  Pay  Department.  Sec. 
19,  ibid. 

That  the  grade  of  veterinarian  of  the  second  class  in  cav- 
alry regiments,  United  States  Army,  is  hereby  abolished, 
and  hereafter  the  two  veterinarians  authorized  for  each 
cavalry  regiment  and  the  one  veterinarian  authorized  for 
each  artillery  regiment1  shall  receive  the  pay  and  allow- 
ances of  second  lieutenants,  mounted.  Such  number  of 
veterinarians  as  the  Secretary  of  War  may  authorize  shall 
be  employed  to  attend  animals  pertaining  to  the  quarter- 
master's or  other  departments  not  directly  connected  with 
the  cavalry  and  artillery  regiments,  at  a  compensation  not 
exceeding  one  hundred  dollars  per  month.  Sec.  20,  ibid. 

THE   PAY   DEPARTMENT. 

That  the  Pay  Department  shall  consist  of  one  Paymaster- 
General  with  the  rank  of  brigadier-general,  three  assistant 
paymasters-general  with  the  rank  of  colonel,  four  deputy 
paymasters-general  with  the  rank  of  lieutenant-colonel, 
twenty  paymasters  with  the  rank  of  major,  and  twenty- 
five  paymasters  with  the  rank  of  captain,  mounted:  Pro- 
vided, That  all  vacancies  in  the  grade  of  colonel  and 
lieutenant-colonel  created  or  caused  by  this  section  shall 
be  filled  by  promotion  according  to  seniority,  as  now  pre- 
scribed by  law,  and  no  more  appointments  to  the  grade  of 
major  and  paymaster  shall  be  made  until  the  number  of 
majors  and  paymasters  is  reduced  below  twenty:  And 
provided,  That  persons  who  have  served  in  the  Volunteer 
Army  since  April  twenty-first,  eighteen  hundred  and 
ninety-eight,  as  additional  paymasters  may  be  appointed 
to  positions  in  the  grade  of  captain,  created  by  this  section. 

Replaced  by  a  provision  of  the  act  of  March  3,  1901  (31  Stat.  L.,  901),  which 
authorizes  twelve  veterinarians  for  the  Artillery  Corps. 


MILITAEY    LAWS    OF   THE   UNITED   STATES.  1059 

So  long  as  there  remain  surplus  majors  an  equal  number 
of  vacancies  shall  be  held  in  the  grade  of  captain,  so  that 
the  total  number  of  paymasters  authorized  by  this  section 
shall  not  be  exceeded  at  any  time.  Sec.  21,  ibid. 

THE    CORPS   OF    ENGINEERS. 

That  the  Corps  of  Engineers  shall  consist  of  one  Chief 
of  Engineers  with  the  rank  of  brigadier-general,  seven 
colonels,  fourteen  lieutenant-colonels,  twenty-eight  majors, 
forty  captains,  forty  first  lieutenants,  and  thirty  second 
lieutenants.  The  enlisted  force  provided  in  section  eleven 
of  this  Act  and  the  officers  serving  therewith  shall  consti- 
tute a  part  of  the  line  of  the  Army:  Provided,  That  the 
Chief  of  Engineers  shall  be  selected  as  now  provided  by 
law,  and  hereafter  vacancies  in  the  Corps  of  Engineers  in  all 
other  grades  above  that  of  second  lieutenant  shall  be  filled, 
as  far  as  possible,  by  promotion  according  to  seniority  from 
the  Corps  of  Engineers:  And  provided  also,  That  vacan- 
cies remaining  in  the  grades  of  first  and  second  lieutenant 
may  be  filled  by  transfer  of  officers  of  the  Regular  Army, 
subject  to  such  professional  examination  as  may  be  ap- 
proved by  the  Secretary  of  War.  Vacancies  in  the  grade 
of  second  lieutenant  not  filled  by  transfer  shall  be  left  for 
future  promotions  from  the  corps  of  cadets  at  the  United 
States  Military  Academy.  Sec.  22,  ibid. 

THE    ORDNANCE    DEPARTMENT. 

That  the  Ordnance  Department  shall  consist  of  one  Chief 
of  Ordnance  with  the  rank  of  brigadier-general,  four  col- 
onels, six  lieutenant-colonels,  twelve  majors,  twenty-four 
captains,  and  twenty-four  first  lieutenants,  the  ordnance 
storekeeper,  and  the  enlisted  men,  including  ordnance  ser- 
geants, as  now  authorized  by  law.  All  vacancies  created 
or  caused  by  this  section  shall,  as  far  as  possible,  be  filled 
by  promotion  according  to  seniority  as  now  prescribed  by 
law.  Sec.  23,  ibid. 

THE   SIGNAL  CORPS. 

That  the  Signal  Corps  shall  consist  of  one  Chief  Signal 
Officer  with  the  rank  of  brigadier-general,4one  colonel,  one 
lieutenant-colonel,  four  majors,  fourteen  captains,  fourteen 
first  lieutenants,  eighty  first-class  sergeants,  one  hundred 
and  twenty  sergeants,  one  hundred  and  fifty  corporals, 
two  hundred  and  fifty  first-class  privates,  one  hundred  and 


1060  MILITARY    LAWS    OF    THE    UNITED    STATES. 

fifty  second-class  privates,  and  ten  cooks:  Provided,  That 
vacancies  created  or  caused  by  this  section  shall  be  filled 
by  promotion  of  officers  of  the  Signal  Corps  according  to 
seniority,  as  now  provided  by  law.  Vacancies  remaining 
after  such  promotions  may  be  filled  by  appointment  of 
persons  who  have  served  in  the  Volunteer  Signal  Corps 
since  April  twenty-first,  eighteen  hundred  and  ninety- 
eight:  Provided,  That  the  President  is  authorized  to  con- 
tinue in  service  during  the  present  emergency,  for  duty 
in  the  Philippine  Islands,  five  volunteer  signal  officers  with 
the  rank  of  first  lieutenant  and  five  volunteer  signal  offi- 
cers with  the  rank  of  second  lieutenant.  This  authority 
shall  extend  only  for  the  period  when  their  services  may 
be  absolutely  necessary.  Sec.  24,  ibid. 

THE   RECORD   AND   PENSION   OFFICE. 

That  the  officers  of  the  Record  and  Pension  Office  of 
the  War  Department  shall  be  a  chief  of  said  office  with 
the  rank  of  brigadier-general  and  an  assistant  chief  of  said 
office  with  the  rank  of  major:  Provided,  That  any  person 
appointed  to  be  Chief  of  the  Record  and  Pension  Office 
after  the  passage  of  this  Act  shall  have  the  rank  of  col- 
onel. Sec.  25,  ibid. 

PROMOTIONS  AND   DETAILS. 

That  so  long  as  there  remain  any  officers  holding  per- 
manent appointments  in  the  Adjutant-General's  Depart- 
ment, the  Inspector-General's  Department,  the  Quarter- 
master's Department,  the  Subsistence  Department,  the 
Pay  Department,  the  Ordnance  Department,  and  the  Sig- 
nal Corps,  including  those  appointed  to  original  vacancies 
in  the  grades  of  captain  and  first  lieutenant  under  the 
provisions  of  sections  sixteen,  seventeen,  twenty-one,  and 
twenty-four  of  this  Act,  they  shall  be  promoted  according 
to  seniority  in  the  several  grades,  as  now  provided  by  law, 
and  nothing  herein  contained  shall  be  deemed  to  apply  to 
vacancies  which  can  be  filled  by  such  promotions  or  to  the 
periods  for  which  the  officers  so  promoted  shall  hold  their 
appointments,  and  when  any  vacancy,  except  that  of  the 
chief  of  the  department  or  corps,  shall  occur,  which  can 
not  be  filled  by  promotion  as  provided  in  this  section,  it 
shall  be  filled  by  detail  from  the  line  of  the  Army,  and 
no  more  permanent  appointments  shall  be  made  in  those 
departments  or  corps  after  the  original  vacancies  created 


MILITAEY   LAWS    OF   THE    UNITED   STATES.  1061 

by  this  Act  shall  have  been  filled.  Such  details  shall  be 
made  from  the  grade  in  which  the  vacancies  exist,  under 
such  system  of  examination  as  the  President  may  from 
time  to  time  prescribe. 

All  officers  so  detailed  shall  serve  for  a  period  of  four 
years,  at  the  expiration  of  which  time  they  shall  return  to 
duty  with  the  line,  and  officers  below  the  rank  of  lieutenant- 
colonel  shall  not  again  be  eligible  for  selection  in  any  staff 
department  until  they  shall  have  served  two  years  with 
the  line. 

That  when  vacancies  shall  occur  in  the  position  of  chief 
of  any  staff  corps  or  department  the  President  may  ap- 
point to  such  vacancies,  by  and  with  the  advice  and  con- 
sent of  the  Senate,  officers  of  the  Army  at  large  not  below 
the  rank  of  lieutenant-colonel,  and  who  shall  hold  office 
for  terms  of  four  years.  When  a  vacancy  in  the  position 
of  chief  of  any  staff  corps  or  department  is  filled  by  the 
appointment  of  an  officer  below  the  rank  now  provided  by 
law  for  said  office,  said  chief  shall,  while  so  serving,  have 
the  same  rank,  pay,  and  allowances  now  provided  for  the 
chief  of  such  corps  or  department.  And  any  officer  now 
holding  office  in  any  corps  or  department  who  shall  here- 
after serve  as  chief  of  a  staff  corps  or  department  and  shall 
subsequently  be  retired,  shall  be  retired  with  the  rank, 
pay,  and  allowances  authorized  by  law  for  the  retirement  of 
such  corps  or  department  chief:  Provided,  That  so  long  as 
there  remain  in  service  officers  of  any  staff  corps  or  depart- 
ment holding  permanent  appointments,  the  chief  of  such 
staff  corps  or  department  shall  be  selected  from  the  offi- 
cers so  remaining  therein.  Sec.  £6,  ibid. 

That  each  position  vacated  by  officers  of  the  line,  trans- 
ferred to  any  department  of  the  staff  for  tours  of  service 
under  this  Act,  shall  be  filled  by  promotion  in  the  line 
until  the  total  number  detailed  equals  the  number  author- 
ized for  duty  in  each  staff  department.  Thereafter  vacan- 
cies caused  by  details  from  the  line  to  the  staff  shall  be 
filled  by  officers  returning  from  tours  of  staff  duty.  If 
under  the  operation  of  this  Act  the  number  of  officers 
returned  to  any  particular  arm  of  the  service  at  any  time 
exceeds  the  number  authorized  by  law  in  any  grade,  pro- 
motions to  that  grade  shall  cease  until  the  number  has 
been  reduced  to  that  authorized.  Sec.  2? ',  ibid. 

Appointments  to  fill  original  vacancies  in  the  lowest 
grade  in  the  Adjutant-General's  Department,  the  Inspector- 
General's  Department,  and  Judge  Advocate-General's 


1062  MILITARY    LAWS    OF   THE    UNITED   STATES. 

Department,  and  in  the  grade  of  captain  in  the  Quarter- 
master's Department,  Subsistence  Department,  and  Pay 
Department  may  be  made  from  officers  of  volunteers 
commissioned  since  April  twenty-first,  eighteen  hundred 
and  ninety-eight,  and  the  age  limit  prescribed  as  to  chap- 
lains shall  not  apply  to  persons  who  served  as  chaplains  of 
volunteers  after  said  date  who  were  under  forty-two  years 
of  age  when  originally  appointed.  Act  of  March  3,  1901 
(31  Stat.  Z.,  900). 

That  vacancies  in  the  grade  of  field  officers  and  captain, 
created  by  this  Act,  in  the  cavalry,  artillery,  and  infantry 
shall  be  filled  by  promotion  according  to  seniority  in  each 
branch,  respectively.  Vacancies  existing  after  the  pro- 
motions have  been  made  shall  be  provided  for  as  follows: 
A  sufficient  number  shall  be  reserved  in  the  grade  of  second 
lieutenant  for  the  next  graduating  class  at  the  United 
States  Military  Academy. 

Persons  not  over  forty  years  of  age  who  shall  have  at 
any  time  served  as  volunteers  subsequent  to  April  twenty- 
first,  eighteen  hundred  and  ninety-eight,  may  be  ordered 
before  boards  of  officers  for  such  examination  as  may  be 
prescribed  by  the  Secretary  of  War,  and  those  who 
establish  their  fitness  before  these  examining  boards  may 
be  appointed  to  the  grades  of  first  or  second  lieutenant  in 
£he  Regular  Army,  taking  rank  in  the  respective  grades 
according  to  seniority  as  determined  by  length  of  prior 
commissioned  service;  but  no  person  appointed  under  the 
provisions  of  this  section  shall  be  placed  above  another  in 
the  same  grade  with  longer  commissioned  service,  and 
nothing  herein  contained  shall  change  the  relative  rank  of 
officers  heretofore  commissioned  in  the  Regular  Army. 

Enlisted  men  of  the  Regular  Army  or  volunteers  may 
be  appointed  second  lieutenants  in  the  Regular  Army  to 
vacancies  created  by  this  act,  provided  that  they  shall 
have  served  one  year,  under  the  same  conditions  now 
authorized  by  law  for  enlisted  men  of  the  Regular  Army. 
Sec.  28,  act  of  February  2,  1901  (31  Stat.  Z.,  755). 

ENLISTMENTS. 

That  to  fill  vacancies  occurring  from  time  to  time  in  the 
several  organizations  serving  without  the  limits  of  the 
United  States  with  trained  men,  the  President  is  author- 
ized to  enlist  recruits  in  numbers  equal  to  four  per  centum 
in  excess  of  the  total  strength  authorized  for  such  organi- 
zations. Sec.  29,  ibid. 


MILITARY   LAWS    OF   THE   UNITED   STATES.  1063 

That  the  President  is  authorized  to  maintain  the  enlisted 
force  of  the  several  organizations  of  the  Army  at  their 
maximum  strength  as  fixed  by  this  act  during  the  present 
exigencies  of  the  service,  or  until  such  time  as  Congress 
may  hereafter  otherwise  direct:  Provided,  That  in  the 
event  of  the  enlistment  of  a  soldier  in  the  Army  for  the 
period  required  by  law,  and  after  the  expiration  of  one 
year  of  service,  should  either  of  his  parents  die,  leaving 
the  other  solely  dependent  upon  the  soldier  for  support, 
such  soldier  may,  upon  his  own  application,  be  honorably 
discharged  from  the  service  of  the  United  States  upon  due 
proof  being  made  of  such  condition  to  the  Secretary  of 
War.  Sec.  30,  ibid. 

That  the  Secretary  of  War  is  authorized  to  detach  from 
the  Army  at  large  such  number  of  enlisted  men  as  may  be 
necessary  to  perform  duty  at  the  various  recruiting  sta- 
tions, and  while  performing  such  duty  one  member  of 
each  party  shall  have  the  rank,  pay,  and  allowances  of 
sergeant,  and  one  the  rank,  pay,  and  allowances  of  cor- 
poral of  the  arm  of  the  service  to  which  they  respectively 
belong.  Sec.  31,  ibid. 

That  when  the  exigencies  of  the  service  of  any  officer 
who  would  be  entitled  to  promotion  upon  examination  re- 
quire him  to  remain  absent  from  any  place  where  an  ex- 
amining board  could  be  convened,  the  President  is  hereby 
authorized  to  promote  such  officer,  subject  to  examination, 
and  the  examination  shall  take  place  as  soon  thereafter  as 
practicable.  If  upon  examination  the  officer  be  found  dis- 
qualified for  promotion,  he  shall,  upon  the  approval  of  the 
proceedings  by  the  Secretary  of  War,  be  treated  in  the 
same  manner  as  if  he  had  been  examined  prior  to  promo- 
tion. Sec.  32,  ibid. 

The  President  of  the  United  States  is  herebv  authorized 
to  select  from  the  brigadier-generals  of  volunteers  two 
volunteer  officers,  without  regard  to  age,  and,  by  and 
with  the  advice  and  consent  of  the  Senate,  appoint  them 
brigadier-generals,  United  States  Army,  for  the  purpose 
of  placing  them  on  the  retired  list. 

And  the  President  is  also  hereby  authorized  to  select 
from  the  retired  list  of  the  Army  an  officer  not  above  the 
rank  of  brigadier-general  who  may  have  distinguished 
himself  during  the  war  with  Spain,  in  command  of  a  sep- 
arate army,  and  to  appoint,  by  and  with  the  advice  and 
consent  of  the  Senate,  the  officer  so  selected  to  be  major- 
general,  United  States  Army,  with  the  pay  and  allowances 


1064  MILITARY   LAWS    OF   THE   UNITED   STATES. 

established  by  law  for  officers  of  that  grade  on  the  retired 
list.  Sec.  33,  ibid. 

That  all  officers  who  have  served  during  the  war  with 
Spain,  or  since,  as  officers  of  the  Regular  or  Volunteer 
Army  of  the  United  States,  and  have  been  honorably  dis- 
charged from  the  service  by  resignation  or  otherwise, 
shall  be  entitled  to  bear  the  official  title,  and,  upon  occa- 
sions of  ceremony,  to  wear  the  uniform  of  the  highest 
grade  they  have  held  by  brevet  or  other  commission  in 
tin*  regular  or  volunteer  service.  /Sec.  34-,  ibid. 

That  the  Secretary  of  War  be,  and  he  is  hereby,  author- 
ized and  directed  to  cause  preliminary  examinations  and 
surveys  to  be  made  for  the  purpose  of  selecting  four  sites 
with  a  view  to  the  establishment  of  permanent  camp 
grounds  for  instruction  of  troops  of  the  Regular  Army 
and  National  Guard,  with  estimates  of  the  cost  of  the  sites 
and  their  equipment  with  all  modern  appliances,  and  for 
this  purpose  is  authorized  to  detail  such  officers  of  the 
Army  as  may  be  necessary  to  carry  on  the  preliminary 
work;  and  the  sum  of  ten  thousand  dollars  is  hereby 
appropriated  for  the  necessary  expense  of  such  work,  to 
be  disbursed  under  the  direction  of  the  Secretary  of  War: 
Provided,  That  the  Secretary  of  War  shall  report  to  Con- 
gress the  result  of  such  examination  and  surveys,  and  no 
contract  for  said  sites  shall  be  made  nor  any  obligation 
incurred  until  Congress  shall  approve  such  selections  and 
appropriate  the  money  therefor.  Sec.  35,  ibid. 

That  when  in  his  opinion  the  conditions  in  the  Philip- 
pine Islands  justify  such  action  the  President  is  author- 
ized to  enlist  natives  of  those  islands  for  service  in  the 
Army,  to  be  organized  as  scouts,  with  such  officers  as  he 
shall  deem  necessary  for  their  proper  control,  or  as  troops 
or  companies,  as  authorized  by  this  act,  for  the  Regular 
Army.  The  President  is  further  authorized,  in  his  discre- 
tion, to  form  companies,  organized  as  are  companies  of 
the  Regular  Army,  in  squadrons  or  battalions,  with  officers 
and  noncommissioned  officers  corresponding  to  similar 
organizations  in  the  cavalry  and  infantry  arms.  The  total 
number  of  enlisted  men  in  said  native  organizations  shall 
not  exceed  twelve  thousand,  and  the  total  enlisted  force 
of  the  line  of  the  Army,  together  with  such  native  force, 
shall  not  exceed  at  any  one  time  one  hundred  thousand. 

The  majors  to  command  the  squadrons  and  battalions 
shall  be  selected  by  the  President  from  captains  of  the 
line  of  the  Regular  Army,  and  while  so  serving  they  shall 


MILITAEY    LAWS    OF   THE   UNITED   STATES.  1065 

have  the  rank,  pay,  and  allowances  of  the  grade  of  major. 
The  captains  of  the  troops  or  companies  shall  be  selected 
by  the  President  from  first  lieutenants  of  the  line  of  the 
Regular  Army,  and  while  so  serving  they  shall  have  the 
rank,  pay,  and  allowances  of  captain  of  the  arm  to  which 
assigned.  The  squadron  and  battalion  staff  officers,  and 
first  and  second  lieutenants  of  companies,  may  be  selected 
from  the  noncommissioned  officers  or  enlisted  men  of  the 
Regular  Army  of  not  less  than  two  years'  service,  or  from 
officers  or  noncommissioned  officers  or  enlisted  men  serv- 
ing, or  who  have  served,  in  the  volunteers  subsequent  to 
April  twenty-first,  eighteen  hundred  and  ninety-eight, 
and  officers  of  those  grades  shall  be  given  provisional 
appointments  for  periods  of  four  years  each,  and  no  such 
appointments  shall  be  continued  for  a  second  or  subsequent 
term  unless  the  officer's  conduct  shall  have  been  satisfac- 
tory in  every  respect.  The  pay  and  allowances  of  pro- 
visional officers  of  native  organizations  shall  be  those 
authorized  for  officers  of  like  grades  in  the  Regular  Army. 
The  pay,  rations,  and  clothing  allowances  to  be  authorized 
for  the  enlisted  men  shall  be  fixed  by  the  Secretary  of  War, 
and  shall  not  exceed  those  authorized  for  the  Regular 
Army. 

When,  in  the  opinion  of  the  President,  natives  of  the 
Philippine  Islands  shall,  by  their  services  and  character, 
show  fitness  for  command,  the  President  is  authorized  to 
make  provisional  appointments  to  the  grades  of  second 
and  first  lieutenants  from  such  natives,  who,  when  so 
appointed,  shall  have  the  pa}^  and  allowances  to  be  fixed 
by  the  Secretary  of  War,  not  exceeding  those  of  corre- 
sponding grades  of  the  Regular  Army.  Sec.  36,  ibid. 

That  the  President  is  authorized  to  organize  and  main- 
tain one  provisional  regiment  of  not  exceeding  three  bat- 
talions of  infantry,  for  service  in  Porto  Rico,  the  enlisted 
strength  thereof  to  be  composed  of  natives  of  that  island  as 
far  as  practicable.  The  regiment  shall  be  organized  as  to 
numbers  as  authorized  for  infantry  regiments  of  the  Reg- 
ular Army.  The  pay,  rations,  and  clothing  allowances  to 
be  authorized  for  the  enlisted  men  shall  be  fixed  by  the 
Secretary  of  War,  and  shall  not  exceed  those  authorized  for 
the  Regular  Army.  The  field  officers  shall  be  selected  from 
officers  of  the  next  lower  grades  in  the  Regular  Army  and 
shall,  while  so  serving  in  the  higher  grade,  have  the  rank, 
pay,  and  allowances  thereof.  The  company  and  regimental 
and  battalion  staff  officers  shall  be  appointed  by  the  Presi- 


1066  MILITARY    LAWS    OF   THE    UNITED   STATES. 

dent.  The  President  may ,  in  his  discretion,  continue  with 
their  own  consent  the  volunteer  officers  and  enlisted  men  of 
the  Porto  Rico  regiment,  whose  terms  of  service  expire  by 
law  July  first,  nineteen  hundred  and  one.  Enlistments  for 
the  Porto  Rico  regiment  shall  be  made  for  periods  of  three 
years,  unless  sooner  discharged.  The  regiment  shall  be 
continued  in  service  until  further  directed  by  Congress. 
Sec.  37,  ibid. 

The  sale  of  or  dealing  in  beer,  wine  or  any  intoxicating 
liquors  by  any  person  in  any  post  exchange  or  canteen  or 
army  transport  or  upon  any  premises  used  for  military 
purposes  by  the  United  States,  is  hereby  prohibited.  The 
Secretary  of  War  is  hereby  directed  to  carry  the  provisions 
of  this  section  into  full  force  and  effect.  Sec.  38,  ibid. 

That  nothing  in  this  Act  shall  be  held  or  construed  so  as 
to  discharge  any  officer  from  the  Regular  Army  or  to 
deprive  him  of  the  commission  which  he  now  holds  therein. 
Sec.  39,  ibid. 

That  the  President  be,  and  he  is  hereby,  authorized  to 
prescribe  the  kinds  and  quantities  of  the  component  articles 
of  the  army  ration,  and  to  direct  the  issue  of  substitutive 
equivalent  articles  in  place  of  any  such  components  when- 
ever, in  his  opinion,  economy  and  a  due  regard  to  -the 
health  and  comfort  of  the  troops  may  so  require.  Sec.  40, 
ibid. 

That  the  distinctive  badges  adopted  by  military  societies 
of  men  "who  served  in  the  armies  and  navies  of  the  United 
States  during  the  Spanish-American  war  and  the  incident 
insurrection  in  the  Philippines"  may  be  worn  upon  all 
occasions  of  ceremony  by  officers  and  men  of  the  Army 
'and  Navy  of  the  United  States  who  are  members  of  said 
organizations  in  their  own  right.  Sec.  41,  ibid. 

That  all  laws  and  parts  of  laws  inconsistent  with  the  pro- 
visions of  this  act  be,  and  the  same  are  hereby,  repealed. 
Sec.  4%,  ibid. 


MAXIMUM  PUNISHMENT  CODE. 

GENERAL,  ORDERS,  )  HEADQUARTERS  OF  THE  ARMY, 

ADJUTANT-GENERAL'S  OFFICE, 

No.  42.  Washington,  March  26,  1901. 

By  direction  of  the  Secretary  of  War,  the  following  Executive 
order  is  published  for  the  information  and  guidance  of  all  concerned: 

EXECUTIVE  MANSION,  March  12,  1901. 

^  The  Executive  order,  dated  March  30,  1898,  establishing  limits  of 
punishment  for  enlisted  men  of  the  Army,  under  an  act  of  Congress 
approved  September  27,  1890,  and  which  was  published  in  General 
Orders,  No.  16,  1898,  Headquarters  of  the  Army,  is  amended  so  as  to 
prescribe  as  follows: 

ARTICLE  L 

In  all  cases  of  desertion  the  sentence  may  include  dishonorable  dis- 
charge *  and  forfeiture  of  pay  and  allowances. 

Subject  to  the  modifications  authorized  in  section  3  of  this  article, 
the  limit  of  the  term  of  confinement  (at  hard  labor)  for  desertion  shall 
be  as  follows: 

SECTION  1.  In  case  of  surrender — 

(a)  When  the  deserter  surrenders  himself  after  an  absence  of  not 
more  than  thirty  days,  one  year. 

(b)  When   the   surrender  is  made  after  an  absence  of  more  than 
thirty  days,  eighteen  months. 

JIn  a  case  where,  because  of  previous  convictions,  the  punishment  may,  under 
General  Orders,  No.  42,  of  1901,  be  dishonorable  discharge,  the  department  com- 
mander may  properly  require  the  charges  to  be  brought  to  trial  before  a  general 
court-martial,  notwithstanding  that,  if  the  alternative  punishment  of  dishonorable 
discharge  be  not  resorted  to,  the  punishment  would  be  within  the  power  of  an  infe- 
rior court.  Dig.  Opin.,  J.  A.  G.,  par.  1647. 

An  offense  covered  by  General  Orders,  No.  42,  of  1901,  is  cognizable  by  inferior 
court-martial  whenever  the  limit  prescribed  in  the  order  may,  by  substitution  of 
punishment  under  the  provisions  of  the  order,  be  brought  within  the  punishing 
power  of  inferior  courts  as  denned  by  the  eighty-third  Article  of  War.  Ibid., 
par.  1648. 

The  term  "day"  or  "days,"  when  used  in  General  Orders,  No.  42,  of  1901,  has 
reference  to  a  day  of  twenty-four  hours.  Ibid.,  par.  1649. 

A  sentence  of  a  summary  court  forfeited  one  month's  pay  in  a  case  where,  under 
General  Orders,  No.  42,  of  1901,  the  maximum  legal  forfeiture  was  ten  dollars.  Held, 
that  the  sentence  was  void  as  to  the  forfeiture  in  excess  of  the  limit,  and  advised  that 
the  amount  collected  in  excess  of  such  limit  be  refunded  to  the  soldier.  Ibid., 
par.  1650. 

It  is  now  held  by  the  War  Department  that  when  a  seL^^c  of  confinement  or 
forfeiture  exceeds  the  prescribed  limit,  the  part  within  the  limit  is  legal  and  may 
be  approved  and  carried  into  execution,  (a)  Ibid.,  par.  1651. 

a  See  paragraph  2,  Circ.  12,  A.  G.  O.,  1892. 

1067 


1068 


MILITARY    LAWS    OF    THE    UNITED    STATES. 


SEC.  2.  In  case  of  apprehension— 

(a)  When  at  the  time  of  desertion  the  deserter  shall  not  have  been 
more  than  six  months  in  the  service,  eighteen  months. 

(b)  When  he  shall  have  been  more  than  six  months  in  the  service, 
two  and  one-half  years. 

SEC.  3.  The  foregoing  limitations  are  subject  to  modifications  under 
the  following  conditions: 

(a)  The  punishment  of  a  deserter  may  be  increased  by  one  year  of 
confinement  at  hard  labor  in  consideration  of  each  previous  conviction 
of  desertion. 

(b)  The  punishment  for  desertion  when  joined  in  by  two  or  more 
soldiers  in  the  execution  of  a  conspiracy,  or  for  desertion  in  the 
presence  of  an  outbreak  of  Indians  or  of  any  unlawful  assemblage 
which  the  troops  may  be  opposing,  shall  not  exceed  dishonorable  dis- 
charge, forfeiture  of  all  pay  and  allowances,  and  confinement  at  hard 
labor  for  five  years. 

ARTICLE  II. 

Except  as  herein  otherwise  indicated,  punishments  shall  not  exceed 
the  limits  prescribed  in  the  following  table: 


Offenses. 


Limits  of  punishment. 


UNDER  I?TH  ARTICLE  OP  WAR. 


Selling  horse  or  arms,  or  both. 
Selling  accouterments 


Selling  clothing 


Losing   or   spoiling   horse   or    arms 
through  neglect. 

Losing  or  spoiling  accouterments  or 
clothing  through  neglect. 

UNDER  20TH  ARTICLE  OF  WAR. 

Behaving  himself  with  disrespect  to 
his  commanding  officer. 


UNDER  24TH  ARTICLE  OP  WAR. 

Refusal  to  obey  or  using  violence  to 
officer  or  noncommissioned  officer 
while  quelling  quarrels  or  disorders. 

UNDER  32D  ARTICLE  OF  WAR. 

Absence  without  leave  (a)— 

One  hour  or  less 


For  more  than  one  to  six  hours, 
inclusive. 

For  more  than  six  to  twelve 
hours,  inclusive. 

For  more  than  twelve  to  twenty- 
four  hours,  incisive. 


Dishonorable  discharge,  forfeiture  of  all  pay  and  allowances, 

and  confinement  at  hard  labor  for  three  years. 
Four  months'  confinement  at  hard  labor  and  forfeiture  of  $10 

per  month  for  the  same  period ;  for  noncommissioned  officer, 

reduction  in  addition  thereto. 
Two  months'  confinement  at  hard  labor  and  forfeiture  of  $10 

per  month  for  the  same  period;  for  noncommissioned  officer, 

reduction  in  addition  thereto. 
Four  months'  confinement  at  hard  labor  and  forfeiture  of  $10 

per  month  for  the  same  period ;  for  noncommissioned  officer, 

reduction  in  addition  thereto. 
Twenty  days'  confinement  at  hard  labor  and  forfeiture  of  $6; 

for  noncommissioned  officer,  reduction  in  addition  thereto. 


Six  months'  confinement  at  hard  labor  and  forfeiture  of  $10 
per  month  for  the  same  period;  for  noncommissioned  officer, 
reduction  in  addition  thereto. 


Dishonorable  discharge,  with  forfeiture  of  all  pay  and  allow- 
ances, and  confinement  at  hard  labor  for  two  years. 


Forfeiture  of  $1;  corporal,  $2;  sergeant,  $3;  first  sergeant  or 

noncommissioned  officer  of  higher  grade,  $4. 
Forfeiture  of  $2;  corporal,  $3;  sergeant,  $4;  first  sergeant  or 

noncommissioned  officer  of  higher  grade,  $5. 
Forfeiture  of  $3;  corporal,  $4;  sergeant,  $6;  first  sergeant  or 

noncommissioned  officer  of  higher  grade,  $7. 
Forfeiture  of  $5;  corporal,  $6;  sergeant,  $7;  first  sergeant  or 

noncommissioned  officer  of  higher  grade,  $10. 


a  Upon  trial  for  desertion  and  conviction  of  absence  without  leave  only,  the  court  may,  in  addition 
to  the  limit  prescribed  for  such  absence,  award  a  stoppage  of  the  amount  paid  for  apprehension  and 
for  transportation  of  himself  and  guard. 


MILITARY    LAWS    OF    THE    UNITED    STATES. 


1069 


Offenses. 


Limits  of  punishment. 


UNDER  32D  ARTICLE  OF  WAR/— Cont'd. 

Absence  without  leave  (a) — 

For   more   than   twenty-four   to 
forty-eight  hours,  inclusive. 


For  more  than  two  to  ten  days, 

inclusive. 
For  more  than  ten  to  thirty  days, 

inclusive. 
For  more  than  thirty  to  ninety 

days,  inclusive. 


For  more  than  ninety  days. 


UNDER  33D  ARTICLE  OF  WAR. 

Failure  to  repair  at  the  time  fixed,  to 
the  place  appointed,  etc. — 
For  reveille  or  retreat  roll  call  and 

11  p.  m.  inspection. 

For  assembly  of  guard  detail 

For  guard  mounting  (by  musician 

detailed  for  guard) . 
For  guard  mounting  (by  musician 

not  detailed  for  guard). 

For  assembly  of  fatigue  detail 

For  dress  parade 

For  inspection  and  muster,  weekly 

or  monthly  inspection. 

For  target  practice 

For  drill 

F6r  stable  duty 

For  athletic  exercises 


UNDER  38TH  ARTICLE  OF  WAR. 


Found  drunk — 
On  guard  . . . 


On  duty  as  head  cook , 

On  extra  or  special  duty 

At  formation  of  company  for  drill 

or  on  drill. 

At  target  practice , 

At  formation  of  company  for  dress 

parade  or  on  dress  parade. 
At  reveille  or  retreat  roll  call . 
At  inspection  and  muster,  weekly 

or  monthly  inspection. 
At  inspection  of  company  guard 

detail  or  at  guard  mounting. 

At  stable  duty 

On  fatigue 


UNDER  40TH  ARTICLE  OF  WAR. 


Quitting  guard 


UNDER  51sT  ARTICLE  OF  WAR. 
Persuading  soldiers  to  desert 


UNDER  60TH  ARTICLE  OF  WAR... 
UNDER  62D  ARTICLE  OF  WAR. 


Forfeiture  of  $6  and  five  days'  confinement  at  hard  labor.  For 
corporal,  forfeiture  of  88;  sergeant,  $10;  first-sergeant  or  non- 
commissioned officerof  higher  grade,  812;  or,  for  all  noncom- 
missioned officers,  reduction. 

Forfeiture  of  $10  and  ten  days'  confinement  at  hard  labor;  for 
noncommissioned  officer,  reduction  in  addition  thereto. 

Forfeiture  of  $30  and  one  month's  confinement  at  hard  labor; 
for  noncommissioned  officer,  reduction  in  addition  thereto. 

Three  months'  confinement  at  hard  labor  and  forfeiture  of 
$10  per  month  for  same  period;  for  noncommissioned  officer, 
reduction  in  addition  thereto. 

Dishonorable  discharge  and  forfeiture  of  all  pay  and  allow- 
ances and  six  months' confinement  at  hard  labor. 


Forfeiture  of  $1;  corporal,  $2;  sergeant,  83;  first  sergeant,  $4. 


Forfeiture  of  85;  corporal,  88;  sergeant,  810. 


Forfeiture  of  82;  corporal,  83;  sergeant,  $5. 


Manslaughter 

Assault  with  intent  to  kill 


Burglary 
Forgery  . 


Six  months'  confinement  at  hard  labor  and  forfeiture  of  $10 
per  month  for  the  same  period;  for  noncommissioned  offi- 
cer, reduction  in  addition  thereto. 

Forfeiture  of  820. 


Forfeiture  of  $7.2;    for  noncommissioned   officer,  reduction 
and  forfeiture  of  $20. 


Six  months'  confinement  at  hard  labor  and  forfeiture  of  $10 
per  month  for  the  same  period;  for  noncommissioned  officer, 
reduction  in  addition  thereto. 


Dishonorable  discharge,  forfeiture  of  all  pay  and  allowances, 
and  one  year's  confinement  at  hard  labor. 

Dishonorable  discharge,  forfeiture  of  all  pay  and  allowances, 
and  four  years'  confinement  at  hard  labor. 


Dishonorable  discharge,  forfeiture  of  all  pay  and  allowances, 

and  ten  years'  confinement  at  hard  labor. 
Dishonorable  discharge,  forfeiture  of  all  pay  and  allowances, 

and  ten  years'  confinement  at  hard  labor. 
Dishonorable  discharge,  forfeiture  of  all  pay  and  allowances, 

and  five  years'  confinement  at  hard  labor. 
Dishonorable  discharge,  forfeiture  of  all  pay  and  allowances, 

and  four  years'  confinement  at  hard  labor. 

a  Upon  trial  for  desertion  and  conviction  of  absence  without  leave  only,  the  court  may,  in  addition 
to  the  limit  prescribed  for  such  absence,  award  a  stoppage  of  the  amount  paid  for  apprehension  and 
for  transportation  of  himself  and  guard. 


1070 


MILITARY    LAWS    OF    THE    UNITED    STATES. 


Offenses. 


Limits  of  punishment. 


UNDER  62»  ARTICLE  OF  WAR— 
Continued. 


Perjury 

False  swearing 
Robbery 


Larceny   or  embezzlement  of  prop- 

erty(a)— 

Of  the  value  of  more  than  $100. . . 

Of  the  value  of  $100  or  less,  and 

more  than  $50. 
Of  the  value  of  $50  or  less,  and 

more  than  $20. 
Of  the  value  of  $20  or  less 


Fraudulent  enlistment,  procured  by 
false  representation  or  concealment 
of  a  fact  in  regard  to  a  prior  enlist- 
ment or  discharge,  or  in  regard  to 
conviction  of  a  civil  or  military 
crime. 

Fraudulent  enlistment,  other  cases  of . . 

Disobedience  of  orders,  involving  will- 
ful defiance  of  the  authority  of  a 
noncommissioned  officer  in  the  exe- 
cution of  his  office. 

Using  threatening  or  insulting  lan- 
guage or  behaving  in  an  insubordi- 
nate manner  to  a  noncommissioned 
officer  while  in  the  execution  of  his 
office. 

Absence  from  fatigue  duty 

Absence  from  extra  or  special  duty... 

Absence  from  duty  as  company,  gen- 
eral mess,  or  hospital  head  cook. 

Introducing  Iiqu9r  into  post,  camp, 
or  quarters  in  violation  of  standing 
orders. 

Drunkenness  at  post  or  in  quarters  . . . 

Drunkenness  and  disorderly  conduct, 
causing  the  offender's  arrest  and 
conviction  by  civil  authorities  at  a 
place  within  ten  miles  of  his  sta- 
tion. 

Noisy  or  disorderly  conduct  in  quar- 
ters. 

Drunk  and  disorderly  in  post  or  quar- 
ters. 

Abuse  by  noncommissioned  officer  of 
his  authority  over  an  inferior. 

Noncommissioned  officer  encourag- 
ing gambling. 

Noncommissioned  officer  making 
false  report. 

Sentinel  allowing  a  prisoner  under  his 
charge  to  escape  through  neglect. 

Sentinel  willfully  suffering  prisoner 
under  his  charge  to  escape. 

Sentinel  allowing  a  prisoner  under  his 
charge  to  obtain  liquor. 

Sentinel  or  member  of  guard  drink- 
ing liquor  with  prisoners. 

Disrespect  or  affront  to  a  sentinel 


Resisting  or  disobeying  sentinel  in 
lawful  execution  of  his  duty. 

Lewd  or  indecent  exposure  of  person. . 
Commiting  nuisance  in  or  about  quar- 
ters. 
Breach  of  arrest  in  quarters. 


Dishonorable  discharge,  forfeiture  of  all  pay  and  allowances, 

and  four  years'  confinement  at  hard  labor. 
Dishonorable  discharge,  forfeiture  of  all  pay  and  allowances, 

and  two  years'  confinement  at  hard  labor. 
Dishonorable  discharge,  forfeiture  of  all  pay  and  allowances, 

and  six  years'  confinement  at  hard  labor. 


Dishonorable  discharge,  forfeiture  of  all  pay  and  allowances 

and  four  years'  confinement  at  hard  labor. 
Dishonorable  discharge,  forfeiture  of  all  pay  and  allowances, 

and  three  years'  confinement  at  hard  labor. 
Dishonorable  discharge,  forfeiture  of  all  pay  and  allowances, 

and  two  years'  confinement  at  hard  labor. 
Dishonorable  discharge,  forfeiture  of  all  pay  and  allowances, 

and  one  year's  confinement  at  hard  labor. 
Dishonorable  discharge,  forfeiture  of  all  pay  and  allowances, 

and  confinement  at  hard  labor  for  one  year. 


Dishonorable  discharge,  forfeiture  of  all  pay  and  allowances, 
and  confinement  at  hard  labor  for  six  months. 

Six  months'  confinement  at  hard  labor  and  forfeiture  of  $10 
per  month  for  the  same  period;  for  noncommissioned  officer, 
reduction  in  addition  thereto. 

One  months'  confinement  at  hard  labor  and  forfeiture  of  $10; 
for  noncommissioned  officer,  reduction  in  addition  thereto. 


Forfeiture  of  $4;  corporal,  $5;  sergeant,  $6. 
Forfeiture  of  $4;  corporal,  $5;  sergeant,  $6. 
Forfeiture  of  $10. 

Forfeiture  of  $3;  for  noncommissioned  officer,  reduction  and 
forfeiture  of  $5. 

Forfeiture  of  $3;  for  noncommissioned  officer,  reduction  and 

forfeiture  of  $5. 
Forfeiture  of  $10  and  seven  days'  confinement  at  hard  labor; 

for  noncommissioned  officer,  reduction  and  forfeiture  of  $12. 


Forfeiture  of  $4;  corporal,  $7;  sergeant,  $10. 

Forfeiture  of  $7;  for  noncommissioned  officer,  reduction  and 
forfeiture  of  $10. 

Reduction,  three  months'  confinement  at  hard  labor,  and  for- 
feiture of  $10  per  month  for  the  same  period. 

Reduction  and  forfeiture  of  $5. 

Reduction,  forfeiture  of  $8,  and  ten  days'  confinement  at  hard 
labor. 

Six  months'  confinement  at  hard  labor  and  forfeiture  of  $10 
per  month  for  the  same  period. 

Dishonorable  discharge,  forfeiture  of  all  pay  and  allowances, 
and  one  years'  confinement  at  hard  labor. 

Two  months'  confinement  at  hard  labor  and  forfeiture  of  $10 
per  month  for  the  same  period. 

Two  months'  confinement  at  hard  labor  and  forfeiture  of  $10 
per  month  for  the  same  period. 

Two  months'  confinement  at  hard  labor  and  forfeiture  of  $10 
per  month  for  the  same  period;  for  noncommissioned  offi- 
cer, reduction  in  addition  thereto. 

Six  months'  confinement  at  hard  labor  and  forfeiture  of  $10 
per  month  for  the  same  period;  for  noncommissioned  offi- 
cer, reduction  in  addition  thereto. 

)  Three  months'  confinement  at  hard  labor  and  forfeiture  of  $10 
}•  per  month  for  the  same  period;  for  noncommissioned  offi- 
J  cer,  reduction  in  addition  thereto. 

One  months'  confinement  at  hard  labor  and  forfeiture  of  $10; 
for  noncommissioned  officer,  reduction  in  addition  thereto. 


a  In  specifications  to  charges  of  larceny  or  embezzlement  the  value  of  the  property  shall  be  stated. 


MILITAEY    LAWS    OF    THE   UNITED    STATES.  1071 

ARTICLE  III. 

The  introduction  and  use  of  evidence  of  previous  convictions  is  sub- 
ject to  the  following  regulations: 

1.  Such  evidence  shall  be  limited  to  previous  convictions  by  courts- 
martial  of  an  offense  or  offenses  within  one  year  preceding  the  arraign- 
ment and  during  the  current  enlistment.     These  convictions  must  be 
proved  by  the  records  of  previous  trials  and  convictions,  or  by  duly 
authenticated  copies  of  such  records,  or  by  duly  authenticated  copies 
of  the  orders  promulgating  such  trials  and  convictions.     Charges  for- 
warded to  the  authority  competent  to  order  a  general  court-martial, 
or  submitted  to  a  summary,  garrison,  or  regimental  court-martial, 
must  be  accompanied  by  the  proper  evidence  of  previous  convictions. 

2.  Whenever  a  soldier  is  convicted  of  an  offense  for  which  a  dis- 
cretionary punishment  is  authorized,  the  court  will  receive  evidence 
of  previous  convictions,  if  there  be  any.     General,  regimental,  and 
garrison  courts-martial  will,  after  a  finding  of  guilty,  be  opened  for 
the  purpose  of  ascertaining  whether  there  is  such  evidence  and,  if  so, 
of  receiving  it. 

3.  Previous  convictions  in  connection  with  inferior  court  offenses. — 
When  a  soldier  is  convicted  of  an  offense  the  punishment  for  which 
under  Article  II  of  this  order  or  the  custom  of  the  service  does  not 
exceed  one  month's  confinement  at  hard  labor  and  forfeiture  of  one 
month's  pay,  the  punishment  so  authorized  may,  upon  proof  of  four 
or  less  previous  convictions  within  the  prescribed  period,  be  increased 
one-half  for  each  of  such  previous  convictions;  provided  that  upon 
proof  of  five  or  more  such  previous  convictions,  the  limit  of  punish- 
ment shall  be  dishonorable  discharge,  forfeiture  of  all  pay  and  allow- 
ances, and  confinement  at  hard  labor  for  three  months. 

4.  Previous   convictions   in   connection   with    general  court-martial 
offenses. — When  the  conviction  is  for  an  offense  punishable  under 
Article  II  of  this  order  or  the  custom  of  the  service  with  a  greater  pun- 
ishment than  one  month's  confinement  at  hard  labor  and  forfeiture  of 
one  month's  pay,  such  punishment,  if  it  includes  dishonorable  dis- 
charge, shall  not  be  increased  by  reason  of  previous  convictions,  but 
evidence  thereof,  whatever  their  number  within  the  prescribed  period, 
will  be  submitted  to  the  court  to  aid  it  in  determining  upon  the  proper 
measure  of  punishment,  subject  to  the  limit  already  authorized. 

If  the  authorized  punishment  under  Article  II  of  this  order  or  the 
custom  of  the  service  exceeds  one  month's  confinement  at  hard  labor 
arid  forfeiture  of  one  month's  pay  and  does  not  include  dishonorable 
discharge  such  punishment  shall  not  be  increased  on  account  of  pre- 
vious convictions  if  less  than  five  are  considered,  but  if  there  be  five 
or  more,  the  court  may  adjudge  dishonorable  discharge  and  forfeiture 
of  all  pay  and  allowances  with  the  authorized  confinement,  and  when 


1072  MILITARY    LAWS    OF    THE    UNITED   STATES. 

this  confinement  is  less  than  three  months  it  may  be  increased  to  three 
months.1 

5.  On  a  conviction  of  desertion  evidence  of  convictions  of  previous 
desertions  may  also  be  introduced,  irrespective  of  the  period  which 
may  have  elapsed  since  such  conviction  or  convictions. 

6.  When  a  noncommissioned  officer  is  convicted  of  an  offense  not 
punishable  with  reduction,  he  may,  upon  proof  of  one  previous  con- 
viction within  the  prescribed  period,  be  sentenced  to  reduction  in 
addition  to  the  punishment  already  authorized. 

7.  First-class  privates  may  be  reduced  to  second-class  privates  in  all 
cases  where  for  like  offenses  on  the  part  of  noncommissioned  officers 
their  reduction  in  grade  is  now  authorized. 

ARTICLE  IV. 

When  a  soldier  shall,  on  one  arraignment,  be  convicted  of  two  or 
more  offenses,  none  of  which  is  punishable  under  Article  II  of  this 
order  or  the  custom  of  the  service  with  dishonorable  discharge,  but 
the  aggregate  term  of  confinement  for  which  may  exceed  six  months, 
dishonorable  discharge  with  forfeiture  of  pay  and  allowances  may  be 
awarded  in  addition  to  the  authorized  confinement.2 

ARTICLE  V. 

If,  in  any  case  where  the  limit  of  punishment  is  dishonorable  dis- 
charge, forfeiture  of  all  pay  and  allowances,  and  confinement  at  hard 
labor  for  a  stated  number  of  months,  dishonorable  discharge  be  not 
adjudged,  the  limit  of  forfeiture  shall  be  all  pay  due  and  to  become 
due  during  the  prescribed  limit  of  confinement. 

1  By  the  third  subdivision  of  Article  III  of  the  Executive  Order  of  March  30,  1898 
(G.  0.  16,  A.  G.  0.,  1898),  it  is  provided  that  in  consideration  of  previous  convic- 
tions the  limit  of  punishment  shall  be  "  dishonorable  discharge,  forfeiture  of  all  pay 
and  allowances,  and  confinement  at  hard  labor  for  three  months. ' '  Such  a  sentence 
means,  so  far  as  the  forfeiture  is  concerned,  forfeiture  of  pay  and  allowances  due  at 
the  date  of  the  discharge.  A  court-martial  when  it  has  the  power  to  award  this  sen- 
tence may  award  a  lesser  one,  but  in  doing  so  can  not  award  confinement  and  forfei- 
ture greater  in  amount  than  confinement  for  three  months  and  forfeiture  of  pay  and 
allowances  due,  or  its  equivalent  under  the  rule  of  substitution  authorized  in  the 
order. (a)  Dig.  Opin.  J.  A.  G.,  par.  1653. 

2The  term  "authorized  confinement"  as  used  in  Article  IV  of  General  Order  No. 
16  of  1895  (now  Article  IV,  General  Order  No.  16  of  1898),  is  not  limited  to  the  maxi- 
mum authorized.  Confinement  for  a  period  less  than  the  maximum  is  also  author- 
ized confinement.  The  article  means  that  when  the  maximum  term  may  be  more 
than  six  months,  dishonorable  discharge  with  forfeiture  of  pay  and  allowances  may 
be  awarded  with  whatever  confinement,  within  the  prescribed  limit,  the  court  may 
adjudge.  Held  also  that  such  "authorized  confinement"  is  limited  to  the  specific 
confinement  authorized  by  Article  II,  or  if  not  provided  for  therein,  by  the  custom 
of  the  service;  that  is  to  say,  such  confinement  may  not  be  increased  by  substitution 
of  confinement  for  forfeiture,  or  on  account  of  previous  convictions,  the  same  not 
being  provided  for  by  the  terms  of  Article  IV.  Ibid.,  par.  1652. 

(a)  But  see  Article  V,  post. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  1073 

ARTICLE  VI. 

This  order  prescribes  the  maximum  limit  of  punishment  for  the 
offenses  named,  and  this  limit  is  intended  for  those  cases  in  which  the 
severest  punishment  should  be  awarded.  In  other  cases  the  punish- 
ment should  be  graded  down  according  to  the  extenuating  circum- 
stances. Offenses  not  herein  provided  for  remain  punishable  as 
authorized  by  the  Articles  of  War  and  the  custom  of  the  service. 

ARTICLE  VII. 

Summary  courts  are  subject  to  the  restrictions  named  in  the  Eighty- 
third  Article  of  War.  Soldiers  against  whom  charges  may  be  pre- 
ferred for  trial  by  summary  court  shall  not  be  confined  in  the  guard- 
house, but  shall  be  placed  in  arrest  in  quarters,  before  and  during 
trial  and  while  awaiting  sentence,  except  when  in  particular  cases 
restraint  may  be  necessary. 

ARTICLE  VIII. 

Substitutions  for  punishment  named  in  Article  II  of  this  order  are 
authorized  at  the  discretion  of  the  courts  at  the  following  rates: 

Two  days'  confinement  at  hard  labor  for  one  dollar  forfeiture;  or  the 
reverse;  one  day's  solitary  confinement  on  bread  and  water  diet  for 
two  days'  confinement  at  hard  labor  or  for  one  dollar  forfeiture;  pro- 
vided that  a  noncommissioned  officer  not  sentenced  to  reduction  shall 
not  be  subject  to  confinement;  and  provided  that  solitary  confinement 
shall  not  exceed  fourteen  days  at  one  time,  nor  be  repeated  until  four- 
teen days  have  elapsed,  and  shall  not  exceed  eighty-four  days  in  one 
year.1 

ARTICLE  IX. 

Noncommissioned  officers  above  the  rank  of  corporal  shall  not,  if 
they  object  thereto,  be  brought  to  trial  before  regimental,  garrison, 
or  summary  courts-martial  without  the  authority  of  the  officer  compe- 
tent to  order  their  trial  by  general  court-martial;  nor  shall  sergeants 
of  the  post  noncommissioned  staff  or  hospital  stewards  be  reduced,  but 
they  may  be  dishonorably  discharged  whenever  reduction  is  included 
in  the  limit  of  punishment. 

WILLIAM  McKiNLEY. 
By  command  of  Lieutenant-General  Miles: 

H.  C.  CORBIN, 
Adjutant- General,  Major- General  U.  8.  Army. 

1  The  order  prescribing  maximum  punishments  also  provides  for  certain  substitu- 
tions of  punishment.  The  purpose  of  these  provisions  is  not  only  to  determine  the 
measure,  but  also  the  kind  of  punishment  which  should  be  considered  authorized  so 
far  as  the  offenses  specified  in  the  order  are  concerned.  Thus  where  the  prescribed 
limit  is  forfeiture  and  confinement  a  reprimand  in  lieu  thereof  can  not  legally  be 
adjudged.  Dig.  Opin.  J.  A.  G.,  par.  1654. 

22924—08 68 


INSTRUCTIONS  FOR  THE  GOVERNMENT  OF  ARMIES  OF 
THE  UNITED  STATES  IN  THE  FIELD. 

GENERAL  ORDERS,  )  WAR  DEPARTMENT, 

ADJUTANT-GENERAL'S  OFFICE, 
No.  100.  )  Washington,  April  24,  1863. 

The  following  ' '  Instructions  for  the  government  of  armies  of  the 
United  States  in  the  field,"  prepared  by  Francis  Lieber,  LL.  D.,  and 
revised  by  a  board  of  officers,  of  which  Maj.  Gen.  E.  A.  Hitchcock  is 
president,  having  been  approved  by  the  President  of  the  United  States, 
he  commands  that  they  be  published  for  the  information  of  all  concerned. 
By  order  of  the  Secretary  of  War: 

E.  D.  TOWNSEND, 
Assistant  Adjutant-  General. 


SECTION  I. 

MARTIAL   LAW — MILITARY    JURISDICTION — MILITARY    NECESSITY- 
RETALIATION. 

1.  A  place,  district,  or  county  occupied  by  an  enemy  stands,  in  con- 
sequence of  the  occupation,  under  the  martial  law  of  the  invading  or 
occupying  army,  whether  any  proclamation  declaring  martial  law  or 
any  public  warning  to  the  inhabitants  has  been  issued  or  not.     Martial 
law  is  the  immediate  and  direct  effect  and  consequence  of  occupation 
or  conquest. 

The  presence  of  a  hostile  army  proclaims  its  martial  law. 

2.  Martial  law  does  not  cease  during  the  hostile  occupation,  except 
by  special  proclamation  ordered  by  the  commander-in-chief,  or  by 
special  mention  in  the  treaty  of  peace  concluding  the  war,  when  the 
occupation  of  a  place  or  territory  continues  beyond  the  conclusion  of 
peace  as  one  of  the  conditions  of  the  same. 

3.  Martial  law  in  a  hostile  country  consists  in  the  suspension,  by 
the  occupying  military  authority,  of  the  criminal  and  civil  law,  and 
of  the  domestic  administration  and  government  in  the  occupied  place 
or  territory,  and  in  the  substitution  of  military  rule  and  force  for  the 
same,  as  well  as  in  the  dictation  of  general  laws,  as  far  as  military 
necessity  requires  this  suspension,  substitution,  or  dictation. 

The  commander  of  the  forces  may  proclaim  that  the  administration 
1074 


MILITARY    LAWS    OF    THE    UNITED    STATES.  1075 

of  all  civil  and  penal  law  shall  continue  either  wholly  or  in  part,  as  in 
times  of  peace,  unless  otherwise  ordered  by  the  militarj^  authority. 

4.  Martial  law  is  simple  military  authority  exercised  in  accordance 
with  the  laws  and  usages  of  war.     Militarf  oppression  is  not  martial 
law;  it  is  the  abuse  of  the  power  which  the  law  confers.     As  martial 
law  is  executed  by  military  force,  it  is  incumbent  upon  those  who 
administer  it  to  be  strictly  guided  by  the  principles  of  justice,  honor, 
and  humanity — virtues  adorning  a  soldier  even  more  than  other  men, 
for  the  very  reason  that  he  possesses  the  power  of  his  arms  against 
the  unarmed. 

5.  Martial  law  should  be  less  stringent  in  places  and  countries  fully 
occupied  and  fairly  conquered.     Much  greater  severity  may  be  exer- 
cised in  places  or  regions  where  actual  hostilities  exist,  or  are  expected 
and  must  be  prepared  for.     Its  most  complete  sway  is  allowed — even 
in  the  commander's  own  country — when  face  to  face  with  the  enemy, 
because  of  the  absolute  necessities  of  the  case,  and  of  the  paramount 
duty  to  defend  the  country  against  invasion. 

To  save  the  country  is  paramount  to  all  other  considerations. 

6.  All  civil  and  penal  law  shall  continue  to  take  its  usual  course  in 
the  enemy's  places  and  territories  under  martial  law,  unless  interrupted 
or  stopped  by  order  of  the  occupying  military  power;  but  all  the  func- 
tions of  the  hostile  government — legislative,  executive,  or  administra- 
tive—  whether  of  a  general,  provincial,  or  local  character,  cease  under 
martial  law,  or  continue  only  with  the  sanction,  or,  if  deemed  necessary, 
the  participation  of  the  occupier  or  invader. 

7.  Martial  law  extends  to  property  and  to  persons,  whether  they  are 
subjects  of  the  enemy  or  aliens  to  that  government. 

8.  Consuls,  among  Americans  and  European  nations,  are  not  diplo- 
matic agents.     Nevertheless,  their  offices  and  persons  will  be  subjected 
to  martial  law  in  cases  of  urgent  necessity  only;  their  property  and 
business  are  not  exempted.     Any  delinquency  they  commit  against  the 
established  military  rule  may  be  punished  as  in  the  case  of  any  other 
inhabitant,  and  such  punishment  furnishes  no  reasonable  ground  for 
international  complaint. 

9.  The  functions  of   ambassadors,  ministers,  or  other  diplomatic 
agents  accredited  by  neutral  powers  to  the  hostile  government  cease, 
so  far  as  regards  the  displaced  government;  but  the  conquering  or 
occupying  power  usually  recognizes  them  as  temporarily  accredited 
to  itself. 

10.  Martial  law  affects  chiefly  the  police  and  collection  of  public 
revenue  and  taxes,  whether  imposed  by  the  expelled  government  or 
by  the  invader,  and  refers  mainly  to  the  support  and  efficiency  of  the 
army,  its  safety,,  and  the  safety  of  its  operations. 

11.  The  law  of  war  does  not  only  disclaim  all  cruelty  and  bad  faith 
concerning  engagements  concluded  with  the  enemy  during  the  war,  but 


1076  MILITARY    LAWS    OF   THE    UNITED    STATES. 

also  the  breaking  of  stipulations  solemnly  contracted  by  the  belligerents 
in  time  of  peace,  and  avowedly  intended  to  remain  in  force  in  the  case 
of  war  between  the  contracting  powers. 

It  disclaims  all  extortions  and  other  transactions  for  individual  gain; 
all  acts  of  private  revenge,  or  connivance  at  such  acts. 

Offenses  to  the  contrary  shall  be  severely  punished,  and  especially 
so  if  committed  by  officers. 

12.  Whenever  feasible,  martial  law  is  carried  out  in  cases  of  indi- 
vidual offenders  by  military  courts;   but  sentences  of  death  shall  be 
executed  only  with  the  approval  of  the  Chief  Executive,  provided  the 
urgency  of  the  case  does  not  require  a  speedier  execution,  and  then 
only  with  the  approval  of  the  chief  commander. 

13.  Military  jurisdiction  is  of  two  kinds:  First,  that  which  is  con- 
ferred and  defined  by  statute;  second,  that  which  is  derived  from  Jhe 
common  law  of  war.     Military  offenses  under  the  statute  law  must  be 
tried  in  the  manner  therein  directed;    but  military  offenses  which  do 
not  come  within  the  statute  must  be  tried  and  punished  under  the 
common  law  of  war.    The  character  of  the  courts  which  exercise  these 
jurisdictions  depends  upon  the  local  laws  of  each  particular  country. 

In  the  armies  of  the  United  States  the  first  is  exercised  by  courts- 
martial,  while  cases  which  do  not  come  within  the  Rules  and  Articles 
of  War,  or  the  jurisdiction  conferred  by  statute  or  courts-martial,  are 
tried  by  military  commissions. 

14.  Military  necessity,  as  understood   by  modern  civilized  nations, 
consists  in  the  necessity  of  those  measures  which  are  indispensable  for 
securing  the  ends  of  the  war,  and  which  are  lawful  according  to  the 
modern  law  and  usages  of  war. 

15.  Military  necessity  admits  of  all  direct  destruction  of  life  or  limb 
of  armed  enemies,  and  of  other  persons  whose  destruction  is  incident- 
ally unavoidable  in  the  armed  contests  of  the  war;  it  allows  of  the  cap- 
turing of  every  armed  enemy  and  every  enemy  of  importance  to  the 
hostile  government  or  of  peculiar  danger  to  the  captor;  it  allows  of 
all  destruction  of  property  and  obstruction  of  the  ways  and  channels 
of  traffic,  travel,  or  communication,  and  of  all  withholding  of  suste- 
nance or  means  of  life  from  the  enemy ;  of  the  appropriation  of  what- 
ever  an  enemy's  country  affords  necessary  for  the  subsistence  and  safety 
of  the  army,  and  of  such  deception  as  does   not  involve  the  breaking 
of  good  faith,  either  positively  pledged,  regarding  agreements  entered 
into  during  the  war,  or  supposed  by  the  modern  law  of  war  to  exist. 
Men  who  take  up  arms  against  one  another  in  public  war  do  not  cease 
on  this  account  to  be  moral  beings,  responsible  to  one  another  and 
to  God. 

16.  Military  necessity  does  not  admit  of  cruelty — that  is,  the  inflic- 
tion  of  suffering  for  the  sake  of  suffering  or  for  revenge,   nor  of 
maiming  or  wounding  except  in  fight,  nor  of  torture  to  extort  con- 


MILITARY    LAWS    OF    THE    UNITED    STATES.  1077 

fessions.  It  does  not  admit  of  the  use  of  poison  in  any  way,  nor  of  the 
wanton  devastation  of  a  district.  It  admits  of  deception,  but  disclaims 
acts  of  perfidy;  and,  in  general,  military  necessity  does  not  include 
any  act  of  hostility  which  makes  the  return  to  peace  unnecessarily 
difficult. 

17.  War  is  not  carried  on  by  arms  alone.     It  is  lawful  to  starve  the 
hostile  belligerent,  armed  or  unarmed,  so  that  it  leads  to  the  speedier 
subjection  of  the  enemy. 

18.  When  a  commander  of  a  besieged  place  expels  the  noncombat- 
ants,  in  order  to  lessen  the  number  of  those  who  consume  his  stock  of 
provisions,  it  is  lawful,  though  an  extreme  measure,  to  drive  them 
back,  so  as  to  hasten  on  the  surrender. 

19.  Commanders,  whenever  admissible,  inform  the  enemy  of  their 
intention  to  bombard  a  place,  so  that  the  noncombatants,  and  especially 
the  women  and  children,  may  be  removed  before  the  bombardment 
commences.     But  it  is  no  infraction  of  the  common  law  of  war  to  omit 
thus  to  inform  the  enemy.     Surprise  may  be  a  necessity. 

20.  Public  war  is  a  state  of  armed  hostility  between  sovereign  nations 
or  governments.     It  is  a  law  and  requisite  of  civilized  existence  that 
men  live  in  political,  continuous  societies,  forming  organized  units, 
called  states  or  nations,  whose  constituents  bear,  enjoy,  and  suffer, 
advance  and  retrograde  together  in  peace  and  in  war. 

21.  The  citizen  or  native  of  a  hostile  country  is  thus  an  enemy,  as 
one  of  the  constituents  of  the  hostile  state  or  nation,  and  as  such  is 
subjected  to  the  hardships  of  the  war. 

22.  Nevertheless,  as  civilization  has  advanced  during  the  last  cen- 
turies, so  has  likewise  steadily  advanced,  especially  in  war  on  land,  the 
distinction  between  the  private  individual  belonging  to  a  hostile  coun- 
try and  the  hostile  country  itself,  with  its  men  in  arms.     The  principle 
has  been  more  and  more  acknowledged  that  the  unarmed  citizen  is  to 
be  spared  in  person,  property,  and  honor  as  much  as  the  exigencies  of 
war  will  admit. 

23.  Private  citizens  are  no  longer  murdered,  enslaved,  or  carried  off 
to  distant  parts,  and  the  inoffensive  individual  is  as  little  disturbed 
in  his  private  relations  as  the  commander  of  the  hostile  troops  can 
afford  to  grant  in  the  overruling  demands  of  a  vigorous  war. 

24.  The  almost  universal  rule  in  remote  times  was,  and  continues  to 
be  with  barbarous  armies,  that  the  private  individual  of  the  hostile 
country  is  destined  to  suffer  every  privation  of  liberty  and  protection 
and  every  disruption  of  family  ties.     Protection  was,  and  still  is  with 
uncivilized  people,  the  exception. 

25.  In  modern  regular  wars  of  the  Europeans,  and  their  descend- 
ants in  other  portions  of  the  globe,  protection  of  the  inoffensive  citi- 
zen of  the  hostile  country  is  the  rule;  privation  and  disturbance  of 
private  relations  are  the  exceptions. 


1078  MILITARY    LAWS    OF   THE    UNITED    STATES. 

26.  Commanding  generals  may  cause  the  magistrate  and  civil  offi- 
cers of  the  hostile  country  to  take  the  oath  of  temporary  allegiance  or 
an  oath  of  fidelity  to  their  own  victorious  government  or  rulers,  and 
they  may  expel  every  one  who  declines  to  do  so.     But  whether  they 
do  so  or  not,  the  people  and  their  civil  officers  owe  strict  obedience  to 
them  as  long  as  they  hold  sway  over  the  district  or  country,  at  the 
peril  of  their  lives. 

27.  The  law  of  war  can  no  more  wholly  dispense  with  retaliation 
than  can  the  law  of  nations,  of  which  it  is  a  branch.     Yet  civilized 
nations  acknowledge  retaliation  as  the  sternest  feature  of  war.     A 
reckless  enenry  often  leaves  to  his  opponent  no  other  means  of  secur- 
ing himself  against  the  repetition  of  barbarous  outrage. 

28.  Retaliation  will,  therefore,  never  be  resorted  to  as  a  measure  of 
mere  revenge,   but  only  as  a  means  of  protective  retribution,  and, 
moreover,  cautiously  and  unavoidably;  that  is  to  say,  retaliation  shall 
only  be  resorted  to  after  careful  inquiry  into  the  real  occurrence  and 
the  character  of  the  misdeeds  that  may  demand  retribution. 

Unjust  or  inconsiderate  retaliation  removes  the  belligerents  further 
and  further  from  the  mitigating  rules  of  regular  war,  and  by  rapid 
steps  leads  them  nearer  to  the  internecine  wars  of  savages. 

29.  Modern  times  are  distinguished  from  earlier  ages  by  the  exist- 
ence, at  one  and  the  same  time,  of  many  nations  and  great  governments 
related  to  one  another  in  close  intercourse. 

Peace  is  their  normal  condition;  war  is  the  exception.  The  ultimate 
object  of  all  modern  war  is  a  renewed  state  of  peace. 

The  more  vigorously  wars  are  pursued,  the  better  it  is  for  humanity. 
Sharp  wars  are  brief. 

30.  Ever  since  the  formation  and  coexistence  of  modern  nations,  and 
ever  since  wars  have  become  great  national  wars,  war  has  come  to  be 
acknowledged  not  to  be  its  own  end,  but  the  means  to  obtain  great 
ends  of  state,  or  to  consist  in  defense  against  wrong;  and  no  conven- 
tional restrictions  of  the  modes  adopted  to  injure  the  enemy  is  any 
longer  admitted;  but  the  law  of  war  imposes  many  limitations  and 
restrictions  on  principles  of  justice,  faith,  and  honor. 

SECTION  11. 

PUBLIC  AND  PRIVATE  PROPERTY  OF  THE  ENEMY PROTECTION  OF  PER- 
SONS, AND  ESPECIALLY  OF  WOMEN;  OF  RELIGION,  THE  ARTS,  AND 
SCIENCES — PUNISHMENT  OF  CRIME  AGAINST  THE  INHABITANTS  OF 

HOSTILE   COUNTRIES. 

31.  A  victorious  army  appropriates   all  public   money,  seizes   all 
public  movable  property  until  further  direction  by  its  government, 
and  sequesters  for  its  own  benefit  or  that  of  its  government  all  the 
revenues  of  real  property  belonging  to  the  hostile  government  or 


MILITARY    LAWS    OF    THE    UNITED    STATES.  1079 

nation.     The  title  to  such  real  property  remains  in  abeyance  during 
military  occupation  and  until  the  conquest  is  made  complete. 

32.  A  victorious  army,  by  the  martial  power  inherent  in  the  same, 
may  suspend,  change,  or  abolish,  as  far  as  the  marshal  power  extends, 
the  relations  which  arise  from  the  services  due,  according  to  the  exist- 
ing laws  of  the  invaded  county,  from  one  citizen,  subject,  or  native 
of  the  same  to  another. 

The  commander  of  the  army  must  leave  it  to  the  ultimate  treaty  of 
peace  to  settle  the  permanency  of  this  change. 

33.  It  is  no  longer  considered  lawful — on  the  contrary,  it  is  held  to 
be  a  serious  breach  of  the  law  of  war— to  force  the  subjects  of  the 
enemy  into  the  service  of  the  victorious  government,  except  the  latter 
should  proclaim,  after  a  fair  and  complete  conquest  of  the  hostile 
country  or  district,  that  it  is  resolved  to  keep  the  country,  district,  or 
place  permanently  as  its  own  and  make  it  a  portion  of  its  own  country. 

34.  As  a  general  rule  the  property  belonging  to  churches,  to  hos- 
pitals, or  other  establishments  of  an  exclusively  charitable  character, 
to  establishments  of  education,  or  foundations  for  the  promotion  of 
knowledge,  whether  public  schools,  universities,  academies  of  learning, 
or  observatories,  museums  of  the  fine  arts,  or  of  a  scientific  character — 
such  property  is  not  to  be  considered  public  property  in  the  sense  of 
paragraph  31,  but  it  may  be  taxed  or  used  when  the  public  service  may 
require  it. 

35.  Classical  works  of  art,  libraries,  scientific  collections,  or  precious 
instruments,  such  as  astronomical  telescopes,  as  well  as  hospitals,  must 
be  secured  against  all  avoidable  injury,  even  when  thejr  are  contained 
in  fortified  places  whilst  besieged  or  bombarded. 

36.  If  such  works  of  art,  libraries,  collections,  or  instruments  belong- 
ing to  a  hostile  nation  or  government  can  be  removed  without  injury, 
the  ruler  of  the  conquering  state  or  nation  may  order  them  to  be  seized 
and  removed  for  the  benefit  of  the  said  nation.     The  ultimate  owner- 
ship is  to  be  settled  by  the  ensuing  treaty  of  peace. 

In  no  case  shall  they  be  sold  or  given  awa}r  if  captured  by  the  armies 
of  the  United  States,  nor  shall  they  ever  be  privately  appropriated  or 
wantonly  destroyed  or  injured. 

37.  The  United  States  acknowledge  and  protect,  in  hostile  countries 
occupied  by  them,  religion  and  morality,  strictly  private  property,  the 
persons  of  the  inhabitants,  especially  those  of  women,  and  the  sacred- 
ness  of  domestic  relations.     Offenses  to  the  contrary  shall  be  rigorously 
punished. 

This  rule  does  not  interfere  with  the  right  of  the  victorious  invader 
to  tax  the  people  or  their  property,  to  levy  forced  loans,  to  billet  sol- 
diers, or  to  appropriate  property,  especially  houses,  lands,  boats  or 
ships,  and  churches,  for  temporary  and  military  uses. 

38.  Private  property,  unless  forfeited  by  crimes  or  by  offenses  of 


1080  MILITARY    LAWS    OF   THE    UNITED   STATES. 

the  owner,  can  be  seized  only  by  way  of  military  necessity  for  the 
support  or  other  benefit  of  the  Army  or  of  the  United  States." 

If  the  owner  has  not  fled,  the  commanding  officer  will  cause  receipts 
to  be  given,  which  may  serve  the  spoliated  owner  to  obtain  indemnity. 

39.  The  salaries  of  civil  officers  of  the  hostile  government  who 
remain  in  the  invaded  territory,  and  continue  the  work  of  their  office, 
and  can  continue  it  according  to  the  circumstances  arising  out  of  the 
war — such  as  judges,  administrative  or  police  officers,  officers  of  city 
or  communal  governments — are  paid  from  the  public  revenue  of  the 
invaded  territory  until  the  military  government  has  reason  wholly  or 
partially  to  discontinue  it.     Salaries  or  incomes  connected  with  purely 
honorary  titles  are  always  stopped. 

40.  There  exists  no  law  or  body  of  authoritative  rules  of   action 
between  hostile  armies,  except  that  branch  of  the  law  of  nature  and 
nations  which  is  called  the  law  and  usages  of  war  on  land. 

41.  All  municipal  law  of  the  ground  on  which  the  armies  stand,  or  of 
the  countries  to  which  they  belong,  is  silent  and  of  no  effect  between 
armies  in  the  field. 

42.  Slavery,  complicating  and  confounding  the  ideas  of   property 
(that  is,  of  a  thing]  and  of  personality  (that  is,  of  humanity],  exists  accord- 
ing to  municipal  or  local  law  only.     The  law  of  nature  and  nations  has 
never  acknowledged  it.     The  digest  of  the  Roman  law  enacts  the  early 
dictum  of  a  pagan  jurist,  that,   "so  far  as  the  law  of  nature  is  con- 
cerned, all  men  are  equal. "    Fugitives  escaping  from  a  country  in  which 
they  were  slaves,  villains,  or  serfs,  into  another  country,  have,  for  cen- 
turies past,  been  held  free  and  acknowledged  free  by  judicial  decisions 
of  European  countries,  even  though  the  municipal  law  of  the  country 
in  which  the  slave  had  taken  refuge  acknowledged  slavery  within  its 
own  dominions. 

43.  Therefore,  in  a  war  between  the  United  States  and  a  belligerent 
which  admits  of  slavery,  if  a  person  held  in  bondage  by  that  belligerent 
be  captured  by  or  come  as  a  fugitive  under  the  protection  of  the  mili- 
tary forces  of  the  United  States,  such  person  is  immediately  entitled 
to  the  rights  and  privileges  of  a  freeman.     To  return  such  person  into 
slavery  would  amount  to  enslaving  a  free  person,  and  neither  the  United 
States  nor  any  officer  under  their  authority  can  enslave  any  human 
being.     Moreover,  a  person  so  made  free  by  the  law  of  war  is  under  the 
shield  of  the  law  of  nations,  and  the  former  owner  or  State  can  have, 
by  the  law  of  postliminy,  no  belligerent  lien  or  claim  of  service. 

44.  All  wanton  violence  committed  against  persons  in  the  invaded 
country,  all  destruction  of  property  not  commanded  by  the  authorized 
officer,  all  robbery  or  pillage  or  sacking,  even  after  taking  a  place  by 
main  force,  all  rape,  wounding,  maiming,  or  killing  of  such  inhabitants, 
are  prohibited  under  the  penalty  of  death,  or  such  other  severe  punish- 
ment as  may  seem  adequate  for  the  gravity  of  the  offense. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  1081 

A  soldier,  officer  or  private,  in  the  act  of  committing*  such  violence, 
and  disobeying  a  superior  ordering  him  to  abstain  from  it,  may  be 
lawf  ully  killed  on  the  spot  by  such  superior. 

45.  All  captures  and  booty  belong,  according  to  the  modern  law  of 
war,  primarily  to  the  government  of  the  captor. 

Prize  money,  whether  on  sea  or  land,  can  now  only  be  claimed  under 
local  law. 

46.  Neither  officers  nor  soldiers  are  allowed  to  make  use  of  their 
position  or  power  in  the  hostile  country  for  private  gain,  not  even  for 
commercial  transactions  otherwise  legitimate.     Offenses  to  the  con- 
trary committed  by  commissioned  officers  will  be  punished  with  cash- 
iering or  such  other  punishment  as  the  nature  of  the  offense  may 
require;  if  by  soldiers,  they  shall  be  punished  according  to  the  nature 
of  the  offense. 

47.  Crimes  punishable  by  all  penal  codes,  such  as  arson,  murder, 
maiming,  assaults,  highway  robbery,  theft,  burglary,  fraud,  forgery, 
and  rape,  if  committed  by  an  American  soldier  in  a  hostile  country 
against  its  inhabitants,  are  not  only  punishable  as  at  home,  but  in  all 
cases  in  which  death  is  not  inflicted  the  severer  punishment  shall  be 
preferred. 

SECTION  III. 

DESERTERS PRISONERS    OF   WAR — HOSTAGES — BOOTY    ON    THE    BATTLE- 
FIELD. 

48.  Deserters  from  the  American  Army,  having  entered  the  service 
of  the  enemy,  suffer  death  if  they  fall  again  into  the  hands  of  the 
United  States,  whether  by  capture  or  being  delivered  up  to  the  Ameri- 
can Army;  and  if  a  deserter  from  the  enemy,  having  taken  service  in 
the  Army  of  the  United  States,  is  captured  by  the  enemy,  and  pun- 
ished by  them  with  death  or  otherwise,  it  is  not  a  breach  against  the 
law  and  usages  of  war  requiring  redress  or  retaliation. 

49.  A  prisoner  of  war  is  a  public  enemy  armed  or  attached  to  the 
hostile  army  for  active  aid,  who  has  fallen  into  the  hands  of  the  captor, 
either  fighting  or  wounded,  on  the  field  or  in  the  hospital,  by  indi- 
vidual surrender  or  by  capitulation. 

All  soldiers,  of  whatever  species  of  arms;  all  men  who  belong  to  the 
rising  en  masse  of  the  hostile  country;  all  those  who  are  attached  to 
the  army  for  its  efficiency  and  promote  directly  the  object  of  the  war, 
except  such  as  are  hereinafter  provided  for;  all  disabled  men  or  officers 
on  the  field  or  elsewhere,  if  captured;  all  enemies  who  have  thrown 
away  their  arms  and  ask  for  quarter,  are  prisoners  of  war,  and  as  such 
exposed  to  the  inconveniences  as  well  as  entitled  to  the  privileges  of  a 
prisoner  of  war. 

50.  Moreover,  citizens  who  accompany  an  army  for  whatever  pur 


1082  MILITARY    LAWS    OF    THE    UNITED    STATES. 

pose,  such  as  sutlers,  editors,  or  reporters  of  journals,  or  contractors, 
if  captured,  may  be  made  prisoners  of  war,  and  be  detained  as  such. 

The  monarch  and  members  of  the  hostile  reigning  family,  male  or 
female,  the  chief ,  and  chief  officers  of  the  hostile  government,  its  diplo- 
matic agents,  and  all  persons  who  are  of  particular  and  singular  use 
and  benefit  to  the  hostile  army  or  its  government,  are,  if_  captured  on 
belligerent  ground,  and  if  unprovided  with  a  safe  conduct  granted  by 
the  captor's  government,  prisoners  of  war. 

51.  If  the  people  of  that  portion  of  an  invaded  country  which  is  not 
yet  occupied  by  the  enemy,  or  of  the  whole  country,  at  the  approach 
of  a  hostile  army,  rise,  under  a  duly  authorized  levy,  en  masse  to  resist 
the  invader,  they  are  now  treated  as  public  enemies,  and,  if  captured, 
are  prisoners  of  war. 

52.  No  belligerent  has  the  right  to  declare  that  he  will  treat  every 
captured  man  in  arms  of  a  levy  en  masse  as  a  brigand  or  bandit. 

If,  however,  the  people  of  a  country,  or  &i\y  portion  of  the  same, 
already  occupied  by  an  army  rise  against  it,  they  are  violators  of  the 
laws  of  war,  and  are  not  entitled  to  their  protection. 

53.  The  enemy's  chaplains,  officers  of  the  medical  staff,  apothecaries, 
hospital  nurses,  and  servants,  if  they  fall  into  the  hands  of  the  Ameri- 
can Army,  are  not  prisoners  of  war  unless  the  commander  has  reasons 
to  retain  them.     In  this  latter  case,  or  if,  at  their  own  desire,  they  are 
allowed  to  remain  with  their  captured  companions,  they  are  treated  as 
prisoners  of  war,  and  may  be  exchanged  if  the  commander  sees  fit. 

54.  A  hostage  is  a  person  accepted  as  a  pledge  for  the  fulfillment  of 
an  agreement  concluded  between  belligerents  during  the  war,  or  in 
consequence  of  a  war.     Hostages  are  rare  in  the  present  age. 

55.  If  a  hostage  is  accepted,  he  is  treated  like  a  prisoner  of  war, 
according  to  rank  and  condition,  as  circumstances  may  admit. 

56.  A  prisoner  of  war  is  subject  to  no  punishment  for  being  a  public 
enemy,  nor  is  any  revenge  wreaked  upon  him  by  the  intentional  inflic- 
tion of  any  suffering,  or  disgrace,  by  cruel  imprisonment,  want  of 
food,  by  mutilation,  death,  or  an}^  other  barbarity. 

57.  So  soon  as  a  man  is  armed  by  a  sovereign  government  and  takes 
the  soldier's  oath  of  fidelity  he  is  a  belligerent;  his  killing,  wounding, 
or  other  warlike  acts  are  no  individual  crimes  or  offenses.     No  bel- 
ligerent has  a  right  to  declare  that  enemies  of  a  certain  class,  color,  or 
condition,  when  properly  organized  as  solders,  will  not  be  treated  by 
him  as  public  enemies. 

58.  The  law  of  nations  knows  of  no  distinction  of  color,  and  if  an 
enem}^  of  the  United  States  should  enslave  and  sell  any  captured  per- 
sons of  their  Army,  it  would  be  a  case  for  the  severest  retaliation,  if 
not  redressed  upon  complaint. 

The  United  States  can  not  retaliate  by  enslavement;  therefore  death 
must  be  the  retaliation  for  this  crime  against  the  law  of  nations. 


MILITAKY    LAWS    OF    THE    UNITED    STATES.  1083 

59.  A  prisoner  of  war  remains  answerable  for  his  crimes  committed 
against  the  captor's  army  or  people,  committed  before  he  was  captured, 
and  for  which  he  has  not  been  punished  by  his  own  authorities. 

All  prisoners  of  war  are  liable  to  the  infliction  of  retaliatory  measures. 

60.  It  is  against  the  usage  of  modern  war  to  resolve,  in  hatred  and 
revenge,  to  give  no  quarter.     No  body  of  troops  has  the  right  to  declare 
that  it  will  not  give,  and  therefore  will  not  expect,  quarter;  but  a  com- 
mander is  permitted  to  direct  his  troops  to  give  no  quarter,  in  great 
straits,  when  his  own  salvation  makes  it  impossible  to  cumber  himself 
with  prisoners. 

61.  Troops  that  give  no  quarter  have  no  right  to  kill  enemies  already 
disabled  on  the  ground  or  prisoners  captured  by  other  troops. 

62.  All  troops  of  the  enemy  known  or  discovered  to  give  no  quarter 
in  general,  or  to  any  portion  of  the  army,  receive  none. 

63.  Troops  who  fight  in  the  uniform  of  their  enemies,  without  any 
plain,  striking,  and  uniform  mark  of  distinction  of  their  own,  can 
expect  no  quarter. 

64.  If  American  troops  capture  a  train  containing  uniforms  of  the 
enemy,  and  the  commander  considers  it  advisable  to  distribute  them 
for  use  among  his  men,  some  striking  mark  or  sign  must  be  adopted  to 
distinguish  the  American  soldier  from  the  enemy. 

65.  The  use  of  the  enemy's  national  standard,  flag,  or  other  emblem 
of  nationality  for  the  purpose  of  deceiving  the  enemy  in  battle  is  an 
act  of  perfidy  by  which  they  lose  all  claim  to  the  protection  of  the  laws 
of  war. 

66.  Quarter  having  been  given  to  an  enemy  by  American  troops  under 
a  misapprehension  of   his   true  character,  he  may,  nevertheless,  be 
ordered  to  suffer  death  if   within  three  days  after  the  battle  it  be 
discovered  that  he  belongs  to  a  corps  which  gives  no  quarter. 

67.  The  law  of  nations  allows  every  sovereign  government  to  make 
war  upon  another  sovereign  state,  and  therefore  admits  of  no  rules  or 
laws  different  from  those  of  regular  warfare  regarding  the  treatment  of 
prisoners  of  war,  although  the}7  may  belong  to  the  army  of  a  govern- 
ment which  the  captor  ma}r  consider  as  a  wanton  and  unjust  assailant. 

68.  Modern  wars  are  not  internecine  wars,  in  which  the  killing  of  the 
enemy  is  the  object.     The  destruction  of  the  enemy  in  modern  war, 
and,  indeed,  modern  war  itself,  are  means  to  obtain  that  object  of  the 
belligerent  which  lies  bej^ond  the  war. 

Unnecessary  or  revengeful  destruction  of  life  is  not  lawful. 

69.  Outposts,  sentinels,  or  pickets  are  not  to  be  fired  upon,  except  to 
drive  them  in  or  when  a  positive  order,  special  or  general,  has  been 
issued  to  that  effect. 

70.  The  use  of  poison  in  any  manner,  be  it  to  poison  wells  or  food 
or  arms,  is  wholly  excluded  from  modern  warfare.     He  that  uses  it  puts 
himself  out  of  the  pale  of  the  law  and  usages  of  war. 


1084  MILITARY  LAWS  OF  THE  UNITED  STATES. 

71.  Whoever  intentionally  inflicts  additional  wounds  on  an  enemy 
already  wholly  disabled  or  kills  such  an  enemy,  or  who  orders  or  en- 
courages soldiers  to  do  so,  shall  suffer  death,  if  duly  convicted,  whether 
he  belongs  to  the  Army  of  the  United  States  or  is  an  enemy  captured 
after  having  committed  his  misdeed. 

72.  Money  and  other  valuables  on  the  person  of  a  prisoner,  such  as 
watches  or  jewelry,  as  well  as  extra  clothing,  are  regarded  by  the 
American  Army  as  the  private  property  of  the  prisoner,  and  the  appro- 
priation of  such  valuables  or  money  is  considered  dishonorable,  and  is 
prohibited. 

Nevertheless,  if  large  sums  are  found  upon  the  persons  of  prisoners 
or  in  their  possession  they  shall  be  taken  from  them,  and  the  surplus, 
after  providing  for  their  own  support,  appropriated  for  the  use  of  the 
Army,  under  the  direction  of  the  commander,  unless  otherwise  ordered 
by  the  Government.  Nor  can  prisoners  claim  as  private  property 
large  sums  found  and  captured  in  their  train,  although  they  have  been 
placed  in  the  private  luggage  of  the  prisoners. 

73.  All  officers,  when  captured,  must  surrender  their  side  arms  to 
the  captor.     They  may  be  restored  to  the  prisoner  in  marked  cases, 
by  the  commander,  to  signalize  admiration  of  his  distinguished  bravery 
or  approbation  of  his  humane  treatment  of  prisoners  before  his  cap- 
ture.    The  captured  officer  to  whom  they  may  be  restored  can  not 
wear  them  during  captivity. 

74.  A  prisoner  of  war,  being  a  public  enemy,  is  the  prisoner  of  the 
government  and  not  of  the  captor.     No   ransom  can  be  paid  by  a 
prisoner  of  war  to  his  individual  captor  or  to  any  officer  in  command. 
The  government  alone  releases  captives,  according  to  rules  prescribed 
by  itself. 

75.  Prisoners  of  war  .are  subject  to  confinement  or  imprisonment, 
such  as  may  be  deemed  necessary  on  account  of  safety,  but  they  are  to 
be  subjected  to  no  other  intentional  suffering  or  indignity.     The  con- 
finement and  mode  of  treating  a  prisoner  ma}r  be  varied  during  his 
captivity  according  to  the  demands  of  safety. 

76.  Prisoners  of  war  shall  be  fed  upon  plain  and  wholesome  food, 
whenever  practicable,  and  treated  with  humanity. 

They  may  be  required  to  work  for  the  benefit  of  the  captor's  gov- 
ernment, according  to  their  rank  and  condition. 

77.  A  prisoner  of  war  who  escapes  may  be  shot  or  otherwise  killed 
in  his  flight,  but  neither  death  nor  any  other  punishment  shall  be 
inflicted  upon  him  simply  for  his  attempt  to  escape,  which  the  law  of 
war  does  not  consider  a  crime.     Stricter  means  of  security  shall  be 
used  after  an  unsuccessful  attempt  at  escape. 

If,  however,  a  conspiracy  is  discovered,  the  purpose  of  which  is  a 
united  or  general  escape,  the  conspirators  may  be  rigorously  punished, 
even  with  death;  and  capital  punishment  may  also  be  inflicted  upon 


MILITARY    LAWS    OP    THE    UNITED    STATES.  1085 

prisoners  of  war  discovered  to  have  plotted  rebellion  against  the 
authorities  of  the  captors,  whether  in  union  with  fellow-prisoners  or 
other  persons. 

78.  If  prisoners  of  war,  having  given  no  pledge  nor  made  any  promise 
on  their  honor,  forcibly  or  otherwise  escape,  and  are  captured  again  in 
battle,  after  having  rejoined  their  own  army,  they  shall  not  be  punished 
for  their  escape,   but  shall  be  treated  simply  as  prisoners  of  war, 
although  they  will  be  subjected  to  stricter  confinement. 

79.  Every  captured  wounded  enemy  shall  be  medically  treated,  ac- 
cording to  the  ability  of  the  medical  staff. 

80.  Honorable  men,  when  captured,  will  abstain  from  giving  to  the 
enemy-  information  concerning  their  own  army,  and  the  modern  law  of 
war  permits  no  longer  the  use  of  any  violence  against  prisoners  in  order 
to  extort  the  desired  information,  or  to  punish  them  for  having  given 
false  information. 

SECTION  IV. 

PARTISANS — ARMED   ENEMIES  NOT   BELONGING  TO   THE   HOSTILE  ARMY — 
SCOUTS ARMED    PROWLERS— WAR    REBELS. 

81.  Partisans  are  soldiers  armed  and  wearing  the  uniform  of  their 
army,  but  belonging  to  a  corps  which  acts  detached  from  the  main  body 
for  the  purpose  of  making  inroads  into  the  territory  occupied  by  the 
enemy.     If  captured,  they  are  entitled  to  all  the  privileges  of  the 
prisoner  of  war. 

82.  Men,  or  squads  of  men,  who  commit  hostilities,  whether  by  fight- 
ing or  inroads  for  destruction  or  plunder,  or  by  raids  of  any  kind,  with- 
out commission,  without  being  part  and  portion  of  the  organized  hos- 
tile army,  and  without  sharing  continuously  in  the  war,  but  who  do  so 
with  intermitting  returns  to  their  homes  and  avocations,  or  with  the 
occasional  assumption  of  the  semblance  of  peaceful  pursuits,  divesting 
themselves  of  the  character  or  appearance  of  soldiers — such  men,  or 
squads  of  men,  are  not  public  enemies,  and  therefore,  if  captured,  are 
not  entitled  to  the  privileges  of  prisoners  of  war,  but  shall  be  treated 
summarily  as  highway  robbers  or  pirates. 

83.  Scouts  or  single  soldiers,  if  disguised  in  the  dress  of  the  country, 
or  in  the  uniform  of  the  army  hostile  to  their  own,  employed  in  obtain- 
ing information,  if  found  within  or  lurking  about  the  lines  of  the 
captor,  are  treated  as  spies,  and  suffer  death. 

84.  Armed  prowlers,  by  whatever  names  they  may  be  called,  or  per- 
sons of  the  enemy's  territory,  who  steal  within  the  lines  of  the  hostile 
army  for  the  purpose  of  robbing,  killing,  or  of  destroying  bridges, 
roads,  or  canals,  or  of  robbing  or  destroying  the  mail,  or  of  cutting 
the  telegraph  wires,  are  not  entitled  to  the  privileges  of  the  prisoner 
of  war. 


1086  MILITARY    LAWS    OF    THE    UNITED    STATES. 

85.  War  rebels  are  persons  within  an  occupied  territory  who  rise  in 
arms  against  the  occupying  or  conquering  army,  or  against  the  author- 
ities established  by  the  same.     If  captured,  they  may  suffer  death, 
whether  they  rise  singly,  in  small  or  large  bands,  and  whether  called 
upon  to  do  so  by  their  own,  but  expelled,  government  or  not.     They 
are  not  prisoners  of  war;  nor  are  they,  if  discovered  and  secured  before 
their  conspiracy  has  matured  to  an  actual  rising,  or  to  armed  violence. 

SECTION  V. 

SAFE  CONDUCT — SPIES — WAR  TEAITORS — CAPTURED  MESSENGERS — ABUSE 
OF   THE   FLAG   OF   TRUCE. 

86.  All  intercourse  between  the  territories  occupied  by  belligerent 
armies,  whether  by  traffic,  by  letter,  by  travel,  or  in  any  other  way, 
ceases.     This   is   the   general   rule,  to  be   observed  without  special 
proclamation. 

Exceptions  to  this  rule>  whether  by  safe  conduct,  or  permission  to 
trade  on  a  small  or  large  scale,  or  by  exchanging  mails,  or  by  travel 
from  one  territory  into  the  other,  can  take  place  only  according  to 
agreement  approved  by  the  government  or  by  the  highest  military 
authority. 

Contraventions  of  this  rule  are  highly  punishable. 

87.  Ambassadors,  and  all  other  diplomatic  agents  of  neutral  powers, 
accredited  to  the  enemy,  may  receive  safe  conducts  through  the  terri- 
tories occupied  by  the  belligerents,  unless  there  are  military  reasons  to 
the  contrary,  and  unless  they  may  reach  the  place  of  their  destination 
conveniently  by  another  route.     It  implies  no  international  affront  if 
the  safe  conduct  is  declined.     Such  passes  are  usually  given  by  the 
supreme  authority  of  the  State,  and  not  by  subordinate  officers. 

88.  A  spy  is  a  person  who  secretly,  in  disguise  or  under  false  pre- 
tense, seeks  information  with  the  intention  of  communicating  it  to  the 
enemy.  , 

The  spy  is  punishable  with  death  by  hanging  by  the  neck,  whether 
or  not  he  succeed  in  obtaining  the  information  or  in  conveying  it  to 
the  enemy. 

89.  If  a  citizen  of  the  United  States  obtains  information  in  a  legiti- 
mate manner,  and  betrays  it  to  the  enemy,  be  he  a  military  or  civil 
officer  or  a  private  citizen,  he  shall  suffer  death. 

90.  A  traitor  under  the  law  of  war,  or  a  war  traitor,  is  a  person  in  a 
place  or  district  under  martial  law  who,  unauthorized  by  the  military 
commander,  gives  information  of  any  kind  to  the  enemy  or  holds  inter- 
course with  him. 

91.  The  war  traitor  is  always  severely  punished.     If  his  offense  con- 
sists in  betraying  to  the  enemy  anything  concerning  the  condition, 
safety,  operations,  or  plans  of  the  troops  holding  or  occupy hig  the 
place  or  district,  his  punishment  is  death. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  1087 

92.  If  the  citizen  or  subject  of  a  country  or  place  invaded  or  con- 
quered gives  information  to  his  own  government,  from  which  he  is 
separated  by  the  hostile  army,  or  to  the  army  of  his  government,  he  is 
a  war  traitor,  and  death  is  the  penalty  of  his  offense. 

93.  All  armies  in  the  field  stand  in  need  of  guides,  and  impress  them 
if  the}^  can  not  obtain  them  otherwise. 

94.  No  person  having  been  forced  by  the  enemy  to  serve  as  guide  is 
punishable  for  having  done  so. 

95.  If  a  citizen  of  a  hostile  and  invaded  district  voluntarily  serves 
as  a  guide  to  the  enemy,  or  offers  to  do  so,  he  is  deemed  a  war  traitor, 
and  shall  suffer  death. 

96.  A  citizen  serving  voluntarily  as  a  guide  against  his  own  country 
commits  treason,  and  will  be  dealt  with  according  to  the  law  of  his 
country. 

97.  Guides,  when  it  is  clearly  proved  that  they  have  misled  intention- 
ally, may  be  put  to  death. 

98.  All  unauthorized  or  secret  communication  with  the  enemy  is 
considered  treasonable  by  the  law  of  war. 

Foreign  residents  in  an  invaded  or  occupied  territory,  or  foreign 
visitors  in  the  same,  can  claim  no  immunity  from  this  law.  They  may 
communicate  with  foreign  parts,  or  with  the  inhabitants  of  the  hostile 
country,  so  far  as  the  military  authorities  permit,  but  no  further. 
Instant  expulsion  from  the  occupied  territory  would  be  the  very  least 
punishment  for  the  infraction  of  this  rule. 

99.  A  messenger  carrying  written  dispatches  or  verbal  messages 
from  one  portion  of  the  army,  or  from  a  besieged  place,  to  another 
portion  of  the  same  army  or  its  government,  if  armed  and  in  the 
uniform  of  his  army,  and  if  captured  while  doing  so  in  the  territory 
occupied  by  the  enemy,  is  treated  by  the  captor  as  a  prisoner  of  war. 
If  not  in  uniform,  nor  a  soldier,  the  circumstances  connected  with  his 
capture  must  determine  the  disposition  that  shall  be  made  of  him. 

100.  A  messenger  or  agent  who  attempts  to  steal  through  the  ter- 
ritory occupied  by  the  enemy  to  further,  in  any  manner,  the  interests 
of  the  enemy,  if  captured  is  not  entitled  to  the  privileges  of  the  pris- 
oner of  war,  and  may  be  dealt  with  according  to  the  circumstances  of 
the  case. 

101.  While  deception  in  wan  is  admitted  as  a  just  and  necessary 
means  of  hostility,  and  is  consistent  with  honorable  warfare,  the  com- 
mon law  of  war  allows  even  capital  punishment  for  clandestine  or 
treacherous  attempts  to  injure  an  enemy,  because  they  are  so  dangerous 
and  it  is  so  difficult  to  guard  against  them. 

102.  The  law  of  war,  like  the  criminal  law  regarding  other  offenses, 
makes  no  difference  on  account  of  the  difference  of  sex,  concerning  the 
spy,  the  war  traitor,  or  the  war  rebel. 

103.  Spies,  war  traitors,  and  war  rebels  are  not  exchanged  according 
to  the  common  law  of  war.     The  exchange  of  such  persons  would 


1088  MILITARY    LAWS    OF    THE    UNITED    STATES. 

require  a  special  cartel,  authorized  by  the  government,  or,  at  a  great 
distance  from  it,  by  the  chief  commander  of  the  army  in  the  field. 

104.  A  successful  spy  or  war  traitor,  safely  returned  to  his  own  army, 
and  afterwards  captured  as  an  enemy,  is  not  subject  to  punishment  for 
his  acts  as  a  spy  or  war  traitor,  but  he  may  be  held  in  closer  custody  as 
a  person  individually  dangerous. 

SECTION  VI. 

EXCHANGE  OF  PRISONERS — FLAGS  OF  TRUCE1 — FLAGS  OF  PROTECTION. 

105.  Exchanges  of  prisoners  take  place,  number  for  number,  rank 
for  rank,  wounded  for  wounded,  with  added  condition  for  added  con- 
dition, such,  for  instance,  as  not  to  serve  for  a  certain  period. 

1  FLAGS   OF   TRUCE. 

1.  Dispatch  of  flag.— Communication  by  flag  of  truce,  being  an  exception  to  the  fun- 
damental rule  of  nonintercourse  between  belligerents,  is  not  to  be  resorted  to  except 
by  the  authority  of  the  President  or  the  commanding  general  of  the  army  or  forces 
operating  against  the  enemy  in  the  field.     No  inferior  commander  is  empowered  to 
resort  to  the  use  of  a  flag  of  truce  except  by  the  direction  of  such  authorized  superior. 

2.  The  party  sent  out  with  a  flag  of  truce  should  be  commanded  by  a  commis- 
sioned officer  designated  for  the  purpose.     His  command  should  consist  of  such  num- 
ber of  noncommissioned  officers  and  soldiers  as  may  be  requisite  for  the  purposes  of 
the  mission,  and  no  more;  the  party  should  be  reduced  to  the  least  number  that 
may  be  adequate  and  reasonable.     No  military  person  not  a  constituent  of  the  party, 
ana  no  civilian,  should  be  allowed  to  accompany  the  flag,  except  by  the  express 
authority  of  the  commander  dispatching  the  same. 

3.  The  officer  commanding  tne  party,  or  bearer  proper,  should  be  furnished  with 
specific  instructions,  in  writing  if  practicable,  informing  and  directing  him  precisely 
as  to  his  function  and  duties.     Communications  committed  to  him  to  be  conveyed  to 
the  enemy  should,  if  practicable,  be  in  writing. 

4.  The  officer  in  charge  should  comply  literally  and  exactly  with  his  instructions, 
not  exceeding  them.     On  approaching  the  enemy's  lines  he  should  exhibit  the  flag, 
or  white  signal  employed  as  such,  in  time  and  in  such  a  manner  as  to  prevent  his 
party  being  fired  upon.     He  should  deliver  his  dispatches,  if  any,  to  an  officer  duly 
authorized  to  receive  them,  should  receive  and  carefully  retain  such  dispatches  as 
may  be  delivered  to  him,  and,  his  mission  being  completed,  should  return  as  promptly 
as  possible  within  his  own  lines.     During  his  absence  he  should  require  his  escort  to 
confine  themselves  to  their  strict  duties,  and  prohibit  their  holding  any  communica- 
tion, except  such  as  may  be  absolutely  necessary,  with  the  military  persons  or  civil- 
ians within  the  enemy's  lines. 

5.  The  officer  in  charge,  on  his  return,  is  to  make  at  once  to  the  commander  by 
whose  order  he  was  dispatched  a  full  report  of  the  performance  of  his  mission,  includ- 
ing his  precise  communications  to  the  enemy  and  the  precise  acts  and  communica- 
tions of  the  enemy  in  reply  thereto.     He  should  furnish  also  a  list  of  all  persons,  if 
any,  accompanying  the  flag  or  returning  with  it,  such  as  exchanged  prisoners,  per- 
sons authorized  to  pass  the  lines,  etc.,  with  the  fact  of  their  examination  and  all 
obtainable  particulars  of  their  character  and  purposes. 

6.  Reception  of  flag. — By  the  law  of  nations,  the  bearer  in  good  faith  of  a  flag  of  truce 
is,  with  his  escort,  inviolable.     The  flag  is  not  to  be  fired  upon,  nor  the  bearer,  or  per- 
sons properly  accompanying  him,  to  be  made  prisoners.      They  are  to  be  received 
with  respect  and  treated  with  courtesy,  and  at  the  end  of  their  mission  to  be  allowed 
to  return  without  impediment.     Where  unavoidably  detained,  they  will,  if  necessary, 
properly  be  sheltered  and  subsisted  and  their  animals  foraged. 

7.  But  as  a  flag  of  truce  may  be  employed  as  a  coyer  for  illegal  designs,  the  party 
should  not  be  allowed  to  enter  within  the  outer  line  of  guards  or  pickets  in  the 
absence  of  express  authority  from  the  commander  of  the  forces,  and  such  precautions 
should  be  taken  as  to  prevent  their  making  observations  or  obtaining  information. 

8.  The  flag  should  either  be  met  by  another  flag  on  the  neutral  ground  or  territory 


MILITARY    LAWS    OF    THE    UNITED    STATES.  1089 

106.  In  exchanging  prisoners  of  war,  such  numbers  of  persons  of 
inferior  rank  may  be  substituted  as  an  equivalent  for  one  of  superior 
rank  as  may  be  agreed  upon  by  cartel,  which  requires  the  sanction  of 
the  Government  or  of  the  commander  of  the  army  in  the  field. 

107.  A  prisoner  of  war  is  in  honor  bound  truly  to  state  to  the  captor 
his  rank,  and  he  is  not  to  assume  a  lower  rank  than  belongs  to  him,  in 
order  to  cause  a  more  advantageous  exchange,  nor  a  higher  rank,  for 
the  purpose  of  obtaining  better  treatment. 

intervening  between  the  hostile  lines,  or,  on  its  arrival  near  the  outer  line,  should  be 
halted  by  the  nearest  sentinel  or  vedette  and  ordered  to  face  in  the  direction  from 
which  it  came.  The  sentinel  or  vedette  will  then,  through  his  corporal,  communi- 
cate the  arrival  of  the  flag  to  the  officer  in  command  of  the  nearest  picket  post  or 
guard,  who  will  himself  proceed,  or  will  send  a  commissioned  or  noncommissioned 
officer,  with  a  small  detachment,  to  meet  the  flag  and  ascertain  its  object,  of  which 
he  will  at  once  cause  information  to  be  transmitted  to  the  chief  commander.  The 
commander,  if  he  desires  to  receive  the  flag,  which,  in  discretion,  he  may  refuse  to 
do,  will  thereupon  dispatch  a  commissioned  officer,  with  suitable  escort  and  proper 
instructions,  to  formally  receive  the  flag  and  respond  officially  to  its  communications, 
or  to  take  charge  of  such  dispatches  as  the  bearer  may  desire  to  have  forwarded  to 
commander,  returning  later  with  the  response,  if  any. 

9.  Should  the  officer  in  charge  of  the  flag  insist,  in  obedience  to  his  instructions, 
upon  a  personal  interview  with  the  chief  commander,  the  latter  may,  in  his  discre- 
tion, refuse  such  interview,  or  he  may  proceed  to  meet  the  flag  in  person,  or  he  may 
cause  the  bearer  to  be  conducted  to  his  headquarters,  or  other  place  appointed,  his 
eyes  being  bandaged  if  deemed  expedient.     But  no  no  member  of  his  escort  should, 
except  by  express  authority,  be  admitted  with  him  within  the  lines. 

10.  Where,  indeed,  the  flag  is  employed  as  a  means  of  safe  conduct  for  exchanged 
prisoners,  hostages,  refugees,  or  other  civilians  permitted  by  proper  authority  to  pass 
the  lines,  these  may  be  admitted  by  the  authority  of  the  chief  commander,  after 
having  been  carefully  examined  to  ascertain  if  they  have  in  their  possession  supplies 
or  merchandise.     They  should  be  allowed  to  bring  in  with  them  only  necessary  per- 
sonal effects. 

11.  IJntil  the  purpose  of  a  flag  of  truce  is  accomplished  and  the  party  returns,  the 
bearer  and  those  accompanying  him  (except  so  far  as  admitted  by  authority  within 
the  lines)  will  remain  halted  in  the  same  or  other  appointed  place,  in  the  presence 
of  an  adequate  guard,  or,  if  unusual  delay  be  involved,  may  be  allowed  to  make 
camp,  under  proper  observation.     During  their  stay  no  conversation  should  be  held 
with  them  on  any  subject  directly  or  indirectly  relating  to  military  or  public  affairs, 
and  the  guard  attending  them  should  be  accompanied  by  a  commissioned  or  noncom- 
missioned officer  to  insure  the  observance  of  this  precaution. 

12.  Should  the  officer  in  charge  of  the  flag,  or  any  of  his  escort,  be  detected  in  an 
attempt  to  obtain  illicit  information,  or  in  any  other  form  of  abuse  of  the  privilege 
of  the  flag,  or  should  there  arise  a  reasonable  ground  of  suspicion  that  the  flag  has 
not  been  dispatched,  or  is  not  being  employed,  in  good  faith,  the  bearer  and  those 
implicated  may  be  detained  for  investigation  and  punishment  according  to  the  laws 
of  war.     ( G.  O. ,  No.  43,  Headquarters  of  the  Army,  May  20, 1893. ) 

The  use  of  flags  of  truce  by  the  enemy  during  "the  late  war  was  recognized  as  a 
belligerant  right.(a)  But  the  admission  by  flag  of  truce  within  the  lines  of  the 
United  States  Army  in  time  of  war  of  persons  coming  from  the  lines  of  an  enemy,  can 
not  entitle  such  persons  to  immunity  from  subsequent  inquiry  into  their  character 
and  business,  or  from  restraint  and  detention  upon  reasonable  grounds  of  suspicion 
appearing  against  them.  Moreover,  a  flag  of  truce  does  not  operate  as  a  saje-conduct, 
allowing  the  party  admitted  under  it  a  free  passage  through  the  territory  or  a  dispen- 
sation from  the  legal  effects  of  war,  but  affords  him  a  merely  temporary  protection 
not  to  be  continued  after  the  immediate  mission  of  the  flag  has  been  accomplished. 
So  held  that  a  person  who,  during  the  war,  availed  himself  of  a  flag  of  truce  to  enter 
our  lines  for  an  illegal  purpose,  was  in  no  degree  protected  by  the  flag  from  liability 
to  arrest,  upon  his  purpose  becoming  apparent,  or  from  amenability  to  trial  and  pun- 
ishment for  any  ov.ert  act  in  violation  of  the  laws  of  war.  (Dig.  Opin.  J.  A.  G.,  1374. ) 

a  Williams  v.  Bruffy,  6  Otto,  187. 
22924—08 69 


1090  MILITARY    LAWS    OF    THE    UNITED    STATES. 

Offenses  to  the  contrary  have  been  justly  punished  by  the  com- 
manders of  released  prisoners,  and  may  be  good  cause  for  refusing  to 
release  such  prisoners. 

108.  The  surplus  number  of  prisoners  of  war  remaining  after  an 
exchange  has  taken  place  is  sometimes  released  either  for  the  payment 
of  a  stipulated  sum  of  money,  or,  in  urgent  cases,  of  provision,  cloth- 
ing, or  other  necessaries. 

Such  arrangement,  however,  requires  the  sanction  of  the  highest 
authority. 

109.  The  exchange  of  prisoners  of  war  is  an  act  of  convenience  to 
both  belligerents.     If  no  general  cartel  has  been  concluded  it  can  not 
be  demanded  by  either  of  them.     No  belligerent  is  obliged  to  exchange 
prisoners  of  war. 

A  cartel'is  voidable  as  soon  as  either  party  has  violated  it. 

110.  No  exchange  of  prisoners  shall  be  made  except  after  complete 
capture,  and  after  an  accurate  account  of  them,  and  a  list  of  the 
captured  officers  has  been  taken. 

111.  The  bearer  of  a  flag  of  truce  can  not  insist  upon  being  admitted. 
He  must  always  be  admitted  with  great  caution.     Unnecessary  fre- 
quency is  carefully  to  be  avoided. 

112.  If  the  bearer  of  a  flag  of  truce  offer  himself  during  an  engage- 
ment, he  can  be  admitted  as  a  very  rare  exception  only.     It  is  no 
breach  of  good  faith  to  retain  such  flag  of  truce,  if  admitted  during 
the  engagement.     Firing  is  not  required  to  cease  on  the  appearance  of 
a  flag  of  truce  in  battle. 

113.  If  the  bearer  of  a  flag  of  truce,  presenting  himself  during  an 
engagement,  is  killed  or  wounded  it  furnishes  no  ground  of  complaint 
whatever. 

114.  If  it  be  discovered,  and  fairly  proved,  that  a  flag  of  truce  has 
been  abused  for  surreptitiously  obtaining  military  knowledge,  the 
bearer  of  the  flag  thus  abusing  his  sacred  character  is  deemed  a  spy. 

So  sacred  is  the  character  of  a  flag  of  truce,  and  so  necessary  is  its 
sacredness,  that  while  its  abuse  is  an  especially  heinous  offense,  great 
caution  is  requisite,  on  the  other  hand,  in  convicting  the  bearer  of  a 
flag  of  truce  as  a  spy. 

114.  It  is  customary  to  designate  by  certain  flags  (usually  yellow) 
the  hospitals  in  places  which  are  shelled,  so  that  the  besieging  enemy 
may  avoid  firing  on  them.  The  same  has  been  done  in  battles  when 
hospitals  are  situated  within  the  field  of  the  engagement. 

116.  Honorable  belligerents  often  request  that  the  hospitals  within 
the  territory  of  the  enemy  may  be  designated,  so  that  the}'  may  be 
spared. 

An  honorable  belligerent  allows  himself  to  be  guided  by  flags  or 
signals  of  protection  as  much  as  the  contingencies  and  the  necessities 
of  the  fight  will  permit. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  1091 

117.  It  is  justly  considered  an  act  of  bad  faith,  of  infamy  or  fiendish- 
ness,  to  deceive  the  enemy  by  flags  of  protection.     Such  act  of  bad 
faith  may  be  good  cause  for  refusing  to  respect  such  flags. 

118.  The  besieging  belligerent  has  sometimes  requested  the  besieged 
to  designate  the  buildings  containing  collections  of  wor&s  of  art,  scien- 
tific museums,  astronomical  observatories,  or  precious  libraries,  so  that 
their  destruction  may  be  avoided  as  much  as  possible. 

SECTION  VII. 

THE    PAROLE. 

119.  Prisoners  of  war  may  be  released  from  captivity  by  exchange, 
and,  under  certain  circumstances,  also  by  parole. 

120.  The  term  parole  designates  the  pledge  of  individual  good  faith 
and  honor  to  do,  or  to  omit  doing,  certain  acts  after  he  who  gives  his 
parole  shall  have  been  dismissed,  wholly  or  partially,  from  the  power 
of  the  captor. 

121.  The  pledge  of  the  parole  is  alwaj^s  an  individual,  but  not  a  pri- 
vate act. 

122.  The  parole  applies  chiefly  to  prisoners  of  war  whom  the  captor 
allows  to  return  to  their  country  or  to  live  in  greater  freedom  within 
the  captor's  country  or  territory  on  conditions  stated  in  the  parole. 

123.  Release  of  prisoners  of  war  by  exchange  is  the  general  rule; 
release  by  parole  is  the  exception. 

124.  Breaking  the  parole  is  punished  with  death  when  the  person 
breaking  the  parole  is  captured  again. 

Accurate  lists,  therefore,  of  the  paroled  persons  must  be  kept  by 
the  belligerents. 

125.  When  paroles  are  given  and  received  there  must  be  an  exchange 
of  two  written  documents,  in  which  the  name  and  rank  of  the  paroled 
individuals  are  accurately  and  truthfully  stated. 

126.  Commissioned  officers  only  are  allowed  to  give  their  parole,  and 
they  can  give  it  only  with  the  permission  of  their  superior,  as  long  as 
a  superior  in  rank  is  within  reach. 

127.  No  noncommissioned  officer  or  private  can  give  his  parole  except 
through  an  officer.     Individual  paroles  not  given  through  an  officer  are 
not  only  void,  but  subject  the  individuals  giving  them  to  the  punish- 
ment of  death  as  deserters.     The  only  admissible  exception  is  where 
individuals,  properly  separated  from  their  commands,  have  suffered 
long  confinement  without  the  possibility  of  being  paroled  through  an 
officer. 

128.  No  paroling  on  the  battlefield,  no  paroling  of  entire  bodies  of 
troops  after  a  battle,  and  no  dismissal  of  large  numbers  of  prisoners, 
with  a  general  declaration  that  they  are  paroled,  is  permitted  or  of  any 
value. 


1092  MILITARY    LAWS    OF    THE    UNITED    STATES. 

129.  In  capitulations  for  the  surrender  of  strong-  places  or  fortified 
camps  the  commanding  officer,  in  cases  of  urgent  necessity,  may  agree 
that  the  troops  under  his  command  shall  not  fight  again  during  the 
war  unless  exchanged. 

130.  The  usual  pledge  given  in  the  parole  is  not  to  serve  during  the 
existing  war  unless  exchanged. 

This  pledge  refers  only  to  the  active  service  in  the  field,  against  the 
paroling  belligerent  or  his  allies  actively  engaged  in  the  same  war. 
These  cases  of  breaking  the  parole  are  patent  acts,  and  can  be  visited 
with  the  punishment  of  death;  but  the  pledge  does  not  refer  to  internal 
service,  such  as  recruiting  or  drilling  the  recruits,  fortifying  places  not 
besieged,  quelling  civil  commotions,  fighting  against  belligerents  uncon- 
nected with  the  paroling  belligerents,  or  to  civil  or  diplomatic  service 
for  which  the  paroled  officer  may  be  employed. 

131.  If  the  government  does  not  approve  of  the  parole,  the  paroled 
officer  must  return  in  to  captivity,  and  should  the  enemy  refuse  to  receive 
him,  he  is  free  of  his  parole. 

132.  A  belligerent  government  may  declare,  by  a  general  order, 
whether  it  will  allow  paroling,  and  on  what  conditions  it  will  allow  it. 
Such  order  is  communicated  to  the  enemy. 

133.  No  prisoner  of  war  can  be  forced  by  the  hostile  government  to 
parole  himself,  and  no  government  is  obliged  to  parole  prisoners  of  war 
or  to  parole  all  captured  officers  if  it  paroles  any.     As  the  pledging  of 
the  parole  is  an  individual  act,  so  is  paroling,  on  the  other  hand,  an  act 
of  choice  on  the  part  of  the  belligerent. 

134.  The  commander  of  an  occupying  army  may  require  of  the  civil 
officers  of  the  enemy,  and  of  its  citizens,  any  pledge  he  may  consider 
necessary  for  the  safety  or  security  of  his  army,  and  upon  their  failure 
to  give  it  he  may  arrest,  confine,  or  detain  them. 

SECTION  VIII. 

ARMISTICE — CAPITULATION. 

135.  An  armistice  is  the  cessation  of  active  hostilities  for  a  period 
agreed  between  belligerents.     It  must  be  agreed  upon  in  writing,  and 
duly  ratified  by  the  highest  authorities  of  the  contending  parties. 

136.  If  an  armistice  be  declared,  without  conditions,  it  extends  no 
further  than  to  require  a  total  cessation  of  hostilities  along  the  front  of 
both  belligerents. 

If  conditions  be  agreed  upon,  they  should  be  clearly  expressed,  and 
must  be  rigidly  adhered  to  by  both  parties.  If  either  party  violates 
any  express  condition,  the  armistice  may  be  declared  null  and  void  by 
the  other. 

137.  An  armistice  may  be  general,  and  valid  for  all  points  and  lines 
of  the  belligerents,  or  special;  that  is,  referring  to  certain  troops  or 
certain  localities  only. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  1093 

An  armistice  may  be  concluded  for  a  definite  time  or  for  an  indefinite 
time,  during  which  either  belligerent  may  resume  hostilities  on  giving 
the  notice  agreed  upon  to  the  other. 

138.  The  motives  which  induce  the  one  or  the  other  belligerent  to 
conclude  an  armistice,  whether  it  be  expected  to  be  preliminary  to  a 
treaty  of  peace  or  to  prepare  during  the  armistice  for  a  more  vigorous 
prosecution  of  the  war,  does  in  no  way  affect  the  character  of  the 
armistice  itself. 

139.  An  armistice  is  binding  upon  the  belligerents  from  the  day  of 
the  agreed  commencement;  but  the  officers  of  the  armies  are  respon- 
sible from  the  day  only  when  they  receive  official  information  of  its 
existence. 

140.  Commanding  officers  have  the  right  to  conclude  armistices  bind- 
ing on  the  district  over  which  their  command  extends,  but  such  armis- 
tice is  subject  to  the  ratification  of  the  superior  authority,  and  ceases  so 
soon  as  it  is  made  known  to  the  enemy  that  the  armistice  is  not  ratified, 
even  if  a  certain  time  for  the  elapsing  between  giving  notice  of  cessa- 
tion and  the  resumption  of  hostilities  should  have  been  stipulated  for. 

141.  It  is  incumbent  upon  the  contracting  parties  of  an  armistice  to 
stipulate  what  intercourse  of  persons  or  traffic  between  the  inhabitants 
of  the  territories  occupied  by  the  hostile  armies  shall  be  allowed,  if  any. 
If  nothing  is  stipulated,  the  intercourse  remains  suspended,  as  during 
actual  hostilities. 

142.  An  armistice  is  not  a  partial  or  a  temporary  peace;  it  is  only 
the  suspension  of  military  operations  to  the  extent  agreed  upon  by  the 
parties. 

143.  When  an  armistice  is  concluded  between  a  fortified  place  and 
the  army  besieging  it,  it  is  agreed  by  all  the  authorities  on  this  subject 
that  the  besieger  must  cease  all  extension,  perfection,  or  advance  of 
his  attacking  works  as  much  so  &s  from  attacks  by  main  force. 

But  as  there  is  a  difference  of  opinion  among  martial  jurists  whether 
the  besieged  have  the  right  to  repair  breaches  or  to  erect  new  works 
of  defense  within  the  place  during  an  armistice,  this  point  should  be 
determined  by  express  agreement  between  the  parties. 

144.  So  soon  as  a  capitulation  is  signed,  the  capitulator  has  no  right 
to  demolish,  destroy,  or  injure  the  works,  arms,  stores,  or  ammunition 
in  his  possession  during  the  time  which  elapses  between  the  signing 
and  the  execution  of  the  capitulation,  unless  otherwise  stipulated  in 
the  same. 

145.  When  an  armistice  is  clearly  broken  by  one  of  the  parties,  the 
other  party  is  released  from  all  obligation  to  observe  it. 

146.  Prisoners  taken  in  the  act  of  breaking  an  armistice  must  be 
treated  as  prisoners  of  war,  the  officer  alone  being  responsible  who 
gives  the  order  for  such  a  violation  of   an  armistice.     The  highest 
authority  of  the  belligerent  aggrieved  may  demand  redress  for  the 
infraction  of  an  armistice. 


1094  MILITARY    LAWS    OF   THE    UNITED   STATES. 

147.  Belligerents  sometimes  conclude  an  armistice  while  their  pleni- 
potentiaries are  met  to  discuss  the  conditions  of  a  treaty  of  peace;  but 
plenipotentiaries  may  meet  without  a  preliminary  armistice;  in  the 
latter  case  the  war  is  carried  on  without  any  abatement. 

SECTION  IX. 

ASSASSINATION. 

148.  The  law  of  war  does  not  allow  proclaiming  either  an  individual 
belonging  to  the  hostile  army  or  a  citizen  or  a  subject  of  the  hostile 
government  an  outlaw  who  ma}7  be  slain  without  trfol  by  any  captor, 
any  more  than  the  modern  law  of  peace  allows  such  intentional  out- 
lawry; on  the  contrary,  it  abhors  such  outrage.     The  sternest  retalia- 
tion should  follow  the  murder  committed  in  consequence  of   such 
proclamation,  made  by  whatever  authority.     Civilized  nations  look 
with  horror  upon  offers  of  rewards  for  the  assassination  of  enemies  as 
relapses  into  barbarism. 

SECTION  X. 

INSURRECTION — CIVIL   WAR — REBELLION. 

149.  Insurrection  is  the  rising  of  people  in  arms  against  their  gov- 
ernment or  a  portion  of  it,  or  against  one  or  more  of  its  laws,  or  against 
an  officer  or  officers  of  the  government.     It  may  be  confined  to  mere 
armed  resistance,  or  it  may  have  greater  ends  in  view. 

150.  Civil  war  is  war  between  two  or  more  portions  of  a  country  or 
state,  each  contending  for  the  mastery  of  the  whole,  and  each  claiming 
to  be  the  legitimate  government.     The  term  is  also  sometimes  applied 
to  war  of  rebellion,  when  the  rebellious  provinces  or  portions  of  the 
state  are  contiguous  to  those  containing  the  seat  of  government. 

151.  The  term  rebellion  is  applied  to  an  insurrection  of  large  extent, 
and  is  usually  a  war  between  the  legitimate  government  of  a  country 
and  portions  of  provinces  of  the  same  who  seek  to  throw  off  their 
allegiance  to  it  and  set  up  a  government  of  their  own. 

152.  When  humanity  induces  the  adoption  of  the  rules  of  regular 
war  toward  rebels,  whether  the  adoption  is  partial  or  entire,  it  does  in 
no  way  whatever  imply  a  partial  or  complete  acknowledgment  of  their 
government,  if  they  have  set  up  one,  or  of  them  as  an  independent  or 
sovereign  power.     Neutrals  have  no  right  to  make  the  adoption  of  the 
rules  of  war  by  the  assailed  government  toward  rebels  the  ground  of 
their  own  acknowledgment  of  the  revolted  people  as  an  independent 
power. 

153.  Treating  captured  rebels  as  prisoners  of  war,  exchanging  them, 
concluding  of  cartels,  capitulations,  or  other  warlike  agreements  with 
them,  addressing  officers  of  a  rebel  army  by  the  rank  they  may  have 


MILITARY    LAWS    OF    THE    UNITED    STATES.  1095 

in  the  same,  accepting  flags  of  truce,  or,  on  the  other  hand,  proclaim- 
ing martial  law  in  their  territory,  or  levying  war  taxes  or  forced 
loans,  or  doing  any  other  act  sanctioned  or  demanded  by  the  law  and 
usages  of  public  war  between  sovereign  belligerents,  neither  proves 
nor  establishes  an  acknowledgment  of  the  rebellious  people,  or  of  the 
government  which  they  may  have  erected,  as  a  public  or  sovereign 
power.  Nor  does  the  adoption  of  the  rules  of  war  toward  rebels  imply 
an  engagement  with  them  extending  beyond  the  limits  of  these  rules. 
It  is  victor}^  in  the  field  that  ends  the  strife  and  settles  the  future 
relations  between  the  contending  parties. 

154.  Treating,  in  the  field,  the  rebellious  enemy  according  to  the  law 
and  usages  of  war  has  never  prevented  the  legitimate  government 
from  trying  the  leaders  of  the  rebellion  or  chief  rebels  for  high  treason, 
and  from  treating  them  accordingly,  unless  they  are  included  in  a 
general  amnesty. 

155.  All  enemies  in  regular  war  are  divided  into  two  general  classes — 
that  is  to  say,  into  combatants  and  noncombatants,  or  unarmed  citizens 
of  the  hostile  government. 

The  military  commander  of  the  legitimate  government,  in  a  war  of 
rebellion,  distinguishes  between  the  loyal  citizen  in  the  revolted  portion 
of  the  country  and  the  disloyal  citizen.  The  disloyal  citizen  may  fur- 
ther be  classified  into  those  citizens  known  to  sympathize  with  the 
rebellion  without  positively  aiding  it,  and  those  who,  without  taking 
up  arms,  give  positive  aid  and  comfort  to  the  rebellious  enemy  without 
being  bodily  forced  thereto. 

156.  Common  justice  and  plain  expediency  require  that  the  military 
commander  protect  the  manifestly  loyal  citizens  in  revolted  territories 
against  the  hardships  of  the  war  as  much  as  the  common  misfortune  of 
all  war  admits. 

The  commander  will  throw  the  burden  of  the  war,  as  much  as  lies 
within  his  power,  on  the  disloyal  citizens  of  the  revolted  portion  or 
province,  subjecting  them  to  a  stricter  police  than  the  noncombatant 
enemies  have  to  suffer  in  regular  war;  and  if  he  deems  it  appropriate, 
or  if  his  government  demands  of  him  that  every  citizen  shall,  by  an 
oath  of  allegiance  or  by  some  other  manifest  act,  declare  his  fidelity 
to  the  legitimate  government,  he  may  expel,  transfer,  imprison,  or  fine 
the  revolted  citizens  who  refuse  to  pledge  themselves  anew  as  citizens 
obedient  to  the  law  and  loyal  to  the  government. 

Whether  it  is  expedient  to  do  so,  and  whether  reliance  can  be  placed 
upon  such  oaths,  the  commander  or  his  government  have  the  right  to 
decide. 

157.  Armed  or  unarmed  resistance  by  citizens  of  the  United  States 
against  the  lawful  movements  of  their  troops  is  levying  war  against 
the  United  States,  and  is  therefore  treason. 


CIVIL  SERVICE  RULES.1 

[Amendments  to  July  ;5,  1901.] 
SYNOPSIS   OF    RULES. 

RULE  I.  Regulations  to  be  prescribed;  definition  of 
terms. 

RULE  II.  Penalties  and  prohibitions;  status  of  persons 
after  their  positions  are  classified. 

RULE  III.  Extent  of  each  of  the  five  branches  of  the 
classified  service;  employees  excluded  from  the  classified 
service. 

RULE  IV.  Examinations  authorized;  when  noncompeti- 
tive  examinations  may  be  held;  appointment  and  duties 
of  boards  of  examiners;  executive  officers  to  facilitate 
examinations. 

RULE  V.  Restrictions  governing  applicants  and  applica- 
tions; disqualifications  of  applicants  and  eligibles;  age 
limitations  of  applicants. 

RULE  VI.  Exceptions  from  examination. 

RULE  VII.  Rating  of  examination  papers;  relative  stand- 
ing of  eligibles;  relative  standing  of  preference  claimants; 
registration  of  applicants;  term  of  eligibility. 

RULE  VIII.  Certifications  and  selections  for  filling  va- 
cancies; revocation  of  appointments  of  eligibles  not  entitled 
to  certification;  probationary  period  and  absolute  appoint- 
ment; objection  by  appointing  officer  to  eligible;  appor- 
tionment of  appointments  in  Washington,  D.  C. ;  to  what 
class  appointment  must  be  made;  eligibles  with  same  aver- 
age percentage;  districts  to  be  formed  for  filling  vacancies 
in  certain  positions;  appointment  and  promotion  of  substi- 
tutes; temporary  or  emergency  appointments. 

1  The  civil  service  rules  are  merely  Executive  rules  and  regulations  made  by  author- 
ity of  law,  and  are  effective,  if  at  all,  only  for  the  internal  control  and  government 
of  the  civil  service  and  the  Executive  Departments.  The  courts  of  equity  have  no 
jurisdiction  or  authority  to  enforce  them.  Taylor  v.  Kercheval,  82  Fed.  Rep.,  487; 
Carrv.  Gordon,  82,  ibid.,  373. 

The  civil  service  rules  promulgated  by  the  President  have  not  the  force  of  law  so 
as  to  give  the  employees  any  tenure  or  right  to  the  office.  Morgan  v.  Nunn,  84  Fed. 
Rep.,  551;  Carr  v.  Gordon,  82  Id.,  373;  Taylors.  Kercheval,  82  Fed.  Rep.,  497. 

In  the  absence  of  evidence  to  the  contrary  the  accounting  officers  will,  in  the  set- 
tlement of  salary  accounts,  assume  that  the  civil  service  law  and  rules  have  been 
complied  with  by  the  officer  having  the  power  of  appointment.  Ill  Compt.  Dec.,  22. 

1096 


MILITARY    LAWS    OF   THE    UNITED   STATES.  1097 

RULE  IX.  Reinstatements. 
RULE  X.  Transfers. 
RULE  XI.  Promotions. 

RULE  XII.  List  of  all  positions  and  employments  and  re- 
ports of  changes  in  service  to  be  furnished  to  commission. 

In  the  exercise  of  power  vested  in  him  by  the  Constitu-  orde?mulgating 
'tion,  and  of  authority  given  to  him  by  the  seventeen  hun- 
dred and  fifty-third  section  of  the  Revised  Statutes,  and  by 
an  act  to  regulate  and  improve  the  civil  service  of  the 
United  States,  approved  January  16,  1883,  the  President 
hereby  makes  and  promulgates  the  following  rules,  and 
revokes  all  others: 

RULE  I. 


1.  The  United  States  Civil  Service  Commission  shall 

have  authority  to  prescribe  regulations  in  pursuance  of,  ti(JJeSflmtions  of 
and  for  the  execution  of,  the  provisions  of  these  rules  and  terms- 
of  the  civil-service  act. 

2.  The  several  terms  hereinafter  mentioned,  wherever 
used  in  these  rules  or  the  regulations  of  the  commission, 
shall  be  construed  as  follows: 

(a)  The  torm  c  '  civil-service  act"  refers  to  "An  act  to 
regulate  and  improve  the  civil  service  of  the  United  States," 
approved  January  16,  1883. 

(£)  The  term  '  4  classified  service  "  refers  to  all  that  part 
of  the  executive  civil  service  of  the  United  States  included 
within  the  provisions  of  the  civil-service  act  and  these  rules. 

(c)  The  term  tc  grade,"  in  connection  with  employees  or 
positions,  refers  to  a  group  of  employees  or  positions  in 
the  classified  service  arranged  upon  the  basis  of  duties 
performed  without  regard  to  salaries  received. 

(d)  The  term  "  class,"  in  connection  with  employees  or 
positions,  refers  to  a  group  of  employees  or  positions  in 
any  grade  arranged  upon  the  basis  of  salaries  received,  in 
pursuance  of  the  provisions  of  section  163  of  the  Revised 
Statutes  and  of  section  6  of  the  civil-service  act. 

(e)  The  term  "  excepted  position"  refers  to  any  position 
within  the  provisions  of  the  civil-service  act,  but  excepted 
from  the  requirement  of  competitive  examination  or  reg- 
istration for  appointment  thereto. 


RULE  II. 

e    executi 
United  States  who  shall  willfully  violate  any  of  the  pro-or"ruies 


1.  Any  person  in  the    executive    civil   service  of  the    Dismissal  for 

J  violation  of  act 


1098  MILITARY    LAWS    OF    THE    TTNITED    STATES. 

visions  of  the  civil-service  act  or  of  these  rules  shall  be 
dismissed  from  office. 

enS  wtthereie£  ^.  No  person  in  the  executive  civil  service  shall  use  his 
tions.  official  authorit}^  or  official  influence  for  the  purpose  of 

interfering  with  an  election  or  controlling  the  result 
thereof. 

chande81ofis?ank     **'  -^o  Person  m  ^ne  executive  civil  service  shall  dismiss, 

forpoiiticau>rre-or  cause  to  be  dismissed,  or  make  any  attempt  to  procure 

the  dismissal  of,  or  in  any  manner  change  the  official  rank 

or  compensation  of  any  other  person  therein  because  of 

his  political  or  religious  opinions  or  affiliations. 

ofNoiUicai°orreS  ^'  -^o  <luestion  in  any  examination,  or  form  of  applica- 
of a°us  n cST  ^on'  snaU  be  so  framed  as  to  elicit  information  concerning, 
etc-  nor  shall  any  inquiry  be  made  concerning,  nor  any  other 

attempt  be  made  to  ascertain,  the  political  or  religious 
opinions  or  affiliations  of  any  applicant,  competitor,  or 
eligible;  and  all  disclosures  thereof  shall  be  discounte- 
nanced. And  no  discrimination  shall  be  exercised,  threat- 
ened, or  promised,  against  or  in  favor  of  any  applicant, 
competitor,  or  elibible  because  of  his  political  or  religious 
opinions  or  affiliations. 

tionsthat?annot     ^'  -^o  recommendation  of  an  applicant,  competitor,  or 
or  conesWemiled'  e^&iWe>  involving  any  disclosure  of  his  political  or  reli- 
gious opinions  or  affiliations,  shall  be  received,  filed,  or 
considered  by  the  commission,  by  any  board  of  examiners, 
or  by  any  nominating  or  appointing  officer. 

inPc1m*acterlike  ®'  -^n  making  removals  or  reductions,  or  in  imposing 
punishment,  for  delinquency  or  misconduct,  penalties  like 
in  character  shall  be  imposed  for  like  offenses,  and  action 
thereupon  shall  be  taken  irrespective  of  the  political  or 
religious  opinions  or  affiliations  of  the  offenders. 

)iSoatees°aft?r     ^'  ^  person  holding  a  position  on  the  date  said  position 
classification,     jg  classified  under  the  civil-service  act  shall  be  entitled  to 
all  the  rights  and  benefits  possessed  by  persons  of  the  same 
class  or  grade  appointed  upon  examination  under  the  pro- 
visions of  said  act. 
Procedure  in      §.  No  removal  shall  be  made  from  the  competitive  clas- 

removaJs. 

sifted  service  except  for  just  cause  and  for  reasons  given 
in  writing;  and  the  person  sought  to  be  removed  shall 
have  notice  and  be  furnished  a  copy  of  such  reasons,  and 
be  allowed  a  reasonable  time  for  personally  answering 
the  same  in  writing.  Copy  of  such  reasons,  notice,  and 
answer,  and  of  the  order  of  removal  shall  be  made  a  part 
of  the  records  of  the  proper  department  or  office;  and  the 
reasons  for  any  change  in  rank  or  compensation  within 


MILITARY    LAWS    OF    THE    UNITED    STATES.  1099 

the  competitive  classified  service  shall  also  be  made  a  part 
of  the  records  of  the  proper  department  or  office.1 

RULE  III. 

1.  All  that  part  of  the  executive  civil  service  of  the    Different 
United  States  which  has  been  or  ma}7  hereafter  be  classi-  classified  serv- 

ice. 

fied   under    the    civil-service   act   shall   be   arranged    in 
branches  as  follows:  The  departmental  service,     *     *     * 

2.  The  departmental  service  shall  include 

(a)  All  officers  and  employees  of  whatever  designation,    Extent  of  de- 

J  '  partmental  serv- 

except  persons  merely  employed  as  laborers  or  workmen  lee- 
and  persons  whose  appointments  are  subject  to  confirma- 
tion  by  the  Senate,   however  or  for  whatever  purpose 
employed,  whether  compensated  by  a  fixed  salary  or  other- 
wise, who  are  serving  in  or  on  detail  from — 

The  several  Executive  Departments,  the  commissions, 

and  offices  in  the  District  of  Columbia. 

***** 

The    force    employed    under    custodians    of    public 

buildings. 

*  *  *  *  * 

The  Engineer  Department  at  large. 
The  Ordnance  Department  at  large. 

(b)  All  executive  officers  and  employees  outside  of  the 
District  of  Columbia  not  covered  in  (#),  of  whatever  desig- 
nation, except   persons  merely  employed  as  laborers  or 
workmen  and  persons  whose  appointments  are  subject  to 
confirmation  by  the  Senate,  whether  compensated  by  a 
fixed  salary  or  otherwise— 

Who  are  serving  in  a  clerical  capacity  or  whose  duties 
are  in  whole  or  in  part  of  a  clerical  nature. 

Who  are  serving  in  the  capacity  of  watchman  or 
messenger. 

Who  are  serving  in  the  capacity  of  physician,  hospital 
steward,  nurse,  or  whose  duties  are  of  a  medical 
nature. 

Who  are  serving  in  the  capacity  of  draftsman,  civil 
engineer,  steam  engineer,  electrical  engineer,  com- 
puter, or  fireman. 


Amended  July  27,  1897,  and  May  29,  1899. 

The  order  of  the  President  of  July  27,  1897,  prohibiting  removals  from  positions 
subject  to  competitive  examination  except  upon  written  charges  and  notice,  is  an 
administrative  order  regulating  the  conduct  of  the  President's  subordinates;  but  it 
has  not  the  force  of  law,  and  confers  upon  an  incumbent  no  right  to  hold  office 
indefinitely,  and  no  right  of  which  a  court*  of  equitv  can  take  cognizance.  Carr  v. 
Gordon,  82  Fed.  Rep.,  373. 


1100  MILITARY    LAWS    OF    THE    UNITED   STATES. 


^  Al1  officers  and  employees  who  have  heretofore  been 
covered  by  rules.  classified  under  the  civil-service  act  shall  be  considered  as 
still  classified  and  subject  to  the  provisions  of  these  rules. 

8-  Tne  following-mentioned  positions  or  employees  shall 
covered  by  rules.  no^  ^  sukject  to  any  of  the  provisions  of  these  rules,  ex- 
cept sections  1,  2,  and  3  of  Rule  II:  1 

(a)  Any  position  filled  by  a  person  whose  place  of  pri- 
vate business  is  conveniently  located  for  his  performance 
of  the  duties  of  said  position,  or  any  position  filled  by  a 
person  remuneraied  in  one  sum  both  for  services  rendered 
therein,  and  for  necessary  rent,  fuel,  and  lights  furnished 
for  the  performance  of  the  duties  thereof:  Provided,  That 
in  either  case  the  performance  of  the  duties  of  said  posi- 
tion requires  only  a  portion  of  the  time  and  attention  of 
the  occupant,  paying  him  a  compensation  not  exceeding, 
for  his  personal  salary  only,  three  hundred  dollars  per 
annum,  and  permitting  of  his  pursuing  other  regular  busi- 
ness or  occupation. 

(&)  Any  person  in  the  military  or  naval  service  of  the 
United  States  who  is  detailed  for  the  performance  of  civil 
duties. 

(c)  Any  person  employed  in  a  foreign  country,  under 
the  State  Department,  or  who  is  temporarily  employed  in 
a  confidential  capacity  in  a  foreign  country  under  any 
executive  department  or  other  office.1 

(d)  Any  position  the  duties  of  which  are  of  quasi-mili- 
tary or  quasi-naval  character  and  for  the  performance  of 

which  duties  a  person  is  enlisted  for  a  term  of  years. 

******* 

(g)  Any  person  in  the  Quartermaster's  Department  at 
large  of  the  United  States  Army  employed  as  train  mas- 
ter, chief  packer,  foreman  packer,  pack  master,  master 
baler,  foreman  of  laborers,  superintendent  of  stables,  or 
forage  master.  Appointments  to  these  positions  shall  be 
made  hereafter  oti  registration  tests  of  fitness  prescribed 
in  regulations  to  be  issued  by  the  Secretary  of  War  and 
approved  by  the  President.1 

(h}  Any  person  in  the  Medical  Department  at  large  of 
the  United  States  Army  employed  as  chief  packer,  packer, 
or  assistant  packer.  Appointments  to  these  positions 
shall  be  made  hereafter  on  registration  tests  of  fitness  pre- 
scribed in  regulations  to  be  issued  by  the  Secretary  of 
War  and  approved  by  the  President.1 

(i)  Any  person  in  the  Ordnance  Department  at  large  of 
the  United  States  Ariny  employed  as  foreman,  assistant 
'Amended  May  29,  1899. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  1101 

foreman,  forage  master,  weigher,  skilled  laborer,  guard, 
or  on  piecework.  Appointments  to  these  positions  shall 
be  made  hereafter  on  registration  tests  of  fitness  prescribed 
in  regulations  to  be  issued  by  the  Secretary  of  War  and 
approved  by  the  President.1 

(j)  Any  person  in  the  Engineer  Department  at  large 
of  the  United  States  Army  employed  as  subinspector, 
overseer,  suboverseer,  superintendent,  master  lock  mana- 
ger, deputy  lock  manager,  assistant  superintendent  of 
canal,  chief  deputy  inspector,  deputy  inspector,  rodman, 
stadiaman,  chainman,  foreman,  timekeeper,  lock  master, 
assistant  lock  master,  custodian,  storekeeper,  fort  keeper, 
torpedo  keeper,  assistant  torpedo  keeper,  light  keeper, 
board  master,  subforeman,  master  laborer,  gauge  reader, 
steward,  dam  tender,  assistant  dam  tender,  helper,  car- 
penter's helper,  machinist's  helper,  quarry  master,  black- 
smith's helper,  climber,  barge  master,  recorder  of  vessels, 
track  man,  gardener,  assistant  gardener,  or  weigher. 
Appointments  to  these  positions  shall  be  made  hereafter 
on  registration  tests  of  fitness  prescribed  in  regulations  to 
be  issued  by  the  Secretary  of  War  and  approved  by  the 
President.1 

(k)  Any  person  in  the  national  military  parks  at  Gettys- 
burg, Shiloh,  Chickamauga,  Chattanooga,  Vicksburg,  and 
Antietam  employed  as  commissioner,  assistant  in  historical 
work,  agent  for  purchases  of  land,  historian,  secretary, 
rodman,  chainman,  assistant  superintendent,  chief  guard- 
ian, guardian,  guard,  inspector,  carpenter,  steam  engineer, 
or  painter.  Appointments  to  these  positions  shall  be  made 
hereafter  on  registration  tests  of  fitness  prescribed  in  regu- 
lations to  be  issued  by  the  Secretary  of  War  and  approved 
by  the  President.1 

*  *  ,          *       •       *  *  *  * 

RULE  IV. 

1.  In  pursuance  of  the  provisions  of  section  2  of  the 
civil-service  act,  there  shall  be  provided,  to  test  fitness  for 
admission  to  positions  which  have  been,  or  may  hereafter 
be,  classified  under  the  civil-service  act,  examinations  of  a 
practical  and  suitable  character  involving  such  subjects 
and  tests  as  the  commission  may  direct. 

2.  No  person  shall  be  appointed  to,  or  be  employed  in, 
any  position  which  has  been,  or  may  hereafter  be,  classi- 
fied under  the  civil-service  act,  until  he  shall  have  passed 


1  Amended  May  29,  1899. 


1102  MILITARY    LAWS    OF    THE    UNITED    STATES. 

the  examination  provided  therefor,  or  unless  he  is  spe- 
cially exempt  from  examination  by  the  provisions  of  said 
act  or  the  rules  made  in  pursuance  thereof.1 

Pe^aven0exca°mi-     3-  In  pursuance  of  the  provisions  of  section  2  of  the 
heid°ns  may  be  civil-service  act,  wherever  competent  persons  can  be  found 
who  are  willing  to  compete,  no  noncompetitive  examina- 
tion shall  be  given  except  as  follows: 

(a)  To  test  fitness  for  transfer  or  for  promotion  in  a 
part  of  the  service  to  which  promotion  regulations  have 
not  been  applied. 

****** 

when  exami-  (c)  To  test  the  fitness  of  a  person  whom  the  head  of  an 
waived. mi  e  Executive  Department  or  the  Secretary  of  the  Smithsonian 
Institution  shall  nominate  for  appointment  to  a  position 
in  the  classified  service.  The  appointing  officer  in  making 
such  nomination  shall  certify  that,  in  his  opinion,  the  posi- 
tion to  be  filled  requires  such  peculiar  qualifications  in 
respect  to  knowledge  and  ability,  or  such  scientific  or 
special  attainments  wholly  or  in  part  professional  or  tech- 
nical as  are  not  ordinarily  acquired  in  the  executive  service 
of  the  United  States,  and  for  the  reasons  set  forth  the  best 
interests  of  the  public  service  require  that  an  examination 
should  be  waived  in  whole  or  in  part.  If  the  President 
of  the  United  States  shall  approve  such  nomination,  the 
Civil  Service  Commission  shall  thereupon  grant  a  certifi- 
cate of  qualification,  upon  such  evidence  as  may  be  satis- 
factory to  it,  that  the  person  so  nominated  is  eligible  for 
and  may  be  appointed  to  such  position  by  reason  of  his 
ascertained  qualifications,  and  by  reason  of  his  age,  health, 
and  moral  character:  Provided,  That  a  person  so  nomi- 

1  No  person  is  eligible  to  an  examination — 

(a}  Who  is  not  a  citizen  of  the  United  States  (see  sec.  35,  Regulation  V); 

(b)  Who  is  not  within  the  age  limitations  prescribed  for  the  examination  for  which 
he  applies  (see  sees.  14-18);  • 

(c)  Who  is  physically  disqualified  for  the  service  which  he  seeks; 

(d)  Who  is  addicted  to  the  habitual  use  of  intoxicating  beverages  to  excess; 
m  Who  is  barred  by  Application  Regulations  IX  and  X  (see  sec.  35); 

.(/)  Who  is  enlisted  in  the  United  States  Army  or  Navy  and  has  not  secured  per- 
mission for  his  examination  from  the  Secretary  of  War  or  the  Secretary  of  the  Navy, 
respectively. 

(g)  Who  has  been  dismissed  from  the  public  service  for  delinquency  or  misconduct 
within  one  year  preceding  the  date  of  his  application; 

(h)  Who  has  railed  after  probation  to  receive  absolute  appointment  to  the  position 
for  which  he  again  applies  within  one  year  from  the  date  of  the  expiration  of  his 
probationary  service; 

(i)  Who  within  one  year  has  taken  the  same  kind  of  examination  for  which  he 
wishes  to  again  apply :  Provided,  That  persons  who  pass  or  fail  in  an  examination 
may,  upon  filing  a  new  application,  be  reexamined  at  the  next  annual  examinations, 
though  a  full  year  has  not  quite  elapsed  since  the  former  examination  (see  sec.  180) ; 

(?')  Who  has  made  a  false  statement  in  his  application  or  has  been  guilty  of  fraud 
or  deceit  in  any  manner  connected  with  his  application  or  examination,  or  who  has 
been  guilty  of  crime  or  infamous  or  notoriously  disgraceful  conduct*  Section  12, 
MANUAL  OF  EXAMINATION. 


Dates      and 
exam- 


MILITARY    LAWS    OF   THE    UNITED   STATES.  1103 

nated  and  appointed  shall  not  be  transferred  to  any  other 
position  in  the  classified  service  except  to  one  that  may 
be  filled  under  the  provisions  of  this  clause,  and  shall  not 
be  assigned  to  any  other  duties  than  those  pertaining  to 
the  particular  position  to  which  thus  appointed.1 

4.  In  pursuance  of  the  provisions  of  section  3  of  the  places  6oSf 
civil-service  act,  examinations  shall  be  provided  at  such matlons- 
places  and  upon  such  dates  as  the  commission  shall  deem 
most  practicable  to  subserve  the  convenience  of  applicants 

and  the  needs  of  the  service. 

5.  In  pursuance  of  the  provisions  of  section  3  of  t 
civil-service  act,  the  commission  shall  appoint,  from  per-  SSJ^8  of  exam" 
sons  in  the  Government  service,  such  boards  of  examiners 

as  it  may  deem  necessary.  The  members  of  said  boards 
shall  perform  such  duties  as  the  commission  may  direct  in 
connection  with  examinations,  appointments,  and  promo- 
tions in  any  part  of  the  service  which  has  been  or  may 
hereafter  be  classified.  The  members  of  any  board  of  ex- 
aminers in  the  performance  of  their  duties  as  such  shall 
be  under  the  direct  and  sole  control  and  authority  of  the 
commission.  The  duties  performed  by  the  members  of 
any  board  of  examiners  in  their  capacity  as  such  shall  be 
considered  part  of  the  duties  of  the  office  in  which  they 
are  serving,  and  time  shall  be  allowed  for  the  peformance 
of  said  duties  during  the  office  hours  of  said  office.  The 
members  of  any  board  of  examiners  shall  not  all  be  ad- 
herents of  one  political  party  when  persons  of  other  po- 
litical parties  are  available  and  competent  to  serve  upon 
said  board. 

6.  In  pursuance  of  the  provisions  of  section  3  of  the  cersXtoUfaciiitete 
civil-service  act,  all  executive  officers  of  the  United  States  ex 

shall  facilitate  civil-service  examinations,  and  postmasters, 
customs  officers,  internal-revenue  officers,  and  custodians 
of  public  buildings  at  places  where  such  examinations  are 
to  be  held  shall,  for  the  purpose  of  such  examinations, 
permit  and  arrange  for  the  use  of  suitable  rooms  under 
their  charge  and  for  heating,  lighting,  and  furnishing  the 
same. 

RULE  V. 

1.   Every  applicant  for  examination  must  be  a  citizen  of  o 
the  United  States,  must  be  of  proper  age,  and  must  make 
an  application  under  oath,  upon  a  form  prescribed  by  the 
commission,  and  accompanied  by  such  certificates  as  may 
be  prescribed. 


Amended  May  29,  1899. 


1104  MILITARY    LAWS    OF    THE    UNITED    STATES. 


2<  -^o  application  for  examination  shall  be  accepted 
from  any  person  serving  in  the  Army,  the  Navy,  or 
Marine  Corps  of  the  United  States,  unless  the  written 
consent  of  the  head  of  the  Department  under  which  said 
person  is  enlisted  is  filed  with  his  application. 
appu-  ^.  The  commission  may,  in  its  discretion,  refuse  to  exam- 
and  ^ine  an  applicant,  or  to  certify  an  eligible,  who  is  physi- 
cally so  disabled  as  to  be  rendered  unfit  for  the  performance 
of  the  duties  of  the  position  to  which  he  seeks  appoint- 
ment; or  who  has  been  guilty  of  a  crime  or  of  infamous 
or  notoriously  disgraceful  conduct;  or  who  has  been  dis- 
missed from  the  service  for  delinquency  or  misconduct 
within  one  year  next  preceding  the  date  of  his  application; 
or  who  has  intentionally  made  a  false  statement  in  any- 
material  fact,  or  practiced  or  attempted  to  practice  any 
deception  or  fraud  in  securing  his  registration  or  appoint- 
ment. Any  of  the  foregoing  disqualifications  shall  be 
good  cause  for  the  removal  of  an  eligible  from  the  service 
after  his  appointment. 
Age  limitation  4.  No  application  for  examination  shall  be  accepted 

for  applicants. 

NO  age  iimita-  unless  the  applicant  is  within  the  age  limitations  fixed 

taons  for  prefer-  .  .  s     . 

ence  claimants,  herein  f  or  entrance  to  the  position  to  which  he  seeks  to  be 
appointed:  Provided,  That  subject  to  the  other  conditions 
of  these  rules  the  application  of  any  person  whose  claim 
of  preference  under  the  provisions  of  section  1754  of  the 
Revised  Statutes  has  been  allowed  by  the  commission  may 
be  accepted  without  regard  to  his  age:  And  provided 
further,  That  in  case  of  positions  for  which  no  maximum 
age  limitations  are  fixed  herein  the  commission,  upon  con- 
sultation with  and  approval  of  the  proper  head  of  Depart- 
ment or  office,  ma}r,  by  regulation,  determine  maximum 
age  limitations  and  confine  competition  in  examinations 
for  such  positions  to  persons  within  such  limitations. 
The  age  limitations  for  entrance  to  positions  in  the  differ- 
ent branches  of  the  service  shall  be  as  follows: 


Minimum. 

Maximum. 

DEPARTMENTAL  SERVICE: 
Page,  messenger  boy,  apprentice  (other  than  appren- 
tice in  mints  and  assay  offices)  or  student           

14 

20 

***** 
All  other  positions                 

20 

No  limit. 

***** 

fo^ptradetio  si8     **'  ^°  aPplicati°n  shall  be  accepted  for  examination  for 
tions.  a  position  which  belongs  to  one  of  the  recognized  mechan- 

ical trades  unless  it  shall  be  shown  that  the  applicant  has 
served  as  apprentice  or  as  journeyman  or  as  apprentice  and 


MILITARY    LAWS    OF   THE    UNITED    STATES.  1105 

journeyman  at  said  trade  for  such  periods  as  the  commis- 
sion may  prescribe. 

RULE  VI. 

The  following-named  employees  or  positions  which  have    Exceptions 
been  classified  under  the  civil-service  act  shall  be  excepted  tion  o/registra- 
f  rom   the   requirement   of   examination   or   registration, tl( 
unless  as  otherwise  herein  specifically  stated. 

EXECUTIVE    OFFICE. 

1.  Not  exceeding  two  private  secretaries  or  confidential 
clerks  to  the  President. 

ALL   EXECUTIVE   DEPARTMENTS. 

2.  Not  exceeding  two  private  secretaries  or  confidential 
clerks  to  the  head  of  each  of  the  eight  Executive  Depart- 
ments.1 

3.  Not  exceeding  one  private  secretary  or  confidential 
clerk  to  each  of  the  assistant  heads  of  the  eight  Executive 
Departments. 1 

4.  Not  exceeding  one  private  secretary  or  confidential 
clerk  to  each  of  the  following  heads  of  bureaus  appointed  by 
the  President  and  confirmed  by  the  Senate  in  the  eight 
Executive  Departments:     *     *     *     in  the  War  Depart- 
ment,   the   Major-General   Commanding  the  Army,  the 
Adjutant-General,    the    Inspector-General,    the    Judge- 
Advocate-General,  the  Quartermaster-General,  the  Com- 
missary-General of  Subsistence,  the  Surgeon-General,  the 
Pay  master- General,  the  Chief   of   Engineers,  the   Chief 
of  Ordnance,  the  Chief  Signal  Officer,  the  Chief  of  the  Rec- 
ord and  Pension  Office,  and  the  Superintendent  of  Public 
Buildings  and  Grounds.1     *     *     * 

5.  Not  exceeding  one  private  secretary  or  confidential 
clerk  to  each  of  the  heads  of  bureaus  appointed  by  the 
President  and  confirmed  by  the  Senate  in  the  eight  Execu- 
tive Departments  not  enumerated  in  paragraph  four  of 
this  rule,  if  authorized  by  law.1 

6.  All  persons  appointed  by  the  President  without  con- 
firmation by  the  Senate. x 


WAR    DEPARTMENT. 

27.  All  paymasters'  clerks.2 


1  Amended  May  29,  1899.  2  Amended  June  29,  1900. 

22924—08 70 


1106  MILITARY    LAWS    OF   THE    UNITED   STATES. 

RULE  VII. 

in55on|aperam'  !•  Examination  papers  shall  be  rated  on  a  scale  of  100, 
and  the  subjects  therein  shall  be  given  such  relative  weights 
as  the  commission  may  prescribe.  After  a  competitor's 
papers  have  been  rated,  he  shall  be  duly  notified  of  the 
result  thereof. 

Eligible  aver-  2.  Every  competitor  who  attains  an  average  percentage 
of  70  or  over  shall  be  eligible  for  appointment  to  the  posi- 
tion for  which  he  was  examined;  and  the  names  of  eligi- 
bles  shall  be  entered,  in  the  order  of  their  average  per- 
centages, on  the  proper  register  of  eligibles:  Provided, 

Eligible  aver-  That  the  names  of  all  competitors  whose  claims  to  pref er- 

age  of  preference  .    .          r 

claimants.  ence  under  the  provisions  of  section  1754  of  the  Revised 
Statutes  have  been  allowed  by  the  commission,  and  who 
attain  an  average  percentage  of  65  or  over,  shall  be  placed, 
in  the  order  of  their  average  percentages,  at  the  head  of 
the  proper  register  of  eligibles. 

a  RiSan5tion  °f  ^'  ^or  ^^m^  vacancies  in  positions  for  which  competi- 
ofBp?ef erei ce  ^ve  tests  ai'e  not  Practicable,  the  registration  of  applicants 
claimants.  shall  be  in  the  order  in  which  they  fulfill  the  requirements 
prescribed  therefor  by  regulation  of  the  commission:  Pro- 
vided^ That  persons  who  served  in  the  military  or  naval 
service  of  the  United  States  in  the  late  war  of  the  rebellion 
or  the  Spanish-American  war  and  were  honorably  dis- 
charged therefrom,  and  persons  who  have  been  separated 
from  such  position  above  mentioned  through  no  delin- 
quency or  misconduct,  shall  be  placed  at  the  head  of  the 
proper  register  in  the  order  of  their  fulfillment  of  said 
requirements.1 

°f  eligi"  4-  The  term  °f  eligibility  shall  be  one  year  from  the 
May  date  on  which  the  name  of  the  eligible  is  entered  on  the 
register:  Provided,  That  this  term  may  be  extended,  in 
the  discretion  of  the  commission,  for  a  further  period  of 
one  year  from  the  date  of  the  expiration  of  the  first  year's 
eligibility,  upon  such  conditions  as  the  commission  may 
eiSt)iHtyi0upo0nPrescr^e:  Anil  provided  further,  That  in  case  a  person 
enlistment.  whose  name  is  upon  any  register  shall  be  mustered  into 
the  military  or  naval  service  of  the  United  States  at  a  time 
when  the  United  States  may  be  engaged  in  war,  the  period 
of  eligibility  of  such  person  shall,  under  such  conditions 
as  the  Civil  Service  Commission  may  prescribe,  be  consid- 
ered as  suspended  during  the  time  such  eligible  may  be 
serving  in  the  Army  or  Navy  of  the  United  States.1 

Amended  May  29,  1899. 


MILITARY   LAWS    OF   THE   UNITED   STATES.  1107 

RULE  VIII. 

In  pursuance  of  the  provisions  of  section  2  of  the  civil-    Method  of  fiii- 

.  ...        ing  vacancies. 

service  act,  whenever  a  vacancy  occurs  in  any  position 
which  has  been,  or  may  hereafter  be,  classified  under  the 
civil-service  act,  and  which  is  not  an  excepted  position, 
the  filling  of  said  vacancy,  unless  filled  through  noncom- 
petitive  examination  or  by  reinstatement,  transfer,  pro- 
motion, or  reduction,  shall  be  governed  as  follows: 

1.  The  appointing  or  nominating  officer  shall  request 
certification  to  him  of  the  names  of  eligibles  for  the  posi- 
tion vacant,  and  the  commission  shall  certify  to  said  officer 
from  the  proper  register  the  three  names  at  the  head 
thereof  which  have  not  been  three  times  certified  to  the 
department  or  office  in  which  the  vacancy  exists:  Provided,  lt®*£?*£  Corarn 
That  certification  for  temporary  appointment  shall  not  be  appointment. 
counted  as  one  of  the  three  certifications  to  which  an  eli- 
gible is  entitled:  And  provided  further,  That  whenever    certification 
the  sex  of  those  whose  names  are  to  be  certified  is  fixed  by 

any  law,  rule,  or  regulation,  or  is  specified  in  the  request 
for  certification,  the  names  of  those  of  the  sex  so  fixed  or 
specified  shall  be  certified;  but  in  other  cases  certification 
shall  be  made  without  regard  to  sex. 

2.  Of  the  three  names  certified  the  nominating-  or  ap-   selections  from 

...  m  i     n         i  i     .  „  „  certifications. 

pointing  officer  shall  select  one,  and  if  at  the  time  of 
selection  there  are  more  vacancies  than  one  he  may  select 
more  than  one  name,  unless  otherwise  directed  by  the 
commission. 

3.  A  person  selected  for  appointment  shall  be  notified 

of  his  selection  by  the  appointing  or  nominating  officer, lzed- 

and  upon  his  acceptance  shall  receive  from  the  appointing 

officer  a  certificate   of   appointment  for  a  probationary 

period  of  six  months,  at  the  end  of  which  period,  if  the 

conduct  and  capacity  of  the  probationer  are  satisfactory 

to  the  appointing  officer,  his  retention  in  the  service  shall    what  is  equiv- 

i  i       ,    ,      i  .       r-ij  •    .  i      ,   .  i>  -,  .  alent  to  absolute 

be  equivalent  to  ms  absolute  appointment;  but  it  his  con-  appointment. 

duct  or  capacity  be  not  satisfactory,  he  shall  be  notified 

by  the  appointing  officer  that  he  will  not  receive  absolute    Discharge    of 

appointment  because  of  such  unsatisfactory  conduct  or probatloner- 

want  of  capacity ;  and  such  notification  shall  discharge  him 

from  the  service:  Provided,  That  the  probation  of  an  em-    Termination  of 

i  •      AI_      T    j»  ii  •  probation  in  In- 

ployee  in  the  Indian  school  service  shall  terminate  at  the  dian  s6*1001  serv- 
end  of  the  school  year  in  which  he  is  appointed:  And  pro-  service  of  sub- 
vided  further,  That  the  time  which  an  employee  has  act-  probationary  pe- 
ually  served  as  substitute  in  parts  of  the  service  where1 


1108  MILITARY    LAWS    OF    THE    UNITED    STATES. 

substitutes  are  authorized  shall  be  counted  as  part  of  the 
probationary  period  of  his  regular  appointment,  but  that 
sendee  notrto  be  time  served  under  a  temporary  appointment  shall  not  be 


so  counted. 


appontin 


ting 
eligi 


cer  to  eligible 


pointing1  offi-  ^  ^  ^ne  appointing  or  nominating  officer  shall  object  to 
an  eijgib}e  named  in  the  certificate,  stating  that,  because 
of  some  physical  defect,  mental  unsoundness,  or  moral 
disqualification,  particularly  specified,  said  eligible  would 
be  incompetent  or  unfit  for  the  performance  of  the  duties 
of  the  vacant  position,  and  if  said  officer  shall  sustain  such 
objection  with  evidence  satisfactory  to  the  commission,  the 
commission  may  certify  the  eligible  on  the  register  who  is 
in  average  percentage  next  below  those  already  certified 
in  place  of  the  one  to  whom  objection  is  made  and  sustained. 
5.  Certifications  for  appointment  of  persons  for  service 
in,  or  for  direct  detail  from,  any  Department  or  office  in 
Washington,  D.  C.,  shall  be  so  made  as  to  maintain,  as 
nearly  as  the  conditions  of  good  administration  will  war- 
rant, the  apportionment  of  such  appointments  among  the 
several  States  and  Territories  and  the  District  of  Columbia 
11?011  ^De  k&sis  °^  population:  Provided,  That  appoint- 

ment. ments  to  the  following-named  positions  shall  not  be  so 

apportioned,  viz:  *  *  *  those  in  the  post  quarter- 
master's office,  *  *  *  those  of  page,  messenger  boy, 
apprentice,  and  student,  *  *  *  And  provided  further, 
That  a  person  who  has  been  or  may  be  separated  from  a 
classified  position  by  reason  of  a  necessary  reduction  of 

29Ai899nded  May  ^orce'  or  by  reason  of  an  appointment  to  a  position  not  in 

waiver  of  evi-  the  classified  service,  may  be  reinstated  under  the  provi- 
dence of  citizen-  ... 

ship.  sions  of  Rule  IX  without  filing  new  evidence  of  citizenship, 

and  said  appointment  shall  be  charged  to  the  apportionment 
of  the  State  in  which  citizenship  was  claimed  before  said 
separation,  unless  a  new  citizenship  is  claimed,  in  which 
case  the  citizenship  shall  be  proved  in  the  manner  required 
for  original  appointment.1 


to 


FoPwStmc!ass     ?.  Within  any  part  of  the  service  to  which  promotion 
thereto.cepti°n  regulations  have  been,  or  may  hereafter  be,  applied,  certifi- 
cation of  those  eligible  to  original  appointment  shall  not  be 
made  for  filling  a  vacancy  in  a  position  above  the  lowest 
class  in  any  grade,  whenever  there  is  any  person  eligible 
and  willing  to  be  promoted  to  said  vacancy :  Provided,  That 
a  vacancy  in  any  position  requiring  the  exercise  of  tech- 
Amended  May  29,  1899. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  1109 

nical  or  professional  knowledge  may  be  filled  by  original 
appointment. 

8.  When  two  or  more  eligibles  on  a  register  have  the 

same  average  percentage,  preference  in  certification  shall  percentage. 
be  determined  by  the  order  in  which  their  applications 
were  filed. 

9.  For  filling  vacancies  in  positions  outside  of  the  Dis-  beVfinedCiby 
trict  of  Columbia  and     *     *     *     the  depot  quartermaster's  tricts- 
ofliee,     *     *     *     the  territory  of  the  United  States  shall 

be  arranged  in  such  sections  or  districts  as  the  commis- 
sion may  determine;  and  an  eligible  shall  be  certified,  in 
his  order,  to  vacancies  in  the  section  or  district  in  which  he 
resides,  and  upon  his  written  request  to  vacancies  in  any 
one  or  more  of  the  other  sections  or  districts  :  *  *  * 

10.  In  any  part  of  the  service  in  which  the  employ  ment 
of  substitutes  is  not  prohibited  by  law  there  may  be  certi- 
fied and  appointed,  in  the  manner  provided  for  in  this  rule, 
only  such  number  of  substitutes  as  are  actually  needed  for 
the  performance  of  substitute  duty. 

11.  In  any  part  of  the  service  in  which  substitutes  are    Appointment 

•f    *  and  promotion  of 

employed  certifications  of  those  eligible  to  original  appoint-  substitutes. 
ment  shall  be  made  for  filling  vacancies  in  substitute  posi- 
tions only,  and  vacancies  in  regular  positions  shall  be  filled 
by  the  appointment  or  promotion  thereto  of  substitutes  in 
the  order  of  their  original  appointment  as  substitutes 
whenever  there  are  substitutes  of  the  required  sex  who 
are  eligible  and  willing  to  be  so  appointed  or  promoted. 
Substitutes  so  appointed  or  promoted  shall,  however,  be 
subject  to  the  provisions  of  these  rules  relating  to  proba- 
tion and  permanent  appointment. 


13.  Whenever  there  are  no  names  of  eligibles  upon  a 
register  for  any  grade  in  which  a  vacancy  exists  and  the  emer&ency- 
public  interest  requires  that  it  must  be  filled  before  eligi- 
bles can  be  provided  by  the  commission,  such  vacancy  may, 
subject  to  the  approval  of  the  commission,  be  filled  by 
appointment  without  examination  and  certification  for  such 
part  of  three  months  as  will  enable  the  commission  to  pro- 
vide eligibles.     Such  temporary  appointment  shall  expire  up^f  temporary 
by  limitation  as  soon  as  an  eligible  shall  be  provided,  and  aPP°intments- 
no  person  shall  serve  longer  than  three  months  in  any  one 
year  under  such  temporary  appointment  or  appointments 
unless  by  special  authority  of  the  commission  previously 
obtained.     Said  year  limitation  shall  commence  from  the 


1110  MILITARY    LAWS    OF    THE    UNITED    STATES. 

date  of  such  first  appointment:  Provided,  That  whenever 
an  emergency  shall  arise  requiring  that  a  vacancy  shall  be 
filled  before  a  certification  can  be  issued  and  an  appoint- 
ment made  thereto  in  the  manner  provided  in  these  rules, 
such  vacancy  may  be  filled  without  regard  to  the  provi- 
sions of  these  rules  for  such  part  of  thirty  days  as  may  be 
required  for  the  issuance  of  a  certificate  and  the  execution 
of  the  necessary  details  of  an  appointment  thereto  in 
accordance  with  said  provisions.  Such  appointment  shall 
in  no  case  continue  longer  than  thirty  days. 

raryhanppo?nt-  14.  Whenever  a  temporary  appointment  shall  be  made 
mentmustcease- through  certification  from  the  eligible  registers  of  the 
commission  in  the  manner  provided  in  these  rules,  such 
temporary  appointment  shall  in  no  case  continue  longer 
than  six  months  and  shall  expire  by  limitation  at  the  end 
of  that  period. 

15.  All  persons  serving  under  temporary  appointments 
made  jJe/inalat  the  date  of  the  approval  of  this  section  may  be  perma- 
nepr6muigatednently  appointed,  in  the  discretion  of  the  proper  appoint- 
May29, 1899.      -^  ofgcer?  an(j  the  special  rule   approved  January  20, 
1899,  relative  to  temporary  appointments   in   the  Navy 
Department,  is  hereby  rescinded.1 

RULE  IX. 

menetsnwifhien     ^  vacancy  in  any  position  which  has  been,  or  may  here- 
one  year.          after  be,  classified  under  the  civil-service  act,  may,  upon 
requisition  of  the  proper  officer  and  the  certificate  of  the 
commission,  be  filled  by  the  reinstatement,  without  exami- 
nation, of  any  person  who,  within  one  year  next  preceding 
the  date  of  said  requisition,  has,  through  no  delinquency 
or  misconduct,  been  separated  from  a  position  included 
within  the  classified  service  at  the  date  of  said  requisition 
and  in  that  department  or  office  and  that  branch  of  the 
which ^e^state0- serv^ce  *n  which  said  vacancy  exists:  Provided,  That  for 
may  be original  entrance  to  the  position  proposed  to  be  filled  by 
reinstatement  there  is  not  required  by  these  rules,  in  the 
opinion   of    the   commission,   an   examination   involving 
essential  tests  different  from  or  higher  than  those  involved 
in  the  examination  for  original  entrance  to  the  position 
formerly  held  by  the  person  proposed  to  be  reinstated: 
prefer-     And  provided  further ,  That  subject  to  the  other  condi- 
enAmen§edlMay  ^ons  °^  these  rules,  any  person  who  has  served  in  the 
29, 1899.  military  or  naval  service  of  the  United  States  in  the  late 


1  Added  May  29,  1899. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  1111 

war  of  the  rebellion  or  in  the  Spanish-American  war  and 
was  honorably  discharged  therefrom,  or  the  widow  of  any 
such  person,  or  an  army  nurse  of  either  of  said  wars,  and 
any  person  who  has  been  separated  from  the  service  by 
reason  of  the  discontinuance  of  the  free-delivery  service  i5^i™0eonded  Jan* 
at  any  post-office,  or  a  reduction  of  force  specifically  re- 
quired by  law,  may  be  reinstated  without  regard  to  the 
length  of  time  he  or  she  has  been  separated  from  the 
service: 

And  provided  further,  That  any  person  dismissed 
the  service  upon  charges  of  delinquency  or 
may  be  reinstated,  subject  to  the  other  conditions  of  these 
rules,  without  regard  to  the  one-year  time  limit  of  this 
rule,  upon  the  certificate  of  the  proper  appointing  officer 
that  he  has  thoroughly  investigated  the  case  and  that  the 
charges  upon  which  the  dismissal  was  based  were  not 
true.1 

RULE  X. 

Within  that  part  of  the  civil  service  of  the   United    Transfers. 
States  which  has  been,  or  may  hereafter  be,  classified 
under  the  civil-service  act,  transfers  shall  be  governed  as 
follows: 

1.  A  person  in  any  Department  or  office  may  be  trans-  sa^aJsfeD8e  *£ 
f erred  within  the  same  Department  or  office  and  the  same  ment   office,  or 

branch  of  serv- 

branch  of  the  service  upon  any  test  of  fitness,  not  disap-  ice. 
proved  by  the    commission,  which  may  be   determined 
upon  by  the  appointing  officer,  subject  to  the  limitations 
of  the  provisos  of  section  2  of  this  rule. 

2.  A  person  who  has   received   absolute  appointment    Transfers  from 

Department, 

may    be    transferred,  without    examination,    from    any  office,  or  branch 

J  J  of  service. 

Department,  office,  or  branch  of  the  service,  upon  requi- 
sition and  consent  of  the  proper  officers,  and  the  certifi- 
cate of  the  commission:  Provided,  That  no  transfer  shall 
be  made  of  a  person  to  a  position  within  the  same  Depart- 
ment or  office  and  the  same  branch  of  the  service,  or  to  a 
position  in  another  Department,  office,  or  branch  of  the 
service,  if  from  original  entrance  to  such  position  said 
person  is  barred  by  the  age  limitations  prescribed  therefor,  Age  iimita- 

/  '  K  '  tions  governing 

or  by  the  provisions  regulating  apportionment,  but  the  transfers, 
provisions  in  relation  to  apportionment  shall  be  waived 
upon  the  certificate   of   the   appointing  officer  that  the 
transfer  is  required  in  the  interests  of  good  administra- 

1  Amended  May  29,  1899. 


1112  MILITAKY    LAWS    OF   THE    UNITED   STATES. 


aerxeai?e-tion:  And  provided  further,  That  transfers  shall  not  be 
fenfed  for  trans"  made  without  examination,  provided  by  the  commission, 
to  a  position  for  original  entrance  to  which,  in  the  judg- 
ment of  the  commission,  there  is  required  by  these  rules 
an  examination  involving  essential  tests  different  from  or 
higher  than  those  involved  in  the  examination  required 
for  original  entrance  to  the  position  from  which  transfer 
Pr°P°se(l;  but  a  person  employed  in  any  grade  shall  not 
ex"  ^ecause  of  such  employment  be  barred  from  the  open 
competitive  examination  provided  for  original  entrance  to 
any  other  grade.1 

thIrofficeroffTS  3t  Upon  requisition  of  the  proper  officer  and  the  cer- 
President.  tificate  of  the  commission,  transfer  may  be  made  without 
examination  from  the  office  of  the  President  of  the  United 
States,  after  continuous  service  therein  for  the  two  years 
next  preceding  the  date  of  said  requisition,  to  any  position 
classified  under  the  civil-service  act,  if  in  said  position 
there  is  required,  in  the  judgment  of  the  commission,  the 
performance  of  the  same  class  of  work  that  is  required 
to  be  performed  in  the  position  from  which  transfer  is 
proposed. 

toTbenmade  ex-     ^'  Transfer  shall  not  be  made  from  an  excepted  position 
ception.  ^o  a  position  not  excepted:  Provided,  That  a  person  hold- 

ing a  position  which  is  excepted,  but  which  he  was  holding 
at  the  time  of  its  classification,  or  which  he  entered  or  held 
in  accordance  with  the  provisions  of  these  rules  at  a  time 
when  said  position  was  subject  to  competitive  examination, 
and  has  since  served  continuously  therein,  or  a  person 
holding  a  position  which  is  excepted,  but  which  he  entered 
prior  to  the  President's  order  of  November  2,  1894,  and 
has  since  served  continuously  therein,  may,  subject  to  the 
other  conditions  and  provisions  of  this  rule,  be  transferred 
to  a  position  not  excepted. 
NO  transfer  5.  Transfer  shall  not  be  made  from  a  position  not  classi- 

from    unclassi-  r 

fled  to  classified  fied  under  the  civil-service  act  to  a  classified  position:  Pro- 

position,    with 

exception.  wded,  That  a  person  who,  by  promotion  or  transfer  from 
a  classified  position,  has  entered  an  unclassified  position  in 
any  part  of  the  executive  civil  service  other  than  a  posi- 
tion of  mere  laborer  or  workman,  or  to  serve  under  the  au- 
thority of  the  General  Government  as  a  civilian  in  the 
insular  possessions  under  the  control  of  the  United  States, 
and  has  served  continuously  therein  from  the  date  of  said 
promotion  or  transfer,  may  be  transferred  from  said  un- 
classified position  to  the  position  from  which  he  was  so 

1  Amended  May  29,  1899. 


MILITARY    LAWS    OF    THE    UNITED    STATES.  1113 

transferred  or  to  any  position  to  which  transfer  could  be 
made  therefrom.1 

6.  Transfer  shall  not  be  made  from  a  position  outside 
the  District  of  Columbia  to  a  position  within  the  District  g 

of  Columbia  except  upon  the  certificate  of  the  Commis-  c°lumbia- 
sion,  subject  to  the  other  conditions  and  provisions  of 
this  rule. 

7.  Any  person  who  has  been  transferred  from  a  classi- 
fied  position  to  another  classified  position  may  be  retrans- 

f erred  to  the  position  in  which  he  was  formerly  employed, tlon* 
or  to  any  position  to  which  transfer  could  be  made  there- 
from, without  regard  to  the  limitations  of  this  rule. 

8.  All  transfers  herein  authorized  shall  be  made  only    certificates  for 
after  the  issuance  by  the  commission  of  the  certificates 
therefor,  except  those  which  may  be  specifically  exempted 

from  such  condition  by  regulation  of  the  commission. 

9.  Whenever  a  person  is  proposed  for  transfer  from  one    Facts  to  be  set 

forth  in  applica- 

branch  of  the  service  to  another  branch  of  the  service,  and  tion  for  transfer. 
from  a  part  of  the  service  not  within  the  provisions  regu- 
lating apportionment  to  a  part  of  the  service  within  said 
provisions,  and  the  transfer  is  one  which,  under  the  pro- 
visions of  this  rule,  may  be  allowed  without  examination, 
such  person  shall  be  required,  precedent  to  his  transfer,  to 
file  a  statement  under  oath  setting  forth  the  same  facts 
accompanied  by  the  same  certificates  or  vouchers  relating 
to  residence  as  may  be  required  in  an  application  for 
examination. 

RULE  XI. 

1.  In  pursuance  of  the  requirements  of  section  7  of  the    Prom°tions. 
civil-service  act,  competitive  tests  or  examinations  shall, 

as  far  as  practicable  and  useful,  be  established  to  test  fitness 
for  promotion  in  any  part  of  the  civil  service  of  the  United 
States  which  has  been,  or  may  hereafter  be,  classified  under 
the  civil-service  act. 

2.  Regulations  to  govern  promotions  shall  be  formulated    commission  to 

r,i  •  «,  T  ..,      ,1        i         ,         „  formulate  details 

by  the  commission  after  consultation  with  the  heads  of  regulating  pro- 
the  several  departments,  bureaus,  or  offices.  It  shall  be 
the  duty  of  the  head  of  each  department,  bureau,  or  office, 
when  such  regulations  have  been  formulated,  to  promul- 
gate the  same,  and  any  amendments  or  revocations  thereof 
shall  be  approved  by  the  commission  before  going  into 
effect. 

1  Amended  March  16,  1900. 


1114  MILITARY    LAWS    OF    THE    UNITED    STATES. 


commission  shall,  upon  the  nomination  of  the 
of  promotion,     head  of  each  department,  bureau,  or  office,  designate  and 
select  a  suitable  number  of  persons,  not  less  than  three,  in 
said  department,  bureau,  or  office,  to  be  members  of  a 
board  of  promotion.     In  the  departments,   bureaus,  or 
offices  in  Washington,  and  in  all  other  offices,  the  members 
of  any  board  of  promotion  shall  not  all  be  adherents  of  one 
political  party  when  persons  of  other  political  parties  are 
available  and  competent  to  serve  upon  said  board. 
promotions  be-     4.  Until    the    regulations   here   authorized   have   been 

fore  adoption  of  ,  „         .          ,  .    , 

regulations.  approved  for  any  department,  bureau,  or  office  in  which 
promotion  regulations  approved  by  the  commission  are 
not  in  force,  promotions  therein  may  be  made  from  one 
class  to  another  class  which  is  in  the  same  grade,  and  from 
one  grade  to  another  grade,  upon  any  test  of  fitness  not 
disapproved  by  the  commission,  which  may  be  determined 
when  exam-  upon  by  the  promoting  officer:  Provided*  That  no  promo- 

inations  are  re-  ,  .J  .       ,  • 

quired  for  pro-  tion  of  a  person  shall  be  made,  except  upon  examination 
provided  by  the  commission,  from  one  class  to  another 
class,  or  from  one  grade  to  another  grade,  if  for  original 
entrance  to  said  class  or  grade  to  which  promotion  is  pro- 
posed there  is  required  by  these  rules  an  examination  in- 
volving essential  tests  different  from  or  higher  than  those 
involved  in  the  examination  required  for  original  entrance 
to  the  class  or  grade  from  which  promotion  is  proposed: 
And  provided  further  ,  That  no  promotion  of  a  person  shall 
^e  made,  except  upon  examination  provided  by  the  com- 
mission, to  a  position  in  which,  in  the  judgment  of  the 
commission,  there  is  not  required  the  performance  of  the 
same  class  of  work  or  the  practice  of  the  same  mechanical 
trade  which  is  required  to  be  performed  or  practiced  in 
the  position  from  which  promotion  is  proposed;  but  a 
person  employed  in  any  grade  shall  not,  because  of  such 
employment,  be  barred  from  the  open  competitive  exami- 
nation provided  for  original  entrance  to  any  other  grade: 

_Age  \imit&-  And  provided  further,   That  no  promotion  of  a  person 

shall  be  made  to  a  class  or  grade  from  original  entrance 

to  which  such  person  is  barred  by  the  age  limitations  pre- 

scribed therefoL   or  by  the  provisions  regulating  appor- 

Amendmentoftionment:  And  provided  further.  That  nothing  contained 

Jan.  29,  1900.         .  .  , 

in  this  rule  or  in  any  regulation  made  in  pursuance  thereof 
shall  be  so  construed  as  to  prevent  an  appointing  officer, 
in  his  discretion,  from  promoting  a  person  who  served  in 
the  military  or  naval  service  of  the  United  States  in  the 
late  war  of  the  rebellion  or  in  the  Spanish-  American  war, 


MILITARY    LAWS    OF   THE    TTNTTED    STATES.  1115 

and  who  was  honorably  discharged  therefrom,  who  has 
been  reinstated  in  the  service  in  a  grade  or  position  below 
that  from  which  he  was  separated  to  a  grade  or  position 
no  higher  than  that  from  which  he  was  separated.1 

RULE  XII. 

1.  In  pursuance  of  the  provisions  of  section  2  of  the  ti<j£ 


civil-service  act,  every  nominating  or  appointing  officer  in  Fj^nTsTe  d°  to 

the  executive  civil  service  of  the  United  States  shall  furnish  commission. 

to  the  commission  a  list  of  all  the  positions  and  employ- 

ments under  his  control  and  authority,  together  with  the 

names,  designations,  compensations,  and  dates  of  appoint- 

ment or  employment,  of  all  persons  serving  in  said  posi- 

tions or  employments;  said  list  to  be  arranged  as  follows: 

(a)  Classified  positions  not  excepted  from  examination; 

(b)  classified   positions   excepted   from   examination;    (c) 
unclassified  positions. 

2.  Every  nominating  or  appointing  officer  in  the  execu-ch^nj>egrinsserv- 
tive  civil  service  shall  report  in  detail  to  the  commission, 
in  form  and  manner  to  be  prescribed  by  the  commission, 
all  changes,  as  soon  as  made,  and  the  dates  thereof,  in  the 
service  under  his  control  and  authority,  setting  forth  among 
other  things  the  following:  The  position  to  which  an 
appointment  or  reinstatement  is  made;  the  position  from 
which  a  separation  is  made,  whether  the  same  was  caused 
by  dismissal,  resignation,  or  death;  and  the  position  from 
which  and  the  position  to  which  a  transfer  or  promotion  is 
made;  the  compensation  of  every  position  .from  which  or 
to  which  a  change  is  made;  the  name  of  every  person 
appointed,  reinstated,  promoted,  transferred,  or  separated 
from  the  service;  and  every  failure  to  accept  an  appoint- 
ment and  the  reasons  therefor. 

RULE  XIII. 

The  officers  and  employees  in  all  branches  of  the  classi- 
fied  service  of  the  United  States,  for  the  purposes  of  these 
rules,  shall  be  arranged  in  the  following  classes  unless 
otherwise  provided  by  law: 

Class  A.  All  persons  receiving  an  annual  salary  of  less 
than  $720,  or  a  compensation  at  the  rate  of  less  than  $720 
per  annum. 

Class  B.  All  persons  receiving  an  annual  salary  of  $720 
or  more,  or  a  compensation  at  the  rate  of  $720  or  more, 
but  less  than  $840  per  annum. 


1  Amended  January  29,  1900. 


1116  MILITARY    LAWS    OF    THE    UNITED    STATES. 

Class  C.  All  persons  receiving  an  annual  salary  of  $840 
or  more,  or  a  compensation  at  the  rate  of  $840  or  more, 
but  less  than  $900  per  annum. 

Class  D.  All  persons  receiving  an  annual  salary  of  $900 
or  more,  or  a  compensation  at  the  rate  of  $900  or  more, 
but  less  than  $1,000  per  annum. 

Class  E.  All  persons  receiving  an  annual  salary  of  $1,000 
or  more,  or  a  compensation  at  the  rate  of  $1,000  or  more, 
but  less  than  $1,200  per  annum. 

Class  1.  All  persons  receiving  an  annual  salary  of  $1,200 
or  more,  or  a  compensation  at  the  rate  of  $1,200  or  more, 
but  less  than  $1,400  per  annum. 

Class  2.  All  persons  receiving  an  annual  salary  of  $1,400 
or  more,  or  a  compensation  at  the  rate  of  $1,400  or  more, 
but  less  than  $1,600  per  annum. 

Class  3.  All  persons  receiving  an  annual  salary  of  $1,600 
or  more,  or  a  compensation  at  the  rate  of  $1,600  or  more, 
but  less  than  $1,800  per  annum. 

Class  4.  All  persons  receiving  an  annual  salary  of  $1,800 
or  more,  or  a  compensation  at  the  rate  of  $1,800  or  more, 
but  less  than  $2,000  per  annum. 

Class  5.  All  persons  receiving  an  annual  salary  of  $2,000 
or  more,  or  a  compensation  at  the  rate  of  $2,000  or  more, 
but  less  than  $2,500  per  annum. 

Class  6.  All  persons  receiving  an  annual  salary  of  $2,500 
or  more,  or  a  compensation  at  the  rate  of  $2,500  or  more 
per  annum. 

Provided,  That  this  classification  shall  not  include  per- 
sons appointed  to  an  office  by  and  with  the  advice  and 
consent  of  the  Senate,  nor  persons  employed  as  mere  la- 
borers or  workmen;  but  all  positions  whose  occupants  are 
designated  as  laborers  or  workmen  and  who  were,  prior  to 
May  6,  1896,  and  on  June  10,  1896,  regularly  assigned  to 
work  of  the  same  grade  as  that  performed  by  classified 
employees  shall  be  included  within  this  classification. 
Hereafter  no  person  who  is  appointed  as  a  laborer  or 
workman  without  examination  under  the  civil  service 
rules  shall  be  assigned  to  work  of  the  same  grade  as  that 
performed  by  classified  employees. l 

1This  rule  appeared  originally  as  a  War  Department  classification.     It  was  extended 
to  the  civil  service  generally  by  order  of  the  President  dated  May  29,  1899. 


INDEX. 


[The  references  are  to  paragraphs  unless  pages  are  indicated.    Articles  of  war  are  indicated  by 
their  numbers,  the  letters  A.  W.  following  the  number  of  the  article.] 


Absence  (see  Leaves  of  Absence): 

leaves  of,  to  officers,  826-828. 

pay  during,  826-829. 

without  leave,  1393,  32  A.  W. 
Accepting  Bribe,  1565.     (See  Bribe.) 
Accountability  (see   Accounts,  and  Property   Ac- 
countability) : 

money,  184-189,  632,  636-643. 

ordnance,  1172-1176. 

property,  1632-1636. 

signal  property,  1229. 

volunteer  officers,  540. 
Accountant.     (See  Expert  Accountant.) 
Accounting,  632-635. 

failure  to  render  accounts,  648. 

revision,  642. 

Accounting  Officers  (see  Accounts,  and  Treasury 
Department): 

advance  decisions,  627. 

assignment  of  claims,  234. 

auditors,  194-214. 

books,  papers,  etc.,  accessible  to,  108. 

certificate  of  property  charges,  1633,  1634. 

claims,  202,  206,  219-224,  235-244,  362-368. 

compromise  of  claims,  231. 

Comptroller  of  the  Treasury,  190-193. 

copies  of  contracts  for,  1571. 

powers  of  attorney,  234. 

prosecution  of  claims,  235-244. 

purchase  of  claims,  232. 

rejected  appointments,  lists  of,  lla. 

rendition  of  accounts  to,  185,  187. 

set-off,  233. 

States,  claims  of  for  war  expenses,  223-230. 

suits  for  recovery  of  money,  643. 
Accounts  (see  Accountability,  Accounting  Officers, 
and  Treasury  Department) : 

clothing,  751. 

Comptroller  of  the  Treasury,  190-193. 

delinquent  disbursing  officers,  188. 

examination,  195,  196. 

fiscal  year,  184,  635. 

forms,  633. 
prescribed  by  Comptroller,  191. 

itemized  by  appropriations,  637. 

line  officers,  settlement,  215. 

monthly,  to  be  rendered,  185. 

outstanding  over  three  years,  312. 

overpayments,  217. 

paymasters,  for  bounties,  etc.,  216,  217. 


Accounts — Continued. 

preservation,  204. 

re-examination,  199,  200. 

rendition,  636-641. 

reopening  of  settled,  forbidden,  206. 

revision,  642. 

rules  for  keeping,  634. 

separate  heads  of  appropriation,  186. 

settlements  of,  conclusive,  201. 

transcripts  of,  by  auditor,  205. 

transmission,  187,  638-641. 
Acquisition  of  Lands  ( see  Lands,  and  Public  Lands) : 

assent  of  States,  1595. 

authority  for,  1594. 

condemnation,  1597-1599. 

examination  of  titles,  1593. 

releases,  1596. 

sites  for  fortifications,  1599. 

Acting  Hospital  Stewards,  914,  920, 924.     (See  Hos- 
pital Stewards. ) 

Additional  Paymasters,  793,  794. 
Adjutant- General: 

rank,  662,  663. 

Adjutant- General's   Department    (see    Adjutant- 
General's  Office): 

composition,  662. 

details,  665,  666. 

duties,  667. 

examinations  for  promotion,  664. 

historical  note,  p.  257. 

organization,  662;  p.  1053. 

promotions,  664. 

recruiting  service,  669-679. 

returns,  668. 

Adjutant-General's  Office  (see  Adjutant-General's 
Department) : 

clerical  force,  134. 
Adjutants: 

battalion,  1449. 

regimental,  1419,  1423, 1445, 1447. 

squadron,  1425. 

Administration  of  Oaths,  49-51.    (See  Oaths.) 
Administrators : 

liability  of,  246. 
Admiral: 

relative  rank,  564. 
Advances   of   Funds,    617,   618.    (See  Disbursing 

Officers,  and  Funds.) 
Advertising.    (See  Contracts.) 

in  District  of  Columbia,  79,  81. 

1117 


1118 


INDEX. 


Agents  (see  Disbursing  Agents,  and  Indian  Agents) : 

disbursing,  291-295a. 
Aids: 

appointment,  556,  557. 

brigadier-generals,  557. 

lieutenant-general,  556. 

major-generals,  557. 

military  secretary,  556. 
Alabama: 

rivers  in,  navigable  waters,  1095. 
Alaska: 

military  telegraph  lines  in,  1231. 
Aliens.     (See  Citizenship,  and  Naturalization.) 
Allotments  of  Pay  by  Enlisted  Men,  871-875. 
Allowances : 

baggage,  720,  note. 

clothing,  749, 762. 

commutation  of  quarters,  830-835. 

forage,  740, 741. 

fuel,  738  note;  740. 

Indian  scouts,  506. 

native  troops,  502-505. 

quarters,  738,  note. 

restriction  on,  817. 

volunteers,  527, 528. 
Altering  Clothing  (see  Clothing) : 

cost,  756, 757. 

American  National  Bed  Cross,  pp.  1044-1047. 
A  in  in  ii  n  11  i  on : 

selling,  1648. 

wasting,  16  A.  W. 
Antletam  Battlefield,  2415-2422. 

appropriation,  2418. 

condemned  cannon,  carriages,  etc.,  2420,2421. 

Harpers   Ferry,   marking   lines  of   battle   at, 
2419. 

locating  lines  of  battle,  2415. 

marking  lines  of  battle,  2417. 

South  Mountain,  lines  of  battle,  2419. 

superintendent,  2422. 

tablets,  2416. 

Aqueduct.     (See  Washington  Aqueduct.) 
Aqueduct  Bridge: 

rules  for  use  of,  995. 

Washington .     ( See  Engineer  Department. ) 
Appointments  In  Military  Service: 

commissions,  273. 

how  made,  1454. 

in  line  of  Army,  1454. 

Marine  Corps,  421-424. 

notification  of,  11. 

recess,  8, 9. 

volunteer  forces,  521. 

Appointments  to  Office,  7-9  (see  President,  Civil 
Service,  and  Recess  Appointments): 

preference  to  honorably  discharged  soldiers, 
etc.,  143. 

recess,  8,  9, 163, 164. 

rejected,  lists  of,  lla. 

temporary,  restriction  on,  18, 19. 
Appropriations  (see  Treasury  Department): 

amount  of,  how  determined,  275,  623. 

application,  271,620. 

balances,  application  of,  279-282. 

balances,  disposition  of,  624. 

contingent,  restriction  on,  274. 

contracting  beyond,  659. 


Appropriations — Continued . 

expenditures  not  to  exceed,  272. 

expenses  of  commissions  and  inquiries,  273. 

fiscal  year,  184. 

permanent,  276. 

restriction  on  expenditures,  619. 

statement  of,  in  estimates,  268. 

statements  of  prior,  in  estimates,  208. 

unexpended,  application  of,  279-282. 
Armories  (see  Ordnance  Department): 

annual  accounts  of  expenditures,  1193. 

bonds,  by  whom  given,  1192. 

enticing  away  workmen,  etc.,  1197. 

establishment,  1190. 

exemption  of  employees  from  jury  duty,  1190. 

inventions,  expenditures  on,  prohibited,  1200. 

leave  of  absence  to  employees,  11%. 

misconduct  of  employees,  1198. 

magazine  small  arms,  1202. 

officers,  1190. 

organization,  1190. 

pay  of  officers,  clerks,  etc.,  1191,  1192. 
Arms  (see  Armories,  Militia,  and  Ordnance  Depart- 
ment) : 

damages  to,  etc.,  897, 1638. 

issues  to  Executive  Departments,  1204. 

issues  to  Territories,  1780,  1781. 

losing,  spoiling,  etc.,  1647. 

magazine,  manufacture,  1202. 

replacing  ordnance  issued  to  States,  1203. 

selling,  losing,  etc.,  1649. 
Army  (see  Regular  Army,  and  Volunteer  Army): 

appointments,  pp.  1060-1062. 

artillery  corps,  1429-1444. 

cavalry,  1419-1428. 

commander  in  chief,  2. 

composition,  500-508. 

details,  p.  1060. 

engineer  troops,  1452. 

enlisted  strength,  507,  508. 

enlisted  strength  of,  restriction,  p.  1064. 

government  of,  in  the  field,  pp.  1074-1078. 

increase  of  1899,  515,  516. 

increase  of  1901,  how  effected,  1454. 

Indian  scouts,  506. 

infantry,  1445-1451. 

line  of,  962,  1419-1429,  1445-1451;   pp.  1048,  1049, 
1061.     ( See  Line  of  the  Army. ) 

maximum  strength,  1453. 

native    troops,    Philippine     Islands,     501-604; 

p.  1064. 
Porto  Rico,  505;  p.  1065. 

payments  to  troops,  800-804. 

peace  establishment,  499-508. 

promotions,  p.  1060. 

reorganization  of,  act  for,  pp.  1048-1066. 

restriction  on  enlisted  strength,  507, 508;  p.  1064. 

strength  of,  restriction,  p.  1064. 

strength,  enlisted,  507, 508. 
volunteer  forces,  543,  545,  546. 

vacancies  in  line,  how  filled,  1454. 

war  establishment,  509-514. 
Army  Medical  Museum,  940. 
Army  Register: 

distribution,  490,  491. 

House  of  Representatives,  furnished  to,  491. 

lineal  rank  to  appear  in.  493. 


INDEX. 


1119 


Army  Register— Continued. 

pay,  schedule  of,  to  appear,  492. 

rank  of  officers  to  appear,  493,  494. 

Senate,  furnished  to,  490. 

volunteer  rank,  494. 
Army  Regulations: 

authority  to  make,  487,  488. 

codification,  489. 

publication,  489. 
Army  Service  Men,  1509-1511. 
Army  Transports  (see  Transportation): 

rations,  770. 

Army  War  College,  1514. 

Arraignment,  1808;  89  A.  W.     (See  General  Courts- 
Martial.) 
Arrears  of  Business  (see  Reports): 

reports,  53,  88. 
Arrest: 

commissioned  officers,  1782,  1784,  1785. 

intruders  on  Indian  reservations,  2004-2008. 
Arsenals  (see  Armories) : 

abolishment  of,  by  Secretary  of  War,  1194. 
Articles  of  War  (see  Courts-Martial,  and  Military 
Tribunals) : 

absence  from  parade,  etc.,  33  A.  W. 

absence  without  leave,  32  A.  W. 

accountability  for  arms,  etc.,  10  A.  W. 

accouterments,  losing,  spoiling,  etc.,  17  A.  W. 

accuser  or  prosecutor,  72,  73  A.  W. 

accused,  arraignment,  89  A.  W. 
counsel,  90  A.  W. 
copy  of  charges,  71  A.  W. 
entitled  to  copy  of  record,  114  A.  W. 

affirmation,  92  A.  W. 

alarms,  false,  41  A.  W. 

allowing  duels,  27  A.  W. 

ammunition,  wasting,  16  A.  W. 

application  to  Marine  Corps,  446. 

application  to  marines,  445. 

approval  of  sentences,  104-109,  111  A.  W. 

arrest  of  officers,  65  A.  W. 
duration  of,  70,  71  A.  W. 
release,  70,  71  A.  W. 

behavior  of  members,  87  A.  W. 

branding,  etc.,  98  A.  W. 

camp,  retainers  to,  63  A.  W. 

challenges— 
to  duels,  26  A.  W. 
to  members,  88  A.  W. 

charges,  copy  to  be  furnished  accused,  71  A.  W. 

civil  authority,  delivery  of  offender  to,  59  A.  W. 

command  when  different  corps  join,  122  A.  W. 

commanders  not  to  be  interested  in  sale  of  vict- 
uals, etc.,  18  A.  W. 

commanding  officer,  disrespect  to,  20  A.  W. 

conduct  prejudicial  to  good  order,  etc.,  62  A.  W. 

conduct  unbecoming  an  officer  and  gentleman, 
61  A.  W. 

confinement  of  enlisted  men,  66-70  A.  W. 

confirmation  of  sentences,  104-109,  111  A.  W. 

Congress,   disrespectful  words  concerning,   19 
A.  W. 

contempts  of  court,  86  A.  W. 

contemptuous  words,  19  A.  W. 

continuances,  93  A.  W. 

courts  of  inquiry,  116-121  A.  W. 
authentication  of  proceedings,  120  A.  W. 


Articles  of  War— Continued, 
courts  of  inquiry— continued. 

composition,  116  A.  W. 

constitution,  115  A.  W. 

evidence,  proceeding  as,  121  A.  W. 

oaths  of  members  and  recorder,  117  A.  W. 

opinion,  when  furnished,  119  A.  W. 

record  as  evidence,  121  A.  W. 

witnesses,  119  A.  W. 
cowardice,  42  A.  W. 

crimes  during  war,  insurrection,  etc.,  58  A.  W. 
damages  to  stores,  15  A.  W. 
death  sentences,  47,  96,  105,  111  A.  W. 
deceased  officer,  effects,  125,  127  A.  W. 
deceased  soldier,  effects,  126,  127  A.  W. 
delivery  of  offender  to  civil  authority,  59  A.  W. 
depositions,  91  A.  W. 
desertion,  47-51  A.  W. 

advising,  51  A.  W. 

limitation  in,  103  A.  W. 

penalty,  47;  48  A.  W. 

resignation,  49  A.  W. 
destruction  of  property,  55  A.  W. 
discharges,  4  A.  W. 
discipline- 
conduct  prejudicial  to,  62  A.  W. 

maintenance  of,  on  march  and  in  quarters 

64-56  A.  W. 

dismissal  of  officer,  99,  106,  107,  111  A.  W. 
disrespectful  words,  19,  20  A.  W. 
disrespect  to  commanding  officer,  20  A.  W. 
divine  service,  misconduct  at,  52  A.  W. 
drunkenness  on  duty,  38  A.  W. 
duels,  26-28  A.  W. 
duty,  drunkenness  on,  38  A.  W. 

hiring,  36  A.  W. 
embezzlement,  etc.,  60  A.  W. 
enacting  clause,  sec.  1342  R.  S.,  p.  964. 
enemy,  corresponding  with,  4£  A.  W. 

relieving,  45  A.  W. 

enlisting  without  discharge,  50  A.  W. 
enlistments  unlawful,  penalty,  3  A.  W. 
false  alarms,  41  A.  W. 
false  certificates,  13  A.  W. 
false  muster,  5,  14  A.  W. 
false  returns,  8  A.  W. 

field-officers    courts    (see    Regimental    Courts- 
Martial),  80,  83  A.  W. 

approval  of  proceedings,  104,  109  A.  W. 

composition,  80  A.  W. 

constitution,  80  A.  W. 

jurisdiction,  80,  83  A.  W. 

limits  of  punishment,  83  A.  W.;  1838;  p.  1067. 

pardon  and  mitigation,  112  A.  W. 

sentences,  sec.  1342  R.  S.,  p.  964,  and  83  A.  W. 
flogging,  98  A.  W. 

fraud,  embezzlement,  etc.,  60  A.  W. 
furlough,  11  A.  W. 

garrison  courts-martial  (see  Summary  Courts), 
82  A.  W. 

approval  of  proceedings,  104,  109  A.  W. 

behavior  of  members,  87  A.  W. 

composition,  82  A.  W. 

constitution,  82  A.  W. 

judge-advocate,  74,  90  A.  W. 

jurisdiction,  82,  83  A.  W. 

limits  of  punishment,  83  A.  W.;  1838;  pp.  965, 
1067. 


1120 


INDEX. 


Articles  of  War— Continued, 
garrison  courts-martial — continued. 

oaths,  84,  85  A.  W. 

pardon  and  mitigation,  112  A.  W. 

sentences,  83  A.  W.;  1838;  p.  1067. 
general  courts-martial,  72,  73  A.  W. 

approval  of  sentences,  104-108  A.  W. 

behavior  of  members,  87  A.  W. 

challenges,  88  A.  W. 

composition,  75-79  A.  W. 

confinement  in  penitentiary,  97  A.  W. 

constitution,  72,  73  A.  W. 

continuances,  93  A.  W. 

depositions,  91  A.  W. 

dismissal  of  officers,  99,  105,  106,  111  A.  W. 

execution  of  sentences,  104-109,  111,  112  A.  W. 

general    officers,    sentences   respecting,    108 
A.  W. 

inferior  in  rank,  79  A.  W. 

judge-advocates,  74,  84,  90  A.  W. 

limits  of  punishment,  1838;  pp.'  965, 1067. 

number  of  officers,  75  A.  W. 

oaths,  84,  85  A.  W. 

order  of  voting,  95  A.  W. 

pardon  and  mitigation,  112  A.  W. 

proceedings,  final  disposition,  113  A.  W. 

suspension  of  officers'  pay,  101  A.  W. 

voting,  95  A.  W. 

general  officers,  sentences  respecting,  108  A.  W. 
good  order  on  march,  etc.,  54  A.  W. 
gratification  or  reward  for  muster,  6  A.  W. 
hiring  duty,  36  A.  W. 
horses,  losing,  spoiling,  etc.,  17  A.  W. 
judge-advocates,  74,84,85,90,92,113  A.  W. 
limitation  of  prosecution— 

in  desertion,  103  A.  W. 

in  general,  103  A.  W. 

limits  of  punishment,  83  A.  W.;  1838;  p.  1067. 
marines,  when  subject  to,  445. 
marking,  tattooing,  etc.,  98  A.  W. 
members  of  courts-martial,  75-79  A.  W. 
military  discipline,  conduct  prejudicial  to,  62 

A.  W. 

militia  subject  to,  2022;  64  A.  W. 
misbehavior  before  enemy,  42  A.  W. 
muster,  false,  5,  14  A.  W. 
musters,  5, 6, 13, 14  A.  W. 
mutiny,  22,  33  A.  W. 

National  Home,  etc.,  inmates  subject  to,  2332. 
neglect  of  duty,  62  A.  W. 
neglects,  etc.,  prejudicial  to  military  discipline, 

62  A.  W. 

oath  of  enlistment,  2  A.  W. 
oaths,  2,  84,  85,  92  A.  W. 

enlistment,  2  A.  W. 

judge-advocate,  85  A.  W. 

member,  84  A.  W. 

witness,  92  A.  W. 
oaths,  profane,  53  A.  W. 
officer  and  gentleman,  conduct  unbecoming,  61 

A.  W. 
officers  to  keep  good  order  in  commands,  54 

A.  W. 

officers  to  subscribe  to,  1  A.  W. 
officers,  triable  by  general  courts-martial  only, 

79  A.  W. 
one  mile  from  camp  without  leave,  34  A.  W. 


Articles  of  War— Continued, 
order  to  be  kept  in  quarters  and  on  the  march, 

54  and  55  A.  W. 

pardon  and  mitigation,  112  A.  W. 
penitentiaries- 
confinement  in,  97  A.  W. 

sentences  to,  97  A.  W. 
persons  subject  to — 

Army  of  the  United  States,  1,2,64  A.  W. 

inmates  National  Home,  2332. 

inmates  Soldiers'  Home,  2283. 

marines  serving  with  land  forces,  78  A.  W. 

militia,  in  time  of  war,  64  A.  W. 

persons  serving  with  armies  in  field,  63  A.  W. 

Regular  Army,  1,  2  A.  W. 

retainers  to  camp,  63  A.  W. 

retired  enlisted  men,  1380,  note. 

retired  officers,  1319. 

volunteers,  64  A.  W. 
pleas,  89  A.  W. 
President,  contemptuous  or  disrespectful  words 

concerning,  19  A.  W. 
prisoner — 

charges  against,  66  A.  W. 

confinement  of,  66-69  A.  W. 

escape  of,  69  A.  W. 

receiving  by  provost-marshal,  etc.,  67  A.  W. 

release  of,  69  A.  W. 

report  of,  68  A.  W. 
profane  oaths,  53  A.  W. 
property — 

captured,  9  A.  W. 

returns,  10  A.  W. 
publication  of— 

Articles  of  War,  128  A.  W. 

sentences,  100  A.  W. 

punishment,  limits  of,  83  A.  W.;  1838;  p.  1067. 
punishments  prohibited,  98  A.  W. 
quarrels,  frays,  etc.,  24  A.  W. 
quarters,  lying  out  of,  31  A.  W. 
quelling  mutiny,  23  A.  W. 
quitting  guard,  40  A.  W. 
rank  of  regular  and  volunteer  officers,  122,  123 

A.  W. 
read,  once  in  six  months  to  regiments,  etc.,  128 

A.  W. 

records  of  general  courts-martial  forwarded  to 
Judge- Advocate-General,  113  A.  W. 

party  entitled  to  copy,  114  A.  W. 
recruits,  articles  to  be  read  to,  2  A.  W. 
redress  of  wrongs- 
enlisted  men,  30  A.  W. 

officers,  29  A.  W. 

regimental   courts-martial    (see  Field  -  Officers, 
Courts),  81  A.  Vt. 

appeals  from,  30  A.  W. 

approval  of  proceedings,  104,  109  A.  W. 

behavior  of  members,  87  A.  W. 

composition,  81  A.  W. 

constitution,  81  A.  W. 

judge-advocate,  74,81,84,85,90  A.  W. 

jurisdiction,  81,  83  A.  W. 

limits  of  punishment,  83  A.  W.;  1838;  p.  1067. 

oaths,  84,  85  A.  W. 

pardon  and  mitigation,  112  A.  W. 

redressing  wrongs,  30  A.  W. 

sentences,  83  A.  W.;  1838;  p.  1067. 


INDEX. 


1121 


Articles  of  War— Continued, 
regimental  returns,  7  A.  W. 
relieving  enemy,  46  A.  W. 
report  of  prisoners,  68  A.  W. 
reproachful  speeches,  25  A.  W. 
retainers  to  camp,  63  A.  W. 
retreat,  failing  to  retire  to  camp  at,  35  A.  W. 
returns,  false,  8  A.  W. 

regimental,  7  A.  W. 
safeguard,  forcing  of,  57  A.  W. 
second  trial  for  same  offense,  102  A.  W. 
sentences,  96-101, 104-107,  111,  112  A.  W. 

approval  and  confirmation,  104-109  A.  W. 

death,  47,  96,  111  A.  W. 

dismissal  of  officer,  99,  107,  111  A.  W. 

flogging,  98  A.  W. 

general  officers,  108  A.  W. 

limits  of,  83  A.  W.;  1838;  pp.  965,  1067. 

pardon  and  mitigation,  112  A.  W. 

penitentiary,  97  A.  W. 

publication,  100  A.  W. 

suspension  of,  111  A.  W. 

suspension  of  pay,  etc.,  101  A.  W. 
sleeping  on  post,  39  A.  W. 
Soldiers'  Home,  2283. 
soldiers  subject  to,  pp.  964,  966. 
spies,  sec.  1343  R.  S.;  p.  1026. 
standing  mute,  89  A.  W. 
stores  captured,  9  A.  W. 
striking  superior  officer,  21  A.  W. 
surrender,  compelling  of,  43  A.  W. 
suspension  of  officers'  pay,  101  A.  W. 
suspension  of  sentence,  111  A.  W. 
troops,  Articles  of  War,  to  be  read  to,  128  A.  W. 
troops,  subject  to  Articles  of  War,  64  A.  W. 
twice  in  jeopardy,  102  A.  W. 
victuals,  sale  of,  commanding  officers  not  to  be 

interested  in,  18  A.  W. 
violence  to  persons  bringing  in  provisions,  56 

A.  W. 

voting,  order  of,  95  A.  W. 
watchword,  disclosure  of,  44  A.  W. 
witnesses- 
affirmation,  92  A.  W. 

attendance,  1810. 
oath,  92;  118  A.  W. 
wrongs,  redress  of,  29;  30  A.  W. 

officers,  29  A.  W. 

soldiers,  30  A.  W. 
Artificial  Limbs: 
allowance,  942. 
commutation,  944-946. 
renewal,  943. 

transportation  to  procure,  947-949. 
trusses,  950-952. 

Artillery  (see  Artillery  Corps,  and  Coast  Artillery): 
barracks  for  coast,  735. 
coast,  1430. 
field,  1430. 

horses,  purchases  of,  730. 

Artillery  Corps  (see  Artillery,  and  Coast  Artillery) : 
bands,  1441. 
barracks  for  coast,  736. 
coast,  1430. 

coast  artillery,  1437, 1438. 
companies,  1437,  1438. 
composition,  1431. 
details,  1434. 

22924—08 71 


Artillery  Corps— Continued. 

electrician  sergeants,  1443. 

field  artillery,  1430,  1439,  1440. 

gunners,  increased  pay,  1444. 

horses,  purchases  of,  730. 

increase  of,  how  effected,  1433. 

officers  on  one  list,  1432. 

organization,  1429;  p.  1049. 

restriction  on  enlisted  force,  1442. 

veterinarians,  1435, 1436. 
Artillery  School,  1516, 1517. 
Artisans,  extra-duty  pay,  742,  745. 
Assignment  of  Claims,  234.    (See  Claims.) 
Assignments: 

pay  of  enlisted  men,  prohibited,  898. 

pensions,  2235, 2236. 
Assistant  Secretary  of  War,  118. 
Assistant  treasurers,  286. 
Atlantic  and  Pacific  Railroad,  2066. 
Attorneys: 

oath,  235, 236. 

powers  of,  234, 628. 

prosecution  of  claims,  235-244. 

rules  respecting,  244. 

Attorney -General    (see    Attorney- Generafs    Office, 
and  Department  of  Justice) : 

cases,  conduct  of,  340. 

counsel,  attendance  of,  343, 344. 

Court  of  Claims,  362-417. 

duties,  332-345. 

habeas  corpus,  346-361. 

land  titles,  examination  of,  334,335. 

office,  332. 

opinions,  336-339. 

procurement  of  legal  services,  342. 

publication  of  opinions,  345. 

restriction  on  employment  of  legal  services,  342. 
Attorney-General's  Office  (see  Department  of  Jus- 
tice): 

duties,  334-345. 

examination  of  titles,  334,  335. 

legal  services,  342. 

opinions,  337-341. 

Auditors  (see  Accountability,  Accounting  Officers, 
and  Accounts): 

balances,  certificates  of,  198. 

books,  papers,  etc.,  to  be  accessible  to,  214. 

decisions  reported  to  Comptroller,  203. 

discharge  certificates,  return  of,  218. 

duties,  194-214. 

funds,  requisitions  for,  209. 

paymasters'  accounts,  216, 217. 

preservation  of  accounts,  205. 

re-examination  of  accounts,  199. 

re-opening  of  settled  accounts  forbidden,  206. 

revision  of  decisions  by  Comptroller,  203. 

settlements  of  accounts,  201,206. 

transcripts  of  accounts  as  evidence,  206. 
Badges:  * 

Corps,  etc.,  1360-1363. 
Baggage  (see  Transportation): 

allowance  of,  720,  note. 

transportation  of,  720,  note. 
Bakeries  (see  Post  Bakeries): 

purchases  for,  714. 

Balances  (see  Appropriations,  and   Treasury  De- 
partment) : 

unexpended,  application,  279-282. 


1122 


INDEX. 


Bands: 

artillery  corps,  1441. 
cavalry,  1424. 

infantry,  1448. 

Military  Academy,  1508. 
Banker: 

unlawful  receipt  of  money  by,  654, 655. 
Barracks  (see  Posts): 

coast  artillery,  735. 

construction,  734. 

restriction  on  expenditures,  737, 1623-1625. 

seacoast  artillery,  1625. 
Battalions,  1445, 1449. 

Board  of  Ordnance  and  Fortification,  1209-1217. 
(See  Ordnance  Department.) 

civilian  member,  1213. 

composition,  1209-1213. 

duties,  1209. 

expenditures,  1212. 

experiments,  1215, 1216. 

per  diem  to  officers,  1217. 

restriction  on  membership,  1214. 

right  to  all  inventions,  1216. 

tests,  1209,1215,1216. 
Bonds  (see  Disbursing  Officers,  and  Sureties'): 

disbursing  agents,  295. 

disbursing  clerks,  24. 

disbursing  officers,  592-605. 

examination,  602,603. 

increase,  593. 

liability  of  sureties,  604,605. 

officers  of  armories,  1192. 

release  of  sureties,  604, 605.      ' 

renewal,  602, 603. 

security  companies  as  sureties,  594-S01. 
Bond- Aided  Railroads,  722, 725. 
Bookkeeping  and  Warrants: 

division  of,  210. 

Book  of  Estimates,  62-78.    (See  Estimates.) 
Books  of  Prints: 

purchases  of,  57. 
Books  of  Reference: 

purchases  of,  58. 
Bounty  for  Enlistments,  677. 
Bowman  Act  (see  Court  of  Claims),  396-402. 
Branding  Prohibited,  1833. 
Brevet  Rank  (see  Brevets) : 

date,  1344, 1345. 

honorary,  1346. 

uniform,  1349. 
Brevets  (see  Brevet  Hank): 

assignments  to  command,  566. 

assignments  to  duty,  1347, 1348. 

date,  1344, 1345. 

increase  of  pay  on,  forbidden,  811. 

Marine  Corps,  428. 

power  to  confer,  1342, 1343. 
Bribe  (see  Bribery): 

accepting  of,  penalty,  657, 658, 1565. 

offering,  penalty,  1564. 
Bribery,  657,  658,  1564,  1565. 
Bridge  Equipage: 

prescribed  by  Chief  Engineer,  971. 
Bridges  over  Navigable  Waters,  1114-1117. 
Brigadier-General  (see  Staff  Departments): 

historical  note,  p.  203. 

relative  rank,  564. 


Buildings  (see  Public  Buildings,  and  Public  Build- 
ings and  Grounds) : 
restriction  on  expenditures,  1549. 
report  of,  rented,  73, 74. 
sites  for,  1524. 

Bureau  Officers.     (See  Chiefs  of  Bureaus.) 
Burial  (see  Deceased  Officers) : 
deceased  enlisted  men,  1416-1418. 
officers,  1415-1417. 
Cadets  (see  Military  Academy): 
Age,  1481. 
allowances,  1485. 
appointments,  1479-1481. 
courts-martial  for  trial  of,  1495. 
deficiency,  1494. 
graduation,  1486-1488. 
instruction,  1489-1494. 
liability  to  duty,  1490. 
oath,  1483,1484. 
organization,  1489. 
pay,  1485,  1488. 
qualifications,  1481,  1482. 
California  Debris  Commission,  1049-1081. 
composition,  1050. 
debris  fund,  1073-1080. 
duties,  1052-1055. 
establishment,  1049. 
hydraulic  mining,  1056-1072. 
report,  1055. 

State  appropriations,  1078-1080. 
travel  expenses,  1081. 
California: 

treatment  of  insane  in  asylums,  2348. 
Camps: 

post-offices  at,  329-331. 
sites  for,  p.  1064. 

Canals  (see  River  and  Harbor  Works): 
regulations  prepared  by  Secretary  of  War,  1102. 

to  be  posted,  1113. 
tolls  not  to  be  levied,  1111. 
use  of,  to  be  regulated  by  Secretary  of  War,  1112. 
Carts: 

purchase  of,  729. 
Captains  (see  Rank): 
relative  rank,  1564. 
Captains  (Navy): 

relative  rank,  564. 

Cavalry  (see  Cavalry  Regiments,  and  Native  Troops): 
bands,  1424. 

colored  regiments,  1420. 
dismounted,  1421. 
horses,  purchases  of,  730, 732. 
horses,  restriction  on  number,  732. 
increase  in  strength,  1428. 
organization,  1419. 
Porto  Rican  battalion,  p.  1065. 
regiment,  1419-1423;  p.  1048. 
regimental  staff,  1422-,  1423. 
squadron  staff,  1425. 
troops,  1427. 
veterinarians,  1426. 

Cavalry  and  Light  Artillery  School,  1519. 
Cavalry  llegiment  (see  Cavalry): 
band,  1424. 

colored  regiments,  1420. 
composition,  1419. 


INDEX. 


1123 


Cavalry  Regiment— Continued. 

details,  1423. 

dismounted  service,  1421. 

increase  in  strength,  1428. 

organization,  1419. 

squadron,  1419,  1425. 

staff,  1419,  1423. 

troops,  1427. 

veterinarians,  1426. 
Central  Pacific  Railroad,  2065. 
Certificates  of  Merit,  1358,  1359. 
Certificates  of  Residence  (see  Giinl  Service],  154. 
Challenges: 

members  of  court-martial,  1802;  88  A.  W. 

to  duels,  26-28  A.  W. 
Chaplains: 

age  limit  in  appointments,  1260. 

appointments,  1258,  1259;  p.  1052. 

assignments,  1262. 

duties,  1263-1265. 

Military  Academy,  146. 

qualifications,  1260. 

reports,  1265. 

school  teachers,  1264. 
Charges  and  Specifications,    1786.     (See   General 

Courts- Martial. ) 
Charts  (see  Maps): 

sale  of,  140. 
Checks  (see  Drafts,  and  Pay  Department) : 

duplicate,  631. 

lost,  631. 

outstanding,  309-311. 

payment,  311. 

presentation,  311,  630. 

Chlckamauga  and  Chattanooga  National  Military 
Park: 

acquisition  of  lands,  2357,  2359. 

care  of  park,  2363. 

commissioners,  appointment,  2360. 
duties,  2361. 

designation,  2357. 

donations  of  cannon,  balls,  etc,,  2375. 
lands  for  roads,  2374. 

establishment,  2357. 

extent,  2356,  2365-2368. 

injuries  to  monuments,  trees,  etc.,  2375. 

leases,  2373. 

location  of  troops,  2362. 

monuments,  2369-2372. 
construction,  2371. 
erection,  2370. 
location,  2372. 

restriction  on  erection  of,  2370. 
State,  2369. 

preliminary  work,  2364. 

purchase  of  lands,  2366-2368. 

reduction  of  area,  2365. 

right   given    for  Chattanooga   Rapid    Transit 
Railroad,  2377. 

State  monuments,  2369. 

supervision  by  Secretary  of  War,  2358. 
Chief  Clerks  (see  Clerks,  Executive  Departments, 
and  Executive  Departments) : 

duties,  21-23. 

oaths,  49, 50. 

reports,  22,23. 


Chiefs  of  Bureaus  (see  Heads  of  Bureaus) : 

absence  of,  performance  of  duty,  14, 16-19, 121. 
Chief  of  Engineers  (see  Engineer  Department): 

annual  inventory,  989. 

Aqueduct  Bridge,  rules  for  use  of,  994. 

books  from  Congressional  Library,  977. 

furniture  in  Executive  Mansion,  988. 

Potomac  Park,  981-983. 

prescribes  forms,  etc.,  of  pontoons,  arms,  tools, 
etc.,  971. 

public  buildings  and  grounds,  978-994. 

report  of  public  buildings,  etc.,  987. 

Washington  Aqueduct,  995-1010. 

Washington  Monument,  990-992. 
Chief  of  Ordnance  (see  Ordnance  Department) : 

duties,  1166-1168. 

returns,  prescribed  by,  1173. 

Chief  Signal  Officer  (see  Signal  Corps,  Signal  De- 
partment, and  Signal  Office) : 

accountability  for  property,  rules  for,  1228. 

duties,  1227-1229,  1231. 

regulations,  1228. 

telegraph  lines,  1227,  1231. 
Christmas  Day,  46. 
Citizenship  (see  Naturalization): 

allottees  of  Indian  lands,  1892. 

children  born  abroad,  1871. 

definition,  1870. 

evasion  of  draft,  1876. 

expatriation,  1877. 

forfeiture  by  desertion,  1397,  1398,  1874,  1875. 

married  women,  1872. 

naturalization,  1880-1891. 

persons  born  in  Oregon,  1873. 
Civil  Employees  (see  Civil  Service,  and  Employees, 
Civil): 

rations,  771,  note. 

restriction  on  employment,  748. 
Civil  Engineers,  973-975.     (See  Engineer  Depart- 
ment.) 
Civil  Pension  Roll! 

prohibited,  30. 
Civil  Rights  (see  Employment  of  Military  Force): 

enforcement,  2051-2065. 
Civil  Service  (see  Civil  Service  Commission): 

assessments,  political,  172. 

contributions,  soliciting  of,  forbidden,  173-177. 

commission,  146. 

examinations  for  appointment,  147. 
promotion,  150. 

family,  members  of,  restriction,  152. 

frauds  in  examination,  149. 

intoxicating  liquors,  users  of,  barred,  151. 

offenses  in  connection  with,  171-179. 

recommendations  by  members  of  Congress  pro- 
hibited, 153. 

regulations  for  admission  to,  by  President,  142. 

restrictions  on  appointments,  151-153. 

soldiers  honorably  discharged,  preference  to, 

143. 
Civil  Service  Commission  (see  Civil  Service): 

appointment,  146. 

chief  examiner,  148. 

duties,  147. 

examinations  for  appointment,  147. 
promotion,  147,  150. 

frauds  in  examination,  149. 


1124 


INDEX. 


Clulins  (see  Accounting  Officers,  Treasury  Depart- 
ment, and  Court  of  Claims): 

adjusted  in  Treasury,  219. 

assignments,  234,  628. 

compromise  of,  231. 

disloyal  persons,  237. 

examination,  202. 

false,  penalty,  239,  240. 

limitation,  230,  238. 

officers  not  to  be  interested  in,  666. 

powers  of  attorney,  234. 

property  lost,  221. 

prosecution  of,  235-244. 

prosecution  of,  before  Executive  Departments, 
110-116. 

purchase  of,  or  execution,  232. 

reference  to  Court  of  Claims,  366. 

report  of,  allowed,  220. 

reports  of,  70. 

set-off,  233. 

settled,  not  to  be  reopened,  206. 

States,  reimbursement  of  war  expenses,  223-230. 

war  with  Spain,  137. 

Clerks,    Executive    Departments    (see   Executive 
Departments,  and  Salaries): 

appointment,  25. 

below  fair  standard  of  efficiency,  report  of,  78. 

chief,  21-23. 

classification,  32. 

department  headquarters,  572, 573. 

details,  35. 

details  from  outside  District  of  Columbia,  28. 

details,  reports  of,  77. 

disbursing,  24. 

distribution,  85. 

examination,  33. 

extra  compensation,  40,  41. 

incapacitated,  restriction,  31. 

leaves  of  absence,  43-45. 

payments  to,  27. 

rates,  38. 

reduction  in  grade,  36,  37. 

reduction  of  force,  preference  in,  146. 

report  of,  87. 

restriction  on  appointment,  26,  27. 

restrictions  on  employment,  26-31. 

restrictions  on  salaries,  38-42. 

retired  officers,  forbidden,  1325. 

sick  leaves,  43,  44. 

temporary,  39. 

women,  employment  of,  34. 
Clerks  and  Messengers  at  Headquarters: 

appointment,  573. 

assignment,  573. 

employment,  573. 

number,  572. 

pay,  572. 
Clothing  (see  Quartermaster's  Department): 

allowances,  752. 

allowance  prescribed  by  President,  749. 

altering,  756,  757. 

altering,  stoppages  for,  891,  892. 

balances,  753. 

cost  of  altering,  756,  757. 

gratuitous  issues,  750. 

purchases,  717. 

replacing  gratuitous  issues,  750. 


Clothing— Continued. 

returns,  751. 

sale  of,  forbidden,  754. 
Coast  Artillery,  1430, 1437, 1438.    (See  Artillery,  and 

Artillery  Corps.) 
Collectors: 

deposits  of  funds,  299,  300. 

to  act  as  disbursing  agents,  291. 
College  Details  (see  Retired  Officers): 

active  list,  details  from,  1288,  1289. 

issues  of  ordnance,  etc.,  1296. 

restriction  on  details,  1288,  1289. 

retired  list,  details  from,  1290-1295. 
Colleges: 

issues  of  Ordnance  and  Military  Stores  to,  12%. 
Colonels: 

relative  rank,  564. 
Colored  Regiments  (see  Army) : 

cavalry,  1420, 1421. 

chaplains,  1264. 

infantry,  1446. 
Colors  (see  Flags): 

volunteer  regiments,  542. 
Command: 

brevet  assignments,  566. 

detachments,  561;  122  A.  W. 

engineer  officers,  567. 

Medical  Department,  913. 

medical  officers,  568. 

militia  officers,  563. 

pay  of,  increased,  814,  815. 

paymasters,  569. 

regular  officers,  562. 

restrictions  on,  562-569. 

volunteer  officers,  562. 
Commander  (Nary): 

relative  rank,  564. 
Commander  in  Chief,  2. 
Commanding  General: 

performance  of  duties  of  Secretary  of  War,  16. 
Commercial  Statistics,  1107. 
Commissions,  1273. 

delivery,  10. 

expenses  of,  273. 
Commissioned  Officers: 

acceptance  of  civil  office,  1332. 

additional  second  lieutenants,  1487. 

administration  of  postmasters'  oath,  314,  315. 

advances  of  pay,  812,  813. 

aids,  556,  557. 

appointments- 
cadets,  1267,  1268. 
civil  life,  1267,  note, 
enlisted  men,  1269. 
in  volunteers,  521,  530-534. 

arrest,  1782,  1784,  1785. 

assignments  to  regiments,  1283. 

baggage,  allowances  of,  720,  note. 

brevets,  1342-1349. 

chaplains,  1258-1266. 

civil  works,  not  to  be  employed  on,  1331. 

claims  for  property  lost,  221  222. 

claims,  not  to  be  interested  in,  656. 

commissions,  1273. 

commutation  of  quarters,  830-836. 

cooking,  supervision  of,  788. 

deceased  officers,  1339-1341. 


INDEX. 


1125 


Commissioned  Officers— Continued. 

details  to  colleges,  1288-12%. 

details  to  the  staff,  580-582,  1285. 

dismissal  of  officers,  1328-1330,  1834,  1835. 

examinations  for  promotion,  583-588,  1274-1277. 

examination  of  enlisted  men  for  appointment, 
1278-1282. 

funeral  expenses,  1341.     (See  Deceased  Officers.) 

general  officers,  555-560. 

horses,  transportation  of,  720,  note. 

increased  pay  for  foreign  service,  816. 
higher  command,  814,  815. 

increased  pay  in  time  of  war,  513. 

Indian  agents,  details  as,  1333,  1903,  1904. 

leaves  of  absence,  1286,  1287. 

medals  of  honor,  1356,  1357. 

monthly  payments  to,  836. 

mounted  pay,  810. 

pay,  807-829. 

promotions,  1271,  1272. 

quarters  in  kind,  738. 

relative  rank,  564. 

resignations,  1326,  1327. 

retired  pay,  824,  825. 

retirement,  1297-1305.    * 

retiring  boards,  1306-1325. 

sales  of  subsistence  to,  778-784. 

service  in  volunteers,  521,  530-534. 

sick  leaves,  1286. 

supernumeraries,  discharge  of,  1334. 

suspension,  1836. 

transfers,  1284. 

transportation,  721-725. 

transportation  in  kind,  722-725. 

travel  allowances,  837-849. 

travel  pay  on  discharge,  850,  851,  1336-1338. 

witnessing  issues  of  annuities,  1931. 
Commodores: 

relative  rank,  564. 
Commutation: 

artificial  limbs,  944-946. 
Commutation  of  Quarters  (see  Quarters): 

absent  officers,  739. 

allowance,  830. 

duty  without  troops,  831. 

officers  detailed  abroad,  835. 

rates,  832,  833. 

temporary  absence,  834. 
Commutation  of  Rations,  776,  777,  789,  791. 
Company  Commander: 

property  returns,  1640. 
Company  Cooks  (see  Cooking): 

artillery,  1438,  1440. 

bands,  1424,  1441. 

cavalry,  1424,  1427. 

engineers,  1457. 

infantry,  1448,  1450. 

pay,  1457. 

signal  corps,  1224. 
Compromise  of  Claims,  231. 

Comptroller  of    the    Treasury    (see    Accounting 
Officers,  and  Accounts) : 

advance  decisions,  627. 

binding  character  of  decisions,  192. 

decisions  in  advance  of  payment,  192. 

duties,  190-193,  211. 

forms  of  accounts,  191. 


Comptroller  of  the  Treasury— Continued. 

office,  190. 

particular  accounts,  settlement  of,  193. 

revision  of  decisions  of  auditors,  203. 

suits  for  the  recovery  of  money,  643. 

suits  to  recover  balances,  250. 

warrants,  countersigned  by  Comptroller,  209. 
Confinement: 

enlisted  men,  1783. 
Congress: 

franking  privilege,  322-325. 

journals  of,  in  evidence,  1823. 
Consular  Records  as  Evidence,  1824. 
Contempt  of  Court,  1807;  86  A.  W.    (See  General 

Courts-Martial.) 
Contingent  Funds  (see  Appropriations): 

clerical  compensation  not  payable,  55. 

expenditures,  54-58. 

law  books,  68. 

military  academy,  1506,  1507. 

newspapers,  56,  57. 

periodicals,  58. 

reference  books,  58. 

reports  of  expenditure,  59,  60. 

restrictions  on  expenditure,  54-58. 
Continuous  Service  Pay,  869,  870.  1375. 
Continuances,  1803;  93  A.  W. 
Contract  Surgeons,  902.    ( See  Medical  Department. ) 
Con  tracts  (see  Purchases): 

advertisements,  1527, 1528. 

buildings,  erection  and  repair,  1522. 

control  of  Secretary  of  War,  1520. 

copies  for  returns  office,  1567-1571. 

copy  for  Auditor  for  War  Department,  1571. 

execution,  1539-1541. 

envelopes  for  Executive  Departments,  328. 

general  provisions,  1520-1528. 

how  made,  1526. 

land  purchases,  1523,  1524. 

members  of  Congress  not  to  be  interested  in, 
178. 

not  to  exceed  appropriations,  1623. 

officers  in  connection  with,  1558-1566. 

preparation,  1539-1541. 

preparation  and  execution,  1539-1541. 

river  and  harbor  works,  1104-1106. 

stationery,  restriction  on,  1556. 

subsistence,  1552. 

unauthorized,  prohibited,  1521. 

volunteer  services,  1525. 
Contracting  Beyond  Appropriation,  659. 
Contributions: 

change  of  rank,  174. 

political,  172-177. 

presents,  179. 

requesting,  172-177. 

soliciting,  172-177. 
Conversion: 

evidence,  653. 
Cooking  (see  Company  Cooks): 

supervision  of,  by  officers,  788. 
Cooks.     (See  Company  Cooks.) 
Corps  Badges: 

wearing  of,  1360-1363. 
Correspondence  (see  Franking  Privilege): 

penalty  envelopes,  100,320-327. 


1126 


INDEX. 


Court  of  Claims  (see  Claims): 

acknowledgments,  374. 

aliens,  371. 

attendance  of  witnesses,  384 

Bowman  Act,  396-402. 

claims,  363,  366,  369,  370,  396-417. 

commissioner  to  take  testimony,  379,  380. 

cross-examination  of  witnesses,  385. 

fees  of  commissioner,  387. 

final  judgments  a  bar  to  jurisdiction,  395. 

fraud,  effects,  388. 

interest  on  judgments,  392,  393. 

judgments,  364,  368,  391,  394,  395. 

jurisdiction,  362-366,  396-417. 

limitation  on  jurisdiction,  372. 

loyalty  of  claimant,  376,  377. 

new  trials,  389,  390. 

oaths,  374,  386. 

payment  of  judgments,  391-394. 

petition,  375,  376. 

private  claims  before  Congress,  303. 

procedure,  367,  373-395. 

rules  of  practice,  373. 

testimony,  how  taken,  379,  380,  383. 

Tucker  Act,  403-417. 

witnesses,  378-386. 
Courts  of  Inquiry,  1863-1869. 

composition,  1864;  116  A.  W. 

constitution,  1863;  115  A.  W. 

oaths,  1865;  117  A.  W. 

opinion,  when  given,  1867;  119  A.  W. 

record,  1868,  1869;  120,  121  A.  W. 
as  evidence,  1869;  121  A,  W. 

witnesses,  1866;  118  A.  W. 
Courts-Martlal  (see  General  Courts- Martial): 

marine  officers,  446. 

Military  Academy,  1495. 
Credit  Sales,  764. 
Criminal  Offenses: 

consideration  for  obtaining  office,  178. 

political  assessments,  172-177. 
Cuba: 

military  occupation  of,  2112. 
Culvre  River: 

Missouri,  1097. 
Cullum  Memorial,  1572. 
Cumulative  Leaves,  1287. 
Dams  In  Navigable  Waters,  1115. 
Death  Sentences,  1832;  47,  96, 105,  111  A.  W. 
Debris  Commission  (see  California    Debris  Com- 
mission) : 

California,  1049-1081. 
Debtors: 

discharge  of,  248,  249. 
Debts  Due  United  States: 

priority  of,  245-247. 

recovery  of,  197. 

tender,  305-308. 
Deceased  Officers  (see  Burial): 

effects,  1339,  1340, 1415. 

funeral  expenses,  1341. 

transportation  of  remains,  1416,  1417. 
Decoration  Day,  47. 
Decorations  (see  Medals  of  Honor): 

foreign,  1354,  1355. 
Deductions  of  Pay: 

commissioned  officers,  850-856. 

enlisted  men,  889-898. 


Delinquents  In  Accounting  (see  Accounts,  and  Dig. 
bur  sing  Officers): 

reports,  641. 

Dental  Surgeons,  903, 904. 

Department  of  Justice  (see  Attorney-General,  and 
Attorney-  General' s  Office ) : 

injuries  to  public  works,  prosecutions  for,  1122- 

1132. 

Departmental  Libraries,  109. 
Departments.     (See  Executive  Departments. ) 
Depositions,  1828;  91  A.  W.     (See  Evidence.) 
Depositories  (see  Treasury,  and  Treasury  Depart- 
ment) ,  289, 290. 
Deposits  (see  Sales) : 

proceeds  of  sales,  611-616. 
Deposits  In  District  of  Columbia  Harbors,  1147- 

1150. 

Deposits  In  New  lork  Harbor,  1134-1146. 
Deposits  of  Pay  by  Enlisted  Men,  879-882. 

forfeiture  for  desertion,  879. 

interest,  880.  . 

repayment,  879,  882. 
Depots: 

ordnance,  1168. 

Deputy  Paymasters-General,  800. 
Deserters  (see  Desertion,  and  .Rewards) : 

apprehension,  1407-1409. 

enlistment  of,  prohibited,  1395, 1401, 1402. 
Desertion  (see  Deserters): 

aiding,  enticing  in,  1405, 1406. 

evasion  of  draft,  1399. 

forfeiture  of  bounty  land,  1400, 

forfeiture  of  citizenship,  1397, 1398,  1874,  1875. 

forfeiture  of  pension,  1404. 

making  good  time  lost,  1396. 

offense,  1394;  47  A.  W. 

persuading,  1405. 

removal  of  charge  of,  1241-1253. 

statute  of  limitations  in,  1411. 

statutory  penalties,  1396-1398. 
Designated  Depositories,  289,  290. 
Des  Molnes  River,  Iowa,  1094. 
Details  (see  Army,  Commissioned  Officers,  and  En- 
listed Men) : 

extra-duty,  743,  744. 

Details  to  Colleges  (see  College  Details),  1288-1296. 
Details  to  the  Staff  (see  Staff  Departments): 

examination,  580. 

promotions  in  line,  582. 

return  to  duty  in  line,  582. 

selection,  580. 

term,  581. 
Disabilities: 

political,  removal,  157. 
DIsbandment  of  Military  Forces,  535-542. 
Disbursing   Agents,    291-295a.     (See    Disbursing 
Clerks, and  Disbursing  Officers.) 

bonds,  295. 

collectors  to  act  as,  291. 

compensation,  290,  294. 

special  agents,  292. 

restriction  on  compensation,  293. 
Disbursing  Clerks    (see  Disbursing  Agents,  and 
Disbursing  Officers): 

appointment,  24. 

bonds,  24. 

duties,  24. 

salary,  24. 


INDEX. 


1127 


Disbursing  Officers  (see  Accounting  Officers,  Ac- 
counts, and  Pay  Department) : 

accounting,  632-635. 

accounts  outstanding  over  three  years,  312. 

accounts  to  be  itemized,  622. 

advances,  617,  618. 

advance  decisions  of  Comptroller,  627. 

amount  of  appropriation,  determination  of,  623. 

appropriations,  271-276. 

application  of  appropriations,  620. 

assignment  of  claims,  628. 

balances  of  appropriation,  disposition,  624. 

balances  unexpended,  application,  279-282. 

bonds,  592. 

bribe,  accepting  of,  penalty,  657,  658. 

checks,  309-311,  630. 

claims,  not  to  be  interested  in,  656. 

contracting  beyond  appropriation,  659. 

counterfeit  money,  629. 

custodianship  of  funds,  301-303. 

delays  in  transmission  of  accounts,  638-640. 

delinquencies  in  accounts,  report,  641. 

deposits,  299-303, 606-610. 

disbursements,  617-624. 

drafts,  630. 

duty  as  custodians  of  funds,  608. 

duty  as  to  depositing  funds,  299-303. 

embezzlement,  larceny,  etc.,  660. 

embezzlement,  record  evidence  of,  651. 

entries  of  receipts  and  disbursements,  621. 

evidence  of  conversion,  653. 

exchanging  funds,  609, 610. 

expenditures,  restriction  on,  619. 

failure  to  deposit  funds,  607, 649, 650. 

failure  to  render  accounts,  648. 

failure  to  safely  keep  public  funds,  646, 647. 

fiscal  year,  184, 635. 

forms  of  accounts,  191,633. 

increase  of  bond,  593. 

inspection  of  disbursements,  625, 626, 685, 686. 

legal  tender,  305-308. 

loaning  public  money,  645. 

outstanding  checks,  309-311. 

premiums  on  exchanges,  610. 

presentation  of  drafts,  630. 

powers  of  attorney,  628. 

receiving  embezzled  money  or  property,  661. 

refusal  to  pay  draft,  652. 

rendition  of  accounts  monthly,  185,  636-641. 

restriction  on  expenditures,  619. 

revision  of  accounts,  642. 

safe-keeping  of  funds,  606-610. 

sales,  proceeds  of,  611-616. 

short  payments,  644. 

suits  for  recovery  of  money,  643. 

sureties,  594-605. 

transmission  of  accounts,  157,  638-640. 

unlawful  depositing  of  money,  645. 
Disbursements  (see  Disbursing  Officers) : 

inspection  of,  625,  626,  685,  686. 
Discharges: 

by  whom  given,  1383;  4  A.  W. 

certificates  of,  1388-1390. 

certificate  of,  duplicate,  1388. 

dependency  of  parent,  1387. 

disability,  1385. 

dishonorable,  1384,  note. 


Discharges— Continued. 

honorable,  1383. 

jurisdiction  after  dishonorable,  1384. 

purchase  of,  1386. 

travel  pay,  850, 851, 887, 888. 

without  honor,  1384,  note. 
Discharge  Certificate: 

return  of,  to  claimant,  218. 
Discharged  Soldiers: 

preference  to,  in  reduction,  37. 
Dishonorable  Discharge,  1384,  note. 
Dismissal  of  Officers,  1328-1330. 
Distress  Warrants,  251-264. 

contents,  252. 

conveyances  of  land,  257* 

execution,  253, 254, 262. 

extent  of  application,  260 

failure  to  account,  259. 

injunction  to  stay  execution,  262. 

lands,  sale  of,  256. 

levy  to  be  a  lien,  255. 

postponements,  261. 

procedure,  263. 

rights  of  United  States  reserved,  264. 
District  Attorneys: 

Prosecution  of  claimants  of  false  claims,  241-243. 
District  of  Columbia: 

full  inspection  of  fuel  in,  1578-1580. 

harbor  regulations,  1147-1150. 
District  of  Columbia  Militia  (see  Militia): 

accountability  of  officers,  1744. 

active  militia,  1717. 

adjutant-general,  1715, 1716. 

allowances,  etc.,  1766-1770. 

ambulance  corps,  1723. 

armories,  1748. 

arms,  1738-1750. 

artillery,  1722. 

bands,  1724, 1767. 

by  laws,  restriction,  1771. 

calling  forth,  1711, 1712. 

command,  1712-1716. 

commander  in  chief,  1712. 

commanding  general,  1713. 

commissioned  officers,  1726-1731. 

contracts,  leases,  etc.,  1770. 

courts-martial,  1761-1765. 

deductions  of  pay,  etc.,  1749,  1750. 

disbursements,  1769,  1770. 

disbandment  of  commands,  1726. 

discharges,  1731,  1735-1737. 

discipline,  1773. 

distinctive  uniforms,  1746,  1747. 

duties,  1751-1760. 

duties  of  officers,  1772. 

elections,  1729. 

encampments,  1754. 

engineer  corps,  1723. 

enlisted  men,  1732-1737. 

enrollment,  1707-1711. 

equipments,  1738-1750. 

estimates,  1769. 

examinations,  1730. 

exemptions,  1708. 

expenses,  etc.,  1766-1770. 

infantry,  1719-1721. 

instruction,  1773. 


1128 


INDEX. 


District  of  Columbia  Militia— Continued. 

issues  to,  1739-1740. 

leases,  etc.,  1770. 

military  dutes,  1757-1760. 

National  Guard,  1717,  1718. 

noncommissioned  officers,  1732. 

organization,  1717-1725. 

parades,  1758,  1759. 

property  returns,  1742. 

regulations,  1774. 

riots,  suppression  of,  1756. 

signal  corps,  1723. 

status  of  members,  1775. 

strength,  1718. 

subsistence  on  duty*  1768. 

tribunals,  military,  1761-1765. 

uniform,  1738-1750. 

unserviceable  property,  1745. 
Double  Salaries,  166.     (See  Salaries.) 
Draft  Animals: 

purchases  of,  731. 
Drafts  (see  Checks),  309-311,  630. 
Draftsmen: 

engineer  bureau,  976. 
Drawbridges  on  Navigable  Waters,  1116,  1117. 

regulations  for,  1117. 
Drays: 

purchases,  729. 

Dredging  Beyond  Harbor  Lines,  1120. 
Duels  (see  Challenges). 

Duplicate  Certificate  of  Discharge,  1388-1390. 
Eight- Hour  Law,  1572-1575. 
Election  Franchise: 

enforcement,  2066,  2067. 
Electrician  Sergeants,  1443. 
Embezzlement,  660. 

Emergency  Purchases,  713, 768.     (See  Purchases.) 
Emergency  Ration,  770.     (See  Rations,) 
Employees,  Civil  (see  Civil  Employees,  and  Civil 
Service) : 

deceased,  transportation  of  remains,  96. 

restrictions  on  employment,  26-31. 
Employment  of  Military  Force: 

Atlantic  and  Pacific  Railroad,  2066. 

combinations  in  restraint  of  trade,  2063. 

election  franchise,  2066, 2067. 

extradition,  2080-2083. 

guano  islands,  2094-2102. 

Hawaiian  Islands,  2068. 

Indian  reservations,  2023-2028. 

insurrection,  2015-2022. 

invasion  and  insurrection,  2015-2022. 

neutrality,  enforcement  of,  2069-2079. 

Northern  Pacific  Railroad,  2064. 

obstructing  mails,  2062. 

public  health,  2068. 

public  lands,  2069-2071. 

quarantine,  2068. 

restriction  on,  2093. 

Southern  Pacific  Railroad,  2067. 

suspension  of  intercourse,  2029-2050. 

treason,  2094-2098. 

Union  Pacific  Railroad.  2065. 
Engineer    Battalions,    961-971.      (See    Engineer 
Corps,  and  Engineer  Department.) 

band,  961,  963,  964. 

companies,  968. 


Engineer  Battalions— Continued. 

duties,  970. 

increase  in  strength,  969. 

line  of  Army,  962. 

noncommissioned  staff,  965. 

number,  961. 

officers,  967. 

organization,  965-967. 

staff,  966. 
Engineer  Bureau: 

draftsmen  in,  976. 

Engineer    Commissioner,    District  of  Columbia, 
1011-1019. 

assistants,  1016. 

appointment,  1011,  1012. 

control  of  wharf  property,  1019. 

estimates,  1017. 

powers,  1018. 
Engineer  Company  (see  Engineer  Battalions): 

increase  in  strength,  969. 

organization,  968. 

Engineer  Corps  (see  Engineer  Battalions,  and  En- 
gineer Department): 

appointments,  956. 

bands,  963,  964. 

battalions  a  part  of  line,  962. 

command,  960. 

composition,  953. 

enlisted  men,  961-971. 

examinations  for  promotion,  958,  959. 

fourteen  years'  service,  promotion,  957. 

organization,  953;  p.  1059. 

promotions,  955,  957. 

transfers,  960. 

Engineer  Department  (see  Navigable  Waters  of  the 
United  States,  and  River  and  Harbor  Works): 

annual  reports,  1103. 

bridge  equipage,  971. 

bridges  over  navigable  waters,  1114-1117. 

California  D6bris  Commission,  1049-1081. 

civil  engineers,  973-975. 

clerical  force,  134. 

command  of  officers,  567. 

contracts  and  purchases,  1104-1106. 

deposits  in  New  York  Harbor,  1134-1146. 

disbursements  for  fortifications,  1089. 

draftsmen,  976. 

Engineer  Commissioner,  District  of  Columbia, 
1011-1019. 

estimates,  1102. 

fishways,  1109. 

fortifications,  1086-1090. 

harbor  lines,  1118-1121. 

historical  note,  p.  437. 

injuries  to  public  works,  1122-1132. 

Isthmian  Canal  Commission,  1082-1085. 

Light-House  Board,  1021-1028. 

mileage  on  river  and  harbor  works,  1110. 

Mississippi  River  Commission,  1029-1043. 

Missouri  River  Commission,  1044-1048. 

navigable  waters,  1091-1097. 

obstructions  to  navigation,  1114-1117. 

operation  of  canals,  etc.,  1111-1113. 

permits  for  use  of  public  works,  1125. 

pontoons,  etc.,  971. 
.  promotion,  fourteen  years'  service,  591. 


INDEX. 


1129 


Engineer  Department— Continued. 

reports,  1098. 

retired  officers,  employment  in,  976. 

river  and  harbor  works,  1098-1110. 

river  and  harbor  works,  report,  132. 

sunken  vessels,  removal,  1132a,  1133. 

surveys,  restrictions  on,  1099-1101. 

transfer  of  officers,  590,  960. 

use  of  public  works,  prohibition,  1125. 

wrecks,  removal  of,  1132a,  1133. 
Engineer  School,  1515. 
Engineer  Troops,  p.  1052. 
Engineers: 

employment,  26,  27. 
Enlisted  Men  (see  Enlistments,  and  Re-enlistments): 

absence  without  leave,  1393. 

allotments  of  pay,  871-875. 

allowance  of— 
clothing,  893, 894. 
fuel,  738  note, 
quarters,  734-737. 
rations,  771,  772. 

altering  clothing,  891,  892. 

certificates  of  merit,  1358, 1359. 

claims  for  property  lost,  221,  222. 

confinement,  1783-1785. 

cooking,  supervision  of,  788. 

deceased,  1412-1415. 
effects  of,  1414,  1415. 

deductions,  889-898. 

deposits,  879-882. 

desertion,  1394-1404. 

details  for  recruiting  service,  679. 

discharge,  1383-1390. 

enlistment,  1364-1375. 

examinations  of,  for  promotion,  1278-1282. 

exemption  from  arrest  for  debt,  1412. 

extra-duty  pay,  742-747. 

funeral  expenses,  1416-1418. 

furloughs,  1378. 

increased  pay  in  time  of  war,  512. 

issues  of  rations,  771,  772. 

medals  of  honor,  1356, 1357. 

ordnance  sergeants,  1162, 1163. 

payments  to,  800-804. 

quarters,  allowance  of,  738,  note. 

rations,  769-777. 

redress  of  wrongs,  1852;  30  A.  W. 

re-enlistment,  1373-1375. 

remains,  disposition,  1416-1418. 

restriction  on  numbers,  507,  608;  p.  1064. 

retired  pay,  876-878. 

retirement,  1379-1382. 

sales  of  subsistence  to,  778-784. 

servants,  not  to  be  used  as,  1335, 1413. 

Signal  Corps,  1224. 

Soldiers'  Home,  2269-2278. 
deductions  for,  889. 

stoppages  of  pay,  889-398. 

transfers,  1376, 1377. 

transportation,  720,  note. 

travel  pay  on  discharge,  1391,  1392. 
Enlistments  (see  Enlisted  Men,  and  Re-enlistments): 

age,  1364, 1365. 

bounty,  677. 

citizenship,  1366. 

deserters,  1368, 1369. 


Enlistments— Continued. 

English,  reading,  writing,  and  speaking,  1366. 

excess  in,  authorized,  p.  1062. 

felons,  1368,  1369. 

fraudulent,  675, 1372. 

general  qualifications,  1364,  1365. 

insane  persons,  1368,  1369. 

intoxicated  persons,  1368,  1369. 

language,  1366. 

minors,  1367,  1368,  1369. 

oath  of,  676. 

premium  for,  1371. 

prohibited,  1367-1369. 

qualifications  for,  670,  671. 

term,  1370. 

unlawful,  674. 
Ensigns  (Nary): 

relative  rank,  564. 
Envelopes  (see  Penalty  Envelopes): 

contracts  for,  by  Postmaster-General,  328. 

penalty,  100,  320-327. 

purchase  of,  by  Postmaster-General,  328. 

return  penalty,  326. 
Estimates  (see  Appropriations) : 

appropriations  outstanding,  66. 

Book  of,  62-78. 

buildings,  68. 

buildings  rented,  73,  74. 

channel  of  communication,  65. 

claims  allowed,  70. 

compensation,  of  officers,  etc.,  69. 

condition  of  business,  77. 

contents,  66-78. 

date  of  submission,  64. 

deficiencies,  65. 

detailed  clerks,  reports  of,  77. 

efficiency  report  of  clerks,  etc.,  78. 

explanation  of  items,  72. 

increase  in,  72. 

manner  of  communicating,  64-67. 

preparation,  64. 

printing  and  binding,  68. 

proceeds  of  sales,  75. 

public  works,  71. 

river  and  harbor  works,  71,  76. 

salaries,  69. 

statement  of  appropriations,  63,  66. 

submission,  266,  267. 

transmitted  through  Secretary  of  Treasury,  65. 

variation  in  amount,  72. 
Evidence: 

accused  persons,  testimony  of,  1817. 

consular  records,  1824. 

depositions,  1828;  91  A.  W. 

documents  in  Executive  Departments,  copies, 
1818-1822. 

embezzlement,  651. 

exclusion  of,  for  color,  interest,  etc.,  forbidden, 
1815. 

given  under  oath,  1814;  92  A.  W. 

journals  of  Congress,  1823. 

judicial  proceedings,  1826. 

laws  of  United  States,  1827. 

legislative  acts,  1825. 

record  of  court  of  inquiry,  1869;  121  A.  W. 

records  of  State  officers,  1826. 

returns  office,  1822. 


1130 


INDEX. 


Evidence— Continued. 

Revised  Statutes,  459. 

Statutes  at  Large,  483-485. 

supplements  to  Revised  Statutes,  477. 

transcripts  from  books  of  Treasury,  1820, 1821. 

transcripts  of  accounts  by  Auditor,  205. 
Examination     (see     Civil    Service,    Commissioned 
Officers,  and  Examinations  for  Promotion}: 

absence  of  officer,  p.  1063. 

admission  to  Military  Academy,  1482. 

details  to  staff,  580-582, 1285. 

Marine  Corps,  423, 424. 

promotion,  583-588,1274-1277. 

volunteer  officers,  522. 
Examinations  for  Promotion  (see  Examination) : 

absent  officer,  588. 

civil  appointee,  585. 

engineer  officer,  587. 

enlisted  men,  1278-1282. 

failure  to  pass,  584. 

physical  disqualification,  584. 

ordnance  officer,  587. 

re-examination,  584. 
Exchanges  of  Funds,  609,  610. 

premium  to  be  accounted  for,  610. 
Executive  (see  Executive  Departments,  and  Presi- 
dent): 

Commander  in  Chief,  2. 

reprieves,  2. 

Executive  Departments  (see   Chief  Clerks,   Clerks, 
Executive  Departments,  and  Salaries): 

advertising,  79,  81. 

annual  reports,  86-92. 

arms,  issues  to,  1204. 

arrears  of  business,  reports,  53. 

books,  papers,  etc.,  accessible  to  accounting 
officers,  108. 

chief  clerks,  21-23. 

claims,  prosecution  of,  110-116. 

classification  of  clerks,  32-36. 

clerks,  25-48. 
reports  of,  87. 

closing  buildings  for  death  of  ex-officer  pro- 
hibited, 98. 

condition  of  business,  reports  of,  77,  88. 

contracts,  80-82. 

copies  of  documents  in  evidence,  1818-1822. 

Court  of  Claims,  reference  of  cases  to,  366. 

detail  of  clerks,  35. 

destruction,  forgery,   etc.,   of  public    records, 
103-105. 

draping  buildings  in  mourning  prohibited,  97. 

envelopes,  penalty,  100,  320-327. 

envelopes,  purchase  of,  328. 

fuel,  inspection  of,  83-85. 

holidays,  46^8. 

hours  of  labor,  52,  53. 

interpretation  of  term,  12. 

inventories  of  property,  93. 

laborers,  38. 

libraries,  109. 

messengers,  38. 
'     oaths,  49-51. 

official  register,  92a. 

penalty  envelopes,  100,  320-327. 

postage  stamps,  official,  99. 

proposals,  80. 

provisions  of  law  applicable  to,  12. 


Executive  Departments— Continued, 

purchases,  80-82. 

recording  clocks  prohibited,  95. 

records,  20. 

reduction  of  clerks,  ;{<;,  :;7. 

regulations,  20. 

renting  buildings,  restriction  on,  93a,  94. 

reports,  86-92. 

requisitions  for  funds,  61. 

stationery,  purchases  of,  82. 

telegraph  line  to  Capitol,  101,  102. 

useless  papers,  disposition  106,  107. 

watchmen,  38. 

Executive  Power,  1.     (See  President.) 
Executors: 

liability  of,  246. 
Exemption  from  Arrest  (see  Arrest): 

enlisted  men,  1412. 

marines,  438. 

Expatriation,  Right  of,  1877. 
Expert  Accountant: 

Inspector-General's  Office,  684. 

travel  allowances,  847. 
Extortion,  1566. 
Extradition: 

enforcement  of,  2080-2083. 
Extra  Duty  (see  Pay): 

artisans,  pay  of,  742,  745. 

assistant  to  Vicksburg  Park  Commission,  2408. 

clerks,  pay  of,  742,  745. 

details  on,  to  be  in  writing,  743,  744. 

insular  possessions,  747. 

laborers,  pay  of,  742,  745. 

mechanics,  pay  of,  742,  745. 

rates  of  pay,  742,  745. 

restriction  on,  in  insular  possessions,  747. 

restriction  on,  in  time  of  war,  746. 

school  teachers,  pay  of,  742,  745. 

teamsters,  pay  of,  742,  745. 

time  of  war,  746. 
Extra  Pay  (see  Pay) : 

volunteers  on  discharge,  536-539. 
Failure  to  Deposit  Funds,  649,  650. 
Failure  to  Render  Accounts,  648. 
Failure  to  Safely  Keep  Public  Funds,  646,  647. 
Family: 

restriction  on  appointment  of  members,  152. 
Federal  Courts  (see  Habeas  Corpus): 

habeas  corpus,  346-361. 
Field  Artillery,  1430,  1439,  1440. 
Field  Ration,  770. 
Fiscal  Agents,  expenses,  295a. 
Fiscal  Tear,  184. 
Flshways,  1109. 
Flags  (see  Colors) : 

captured,  disposition,  124, 

United  States,  description,  2466,  2467. 
Flogging,  prohibited,  1833. 
Forage: 

allowance,  740,  741. 

commutation  in  Marine  Corps  prohibited  430. 
Forces: 

National,  composition,  495,496. 
Foreign  Service: 

computation  of,  for  retirement,  1381. 
Foreign  Decorations,  1354,  1355. 

restrictions  as  to  use  of,  1355. 
Forms  of  Accounts,  prescribed  by  Comptroller,  191. 


INDEX. 


1131 


Fortification,  Board  of  Ordnance  and,  1209-1217. 
Fortifications  (see  Board  of  Ordnance  and  Fortifi- 
cations): 

disbursements,  1089. 

donations  of  land,  1087. 

emergency  procedure,  1088. 

injury  to  mines,  etc.,  1090. 

penal  offenses,  1090. 

procurement  of  sites,  1086,  1088. 
Franking  Privilege,  100, 320-327. 

Members  of  Congress,  100, 322-325. 

official  correspondence,  100, 320-327. 

penalty  envelopes,  100, 320-327. 
Fraud: 

in  civil  service  examination,  149. 
Fuel  (see  Quartermaster' s  Department) : 

allowance,  738,  note. 

inspection  of,  in  District  of  Columbia,  83-85, 
1578-1580. 

sales  to  officers,  740. 

Funds  (see  Accounts,  Public  Moneys,  and  Treasury 
Department) : 

advances  of,  617,  618. 

requisitions  for,  61,  209. 

Funeral  Expenses  (see  Biirial,  and  Deceased  Offi- 
cers): 

commissioned  officers,  1341. 

enlisted  men,  1416-1418. 
Furloughs  to  Enlisted  Men,  1378. 

pay  during,  884. 
Furniture  for  Schools,  714. 
Garrison  Courts-Martial,  1853, 1854;  82  A.  W.     (See 

Inferior  Courts.) 
Garrison,  Ration,  770. 
General  Courts-Martial  (see  Courts- Martial): 

arraigament,  1808;  89  A.  W. 

attachment,  process  of,  1810. 

behavior  of  members,  1806;  87  A.  W. 

challenges,  1802;  88  A.  W. 

closed  sessions,  1830. 

composition,  1791-1793;  75-78  A.  W. 

constitution,  1789-1790;  72,  73  A.  W. 

contempt  of  court,  1807;  86  A.  W. 

counsel  for  accused,  1800. 

findings,  1829;  95  A.  W. 

judge-advocates,  1798,1799. 

jurisdiction,  1795,  1797. 

members,  1791-1794,  1806;  75-79,  87  A.  W. 

oath— 

judge-advocate,  1805;  85  A.  W. 
members,  1804,  84  A.  W. 
witness,  1809;  92  A.  W. 

reporters,  1801. 

sentences,  1831-1337. 
General  Officers: 

appointment,  559,  560;  p.  1063. 

sentences  affecting,  1821. 
General  of  the  Army: 

discontinuance  of  office,  558. 
General  of  the  Army: 

historical  note,  p.  203. 
Geneva  Convention  of  1864;  pp.  1029-1034. 

additional  articles  of  October  20, 1868;  pp.  1034- 

1040. 

agreement  of  July  29,  1899;  pp.  1041-1043. 
Gettysburg  National  Park,  2379-2398. 

acquisition  of  lands,  2379,  2382,  2383,  2389. 

appropriations,  2384. 


Gettysburg  National  Park— Continued. 

avenues,  2385. 

commissioners,  2381. 

condemnation  of  lands,  2883,  2389. 

continuing  surveys,  2386. 

designation,  2380. 

disbursements,  2384. 

injuries  to  monuments,  trees,  etc.,  2394. 

leases,  2390. 

monuments,  2385,  2391-2393. 

regulations,  2395. 

roads,  2385,  2387. 

specimens  of  arms,  uniforms,  etc.,  2388. 

tablets,  2385. 
Government  Hospital  for  the  Insane,  2340-2348. 

(See  Insane  Hospital.) 
Government  Works,  Injuries  to,  1122-1132. 
Gratuitous  Issues  (see  Issues): 

clothing,  750. 

ordnance,  1182, 1183. 
Guano  Islands,  Protection  of,  2094-2102. 
Gunners,  Increased  Pay  to,  1444. 
Habeas  Corpus: 

appeals,  358-360. 

body  of  petitioner,  production  of,  353. 

form  of  return,  351,  note. 

issue  of  writ,  350. 

power  to  issue  writ,  346-350. 

return,  to  writ,  351-356. 

State  courts,  j  urisdlction  in,  361. 

suspension  of  privilege,  361a. 
Harbor  Lines: 

District  of  Columbia,  1121. 

dredging  beyond,  1120. 

establishment,  1118. 

extensions  of  piers,  etc.,  1119. 

permits,  1119. 

restriction  on  dredging,  1120. 
Harbor  Regulations: 

District  of  Columbia,  1147-1150. 
Harpers  Ferry,  Marking  Lines  of  Battle  at,  2419. 
Hawaiian  Islands,  Enforcement  of  Law  In,  2068. 
Hazing  at  Military  Academy,  1495.     (See  Military 

Academy.) 
Headquarters: 

clerks',  572,573. 

location,  574. 

messengers',  572,  573. 
Heads  of  Bureaus  (see  Chiefs  of  Bureaus): 

succession  to  office,  14. 

vacancies,  temporary,  13-19. 
Heads  of  Executive  Departments   (see  Executive 
Departments) : 

absence,  performance  of  duty,  13. 

accounting- 
regulations  for,  208. 
rules  for,  634. 

chief  clerks'  reports,  22,  23. 

Comptroller's  decisions  in  accounting,  192. 

details  of  clerks,  35. 

distribution  of  clerks,  35. 

estimates,  62-78. 

opinions  of  Attorney-General,  2. 

reduction  of  clerks  in  grade,  36,  37. 

regulations,  20. 
for  property  returns,  1636. 

reports,  86-92. 

reports  of  chief  clerk,  22, 23. 

vacancy  in  office,  succession,  13,  15, 16. 


1132 


INDEX. 


Holidays,  46-48. 

Homesteads,  1584-1592. 

Honorable-Service  Boll,  Prohibition  of,  30. 

selling,  losing,  etc.,  1649;  17  A.  W. 

restriction  on — 
number,  728-732. 
purchases,  729-732. 

transportation,  720,  note. 

Hospital  Corps  (see  Hospital  Stewards,  and  Hos- 
pitals): 

acting  hospital  stewards,  914,  920,  924. 

composition,  914. 

duties,  922. 

hospital  stewards,  915-921. 

pay,  919. 

privates,  914. 

Hospital  Stewards  (see  Hospital  Corps,  and  Hos- 
pitals): 

allowances,  919. 

appointment,  915. 

credit  for  volunteer  service,  921. 

examination,  920,  921. 

number,  915-917. 

pay,  919. 

quarters,  736,  931. 

rank,  919. 

qualifications,  920,  921. 

Hospitals  (see  Hospital  Corps,  and  Medical  Depart- 
ment): 

matrons,  929,  930. 

nurses,  930. 

quarters  for  stewards,  931. 

rations  to— 
matrons,  773. 
nurses,  773. 
Hot  Springs,  Ark. : 

Army  and  Navy  Hospital,  936-939. 
House  of  Representatives: 

franking  privilege,  100,  322-325. 
Hydraulic  Mining  (see  California  Debris  Commis- 
sion), 1056-1072. 

Increased  Pay  (see  Commissioned  Officers,  and  Pay 
of  Enlisted  Men) : 

commissioned  officers,  814-816. 

enlisted  men,  865,  866. 
Indian  Agencies  (see  Indian  Agents,  and  Indians) : 

buildings,  sale  of,  1939,  1940. 

consolidation,  1917. 

discontinuance,  1916. 

limits  of,  1901. 

transfer  of,  1918,  1919. 
Indian  Agents  (see  Indian  Agencies,  and  Indians) : 

acknowledgments,  1910. 

additional  security,  1915. 

Army  officers  as,  1903,  1904. 

bonds,  1900. 

compensation  to  be  in  full,  1913. 

discharge  of  employees,  1920. 

duties,  1897,  1909-1911, 1921. 

investigations,  1911. 

limits  of  agency,  1901. 

oaths,  administration  of,  1909, 1911. 

residence,  1902. 

restriction  on  compensation,  1905. 

restriction  on  office  holding,  1912. 

special  agent,  1906. 

sub-agents,  1907. 


Indian  Agents — Continued. 

superintendent  of  manual  training  school  to 
act  as,  1908. 

tenure  of  office,  1899. 

travel  expenses,  1914. 

Indian  Country  (see  Indian  Reservations,  and  In- 
dians): 

arson,  1991. 

assault,  1990. 

burglary,  1994. 

forgery,  1986. 

horse  stealing,  1993. 

laws  extended  to,  1987, 1988. 

rape,  1992. 

removal  of  intruders,  2000-2005. 

robbery,  1994. 

Indian  Department  (see  Indian  Agents,  and  In- 
dians): 

officers  of  Army  to  be  detailed  as  agents,  1333. 
Indian  Police,  2011-2014. 

Indian  Reservations  (see  Indian  Country,  and  In- 
dians) : 

cattle,  sale  or  removal  of,  1973,  1974. 

crimes  and  offenses,  1986-2010. 

expulsion  of  foreigners,  1968. 

government  of  Indians,  1941-1959. 

hunting  on,  forbidden,  1972. 

liquor,  introduction  or  sale  of,  1975-1985. 

police,  2011-2014. 

process  on,  2006-2008. 

protection  of  Indians,  1941-1959. 

removal  of  persons,  2000-2005. 

removing  cattle,  penalty,  1973. 

sales  of  arms,  1970,  1971. 

sales  of  cattle,  penalty,  1974. 

service  of  process  on,  2006-2008.  • 

timber  depredations,  1999,  2000. 

traders,  1960-1967. 
Indian  Scouts,  506. 

pay,  864. 

strength,  606. 
Indian  Traders: 

appointments,  1960,  1961. 

licenses  to  trade,  1962-1967. 
Indian  Wars,  Pensions  for,  2167-2174. 
Indians  (see  Indian  Agencies,  Indian  Agents,  In- 
dian Country,  and  Indian  Reservations): 

abrogation  of  treaties  with,  1923. 

absconding,  arrest  of,  2006. 

agents,  1898-1921. 

annuities,  1924,  1925,  1929-1938. 

arms,  sales  to,  1969-1971. 

crimes  in  connection  with,  1986-2010. 

Army  officers  as  agents,  1903,  1904. 

Commissioner  of  Indian  Affairs,  1894,  1895. 

government  and  protection,  1941-1959. 

inspectors,  1896,  1897. 

issues  of  army  rations  to,  774. 

liquor,  introduction  and  sale,  1975-1985. 

not  permitted  to  enter  Texas,  2010. 

offenses  against,  1994. 

performance  of  engagements  with,  1922-1940. 

police,  2011-2014. 

prohibited  purchases  and  sales,  1969-19.71 

purchases  from,  718. 

reparation  for  injured  property,  1996-1998. 

sales  of  arms  to,  1970-1971. 


INDEX. 


1133 


Indians— Continued. 

Secretary  of  Interior,  powers,  etc.,  1893, 1894. 

subject  to  criminal  laws,  1989. 

traders,  1960-1974. 

treaties  with,  not  to  be  made,  1922. 
Infantry  (see  Infantry  Regiments): 

bands,  1448. 

battalion  staff,  1449. 

increase  in  strength,  1451. 

colored  regiments,  1446. 

companies,  1450. 

composition,  1445. 

organization,  1445. 

Porto  Rican  regiment,  p.  1065. 

regiment,  p.  1051. 

regimental  staff,  1445, 1447. 
Infantry  Regiments  (see  Infantry): 

bands,  1448. 

battalions,  1445,  1449. 

colored  regiments,  1446. 

companies,  1450. 

composition,  1445. 

details,  1447. 

increase  in  strength,  1451. 

staff,  1445,  1447. 

Infantry  and  Cavalry  School,  1518. 
Inferior  Courts  (see  Garrison  Courts- Martial,  Regi- 
mental Courts-Martial,  and  Summary  Court): 

disposition  of  records,  700, 701. 

garrison  courts,  1853;  82  A.  W. 

jurisdiction,  1851-1861. 

power  to  punish,  1854. 

redress  of  wrongs,  1852;  30  A.  W. 

regimental  courts,  1851;  81  A.  W. 

summary  court,  1855-1861. 
Injuries  to  Public  Works,  1122-1132. 
Insane,  Government  Hospital  for,  2340-2348. 
Insane  Hospital: 

admissions,  2344. 

appropriations,  2345. 

asylums  in  California,  2348. 

discharges,  2331. 

establishment,  2340. 

funds  of  inmates,  2343. 

inmates  of  Government  Asylum  for  the  Insane, 
2346. 

pensions  to  inmates,  2347. 

superintendent,  2342, 2343. 

supervision,  2341. 
Insignia  of  Societies,  1360-1363. 
Inspector-General's   Department    (see    Inspector- 
General  s  Office): 

administration  of  oaths,  691. 

composition,  680. 

designation  of  articles  for  sales,  690. 

details,  682, 683. 

duties,  685,686,688-691. 

examinations  for  promotion,  681. 

expert  accountant,  684. 

historical  note,  p.  263. 

inspections,  685-691. 

National  Home,  inspection  of,  688, 2295. 

organization,  680;  p.  1053. 

promotions,  681. 

public  works,  inspection  of,  685,  686. 

restriction  on  mileage,  687. 

Soldiers'  Home,  inspection  of,  689,  2266.     . 


Inspector-General's  Office  (see  Inspector- Genera? s 

Department) : 

clerical  force,  184,  note. 
Inspections: 

disbursements,  625,  626,  685,  686. 

fuel,  in  District  of  Columbia,  83-85, 1578-1580. 

reports,  626. 
Insular  Possessions: 

extra-duty  pay  forbidden  in,  747. 
Intercourse: 

suspension  of,  2029-2050. 
Interior  Department: 

duties,  452,  453. 

establishment,  451. 
Inventions : 

patents  on,  1201. 

prohibition  of  expenditures  on,  1200. 
Iowa  River: 

a  navigable  water,  1093. 

Issues  (see  Gratuitous  Issues,  and  Quartermaster's 
Department) : 

civilians,  771,  note. 

forage,  740,  741. 

fuel,  738,  note. 

ordnance,  1167,  1168. 

rations,  766. 

visiting  Indians,  774,  note. 
Isthmian  Canal  Commission,  1082-1086. 
Job  Printing,  710. 
Judge- Advocate-General: 

custodian  of  records  of  courts-martial,  696. 
Judge-Advocate-General's  Department  (see  Judge 
Advocate-  General' s  Office) : 

administration  of  oaths,  699. 

appointments,  694. 

composition,  692. 

details,  695. 

duties,  696-699. 

historical  note,  p.  268. 

judge-advocates'  duties,  698. 

organization,  692;  p.  1053. 

professor  of  law  at  the  Military  Academy,  698. 

promotions,  693. 

records  of  trials  by  court-martial,  700,  701. 
Judge- Advocate-General's  Office  (see  Judge-Advo1 
cote-General's  Department): 

clerical  force,  134. 

Judge- Advocates  of  Courts  (see  General  Courts' 
Martial,  and  Judge-Advocate-General's  De- 
partment): 

appointment,  1798;  74  A.  W. 

authentication  of  record,  1839,  note. 

closed  sessions,  withdrawal,  1830. 

counsel  for  accused,  1800;  90  A.  W. 

duties,  1799;  90  A.  W. 

oath,  1804,  1805;  84,  85  A.  W. 

record  of  proceedings,  113  A.  W. 
Labor  Day,  48. 
Labor : 

bonds  to  secure  payment  for,  1576,  1577. 

hours  of,  52,  63. 
Laborers: 

extra-duty  pay,  742,  745. 

salaries,  38. 

Land-Grant  Railroads,  722,  725. 
Lands  (see  Acquisition  of  Land,  and  Public  Lands): 

acquisition,  1593-1599. 


1134 


INDEX. 


Lands — Continued. 

examination  of  titles,  334,  335. 

purchases,  authority  of  law  for,  1593-1595. 
Lapsed  Salaries,  28.     (See  Salaries.) 
Larceny: 

penalty,  660. 
Law  Books: 

purchases  of,  58. 
Law  of  War,  2112. 
Leases  of  Public  F   jperty,  1620. 
Leaves  of  Absence  (see  Absence),  clerks,  etc.,  43-45. 

commissioned  officers,  826-828. 

cumulation,  1287. 

employees  at  arsenals,  1196. 

female  nurses,  927. 

nurses,  927. 

pay  during,  826-828. 

sick  leaves,  43-45,  1286. 
Legal  Services: 

how  procured,  342-344. 
Legal  Tender,  305-308. 
Letters  (see  Official  Letters) : 

penalty  envelopes,  100,  320-326. 

registry,  327. 
Libraries: 

Executive  Departments,  109. 
Library  of  the  Surgeon-General's  Office,  940. 
Lieutenant- Colonel : 

relative  rank,  564. 
Lieutenant-Commander  (Navy) : 

relative  rank,  564. 
Lieutenant-  General : 

aids,  556. 

military  secretary,  566. 

relative  rank,  564. 

historical  note,  p.  206. 
Lieutenants: 

relative  rank,  564. 
Lieutenants,  Senior  and  Junior  Grade  (Nary): 

relative  rank,  564. 
Light- House  Board,  1021-1028. 

composition,  1021,  1022,  1026. 

duties,  1023. 

inspectors,  1026. 

purchases,  1024, 1025. 
Limited  Retired  List,  1301,  1302. 
Limits  of  Punishment,  1838.     (See  Punishment.) 
Line  of  the  Army : 

artillery  corps,  1429;  p.  1049. 

cavalry,  1419-1428;  p.  1048. 

engineer  battalions,  962. 

infantry,  1445-1461;  p.  1051. 
Liquor: 

introduction  and  sale  on  Indian  reservations, 
1975-1985. 

sale  of— 

at  exchanges,  1630. 

in  buildings  used  for  military  purposes,  1630. 
Loaning  Public  Money,  646. 
Logs: 

floating  of,  in  navigable  waters,  1128,  1129. 
Longevity  Pay,  818-823. 
Louisiana: 

rivers  in,  1092. 
Magazine  Small  Arms,  1202. 
Major: 

relative  rank,  564. 


Major-General: 

aids,  557. 

forage,  740. 

fuel,  738,  note. 

historical  note,  p.  203. 

quarters,  738. 

relative  rank,  564. 
Makoqueta  River,  Iowa,  10%. 
Mall  Matter: 

classification,  316. 

franking  privilege,  320-327. 

rates  of  postage,  317. 

registry,  327. 

soldiers'  letters,  317. 

special  delivery,  318,  319. 
Maps: 

sale  of,  140,  141. 
Marine  Band,  435. 
Marine  Corps  (sec  Navy  Department): 

age  limit,  423. 

allowances,  429. 

appointments,  421-424. 

commandant,  420. 

composition,  419. 

courts-martial,  446. 

duty  on  shore,  443. 

enlisted  strength,  434. 

enlistments,  436. 

examinations,  423,  424. 

forage,  commutation  prohibited,  430. 

oath  of  enlistment,  437. 

organization,  442. 

pay,  429. 

rations,  439-441. 

regulations,  444. 

relative  rank,  427. 

retirement  of  officers,  431,  432. 

shore  duty,  443. 

staff,  425,  426. 

vacancies,  422. 
Marines  (see  Marine  Corps): 

issues  of  subsistence,  766. 
Marking: 

as  punishment,  prohibited,  1833. 
Materials: 

bonds  to  secure  payment  for,  1576-1577. 
Matrons,  Hospital  (see  Hospitals): 

rations,  773. 
Maximum  Punishment  Code,  pp.  1067-1073.     (See 

Punishment.) 
Means  of  Transportation  (see  Transportation): 

procurement,  726. 
Meat  Issues: 

proportion,  770. 

Medals  of  Honor,  1356,  1357.     (See  Decorations.) 
Medical  Attendance: 

commissioned  officers,  911. 

enlisted  men,  911. 

families,  911. 

nurses,  927. 

Medical  Department  (see  Staff  Departments,  and 
Surgeon- General's  Office) : 

appointments,  902. 

army  medical  museum,  940,  941. 

artificial  limbs,  942-952.     (See  Artificial  Limbs.) 

attendance,  911. 

command  of  officers,  508, 913. 


INDEX. 


1135 


Medical  Department— Continued. 

composition,  899,  901. 

contract  surgeons,  902;  p.  1056. 

cooking,  supervision  of,  912. 

credit  for  service,  905. 

dental  surgeons,  903,  904;  p.  1056. 

duties,  910-913. 

examinations  for— 
appointment,  902. 
promotion,  903,  904. 

female  nurses,  925-928. 

headquarters,  location,  574. 

historical  note,  p.  363. 

Hospital  Corps,  914-924. 

hospitals,  929-931. 

Hot  Springs,  Ark.,  hospital,  936-939. 

library,  940. 

nurse  corps,  925-928;  p.  1057. 

nurses,  pay,  858-861. 

organization,  899,  901;  p.  1055. 

promotions,  903, 904. 

purchases,  932, 933. 

rank  and  precedence,  901. 

relative  rank,  906. 

sales  of  medical  supplies,  934, 935. 

trusses,  950-952. 

volunteer  surgeons,  900. 

volunteers,  519. 
Member  of  Congress  (see  Penalty  Envelope): 

consideration  for  obtaining  office,  178. 

contracts,  not  to  be  interested  in,  178. 

franking  privilege,  322-325. 
Messengers  at  Headquarters,  572,  573. 
Messengers  of  Executive  Departments: 

salaries,  38. 
Mess  Furniture: 

purchases,  714. 
Messes: 

purchases  for,  714. 
Mexican  War  Pensions,  2157-2166. 
Mileage  (see  Pay  Department,  and  Travel  Allow- 
ances] : 

deduction  for  transportation  in  kind,  721-725, 
843-845. 

duty  to  be  stated,  838. 

necessity  for  travel  to  be  stated,  837. 

orders  involving  payment  of,  838. 

payments  of,  by  Pay  Department,  848,  849. 

rate,  837-840. 

restriction  on  payment  of,  687,  846. 

river  and  harbor  works,  1110. 

route,  837-840. 

sea  travel,  841. 

tables  of  distances,  840. 
Military  Academy  (see  Cadets): 

academic  staff,  1458-1460. 

adjutant,  1477. 

admission,  qualifications  for,  1481,  1482. 

appointment  of  cadets  on  graduation,  1486-1488. 

appointments  of  officers  and  professors,  1463. 

army  service  men,  1509-1511. 

assistant  librarian,  1476. 

assistant  professors,  1474,  1475. 

band,  1508. 

Board  of  Visitors,  1497-1500. 

chapels,  1513. 

chaplain,  1461. 


Military  Academy— Continued. 

commandant  of  cadets,  1466,  1469. 

commissary  of  cadets,  1478. 

contingent  funds,  1506,  1507. 

corps  of  cadets,  1479-1496. 

courts-martial  for  trial  of  cadets,  1495. 

Cullum  memorial,  1512. 

details  of  officers,  1464, 1465. 
-  examination  for  admission,  1482. 

graduation  of  cadets,  1486-1488. 

hazing,  1496. 

instruction  of  cadets,  1489-1494. 

leaves  of  absence,  1501. 

librarian,  1476. 

master  of  the  sword,  1472, 1473. 

organization,  1458-1478. 

physiology,  instruction  in,  1492, 1493. 

professors,  1458-1460. 

professor  of  law,  698, 1459. 

promotion  of  graduates,  1486. 

purchases,  1505. 

quartermaster  of  cadets,  1478. 

restriction  on  details,  1465. 

selection  of  officers  for  detail,  1464, 1465. 

study  on  Sunday,  1491. 

superintendent,  1458, 1463, 1466-1468. 

supervision,  1462. 

Military  Commissions,  1862.     (See  Military   Tri- 
bunals. ) 
Military  Establishment: 

composition,  495-508. 

militia,  495,496. 

national  forces,  495. 

peace,  499-508. 

Regular  Army,  496, 497, 499-508. 

Volunteer  Army,  495, 497, 498, 517-528, 543-554. 

war,  509-514. 
Military  Force  (see  Employment  of  Military  Force): 

restriction  on  employment  of,  2093. 
Military  Headquarters: 

location,  574. 

clerks,  572,  573. 

messengers,  572,  573. 
Military  Occupation  of  Cuba,  2112. 
Military  Secretary,  556. 

appointment,  556. 

rank,  556. 

pay  and  allowances,  556. 
Military  Storekeepers: 

quartermasters'  department,  706. 

ordnance,  1169-1171. 

Military  Telegraph  Lines  (see  Telegraph,  and  Tele- 
graph Lines) : 

Alaska,  lines  in,  1231. 

commercial  business  over,  1232. 

construction,  1227,  1231. 

injuries  to,  penalty,  1234. 

receipts  to  be  turned  into  Treasury,  1232,  1233. 
Military  Tribunals  (see  Courts- Martial): 

arraignment,  1808. 

arrest  and  confinement,  1782-1788. 

behavior  of  members,  1806. 

challenges,  1802. 

charges  and  specifications,  1785,  note  2;  1786. 

closed  sessions,  1830. 

contempt  of  court,  1807. 

continuances,  1803. 


1136 


INDEX. 


Military  Tribunals— Continued. 

counsel  for  accused,  1800. 

courts  of  inquiry,  1863-1869. 

depositions,  1828. 

District  of  Columbia  militia,  1761-1765. 

evidence,  1814-1828. 

fees  of  witnesses,  1812-1814. 

findings,  1829. 

general  courts-martial,  1789-1794. 

inferior  courts-martial,  1851-1861. 

interpreters,  1801. 

judge-advocates,  1798-1800. 

jurisdiction,  1795-1797. 

limits  of  punishment,  1838. 

military  commissions,  1862. 

militia,  1688-1690. 

oath— 

judge-advocate,  1805;  86  A.  W. 
member,  1804;  84  A.  W. 
witness,  1809;  92  A.  W. 

record,  1839-1841. 

refusal  of  civilian  witness  to  testify,  1811. 

reporters,  1801. 

reports  of  prisoners,  1787. 

reviewing  authority,  1843-1850. 

revision  proceedings,  1842. 

sentences,  1831-1837. 

witnesses,  1809-1813. 
Militia: 

acceptance  in  volunteer  service,  520,  523. 

active  service,  1669-1674. 

apportionment,  2021. 

appropriations  for,  1691-1694. 

armament,  1691-1706. 

artillery,  1659. 

cavalry,  1659. 

command,  2. 

composition,  1650-1655. 

courts-martial,  fines,  etc.,  1688-1690. 

discipline,  1662,  1663. 

District  of  Columbia,  1707-1776.     (See  District  of 
Columbia  Militia.) 

enrollment,  1650-1655. 

equipment,  1691-1706. 

exemptions,  1655. 

expenses  of  enrollment,  1679, 1680. 

field  organization,  1675-1678. 

forage,  etc.,  1684. 

half  pay,  pension,  etc.,  1685-1687. 

horses,  use  of,  1684. 

infantry,  1676. 

instruction,  1662, 1663. 

organization,  1656-1661. 

pay,  878a. 

pay,  rations,  etc.,  1681-1684. 

power  of  Congress  over,  2015. 

property  returns,  1690. 

rations,  etc.,  1681-1684. 

returns,  133, 1664-1668. 

service  in  volunteers,  520. 

subject  to  Articles  of  War,  2021. 

Territorial,  1777-1781. 

travel  allowances,  1679,  1680. 
Mines: 

injuries  to,  penalty,  1090. 
Minors : 

enlistment  of,  672, 673. 


Mints: 

depositories  of  funds,  287, 288. 
Mississippi  Hirer  Commission,  1029-1043. 

annual  report,  1036. 

composition,  1030. 

duties,  1032-1034. 

engineer  secretary,  1036. 

material  for  improvements,  1037. 

piers  and  cribs,  1039. 

South  Pass,  1040-1042. 

water  gauges,  1043. 
Missouri  Hirer  Commission,  1044-1048. 

annual  report,  1048. 

composition,  1045. 

duties,  1046. 

supervision  of  expenditures,  1047. 
Morning  Gun: 

provision  for,  1184. 
Mounted  Pay,  810. 
National  Banks: 

depositories,  289,  290. 

notes  of,  legal  tender,  307. 
National  Cemeteries,  2448-2465. 

acquisition  of  lands,  2449-2451. 

City  of  Mexico,  2463,  2464. 

criminal  offenses,  2461,  2462. 

encroachments  by  railroads,  2465. 

headstones,  2455,  2456. 

inclosures,  2455-2457. 

interments,  2458-2460. 

jurisdiction,  2461,  2462. 

maintenance,  2448. 

registers,  2457. 

superintendents,  2452-2464. 
National  Forces: 

composition,  495,  496. 
National  Homes  (see  Soldiers'  Home): 

accounts,  2316-2318. 

admission  of  inmates,  2325. 

annual  report,  2296. 

appointment  of  officers,  2298. 

appropriations,  2305,  2308,  2309. 

board  of  managers,  2287-2291. 

bonds,  2292,  2294,  2303,  2304. 

branch  homes,  2298-2304,  2319,  2320. 

discipline,  2332. 

election  of — 
managers,  2288. 
officers,  2289. 

establishment  of  branch  homes,  2319,  2320. 

estimates  and  appropriations,  2305-2309. 

expenditures,  2310-2315. 

expenses  of  managers,  2290. 

franking  privilege,  2338. 

general  officers,  2289-2293. 

general  treasurer,  2292-2294. 

insane  patients,  2331. 

inspection,  688,  2295. 

jurisdiction  over  lands,  2339. 

managers,  2287-2291. 

medical  officers,  2299. 

officers  of  branch  homes,  2298-2304. 

ordnance,  issues  of,  2334,  2335. 

out-door  relief,  2327. 

pensions  to  inmates,  2328-2330. 

public  documents,  2337. 

purchases,  2310-2315. 


INDEX. 


1137 


National  Homes— Continued. 

reduced  rates  of  transportation  to  inmates,  2336. 

salaried  officers,  2291. 

salaries  to  be  classified,  2300. 

supplies,  how  procured,  2310. 

transfer  of  inmates,  2326. 

travel  expenses,  2302. 
National  Military  Parks: 

Antietam  battlefield,  2414,  2422. 

arrests  of  trespassers,  2354. 

Chattanooga  National  Military  Park,  2355-2382. 

Chickamauga  and  Chattanooga  Park,  2355-2382. 

ejectment  from  purchased  lands,  2355. 

general  requirements,  2349-2355. 

Gettysburg  National  Park,  2379-2395. 

injuries  to  monuments,  trees,  etc.,  2361. 

maneuvers,  use  for,  2349. 

protection  of,  2351-2355. 

regulations  for  use,  2350. 

Shiloh  National  Military  Park,  2396-2406. 

superintendents,  power  to  arrest,  2354. 

trespassing,  hunting,  shooting,  etc.,  2352,  2353. 

Vicksburg  National  Military  Park,  2407-2414. 
National  Parks,  2423-2447. 

Yellowstone  National  Park.  2423-2447. 
Native  Troops: 

Philippine  Islands,  501-504;  p.  1064. 

Porto  Rico,  505;  p.  1065. 
Naturalization  (see  Citizenship) : 

alien  enemies,  not  admitted,  1888. 

alien,  honorably  discharged,  1882,  1883. 

aliens  of  African  descent,  1886. 

children  of  declarant,  1885. 

children  of  naturalized  persons,  1889. 

declaration  of  intention,  1881. 

minors,  1884. 

police  court  of  District  of  Columbia,  1890. 

procedure,  1880,  1881. 

protection  to  naturalized  citizens,  1878,  1879. 

seamen,  1891. 

widow  of  declarant,  1885. 

Navigable  Waters  of  the  United  States,  1091-1150. 
(See  River  and  Harbor  Works.) 

deposits  in  prohibited,  1124. 

floating  logs  and  timber,  1128,  1129. 

obstruction  of,  by  sunken  vessels,  1132a,  1133. 

obstructions  to  navigation,  1122. 

rivers,  1091-1097. 
Navy  Department  (see  Marine  Corps): 

administration  of  oaths,  450. 

detail  of  naval  officers,  448. 

establishment,  418. 

Marine  Corps,  419-446. 

punishments  on  war  vessels,  449. 

supervisor  of  New  York  Harbor,  1136, 1137, 1143. 

transfers  to  Navy,  447. 
Neutrality: 

enforcement  of,  2069-2079. 
Newspapers  (see  Pamphlets): 

purchase  of,  56,  57. 

restriction  on  payments  for,  181. 
New  Year's  Day,  46. 
New  York  Harbor: 

arrests,  1139,  1146. 

boats  carrying  deposits,  1138. 

bribery,  1140. 

deposits  1134-1146. 

22924—08 72 


New  York  Harbor— Continued. 

disposition  of  dredged  material,  1142. 

fishing  in  channel  forbidden,  1144. 

inspectors,  1139, 1140. 

penal  clauses,  1145. 

permits  for  deposits,  1136,  1141. 

supervisor,  duties,  1136, 1137, 1143. 
Northern  Pacific  Railroad,  2064. 
Nurse  Corps: 

allowances,  926-928;  p.  1057. 

appointments,  925;  p.  1057. 

chief  nurses,  925;  p.  1057. 

composition,  925:  p.  1057. 

leave  of  absence,  927;  p.  1057. 

medical  attendance,  927;  p.  1057. 

nurses,  927;  p.  1057. 

pay  and  allowances,  858-861,  926-928;  p.  1357. 

qualifications,  925;  p.  1057. 

reserve  nurses,  925;  p.  1057. 

subsistence,  927;  p.  1057. 

superintendent,  925;  p.  1057. 

travel  expenses,  928;  p.  1057. 
Nurses  (see  Nurse  Corps) : 

pay,  858-861,  926-928;  p.  1057. 

rations,  773. 
Oaths: 

administration,  49-51,  69,  128,  159-161. 

administrative  purposes,  1816. 

Court  of  Claims,  374. 

courts  of  inquiry,  1866;  117  A.  W. 

custody  of,  162. 

fees  for  administration,  49,  50, 128. 

form  of  official,  155, 158. 

judge-advocate,  1805;  85  A.  W. 

member  of  court,  1804;  84  A.  W. 

navy,  450. 

postmasters,  314,  315. 

witness,  courts-martial,  1809;  92  A.  W. 

witnesses  in  claims  cases,  386. 
Obstructions  to  Navigation,  1115.    (See  Engineer 
Department,  and  Navigable  Waters  of  the  United 
States.) 
Office  (see  Commissioned  Officers,  and  Salaries): 

oaths  of,  155-162. 

consideration  for  obtaining,  prohibited,  178. 

removal,  report  to  Congress,  180. 

restrictions  on,  151,  152,  166-169. 

Statutes  at  Large,  preservation,  182. 

failure  to  make  returns,  171. 
Officer  In  Charge  of  Public  Buildings  and  Grounds: 

telegraph  line  to  Capitol,  101,  102. 
Official  Letters  (see  Letters): 

free  transmission,  320-327. 

penalty  envelopes,  100,  320-327. 

registry,  327. 

special  delivery,  318,  319. 
Official  Register,  92a. 
Opinions: 

Attorney-General,  336-339. 

heads  of  Departments,  2. 
Orders  for  Travel: 

duty  to  be  stated,  838. 

necessity  to  be  stated,  837. 

routes,  837-840. 
Ordnance: 

issues  to  colleges,  1296. 


1138 


INDEX. 


Ordnance  and  Fortification  (see  Board  of  Ordnance 
and  Fortifications): 

board  of,  1209-1217. 

Ordnance  Department  (see  Chief  of  Ordnance, 
Board  of  Ordnance  and  Fortifications,  and 
Staff  Departments) : 

accountability,  1172-1176. 

ammunition  for  morning  and  evening  gun,  1184. 

arms,  armories,  and  arsenals,  1190-1204. 

artificers,  1165. 

board  for  testing  rifled  cannon,  1186. 

calibers,  etc.,  to  be  furnished  to  makers,  1186. 

chief  ordnance  officers,  1161. 

clerical  force,  134. 

composition,  1151. 

cost  of  arms  for  militia,  credit  of,  614. 

damages,  reports  of,  1175. 

depots,  1168. 

details,  1154-1156. 

distribution  of  arms  to  States,  1195. 

duties,  1166-1168. 

enlisted  men,  1162-1165. 

evening  gun,  1184. 

examinations  for  promotion,  1152,  1153. 

expenses  of  officers  at  proving  ground,  1188. 

extra-duty  pay,  742. 

gratuitous  issues,  1183. 

historical  note,  p.  458. 

issues,  1167. 

issues  of  arms  to  Executive  Departments,  1204. 

issues  to  National  Homes,  2334,  2335. 

issues  to  States,  credits,  1179. 

loans  of  ordnance,  1182. 

magazine  arms,  1202. 

miscellaneous  purchases,  1189. 

morning  gun,  1184. 

obsolete  material,  sales,  1177, 1178. 

ordnance  sergeants,  1162, 1163. 

ordnance  storekeepers,  1158-1160. 

organization,  1151;  p.  1059. 

per  diem  to  officers,  1188. 

principal  assistant,  pay,  1157. 

promotion,  fourteen  years'  service,  591. 

promotions,  1152,  1153. 
under  fourteen-year  rule,  591. 

proving  ground,  1185,  1188. 

purchases,  1169-1171. 

regulations  for  returns,  1174. 

restriction  on  payment  of  freight,  1181. 

returns,  1173, 1174. 

sales  of  obsolete  material,  1177,  1178. 

sale  of  useless  ordnance,  1178. 

sales  by  States,  credits,  1180, 1181. 

smoothbore  cannon,  sales,  1187. 

testing  machine,  1205-1208. 
Ordnance  Sergeants,  1162,  1163. 
Organization: 

tactical,  570,  571. 

Outstanding  Checks,  309-311.     (See  Checks.) 
Pacific  Coast: 

advertising  and  deliveries,  712. 
Pack  Animals: 

restriction  on  purchases,  728. 
Pamphlets  (see  Newspapers): 

purchase  of,  57. 
Pardoning  Power: 

restriction  on,  2. 

where  vested,  2. 


Pardons  (see  Pardoning  Pmver): 

conditional,  1808,  note  (p.  700). 

power  to  grant,  2. 
Pay  (see  Pay  Department) : 

absence  with  leave,  826-828. 
without  leave,  829.  , 

advances,  812,  813. 

cadets  on  graduation,  1485,  1488. 

civilian  employees,  748. 

claims  of  States  for  reimbursement,  223-225. 

commissioned  officers,  807-829. 

enlisted  men,  862-S88. 

extra-duty,  742-747. 

extra,  restriction  on,  169. 

extra,  to  volunteers  on  discharge,  536-539. 

Indian  scouts,  506. 

Marine  Corps,  429. 

matrons,  857. 

militia,  808,  1681,  1683,  1684. 

mounted,  810. 

native  troops,  502-504,  505. 

nurses,  858-861. 

officers  in  arrears,  170. 

troops,  800-804. 

volunteers,  527,  528,  808. 

Pay  Department  (see  Accounts,  and   Disbursing 
Officers) : 

absence,  pay  during,  826-828. 

accounts,  settlement  of,  216,  217. 

additional  paymasters,  793,  794. 

advances  of  pay,  812,  813. 

allotments,  871-875. 

bonds,  798. 

certificates  of  merit,  883. 

check,  payments  by,  803. 

clerks,  805,  806. 

command  of  officers,  569,  804. 

commutation  of  quarters,  830-835. 

composition,  792-794. 

continuous-service  pay,  869,  870, 1375. 

deductions,  850-856. 

deposits,  879-882. 

details,  796,  797. 

enlisted  men,  862-888. 

examinations  for  promotion,  795. 

express,  payments  by,  803. 

higher  command,  814, 815. 
pay  of,  814, 815. 

historical  note,  p.  347. 

longevity  pay,  818-823. 

matrons,  857. 

mileage,  837-849. 

nurses,  858-861;  p.  1057. 

organization,  792-794;  p.  1058. 

payments  to  troops,  800-804. 

promotions,  795. 

renewal  of  bonds,  798. 

retired  enlisted  men,  876-878. 

retired  officers,  824. 

restriction  on  allowances,  817. 

stoppages,  852-856. 

travel  allowances,  837-849. 

travel  pay   on  discharge,  commissioned   offi- 
cers, 850. 
enlisted  men,  887,888. 

volunteer  paymasters,  793, 794. 

volunteers,  823a. 


INDEX. 


1139 


Pay  of  Commissioned  Officers,  807-829  (see  Cam- 
missioned  Officers)'. 

advances,  812,  813. 

absence,  826-828. 

deductions,  850-856. 

foreign  service,  etc.,  816. 

higher  command,  814,  815. 

longevity  pay,  818-823. 

militia,  808. 

mounted  officers,  810. 

rates,  807-811. 

retired  officers,  824,  825. 

stoppages,  850-856. 

travel,  850,  851,  1336-1338. 

volunteers,  823a. 

Pay  of  Enlisted  Men  (see  Pay,  Pay  Department,  and 
Payments) : 

absence  on  furlough,  884. 

absence,  pay  during,  884. 

absence  without  leave,  885. 

allotments,  871-875. 

assignments  prohibited,  898. 

captivity,  pay  during,  886. 

certificates  of  merit,  883,  1358,  1359. 

clothing  allowances  893,  894. 

continuous  service,  869,  870. 

cooks,  1457. 

damages  to  arms,  897. 

deductions,  889-898. 

deposits,  878-882. 

gunners,  1444. 

increase  for  foreign  service,  866, 
war,  865. 

Indian  scouts,  864. 

native  troops,  503,  504;  p.  1065. 

rates,  862-864. 

re-enlistment  pay,  868,  1374. 

retained  pay  prohibited,  867. 

retired  pay,  876-878. 

sea  travel,  888. 

stoppages,  889-898. 

travel  pay  on  discharge,  887,  888. 
Paymasters.     (See  Additional  Paymasters.) 
Paymaster-General  (see  Staff  Departments): 

duties,  799. 

tables  of  distances,  840. 
Paymaster-General's  Office: 

clerical  force,  134. 
Paymasters'  Clerks: 

appointment,  805. 

employment,  805. 

enlisted  men  as,  805. 

pay,  806. 

travel  allowances,  847. 
Payments  (see  Pay  Department): 

by  check,  803. 

by  express,  803. 

clerks  in  Departments,  27. 

enlisted  men,  800-804. 

frequency  of,  to  troops,  800-804. 

officers,  monthly,  836. 

troops,  800-804. 

volunteers,  527,  528,  878a. 
Peace     Establishment,    499-508.      (See     Regular 

Army.) 
Penalty  Envelopes,  100,  320-327.     (See  Envelopes.) 

character,  320, 321. 


Penalty  Envelopes — Continued. 

contents,  320. 

franking,  320-327. 

return  envelopes,  100,  326. 

Senators,  members,  etc.,  may  use,  100,  322-323. 

use,  100,  320-327. 
Penitentiary  (see  Prisoners) : 

confinement  in,  1837. 
Pensions: 

accrued  and  unclaimed,  2232-2234. 

agencies,  inspection  of,  2247. 

army  nurses,  2155,  2156. 

arrears,  2178-2185. 

assignments,  2235,  2236. 

attorneys'  fees,  2203-2211. 

children,  2137-2147. 

civil  employees,  2262. 

civil,  prohibited,  30. 

commencement,  2178-2185. 

Commissioner,  duties,  2113-2115. 

continuance  of,  2258. 

crimes  in  connection  with,  2253-2256. 

declarations  in  pension  cases,  2189-2201. 

dependent  pension  law,  2151-2154. 

evidence  and  declarations,  2189-2201. 

examining  boards,  2237-2246. 

general  pension  law,  2116-2136. 

in  addition  to  military  pay  method,  2261. 

increase  of,  2186-2188. 

Indian  wars,  2167-2174. 

inmates  of  National  Home,  2328-2330. 

inmates  of  Soldiers'  Home,  2280-2282. 

investigations,  2249-2252. 

limitation  in  filing  claims,  removal  of,  2202. 

Mexican  war,  2157-2166. 

nurses,  army,  2155,  2156. 

one  only  to  be  drawn,  2257. 

payment,  2212-2231. 

removal  of  limitation,  2202. 

special  acts  granting,  2175-21 77.  / 

suspension  of,  2248. 

unclaimed,  2232-2234. 

vested  right  to,  2248. 

widows,  2137-2147. 

withholding  of,  forbidden,  2259,  2260. 
Per  diem  to  Officers  at  Proving  Ground,  1188. 

on  Board  of  Ordnance,  etc.,  1217. 
Periodicals  (see  Newspapers) : 

purchases  of,  56-58. 
Permanent  Appropriations,  276. 
Permanent  Establishment,  499-508. 
Philippine  Islands,   Native    Troops,   501-504;   p. 
1064. 

allowances,  502-504. 

enlisted  men,  501. 

native  officers,  503. 

officers,  502, 503. 

organization,  501. 

pay,  502-504. 

restriction  on  number,  501. 

strength,  501. 
Political  Contributions  (see  Civil  Service): 

prohibition,  172-177. 
Pontoons : 

forms,  etc.,  prescribed  by  Chief  of  Engineers, 
971. 


1140 


INDEX. 


Poor  Debtors: 

discharge  of,  248, 249. 
Porto  Rico: 

native  troops,  p.  1065. 
Porto  BIcan  Regiment: 

allowances,  506, 

enlisted  men,  505. 

officers,  505. 

pay,  505. 

Posse  comltatus    (see    Employment    of    Military 
Force}: 

Army  not  to  be  employed  as,  2103. 
Postage: 

rates  of,  317. 

Post  Bakeries,  1550,  1628.     (See  Bakeries.) 
Post  Commander: 

summary  court  records,  701. 
Post  Commissary-Sergeants: 

allowances,  762. 

duties,  762. 

number,  762. 

pay,  762. 

selection,  762. 
Post  Exchange: 

buildings,  use  of,  1551. 

purchases  for,  715. 
restriction,  1551. 

sale  of  liquor,  etc.,  1630. 
Post  Gardens,  1551. 

purchases  for,  715. 

Post-Offices  at  Military  Camps,  329-331. 
Post-Office  Department  (see  Postmaster- General): 

establishment,  313. 

franking  privilege,  320-325. 

mail-matter  classification,  316. 

postage,  rates,  317. 

postmasters'  oaths,  314,  315. 

penalty  envelopes,  100,  320-327. 

purchases  of  envelopes,  328. 

registry  of  official  letters,  327. 

special  delivery,  318,  319. 
Post  Quartermaster- Sergeants: 

allowances,  707. 

appointment,  707. 

duties,  707. 

examination,  707. 

number,  707. 

pay,  707. 

selection,  707. 
Post  Schools  (see  Schools,  and  Service  Schools): 

furniture,  714. 

paper,  714. 

purchases  for,  714. 

text-books,  714. 
Post  Traders,  1626. 
Postage: 

rates  of,  317. 

special-delivery  stamps,  318,  319. 
Postmaster-General  (see  Post- Office  Department): 

contracts  for  envelopes,  328. 

post-offices  at  military  camps,  329-331. 

purchases  of  envelopes,  328. 
Postmasters: 

oath  of  office,  314. 
Posts  (see  Barracks): 

bakeries,  1550, 1628. 

buildings,  1621,  1623,  1624. 


Posts— Continued, 
coast  artillery,  1625. 
contracts  for,  restriction  on,  1623. 
exchanges,  1629. 
headquarters  at,  574. 
permanent  barracks,  1621. 
restriction  on  expenditures,  1549, 1621, 1623-1625. 
schools,  1627. 
title  papers,  1622. 
traders,  1626. 
Potomac  Park,  981-983. 
President  (see  Executive  Departments) : 
advances  of  funds  to- 
disbursing  officers,  617. 
persons  delinquent  in  submitting  accounts, 

640. 

persons  in  military  and  naval  service,  617, 812. 
apartments  for  Chief  of  Engineers  as  superin- 
tendent of  Washington  aqueduct,  998. 
appointing  power,  7-9. 
appointment  of — 

board  of  visitors,  Military  Academy,  1497. 
commanding  general  of  militia  of  District  of 

Columbia,  1713. 

Commissioner  of  Pensions,  2113. 
master  armorers,  1190. 
officers  and  professors  at  Military  Academy, 

1463. 

pension  agents,  2212. 
staff  officers  of  militia  of  District  of  Columbia, 

1714. 

superintendents  of  armories,  1190. 
army  retiring  board,  1306,  1310-1313. 
assignments  to  command,  566-569. 
assistants  to  engineer  commissioner  of  District 

of  Columbia,  1016. 
authority  to — 

accept  quotas  of  troops  of  the  States  and  Ter- 
ritories, etc.,  523. 

appoint  additional  paymasters,  793. 
assistant  treasurers,  286. 
chaplains,  1258. 

Civil  Service  Commissioners,  146. 
commissioner  to  prepare  a  new  edition  of 

the  Revised  Statutes,  469. 
commissioners  to  revise,  etc.,  general  laws 

of  the  United  States,  454. 
general  officers,  559,  560. 
natives  to  commissions,  503. 
officers  of  Regular  Army  in  volunteer  organ- 
izations, 521. 
officers  to  vacancies  in  chief  of  staff  corps 

or  department,  575. 
Postmaster-General,  313. 
Solicitor-General,  333. 
staff  officers  for  corps,  division,  and  bri- 
gade commanders,  532. 
or  continue  in  service,  officers  of  volunteer 

staff,  548. 

volunteer  surgeons,  900. 
assign  an  officer  to  act  as  adjutant-general, 

militia  of  District  of  Columbia,  1715. 
call  for  volunteers,  517. 
call  out  militia  in  case  ol  invasion,  etc.,  1669, 

2016-2020. 

close  ports  of  entry,  2045. 
confer  commissions  by  brevet,  etc.,  1342,  1343. 


INDEX. 


1141 


President— Continued, 
authority  to — 
continue,  for  service  in  Philippine  Islands, 

five  volunteer  signal  officers,  1219. 
designate  officer  to  act  as  chief  of  bureau, 
121. 
officer  to  act   in  absence  of  Secretary  of 

War,  119. 
officer  to  act  as  superintendent  of  State, 

War,  and  Navy  Building,  139. 
supervisor  of  New  York  Harbor,  1143. 
detail  naval  officers  for  service  in  War  De-  I 

partment,  448. 

officers  as  Indian  agents,  1333. 
officers  to  college  duty,  1288-1291, 1294. 
direct  duties  of  Marine  Corps,  443. 
duties  of  Paymaster-General,  799. 
duties,  etc.,  of  cadets,  1490. 
enlist  Indians,  506. 

natives  in  Philippine  Islands,  501;  pp.  1064, 
1065. 

fill  vacancies  in  Marine  Corps,  422. 
grant  certificates  of  merit,  1358. 

conditional  pardon,  1808,  note  (p.  700). 
increase  sergeants  in  engineer  companies,  969. 
corporals,  969. 

first-class  privates,  969. 

second-class  privates,  969. 

bonds  of  disbursing  officers,  592. 

bonds  of  district  attorneys,  collectors  of  cus 
toms,  etc.,  593. 

infantry  companies,  1451. 
investigate  Isthmus  of  Panama,  etc.,  1082, 1083. 
issue  rations  to  Indians,  774. 
license   or  permit   commercial    intercourse, 

2032. 
maintain  enlisted  force  at  maximum  strength, 

etc.,  1453. 
make  rules  for  Washington  Aqueduct,  996. 

and  publish  regulations  for  Army,  487. 
order  discharge  of  debtor,  249. 
organize  Army  corps,  529,  571. 

militia  when  called  into  service,  1675-1677. 

Porto  Rican  regiment,  505. 
prescribe  limit  of  punishment,  1838. 

kind,  quantity,  and  components  of  rations, 
769,  770. 

military  regulations  for  discipline  of  Marine 

Corps,  444. 
system  of  examination  of  enlisted  men  for 

promotion,  1278. 

system  of  examination  of  officers  for  pro- 
motion, 1274. 

uniform  of  the  Army,  etc.,  749. 
procure  assent  of  State  to  purchase  of  land, 

1595. 
releases  from   persons   holding    lands  for 

United  States,  1596. 
promote  absent  officers,  588. 
provide  cemetery  near  City  of  Mexico,  etc., 

2463, 2464. 

raise  volunteers,  under  act  of  March  2, 1899, 
543. 

regulate  admissions  to  the  civil  service,  142. 
remove,  etc.,  unauthorized  inclosures  to  pub- 
Ijc  lands,  1609. 


President — Continued, 
authority  to— 

require  advice  and  opinion  of  Attorney-Gen- 
eral, 336. 

select  and  detail  chief  of  artillery,  1431. 
governors  and  officers  of  Soldiers'  Home, 

2268. 
specify  period  for  which  militia  shall  serve, 

1673. 

suspend  commercial  intercourse,  2029. 
temporarily  increase  the  Army,  515. 
transfer  engineers,  960. 

Board  of  Ordnance  and  Fortifications,  appoint- 
ment of  civilian  member  of,  1213. 
to  determine  strength  and  value  of  iron,  steel, 

etc.,  appointment  of,  1205. 
brevets,  1342,  1343. 
California  Debris  Commission,  appointment  of, 

1049. 
chaplain  at  Military  Academy,  appointment 

of,  1461. 

chaplains,  authority  to  appoint,  1258. 
clothing  allowance,  749. 
collection  of  duties  on  imports,  2042,  2046. 
commercial  intercourse,  authority  to  license 

and  permit,  2032. 
authority  to  suspend,  2029. 
commissions,  10. 

Commissioners   of   District   of   Columbia,  ap- 
pointment of,  1011. 
courts-martial— 
appointing  power,  1789. 
detached  marine  officers  serving  on,  1794. 
reviewing  authority,  1831,  1834,  1845-1849. 
detail   of   retired  officer  as  adjutant-general, 

District  of  Columbia  militia,  1323,  1716. 
discharge  of  poor  debtors,  248,  249. 
District  of  Columbia  militia,  1712-1716. 
employment  of  military  force  to— 
aid  in  execution  of  judicial  process,  etc.,  2063. 
apprehend,  etc.,  persons  in  Indian  country, 

2026. 

arrest  absconding  Indians,  etc.,  2028. 
collect  customs  duties,  2044. 
compel  foreign  vessels  to  depart,  2086. 
preserve  neutrality,  2085. 
protect  rights  of  discoverers,  etc.,  of  guano 

deposits,  2101. 
protect  timber  on  public  lands  in  Florida, 

2069. 
remove  intruders  from  Indian  reservations, 

2023. 

remove  trespassers  upon  public  lands,  2070. 
remove  unlawful  inclosures  to  public  lands 

2070. 
employment  of  retired  officers  on  active  duty, 

1322. 

erection  of  temporary  forts  in  case  of  emer- 
gency, 1088. 
examination  of  enlisted  men  for  promotion, 

1278-1282. 
examination    of   officers   for   promotion,    583, 

1274-1277. 

executive  powers,  1. 

extradition,  protection  of  accused  person,  2090. 
guano  islands,  protection  of  rights  of  discov- 
erers, etc.,  2101. 


1142 


INDEX. 


President— Continued. 

Indian  affairs,  additional    security  from  dis- 
bursing officers,  1915. 
agencies,  consolidation  of,  1917. 

transfer  or  discontinuance  of,  1918. 
agents,  appointment  of,  1898. 
Army  officers  detailed  to  act  as,  1903,  1904. 
and  superintendents,  dispensing  with  serv- 
ices of,  1916. 
country,  removal  of  persons  found  therein, 

2001. 

inspectors,  appointment  of,  1896. 
lands,  disposal  of   dead  and  fallen  timber, 

2000. 

removal  of  unauthorized  settlers  on,  1952. 
reservations,  removal  of  intruders  from,  2023. 
tribes- 
abrogation  of  treaty  with,  1923. 
authority  to  prohibit  introduction  of  goods 

into,  1956. 

general  superintendence  over  certain,  1944. 
mode  of  disbursements,  1932. 
payment  of  annuities  in  goods,  1925. 
Indians,  permission  to  enter  State  of  Texas, 

2010. 

Light-House  Board,  appointment  of,  1021. 
light-houses,  detail  of  officer  to  construct,  etc., 

1022. 
limit  of   punishment,  authority  to  prescribe, 

1838. 

under  17th  Article  of  War,  755,  1649. 
militia- 
apportionment  of,  among  States,  2021. 
authority  to  specify  time  of  service  of,  1673. 
calling  forth,  1669-1674,  2016-2020. 
District  of  Columbia,  appointment  of  com- 
manding general  of,  1713. 
District  of  Columbia,   appointment  of  staff 

officers  of,  1714. 

employment  of,  in  execution  of  judicial  proc- 
ess, 2063. 
organization  of,   when  called    into  service, 

1675-1677. 
Mississippi  River  Commission,  appointment  of, 

1030. 
Missouri  River  Commission,  appointment  of, 

1045. 
National  Home  for  Disabled  Volunteer  Soldiers, 

board  of  managers,  2287. 
notification  of  appointments,  11. 
officers  dropped  for  desertion  by,  1329,  1230. 
pardon,  conditional,  1808,  note  (p.  700). 
pardoning  power,  2. 
power  as  commander  in  chief,  2. 
power  of,  to  fill  temporary  vacancies,  13,  15, 16. 
ration,  power  to  prescribe,  769. 
rations  to  Indians,  774. 

regulations  for  admission  to  civil  service,  142. 
release  of  citizens  imprisoned  by  foreign  gov- 
ernments, 1879. 
removal  from  office,  4. 
removal  of  custom-house,  2043. 
retirement  of  officers,  1297,  1298,  1301,  1305. 
reviewing  authority,  1845-1848. 
rules  and  regulations  for  naval  hospital  at  Hot 

Springs,  938. 

sale  of  damaged  or  unsuitable  property,  1641. 
sale,  etc.,  of  abandoned  and  useless   military 
reservations,  1616. 


President— Con  tinued . 

speedy  arrest  and  trial,  2062. 

special  assignment  to  duty  according  to  brevet 
rank,  566. 

succession  to  office,  5-7. 

suspension  of  commercial  intercourse,  2029. 

term  of  office,  3. 

treaty-making  power,  7. 

Volunteer  Homes,  2287. 

when  authorized  to  increase  the  Army,  509. 

when  authorized  to  increase  the  number  of 

second  lieutenants,  511. 
Printing: 

how  executed,  716. 

Priority  of  Debts  Due  United  States,  245-247. 
Prisoners  (see  Penitentiary) : 

confinement,  1783-1786. 

release  without  authority,  1787,  1788. 
Private  Property: 

claims  for,  lost,  221,  222. 

Proceeds  of  Sales  (see  Sales,  and  Sales  of  Subsist- 
ence) : 

disposition,  611-616. 

reports  of,  75. 

subsistence,  785-787. 

Professors    at    Military    Academy    (see    Military 
Academy): 

allowances,  1471. 

appointment,  1463. 

assignment  of  professor  of  law,  1459. 

assistant  professors,  1474,  1475. 

command,  1470. 

leaves  of  absence,  1501. 

pay,  1471. 

retirement,  1473. 

Property  (see  Accountability,  Accounting  Officers, 
and  Property  Accountability): 

accountability,  1631-1636. 

arms,  damages  to,  1638. 

concealment,  661. 

condemned,  disposition  of,  1641. 

damage  to,  1637-1640. 

damaged,  disposition,  1641. 

deficiency  in,  1637-1640. 

disposition,  1631. 

embezzlement,  660, 1642. 

exchange,  without  authority,  1646. 

larceny,  1642,  1645. 

losing,  spoiling  arms,  etc.,  1647. 

lost,  claims  for,  221,  222. 

offenses  in  connection  with  public,  1642-1649. 

ordnance,  accountability,  1172-1176. 

regulations  for  returns  of,  1636. 

robbery,  1645. 

sales  of  damaged,  1641. 

selling,  losing,  etc-.,  1647-1649. 

Signal  Corps,  regulations  for,  1228. 

stolen,  receiving,  1643. 

transportation,  720,  725-727. 

unlawful  sale,  1646. 

wrongful  conversion,  1644. 

volunteer  officers,  540. 

Property  Accountability  (see  Accountability,  and 
Accounting  Officers) : 

certificate  of  charges,  1633,  1634. 

company  commander,  1632. 

oaths,  administration  of,  1639. 


INDEX. 


1143 


Property  Accountability— Continued. 

regulations,  1636. 

returns,  1633,  1635. 

Provisional  Regiment  in  Porto  Rico,  p.  1065. 
Public  Animals: 

number  of,  restriction,  728,  730-732. 

purchases,  729-732. 

restriction  on  purchases,  728-732. 
Public  Buildings  (see  Buildings,  Contracts,  and 
Public  Buildings  and  Grounds) : 

closing  for  death  of  ex-officer  prohibited,  98. 

draping  in  mourning  prohibited,  97. 
Public  Buildings  and  Grounds  (see  Buildings,  and 
Public  Buildings) : 

ailanthus  trees,  985. 

annual  report,  987. 

Commissioner  of,  982. 

control  in  Chief  Engineer,  978. 

employees,  restriction,  980. 

estimates,  979. 

extra  pay  prohibited,  993. 

furniture  for  Executive  Mansion,  988. 

inventory,  annual,  989. 

Potomac  Park,  981-983. 

propagation  of  plants  and  shrubs,  986. 

supervision,  978. 

Washington  Monument,  990-992. 

watchmen  in  public  squares,  984. 
Public    Lands    (see    Acquisition   of  Lands,   and 
Lands) : 

acquisition,  1593-1599. 

designation,  1581-1583. 

disposition  of,  1581-1592,  1614-1620. 

donations  of  sites  for  fortifications,  1087. 

entry,  1581-1583. 

fortifications,  sites  for,  1086-1088. 

homesteads,  1584-1592. 

inclosure  without  authority,  2069,  2070. 

leases,  1620. 

offenses  in  connection  with,  1602-1614. 

purchases  for  river  and  harbor  works,  1106. 

removal  of  trespassers,  2071. 

timber,  unlawful  felling,  2069. 
Public  Moneys  (see  Accounts,  Funds,  and  Treasury 
Department): 

advances,  617,  618. 

assistant  treasurers,  286. 

checks,  309-311. 

conversion,  646. 

deposit,  299-303,  606-610. 

depositories,  289, 290. 

disbursing  agents,  291-295a. 

embezzlement,  660. 

exchanges,  609,  610. 

failure  to  deposit,  649,  650. 

failure  to  safely  keep,  etc.,  646,  647. 

inspection  of  disbursements,  685,  686. 

larceny,  660. 

loaning,  646. 

mints  to  be  depositories,  289,  290. 

national  banks  as  depositories,  289. 

outstanding  checks,  309-311. 

short  payments,  644. 

subject  to  draft  of  Treasurer,  298. 

transfers  of  funds,  296-298. 

Treasurer  of  the  United  States,  283,  284. 

unlawful  depositing,  645. 

unlawful  receipt  of,  by  banker,  654,  655. 


Public  Works  (see  Engineer  Department): 
anchoring  vessels,  1126, 1127. 
bridges  over  navigable  waters,  1114-1117. 
canajs,  operation  of,  1111-1113. 
contracts  and  purchases,  1104-1106. 
deposits  in  navigable  waters,  1124. 
estimates,  71. 
harbor  lines,  1118-1121. 
injuries  to,  1122-1132. 
inspection  of,  680,  686. 
obstructions  to  navigation,  1122-1132. 
offenses  in  connection  with— 

anchoring  vessels,  1126. 

deposits  in  navigable  waters,  1124. 

logs,  floating,  1128,  1129. 

obstructions  to  navigation,  1122.. 

penal  clauses,  1123,  1127. 

prosecutions  for,  conduct  of,  1132. 

timber,  floating,  etc.,  1128,  1129. 

use  of  public  works,  1125. 
permits  to  use,  1125. 
river  and  harbor  works,  1098-1110. 
use  of,  permits,  1125. 
Punishment: 
limits  of,  1838. 
restriction  on,  pp.  1067-1073. 
Purchase  of  Discharges,  1386. 
Purchases  (see  Contracts): 
advertising,  1529-1533. 
American  material  preferred,  1642. 
artillery  horses,  1544,  1545. 
assignments,  1567. 
bakeries,  1550. 

bids  and  proposals,  1534-1538. 
bonds  to  secure  payment  for  labor  and  materi- 
als, 1576,  1577. 

buiMings,  erection  and  repair,  1522. 
cavalry  horses,  1544,  1545. 
control  of  Secretary  of  War,  1520. 
draft  animals,  1546. 
drays,  729. 

eight-hour  law,  1672-1575. 
envelopes,  by  Postmaster-General,  328. 
from  Indians,  718. 
gardens,  1551. 

general  provisions,  1520-1528. 
Indians,  purchases  from,  1554. 
inspection  of  fuel,  1578-1580. 
land  purchases,  1523,  1524. 
medical  supplies,  932, 933. 
Military  Academy,  1505. 
names  of  contractors,  1555. 
offenses  in  connection  with,  1558-1566. 
ordnance,  1169-1171. 
preparation  and  execution  of  contracts,  1539- 

1541. 

restriction  on  expenditures,  1549. 
schools,  1550. 
seagoing  vessels,  729. 
ships,  729. 

steel,  purchases  of,  1553. 
the  returns  office,  1567-1570. 
transportation,  means  of,  1547. 

of  stores,  1548. 
wagons,  729. 
when  made,  1544. 
(Quarantine : 
enforcement  of  2068. 


1144 


INDEX. 


Quartermaster-General   (see   Quartermaster's  De- 
partment) : 

absence  of,  performance  of  duty,  121. 
Quartermaster-General's  Office: 

clerical  force,  134. 

Quartermaster's    Department    (see    Staff  Depart- 
ments): 

advertisements,  712. 

animals,  procurement  of,  728-732. 

appointments,  578. 

Antietam  battlefield,  supervision,  2422. 

bakeries,  714. 

barracks  and  quarters,  734-739. 

bond-aided  railroads,  722,  725. 

civilian  employees,  748. 

clothing,  749-757. 

clothing,  purchases,717. 

composition,  702. 

deduction  from  mileage  accounts,  723. 

details,  704,  705. 

duties,  708-711. 

emergency  purchases,  713. 

enlisted  men,  707. 

examinations  for  promotion,  703. 

extra-duty  pay,  742-747. 

forage,  740,  741. 

fuel,  740,  741. 

general  army  service  men,  1509-1511. 

historical  note,  p.  290. 

horses,  728-732. 

Indians,  purchases  from,  718. 

land-grant  railroads,  722,  725. 

military  storekeeper,  706. 

officers  not  to  trade,  719. 

organization,  702;  p.  1054. 

post  quartermaster-sergeants,  707. 

printing,  716.  ^ 

procurement  of  supplies,  708-710,  712-719. 

promotions,  703. 

public  animals,  728-732. 

purchases,  712-719. 

quarters,  734-739. 

returns  of  clothing,  etc.,  751. 

schools,  purchases  for,  714. 

subsistence  duty  of  officers,  711. 

supplies,  708-710,  712-719. 

tables  of  distances,  724. 

transportation,  720-727. 

veterinarians,  733. 

volunteer    quartermasters,  retention    of,    702, 
note. 

working  parties,  742-747. 
Quarters  (see  Commutation  of  Quarters) : 

absent  officers,  739. 

allowance,  738,  note. 

commutation,  830-835. 

furnished  to  officers  in  kind,  738. 

hospital  stewards,  736,  931. 
Bank  (see  Relative  Rank): 

brevet,  1342-1347. 

command  of  detachments,  551 ;  122  A.  W. 

medical  officers,  901. 

militia  officers,  1658. 

relative,  Army  and  Navy,  564. 

volunteers,  562. 
Bates  of  Postage,  317. 

soldiers'  letters,  317. 


Batlons  (see  Subsistence  Department): 

allowance  to  enlisted  men,  771,  772. 

coffee  and  sugar,  775-777. 

commutation,  776,  777. 

components,  769,  770. 

emergency,  770. 

field,  770. 

garrison,  770. 

Indians,  774. 

issues,  770-777. 

marines,  439-441. 

matrons,  773. 

meat  components,  770. 

nurses,  773. 

on  transports,  770. 

prescribed  by  President,  769. 

sales,  779. 

substitutions,  770. 

sugar  and  coffee,  775-777. 
Bear- Admiral: 

relative  rank,  564. 

Receiving  Embezzled  Money  or  Property,  661. 
Kerch  In ir  Stolen  Property,  1643. 
Becess  Appointments,  8,  9,  163,  164. 

salaries,  163,  164. 
Becord  and  Pension  Office: 

certificates  of  service  in  telegraph  corps,  1257. 

clerical  force,  employment,  134,  note;  1240. 

composition,  1236. 

duties,  1235,  1237-1239. 

establishment,  1235. 

muster  rolls  of  volunteers,  etc.,  526,  1238,  1239 

organization,  1236;  p.  1060. 

removal  of  charge  of  desertion,  1241-1253. 

remuster  of  officers,  of  volunteers,  1254-1256. 

returns  and  muster  rolls  of  volunteers,  526. 

returns  of  volunteer  regiments,  1238. 1239. 
Becord  of  Court-Martial,   1839-1841  (see  General 
Courts-Martial,  Judge-Advocate  General's  De- 
partment, and  Judge- Advocates  of  Courts'): 

authentication  of,  1839,  note. 

copy  to  accused,  1840. 

disposition,  1839, 1841. 

preparation,  1839. 
Becording  Clocks,  95. 
Becords  (see  Record  of  Court- Martial): 

destruction,  forgery,  etc.,  103-105. 

Executive  Departments,  20. 
Becovery  of  Debts,  197.     (See  Debts  Due  United 

States.) 
Becrulting  Service  (see  Recruits)  • 

bounty,  677. 

details  for,  679. 

enlistments,  qualifications  for,  67l),  671. 

fraudulent  enlistments,  675. 

minors,  enlistment  of,  672,  673. 

oath  of  enlistment,  676. 

re-enlistments,  1373-1375. 

restriction  on  enlistment,  678, 

term  of  enlistment,  669. 

unlawful  enlistments.  674. 

volunteers,  525. 
Becruits  (see  Recruiting  Service) : 

credit  to,  at  depots,  890. 
Bed  Cross  Society,  pp.  1044-1047. 
Bedress  of  Wrongs,  1852;  30  A.  W. 
Beductlon  of  War  Establishments,  513. 


INDEX. 


1145 


Re-enlistments    (see   Enlisted   Men,  and   Enlist- 
ments): 

conditions,  868-870,  1373-1375. 

continuous  seryice,  869,  1375. 

pay,  868-870, 1374. 

previous  service,  1370. 
Regimental  Court-Martial,  1851, 1852;  30,  81  A.  W. 

(See  Inferior  Courts.) 
•Regiments : 

cavalry,  1419-1424. 

infantry,  1445-1448. 
Register  (see  Army  Register) : 

official,  92a. 

Registry  of  Official  Mail,  328. 
Regular  Army.     (See  Army): 

composition,  497,499-508^ 

increase  in  war,  509-512. 

Indian  scouts,  506. 

native  troops,  501-505. 

reduction  at  end  of  war,  513. 
Regulations  (see  Army  Regulations): 

Army,  487-489. 

accounting,  207, 208. 

canals,  use  of,  1112, 1113.  „ 

executive  departments,  20. 

use  of  public  works,  1112, 1113. 
Relative  Rank  (see  Rank): 

Army  and  Navy  officers,  564. 

of  officers,  565. 
Reorganization  of  Army: 

act  for,  pp.  1048-1066. 
Reporter: 

courts-martial,  1801. 
Reports: 

accounts  outstanding,  304. 

annual,  date  of  submission,  90. 

chief  clerks,  21-23. 

civil  engineers,  names,  etc.,  974. 

claims  allowed,  220. 

condition  of  business,  88. 

contingent  expenditures,  59,  60. 

delinquent  disbursing  officers,  188. 

employees,  efficiency  of,  89. 

illustrations,  etc.,  91. 

inspection  of  disbursements,  626. 

maps,  illustrations,  etc.,  91. 

persons  employed  in  public  buildings,  269. 

receipts  and  expenditures,  189. 

rented  buildings,  270. 

scope,  86. 
Reprieves,  2. 

Requisitions  for  Funds,  61,  209. 
Reservations  (see  Indian  Reservations,  and  Public 
Lands) : 

abandoned,  sale  of,  1615-1617. 

breaking  fences,  1603. 

disposition  of,  1615-1619. 

driving  cattle  on,  1603. 

establishment,  1583,  note. 

grants  to  municipal  corporations,  1618. 

jurisdiction  over,  1600,  1601. 

leases,  1620. 

licenses,  1620. 

military  posts,  1621-1630. 

penal  offenses  in  connection  with,  1602-1614. 

protection  of,  1602-1614. 

revocable  licenses,  1620. 


Reservations— Continued. 

rights  of  way  over,  1619. 

setting  fires  on,  1612-1614. 

timber,  cutting  and  injuring,  1602. 

unlawful  inclosures,  16Q5-1609. 
Residence: 

certificate  of  (see  Civil  Service),  154. 
Resignations  of  Officers,  1326, 1327. 
Restriction  on  Punishments,  pp.  1067-1073. 

strength  of  Army,  p.  1064. 
Retained  Pay: 

prohibition,  867. 
Retired  Enlisted  Men: 

allowances,  1382. 

pay,  1379. 

service  for,  1379-1381. 
Retired  Officers: 

adjutant-general  District  of  Columbia  militia, 
1323. 

assignment  to  duty. 
College  details,  1290-1295. 
Soldiers  Home,  1320. 
time  of  war,  1322. 

clerks  to,  forbidden,  1325. 

college  details,  1290-1295. 

copies  from  files  in  evidence,  1832. 

details  to  colleges,  1290-1295. 

eligibility  to  office,  1321,  1324. 

holding  office,  restriction,  1324. 

liabilities,  1319. 

pay,  1316. 

restriction  on  holding  office,  1324. 

retirement  on  actual  rank,  1314,  1315. 

rights,  1319. 

status,  1317. 

vacancies  caused  by,  1318. 
Retirement  of  Officers: 

disability,  1305. 

for  age,  1298-1300. 

forty  years'  service,  1297. 

forty -five  years'  service,  1298. 

heads  of  staff  departments,  1304. 

limited  list,  1301,  1302. 

pay  on,  824. 

physical  disqualification,  584. 

service  for,  1303. 

thirty  years'  service,  1297. 

unlimited  list,  1300-1302. 
Retiring  Boards  (see  Retirement  of  Officers): 

composition,  1306. 

disability  incident  to  service,  1311. 
not  incident  to  service,  1312. 

duties,  1308. 

findings,  1309,  1311,  1312. 

Marine  Corps,  433. 

oaths,  1307. 

officer  entitled  to  hearing,  1313. 

powers,  1308. 

revision  of  finding  by  President,  1310. 
Returns  (see  Articles  of  War,  and  Property  Ac- 
countability) : 

militia,  1664-1668. 

property,  1633-1636. 
Returns  Office,  1567-1570. 
Reviewing  Authority  (see  General  Courts- Martial): 

approval  of  sentence,  1843-1847. 

confirmation  of  sentence,  1846-1849. 


1146 


INDEX. 


Reviewing  Authority— Continued. 

dismissal  of  officer,  1848,  1849. 

President,  power  of,  1845-1848. 

suspension  of  sentence,  1850. 
Revised  Statutes  (see  Statutes  at  Large): 

accrued  rights  reserved,  464. 

acts  of  limitation,  466. 

arrangement  and  classification,  467. 

certificate,  461. 

copies  to  be  evidence,  459. 

date,  468. 

edition  of  1874,  454-468. 
1878,  469-473. 

evidential  value,  459,  472,473. 

new  edition  (1878),  469-473. 

prima  facie  evidence  of  laws,  473. 

prosecutions  and  punishments,  465. 

repealing  clause,  463. 

revision,  454-458. 

scope,  462,  468. 

Supplement  of  1891,  476,  477. 
1895,  478. 
1899,  479,  480. 
_,  Supplements,  474-480. 

title  of  revision,  460. 
Revision: 

proceedings  in,  1842. 
Revocable  Licenses,  1620. 
Rewards  (see  Deserters): 

apprehension  of  convicts,  deserters,  1407-1409. 
Rights  of  Way  Over  Reservations,  1619, 1620. 
River  and  Harbor  Works  (see  Engineer  Depart- 
ment, and  Navigable  Waters  of  the    United 
States): 

commercial  statistics,  1107. 

contracts  and  purchases,  1104-1106. 

deterioration,  reports  of,  1108. 

estimates,  71,  76,  1102. 

fishways,  1109. 

preliminary  surveys,  1098-1101. 

reports,  132,  1098,  1103. 

surveys,  reports,  1098. 

surveys,  restrictions  on,  1098-1101. 
Salaries  (see  Office): 

assistant  messengers,  38. 

clerks,  38. 

clerks  and  employees  in    Executive    Depart- 
ments, 38-42. 

disbursing  clerks,  24* 

double,  166. 

extra  allowances,  169. 

extra  services,  40. 

holding  two  offices,  167. 

messengers,  38. 

officers  holding  over,  165. 

officers  in  arrears,  170. 

recess  appointees,  163, 164. 

restrictions  on,  28,  38-42. 

temporary  clerks,  39. 

watchmen,  38. 

Sales  (see  Proceeds  of  Sales,  and  Sales  of  Subsist- 
ence): 

credit,  764,  778,  782-784. 

disposition  of  proceeds,  611-616. 

medical  supplies,  934,  936. 

ordnance,  1177,  1178. 

reports  of  proceeds,  75. 


Sales— Continued, 
smooth-bore  cannon,  1187. 
tobacco,  780, 784. 
Sales  of  Subsistence  (see  Proceeds  of  Sales,  and 

Sales): 

cash,  778-781. 
proceeds,  785. 
rates,  781. 
School  Teachers: 

extra-duty  pay,  742,  745. 

Schools  (see  Post  Schools,  and  Service  Schools): 
expenditures,  1627. 
pay  of  teachers,  742,  745. 
Scouts  (see  Indian  Scouts),  506. 
Seagoing  vessels: 
purchases,  729. 
Seamen: 

issues  of  subsistence,  766. 
Seal  of  the  United  States,  2468. 

custody  of,  2469. 
Sea  Travel,  811,  850,  851. 
on  discharge,  850,  851. 
Secretary  of  the  Interior  (see  Interior   Depart- 

'  ment): 

duties,  452,  453. 

Secretary  of  the  Treasury  (see  Treasury  Depart- 
ment): 

Book  of  Estimates,  61,  62,  64-78. 
claims  allowed,  reports  of,  70,  220. 
delinquent  disbursing  officers,  report,  188. 
estimates,  62-78. 

notification  of  appointments,  11. 
receipts  and  expenditures,  report,  189. 
rendition  of  accounts,  187. 
rules  for  accounting,  207. 
transfers  of  funds,  296-298. 
Secretary  of  War  (see  War  Department): 
abolishment  of  arsenals,  1194. 
acquisition  of   lands,   etc.,    for    fortifications, 

1086,  1087,  1599. 
national  military  parks,  2382-2384,  2386.  2389, 

2397,  2408. 

river  and  harbor  improvements,  1106. 
advances  to  troops  to  embark  for  Philippine 

Islands,  618,  813. 

allowances  of  fuel  and  forage,  740. 
annual  reports,  86-92,  129-133. 
Antietam  battlefield — 
appointment  of  superintendent,  2422. 
compensation  of  superintendent,  2422. 
application  of  appropriations  for   rivers  and 

harbors,  1104. 

appropriations  for  Washington  Aqueduct,  1003. 
Arlington  National  Cemetery,  interments  in, 

2460. 

army  retiring  board,  1306. 
assignment  of  judge-advocate  to  be  professor  of 

law,  698. 

retired  officer  to  duty  at  Soldiers'  Home,  1320. 
assistant  quartermasters  to  do  duty  as  commis- 
saries of  subsistence,  711. 
surgeons,  appointment  of  board  for  examina- 
tion of,  902. 
authority  to — 

abolish  useless  or  unnecessary  arsenals,  1194. 
alter  distribution  of  clerks,  etc.,  36. 
amend  military  record  of  soldier,  1248. 


INDEX. 


1147 


Secretary  of  War— Continued, 
authority  to— 

appoint  commissioners  for  national  military 
parks,  2398,  2410. 

expert  accountant,  684. 

hospital  stewards,  915,  917. 

superintendent  to  nurse  corps,  925. 
assess  vessels  at  Fort  Monroe,  1517. 
build  machine  for  testing  iron,  etc.,  1207. 
codify  and  publish  regulations  of  the  Army 

489. 

commute  rations,  776. 
credit  States,  etc.,  with  the  sum  charged  to 

them  for  arms,  etc.,  1703. 
deliver  condemned  cannon  to  national  mili- 
tary parks,  etc.,  2377,  2405,  2406. 
designate  chief  clerk  to  sign  requisitions,  etc., 

120. 
detail  employee  as  telegraph  operator,  101. 

employee  to  administer  oath,  128, 1639. 

officers  and  enlisted  men  to  establish  post 
school,  1627. 

privates  of  hospital  corps,  924. 

quartermaster  and   commissary  of  cadets, 
1478. 

troops   to    protect   Yellowstone    National 

Park,  2445,  2447. 
determine  caliber,  etc.,  of  guns,  1186. 

what  constitutes  duty  without  troops,  830 

842. 

direct  the  establishment  of  military  head- 
quarters, 574. 

transportation  of  troops,  etc.,  126. 
discharge  volunteer  medical  officers,  900. 
distribute  proper  quota  of  arms,  etc.,  to  cer- 
tain States,  1702. 
employ  clerks,  etc.,  25. 

skilled  draftsmen,  etc.,  in  office  of  Chief  of 
Engineers,  976. 

veterinarians,  733. 

enlist  privates  in  hospital  corps,  etc.,  922. 
establish  harbor  lines,  1118. 

school  of  cavalry,  etc.,  1519. 
exchange  or  sell  unserviceable  powder  and 

shot,  1177. 

extend  hours  of  labor,  52,  53. 
grant  certain  privileges  on  military  reserva, 
tions,  1620. 

leaves  of  absence,  43,  44. 

temporary  use  of  Potomac  Park,  982. 
increase  pay  of  nurses  serving  as  chief  nurses 

927. 
issue  arms  to  border  States,  1780. 

Executive  Departments,  1204. 

Territories,  1780,  1781. 

certificates  of  discharge,  1389. 

medals  of  honor,  1357. 

ordnance,  etc.,  to  colleges,  1292,  1296. 

stores,   arms,    etc.,  to   militia    District   of 
Columbia,  1740. 

subpoenas  to  witnesses,  110. 
lease  public  property,  1620. 
loan  or  give  condemned  ordnance,  etc.,  1182. 
make  regulations,  etc.,  20,23. 

requisitions  for  official  stamps,  99. 
permit   deposits   of    material    in  navigable 
waters,  1124. 


Secretary  of  War— Continued, 
authority  to— 

permit  enlisted  men  to  make  allotments  of 

their  pay,  871. 
temporary   occupation    or   use   of   public 

works,  1125. 

volunteer  regiments  to  retain  regimental 
•  colors,  542. 
prescribe  kinds  and  amounts  of  purchases, 

125. 

purchase  breech-loading  steel  guns,  1189. 
purchase  from  Indians,  718,  1554. 
refer  questions  of  law  to  Attorney-General, 

338. 

remove  charge  of  desertion,  1242. 
rent  buildings,  94. 
replace  ordnance,  etc.,  used  by  volunteers, 

1203,  1701. 
require  monthly  reports,  53. 

opinion  of  Attorney-General,  337. 
select  board  of   ordnance  and  fortifications, 

1209-1211. 

ordnance  sergeants,  1163. 
post  commissary  sergeants,  762. 
sell,  for  experimental  purposes,  smoothbore 

cannon,  1187. 
bidders,  report  of ,  131. 

bond,  bidder  may  be  required  to  furnish,  1535. 
buildings  for  religious  worship  on  West  Point 

military  reservation,  1513. 
bridges,  etc.,  over  navigable  waters,  1114,  1115, 

1117. 
California  Debris  Commission,  1055,  1073,  1078- 

1080. 
canals,  etc.,  use  of  public  funds  for  operation 

and  repair  of,  1111. 
captured  flags,  disposition,  124. 
certificates  of   service   in    military  telegraph 

corps,  1257. 

charts,  maps,  etc.,  sale  of,  140. 
Chickamauga     and     Chattanooga      National 

Park- 
authority  to  grant  right  of  way  in,  2378. 
reduction  of  area  of,  etc.,  2365. 
regulations  for  care,  etc.,  of,  2363. 
use  of  land  by  owners,  2359. 
civilian  employees,  restriction  on  employment 

of,  748. 

clerical  force,  21-53. 
clerks  at  headquarters,  572,  573. 
commutation  of  rations,  776,  777. 
contingencies  of  Army,  report  of  expenditures, 

130. 

contingent  funds,  54-60. 
contracts,  American  material  to  be  preferred, 

1542. 

contracts  to  be  in  writing,  etc.,  1539,  1567.- 
contracts  and  purchases,  1520. 
construction  of  lines  of  telegraph  subject  to  ap- 
proval of,  127. 

quarters  for  hospital  stewards,  736,  931. 
control  and  supervision  of  transportation  of 
troops,  etc.,  720. 


1148 


INDEX. 


Secretary  of  War — Continued, 
detachments  of  enlisted  men  at  Military  Acad- 
emy, 1510. 

detail  of  employee  to  administer  oaths,  128. 
enlisted  men  for  duty  at  recruiting  stations, 

679. 
discharge  of  enlisted  men,  with  travel  pay,  by, 

541. 
duties,  117,  122-128. 

performance  of,  in  absence,  119, 120. 
duty  without  troops,  authority  to  determine 

what  constitutes,  830,  842. 
enlistment  of  sergeants,  corporals,  etc.,  of  ord- 
nance, 1164. 
estimates,  62-78. 
expenditures,  report  of,  129. 
fish  ways,  construction  of,  in  discretion  of,  1109. 
Gettysburg   National    Park,    improvement   of 

roads,  2387. 

specimens  of  arms,  etc.,  used  in  battle,  2388. 
gratuitous  issues  of  clothing,  750. 
horses,  purchase  of,  730,  1544,  1545. 
Indian  country,   introduction  of  liquor  into, 

1977. 
inquiry  as  to  disposition  of  arms,  etc.,  issued  to 

States,  etc.,  1704. 
insane  persons,  admission  of,  to  Government 

Hospital  for  the  Insane,  2344. 
insane  persons,  care  of,  in  California  State  asy- 
lums, 2348. 

inspection  of  disbursements,  625. 
introduction  of  liquor  to  Indian  country,  1977- 

1979. 
judge-advocate,  assignment  of,  to  be  professor 

of  law,  1459. 
leasing  of  lands  of  national  military  parks,  2374, 

2390,  2403,  2409. 

leases  of  public  property,  1620. 
leaves  of  absence  to  officers,  on  full  pay,  827, 

1287. 
limit  of  expenditures  on  buildings  and  grounds, 

1549,  1624. 

medical  officers,  assignment  to  duty  by,  910. 
messengers  at  headquarters,  572,  573. 
military  affairs,  control  of,  122. 
militia- 
apportionment  of  appropriation  for,  1693. 
disposition  of  unserviceable   or   unsuitable 

arms,  etc.,  1696. 

District  of  Columbia,  disposing  of  unservice- 
able property,  1746. 
issue  of  arms,  etc.,  to  1740. 
subsistence  while  on  duty,  1768. 
use  of  Washington  Barracks  by,  1755. 
issue  of  arms,  etc.,  to  Territories,  1780, 1781. 
arms,  etc.,  to  Territories  and  border  States, 

1780. 

ordnance  to,  for  practice,  1705. 
Springfield  rifles  to  governors  of  States  for, 

1700. 

purchase  of  stores,  etc.,  for,  by  State,  1697. 
purchase  or  manufacture  of  arms,  etc.,  for, 

1694. 

returns  of,  133,  1668,  1695. 
Mississippi  River,  appropriation  for  works  on, 

etc.,  1040,  1043. 
and  tributaries,  water  gauges  on,  1038. 


Secretary  of  War— Continued. 
Mississippi  River— Continued, 
rules,  etc.,  for  navigation  of  south  pans,  1041, 

1042. 

Commission,  detail  of  secretary  for,  1035. 
Missouri  River  Commission,  detail  of  secretary 

for,  1047. 

national  cemeteries- 
acquisition  of  lands  for,  2449,  2451. 
appointment  of  superintendents  of,  2452. 
authority  over,  2448-2457,  2459,  2460. 
compensation,  etc.,    of  superintendents  of 

2454. 
delivery  of  condemned  cannon  to,  2377,2405, 

2406. 

estimates,  2448. 
interment  of  nurses,  2460. 

National  Home  for  Disabled    Volunteer  Sol- 
diers— 

board  of  managers  of,  2287. 
delivery  of  obsolete  cannon  to,  2335. 
inspection  of,  2295. 
national  military  parks- 
acquisition  of  land,  2382-2384,  2386,  2389,  2397, 

2408. 
approval  of  battle  lines,  etc.,  2370,  2385,  2386, 

2401. 

authority  over,  2358,  2397,  2398,  2419-2421. 
authority  to  accept  land  for,  2375,  *2379,  2380. 
authority  to  appoint  commissioners  for,  2398, 

2410. 
compensation  of  commissioners,  2360,  2381, 

2398,  2410. 
erection  of  monuments,  etc.,  2385,  2386,  2391- 

2395,  2401,  2402. 

leasing  of  lands  of,  2374,  2390,  2403,  2409. 
supervision  of  commissioners  of,  2360-2361, 

2381. 

use  of,  for  military  maneuvers,  2349-2351. 
notice  to  remove  obstructions  to  navigation, 

1132. 

office,  117. 

payments  by  express,  803. 
performance  of  duties,  13,  15-18. 
private  cemeteries,  erection  of  headstones  over 

soldiers  in,  etc.,  2456,  2457. 
Potomac  Park  to  be  under  charge  of,  982. 
records,  custody  of,  123. 
regulations  for— 

deposits  by  soldiers  to  be  made  by,  881. 
examination  of  cadet  appointees,  1482. 
use  of  canals,  1112, 1113. 
removal  of   obstructions  to  navigation,   1132, 

1133. 

reports,  66, 73-78, 86-92, 129-133. 
retiring  bonds,  1306. 
revocable  licenses,  1620. 
reward  for  apprehension  of  deserters,  1409. 
river  and  harbor  works,  report,  132. 
rules  for  examination  of  accounts,  634. 
rules  and  regulations — 
concerning  bids  for  contracts,  1534. 
floating  of  logs,  rafts,  etc.,  1129. 
operation  of  drawbridges,  1117. 
use  and  navigation  of  canals,  etc.,  1112. 
sale  of  damaged  or  unsuitable  military  stores, 
1641. 


INDEX. 


1149 


Secretary  of  War— Continued, 
sale  of  smooth-bore  cannon,  1187. 
Soldiers'  Home,  limit  to  expenditures,  2285. 
supplies,  procurement  of,  125, 709, 1516. 
telegraph  lines,  127. 

text-books,  etc.,  for  artillery  school,  1516. 
text-books,   etc.,  for  cavalry   school    at    Fort 

Leavenworth,  1518. 
transportation  of— 

remains  of  deceased  civilian  employees,  1418. 
remains  of  deceased  officers   and   soldiers, 

1416,1418. 

stores,  etc.,  125,126.  ' 
transportation  to  persons  entitled  to  artificial 

limbs,  947. 

travel  without  troops,  842. 
vacancy  in  office,  13-17. 
Security  Companies  as  Sureties,  594-601. 
Senate,  Secretary  of: 

duties,  lla. 
Senators: 

franking  privilege,  322-325. 

Sentences  (see  Articles  of  War,  and  General  Courts- 
Martial): 
branding,  1833. 

confinement  in  penitentiary,  1837. 
death,  1832. 
dismissal,  1834, 1835. 
flogging,  1833. 
general  officers,  1831. 
marking,  1833. 
publication,  1835. 
suspension  of,  1850. 
suspension  of  officers,  1836. 
tattooing,  1833. 
Servants: 

enlisted  men  not  to  be  used  as,  1413. 
Service    Schools  (see  Post  Schools,  and  Schools): 
army  war  college,  1514. 
artillery  school,  1516, 1517. 
cavalry  and  light  artillery  school,  1519. 
engineer  school,  1515. 
infantry  and  cavalry  school,  1518. 
Services  (see  War  Service) : 
restriction  on  employment  of,  26-31. 
voluntary,  not  to  be  accepted,  29. 
Set-off  in  Adjustment  of  Claims,  233. 
Shiloh  National  Military  Park,  2396-2405. 
acquisition  of  lands,  2397. 
appropriation,  2404. 
commissioners,  appointment,  2398. 
compensation,  2398. 
duties,  2399. 

location  of  office,  2400,  2401. 
condemned  cannon,  balls,  etc,  2405. 
designation,  2396. 
extent,  2396. 

injuries  to  monuments,  trees,  etc.,  2402. 
leases,  2403. 

marking  lines  of  battle,  2401. 
offices,  location  of,  2400,  2401. 
Short  Payments,  644. 

Sick  Leaves,  1286.    (See  Leaves  of  Absence. ) 
clerks,  etc.,  43-45. 


Signal  Corps  (see  Chief  Signal  Officer,  Signal  De- 
partment, and  Signal  Office): 
appointments,  1221. 
details,  1222,  1223. 
duties,  1227-1230. 
enlisted  men,  1218,  1224. 
examinations  for  promotion,  1221. 
historical  note,  p.  464. 
increase  in  time  of  war,  1225,  1226. 
organization,  1218, 1219;  p  1059. 
promotions,  1220, 1221. 
promotion,  fourteen  years'  service,  591. 
property  accountability,  1229. 
telegraph  lines,  1231-1234. 
volunteer  force,  1219. 
Signal  Department  (see  Chief  Signal  Officer,  and 

Signal  Corps): 
maps,  sale  of,  141. 

Signal  Office  (see  Signal  Corps,  and  Signal  Depart- 
ment): 

clerical  force,  134,  note. 
Soldiers  (see  Enlisted  Men): 
honorably  discharged,  recommended  for  em- 
ployment, 144. 
Soldiers'  Letters: 

rates  of  postage,  317. 
Soldiers'  Home  (see  National  Homes): 
admission  and  discharge,  2275-2278. 
board  of  commissioners,  2263. 
deductions  for,  889. 
discipline,  2283. 
funds  for  support  of,  2269-2274. 
inspections,  689,  2266. 
officers,  2267,  2268. 
•    outdoor  relief ,  2279. 

pensions  to  inmates,  2280-2282. 
restriction  on  buildings,  2285. 
restriction  on  sale  of  liquor  near,  2286. 
uniform  of  inmates,  2284. 
Solicitor- General  (see  Attorney- General),  333. 
South  Mountain: 

marking  lines  of  battle,  2419. 
Southern  Pacific  Railroad,  2067. 
Special  Delivery  Stamps,  318,  319. 
Squadrons: 

cavalry,  1419, 1425. 
Staff  (see  Staff  Departments) : 
chief  of,  558,  note  1. 
volunteers,  519,  530-534. 

Staff  Departments  (see  Commissioned  Officers): 
appointments,  578. 
details  in,  579-582,  1285. 
disbursing  officers,  592-661. 
examinations  for  appointment- 
detail,  580. 

promotion,  579,  583-588. 
promotions  in,  579,  591. 
restriction  in  appointments  to,  578. 
transfers  to,  589,  590. 
Stamps: 

official,  99. 

State  Department,  12. 
State  Homes,  2321-2324.    (See  National  Homes,  and 

Soldiers'  Home.) 
States: 

claims  for  war  expenses,  223-230. 
distribution  of  arms  to,  1195. 


1150 


INDEX. 


States — Continued. 

issues  of  ordnance  to,  1179. 

records  of,  as  evidence,  1826. 

replacing  arms  used  by,  1203. 

sales  of  ordnance  to,  1180, 1181. 
Stationery: 

purchases  of,  82. 
Statutes  at  Large,  481-486.     ( See  Revised  Statutes. ) 

distribution,  482. 

evidential  value,  483-485. 

presentation  of  copies,  182,  486. 

publication,  481. 

sale,  482. 

Stoppages  (see  Pay  Department,  and  Pay  of  En- 
listed Men): 

commissioned  officers,  850-856. 

enlisted  men,  889-898. 
Subsistence  (see  Subsistence  Department) : 

claims  of  States  for  reimbursement,  2*27. 

militia,  1681,  1682. 

purchases  of,  1552. 

retired  enlisted  men,  1382. 
Subsistence  Department  (see  Staff  Departments): 

articles  for  sales,  designation,  690. 

commutation  of  rations,  789,  791. 

composition,  758. 

credit  sales,  764,  778,  782-784. 

details,  760,  761. 

duties,  763-768. 

emergency  purchases,  768. 

examinations  for  promotion,  759. 

exceptional  articles,  765. 

historical  note,  p.  305. 

issues  of  rations,  770-777. 

issues  to  seamen  and  marines,  766. 

officers  not  to  trade,  767. 

organization,  758;  p.  1055. 

post  commissary-sergeants,  762. 

proceeds  of  sales,  612,  613. 

promotions,  759. 

purchases,  763-765,  767,  768. 

quartermasters  to  perform  duty  in,  711. 

rations,  769-777. 

sales,  778-784. 

sales  to  officers  and  enlisted  men,  764, 765. 

stoppages,  895,  896. 

tobacco,  sales  of,  780, 784. 
Substitution  Issues,  770. 
Summary  Court,  1855-1861.     (See  Inferior  Courts.) 

disposition  of  records,  701. 
Supplies: 

duties  of  Secretary  of  War  in  procurement  of ,  125 
Sureties  (see  Bonds,  and  Disbursing  Officers): 

liability,  604, 605. 

priority  of,  247. 

release,  604, 605. 

security  companies  as,  594-601. 
Surety  Companies  as  Sureties,  594-601. 
Surgeon-General's  Office  (see  Medical  Department): 

clerical  force,  134. 

library,  940. 

Suspension  of  Intercourse,  2029-2050. 
Suspension  of  Officers,  1836. 
Tables  of  Distances,  840. 
Tableware: 

purchases,  714. 


Tactical  Organizations,  529-534,570,571. 
Tattooing  Prohibited,  1833. 
Teachers: 

extra-duty  pay,  742, 745. 
Teamsters: 

extra-duty  pay,  742,  745. 
Telegraph  (see  Telegraph  Lines): 

line  to  Capitol,  101, 102. 

supervision  of  Chief  Signal  Officer,  1227,  1231. 
Telegraph  Lines  (see  Military  Telegraph  Lines): 

control  of,  by  Secretary  of  War,  127. 
Temporary  Appointments,  13-19. 
Temporary  Clerks: 

salaries,  39. 
Tender,  Legal,  in  Debts  Due  the  United  States, 

305,  306. 

Term  of  Enlistment,  1370. 
Territorial  Homes,  2321-2324. 
Territorial  Militia,  1777-1781. 
Territories: 

issues  of  arms  to,  1780,  1781. 

Testing  Machine  at  Watertown  Arsenal,  1205-1208. 
Text-books  for  Schools,  1714. 
Thanksgiving  Day,  46. 

Timber  (see  Indian  Reservations,  Public  Lands, 
and  Reservations): 

floating  of,  in  navigable  waters,  1128,  1129. 
Titles  to  Land: 

examination,  334-335,  1593. 
Tobacco: 

amount  furnished,  780. 

cash  sales,  780. 

credit  sales,  784. 

rates,  780. 

sales  of,  780,  784. 
Torpedoes: 

injuries  to,  penalty,  1090. 
Transfers : 

engineer  officers,  960. 

enlisted  men,  1376,  1377. 

to  staff,  589,  590. 
Transportation  (see  Quartermaster's  Department}: 

allowance,  720,  note. 

animals,  720,  note. 

baggage,  720,  note. 

civilians,  720,  note. 

claims  of  States  for  reimbursement,  226,  229 

contracts  to  be  made  for,  728. 

control  of  Secretary  of  War,  125,  126. 

deduction  from  mileage  accounts,  723-725. 

executive  departments,  727. 

horses,  720,  note. 

officers,  721-725. 

persons,  720-725. 

procurement  of,  726. 

property,  720,  721-727. 

tables  of  distances,  724. 

travel  without  troops,  721. 

troops,  720,  721. 

Travel  Allowances  (see  Travel  Allowances  of  Offi- 
cers, and  Travel  Pay  of  Enlisted  Men): 

commissioned  officers,  837-849. 

militia,  1679,  1680. 
Travel  Allowances  of  Officers: 

actual  transportation,  843-845. 

bond-aided  roads,  844,  845. 


INDEX. 


1151 


Travel  Allowances  of  Officers— Continued, 
distances,  computation  of,  840. 
duty  to  be  stated  in  order,  838. 
expert  accountant,  847. 
mileage,  839,  840,  846,  848,  849. 
necessity  for  travel  to  be  stated,  837. 
paid  by  paymasters,  848,  849. 
paymaysters'  clerks,  847. 
rate,  839,  840. 
route  of  travel,  837. 
transportation  in  kind,  843-845. 
travel  without  troops,  842. 
Travel  Expenses,  720,  note, 
engineer  officers,  972. 
volunteers,  541. 

Travel  Pay  of  Enlisted  Men  (see  Travel  Alloivances) : 
allowance,  1391. 
forfeiture,  1385. 
sea  travel,  1392. 
Travel  Pay  on  Discharge: 
commissioned  officers,  1336-1338. 
enlisted  men,  1391,  1392. 
Travel  without  Troops,  721. 
Treasurer    (see    Secretary   of  the   Treasury,  and 

Treasury  Department): 
appointment,  283. 
duties,  284. 

public  money  subject  to  draft,  298. 
reports  of  accounts  outstanding,  304. 
Treasury  (see  Treasurer,  and  Treasury  Department): 
balances  unexpended,  disposition  of,  279-282. 
militia  fines,  1689,  1690. 

receipts  from  military  telegraph  lines,  1232, 1233. 
records  of,  in  evidence,  1819. 
tender,  305-308. 

transcripts  from  books  as  evidence,  1820, 1821. 
Treasury  Department  (see  Accounting  Officers,  Ac- 
counts, Secretary  of  the  Treasury,  and  Treas- 
urer): 
appropriations,  271-275. 

assistant  treasurers,  286. 

auditors,  194-214. 

bookkeeping  and  warrants,  division  of,  210. 

claims,  219-244. 

Comptroller,  190-193. 

debtors,  discharge  of,  248,249. 

debts  due  by  and  to  United  States,  245-247. 

depositories,  289, 290. 

designated  depositories,  289,  290. 

disbursing  agents,  291-295a. 

estimates,  265-267. 

fiscal  agents,  295a. 

fiscal  year,  184. 

legal  tender,  305-308. 

mints  to  be  depositories,  287,  288. 

national  banks  as  depositories,  289. 

outstanding  checks,  309-311. 

prosecution  of  claims,  235-244. 

requisitions  for  funds,  61. 

sales,  proceeds  of,  6H-616. 

settlement  of  accounts,  632-635. 

States,  claims  of,  for  war  expenses,  223-230. 

Treasurer,  2S3,  284. 
Treasury  of  the  United  States,  285. 
Treaties: 

power  to  make,  7. 


Troops  (see  Army,  Enlisted  Men,  and  Militia): 
payments  to,  800-^04. 
transportation,  720,  note. 
Troops  of  the  Line: 
artillery  corps,  1429-1444. 
cavalry,  1419-1428. 
colored  regiments,  1420,  1446. 
engineer  troops,  1452. 
infantry,  1445-1451. 
maximum  strength,  1453. 
Trusses,  950-952. 

Tucker  Act  (see  Court  of  Claims),  403-417. 
Uniform: 
brevet  rank,  1349. 
highest  regular  rank,  1352, 1353. 
highest  volunteer  rank,  1351. 
President  to  prescribe,  749. 
sale  of,  forbidden,  754. 
selling,  spoiling,  etc.,  755. 
Union  (see  Flag),  2466,2467. 
United  States: 

laws  of,  in  evidence,  1827. 
United  States  Military  Telegraph  Corps  (see  Mill 

tary  Telegraph  Lines) : 
certificates  of  service  in,  1257. 
Union  Pacific  Railroad,  2065. 
Unlimited  Retired  List,  1300-1302. 
Unused  Appropriations,  28. 
Vacancies: 
chiefs  of  bureau,  14. 
heads  of  Executive  Departments,  13-19. 
Veterinarians: 
artillery,  1435, 1436. 
cavalry,  1426. 

Quartermaster's  Department,  733. 
Vice- Admiral: 

relative  rank,  564. 

Vicksburg  National  Military  Park,  2407-2414. 
acquisition  of  lands,  2408. 
commissioners,  2410, 2411. 
construction  of  park,  2414. 
designation,  2407. 

engineer  assistant  to  commissioners,  2408. 
establishment,  2407. 
extent,  2407. 

injuries  to  monuments,  trees,  etc.,  2413. 
office,  location  of,  2410. 
State  monuments,  2412. 
Volunteer  Army  (see  War  Establishment): 

composition,  498. 
Volunteers: 
allowances,  527, 528. 
appointments,  521. 
apportionment,  517. 

claims  of  States  for  raising,  etc.,  223-230. 
colors,  542. 

disbandment,  535-542. 
discharge,  535,  552,  553. 
enlistments,  524,  545,  546. 
establishment  in  time  of  war,  498. 
examining  boards,  522. 
extra  pay  on  discharge,  536-639. 
force  of,  1899,  543-551. 
general  officers,  547. 
general  staff,  530-534. 
increase  of,  1899,  515,  516. 


1152 


INDEX. 


Volunteers— Continued . 

medical  staff,  519. 

muster  out,  535-641,  552,  553. 

nfuster  rolls,  526. 

organization,  617,  518,  643-546. 

pay,  527,  528,  878a. 

recruitment;  525. 

reduction,  535-542. 

returns,  526. 

Signal  Corps,  534. 

staff  officers,  547-551. 

tactical  organizations,  629-534. 

term  of  service,  624. 

travel  pay,  541. 
Wagons: 

purchases,  729. 
War: 

extra-duty  pay  forbidden  in  time  of,  746. 
War  Department  (see  Secretary  of  War): 

absence,  leaves  of,  43-45. 

absence  of  chief  of  bureau,  121. 
Secretary  of  War,  119, 120. 

administration  of  oaths,  49-51. 

advertising,  79-81. 

annual  reports,  86-92. 

appointment  of  clerks,  25-31. 

Assistant  Secretary  of  War,  118. 

chief  clerk,  21-23, 120,  134. 

claims  for  losses  in  war  with  Spain,  137. 

claims,  prosecution  of,  110-116. 

classification  of  clerks,  32-37. 

clerical  force,  21-48,  134-136. 

clerks,  employees,  etc.,  21-48,134-136. 

closing,  for  death  of  ex-officer,  98. 

closing  of  buildings,  98. 

clocks,  use  of  recording,  prohibited,  95. 

contingent  funds,  54-60. 

contracts  and  purchases,  79-82. 

deceased  employees,  transportation  of  remains, 
96. 

details  in  clerical  force,  35, 136. 

disbursing  clerk,  24. 

disposition  of  useless  papers,  106, 107. 

draping  buildings  in  mourning,  97. 

estimates,  62-78. 

holidays,  46-48. 

inspection  of  fuel,  83-85. 

inventories  of  property,  93. 

labor,  hours  of,  52,  63. 

leaves  of  absence,  43-45. 

legal  advice,  338. 

oaths,  49-51. 

official  register,  92a. 

penalty  envelopes,  100, 320-327. 

postage  stamps,  official,  99. 

purchases,  79-85. 

recording  clocks,  96. 

regulations,  20. 

renting  of  buildings,  93a,  94. 

reports,  73-78,  86-92. 


War  Department— Continued. 

salaries  of  clerks,  38-42,  134,  135. 

Secretary  of  War,  i!7,  122-128. 

sick  leaves,  43-45. 

stationery,  purchases  of,  82. 

telegraph  line  to  Capitol,  101, 102. 
War  Department  Building,  138,  139. 

closing  for  death  of  an  officer,  98. 

custody,  138,  139. 

draping  in  mourning,  97. 

recording  clocks  prohibited,  95. 
War  Establishment,  509-511.    (See  Army,  and  Vol- 
unteer Army.) 

disbandment,  535-542. 

Regular  Army,  509-513. 

Volunteer  Army,  617-528. 
War  Service  (see  Retirement  of  Officers)". 

computation  of,  for  retirement,  1380. 
Warrants,  209. 

distress,  251-264. 

Washington    Aqueduct,   995-1010.     (See   Chief  of 
Engineers) : 

contamination  of  water,  1009. 

decisions  of  Chief  Engineer,  1002. 

diversion  of  water,  1005. 

expenditure  of  appropriations,  1003. 


pipes,  use,  injury  to,  1007,  1008,  1010. 

records,  999. 

regulation  of  water  supply,  1001. 

reports,  1000. 

supervision  of  Chief  Engineer,  995,  9%. 

water,  use  of,  1004. 
Washington  Monument  (see  Chief  of  Engineers): 

care,  etc.,  990,  991. 

society,  992. 
Watchmen,  Executive  Departments: 

salaries,  38. 
Witnesses  (see  General  Courts- Martial): 

attachment,  1810. 

fees,  1812-1814. 

refusal  of  civilian  to  testify,  1811. 
Women: 

employment  of,  34. 

salaries,  38. 

Wrecks  (see  Engineer  Department,  and  Navigable 
Waters  of  the  United  States) : 

removal  of,  1133. 

Wrongful  Conversion  of  Property,  1644. 
Yellowstone  National  Park,  2423-2447. 

control  in  Secretary  of  Interior,  2424. 

employees,  2444. 

employment  of  troops  in,  2444,  2447. 

establishment,  2423. 

establishment  and  jurisdiction,  2423-2436. 

improvements,  2440. 

leases,  2442,  2443. 
.  protection  of  birds  and  animals,  2437-2441. 

troops,  detail  of,  for  duty  in,  2445,  2447. 

United  States  commissioner,  2429-2435, 


SUPPLEMENT  TO  THE  FOURTH 
EDITION  OF  THE 

Military  Laws  of  the  United  States 

SHOWING  CHANGES  TO  MARCH  4,  1907 

With  Appendices 


Prepared  under  the  direction  of 

The  Honorable  WILLIAM  H.  TAFT,  Secretary  of  War 

By  Major  JOHN  BIDDLE  PORTER,  Judge-Advocate 

United  States  Army 


22924—08 73  1153 


SUPPLEMENT 

TO  THE 

MILITARY  LAWS  OF  THE  UNITED  STATES. 


The  chapters  and  paragraphs  of  this  Supplement  have  been  num- 
bered to  conform  as  closely  as  possible  to  the  chapters  and  paragraphs 
of  the  Military  Laws,  containing  the  same  general  subject-matter. 

New  material  has  required  three  additional  chapters  in  the  Sup- 
plement— the  first  one  (Chapter  XL VIII)  containing  the  legislation 
in  regard  to  the  General  Staff  Corps;  the  second  (Chapter  XLIX), 
such  legislation  by  the  Philippine  government  and  the  tariff  laws  of 
the  United  States  as  affect  the  Army,  and  the  third  (Chapter  L),  the 
-recent  acts  of  Congress  relating  to  Alaska  which  affect  the  Army. 

All  paragraphs  referred  to,  unless  otherwise  stated,  are  those  of  the 
Military  Laws  of  the  United  States  (fourth  edition)  or  of  this  Sup- 
plement. 

Appendices  A,  B  and  C  contain,  respectively,  The  Hague  conven- 
tions of  1899  relating  to  "  Maritime  warfare  "  and  the  "  Laws  and 
customs  of  war  on  land,"  and  the  act  of  Congress  incorporating  "  The 
American  National  Red  Cross  "  association. 

1155 


EERATA. 


MILITARY  LAWS  OF  THE  UNITED  STATES,  1901. 
(Fourth  edition.) 

Page  35.  Paragraph  87  is  repealed  by  section  8  of  the  act  of  March 
2,  1895  (28  Stats..  808). 

Page  111.  In  citation  to  paragraph  282,  read  June  20,  "  1874," 
instead  of  "  1784." 

Page  185.  Insert  under  line  4  from  top  of  page  the  words  "A 
Judge- Advocate-General's  Department." 

Page  194.  Insert  at  end  of  paragraph  524,  after  "  Sec.  4,"  "  act  of 
April  22,  1898  (30  Stats.,  361),"  instead  of  "Mid;" 
and  at  end  of  paragraph  525,  after  "  Sec.  7,"  "  act  of 
April  22,  1898,  (30  Stats.,  362),"  instead  of  " ibid." 

Page  195.  Insert  at  end  of  paragraph  526,  after  "Sec.  8,"  "act 
of  April  22,  1898  (30  Stats.,  362),"  instead  of  "ibid;" 
and  at  end  of  paragraph  527,  after  "  Sec.  12,"  "  act 
of  April  22,  1898  (30  Stats.,  363)";  and  at  end  of 
paragraph  528,  same  page,  read  "  30  Stats.,  420,"  in- 
stead of  "30  Stats.,  424." 

Page  232.  In  marginal  note  to  paragraph  615,  read  Chapter 
"  131,"  instead  of  Chapter  "  130." 

Page  233.  In  marginal  note  to  paragraph  618,  read  v.  "  30,"  p.  721, 
instead  of  v.  "  50,"  p.  721. 

Page  240.  In  date  of  act  cited  at  end  to  paragraph  631,  read  "  1885," 
instead  of  "  1895." 

Page  253.  Insert  in  lines  2  and  3  of  paragraph  662,  instead  of  the 
words  "  during  the  active  service  of  the  present  incum- 
bent of  the  office,  and  with  the  rank  of  brigadier- 
general  thereafter,"  the  words  "  and  when  a  vacancy 
shall  occur  in  the  office  of  Adjutant-General  on  the 
expiration  of  service  of  the  present  incumbent,  by 
retirement  or  otherwise,  the  Adjutant-General  shall 
thereafter  have  the  rank  and  pay  of  a  brigadier- 
general." 

1157 


1158  MILITARY   LAWS   OF    THE   UNITED   STATES. 

Page  255.  In  second  citation  to  paragraph  671,  read  (30  Stat.  L., 
"  978  "),  instead  of  (30  Stat.  L.,  "  977  "). 

Page  319.  At  end  of  paragraph  822,  instead  of  "  act  of  February 
24,  1881  (21  Stats.  L.,  346),"  read  "act  of  June  30, 
1882  (22  Stats.,  118) ;"  and  make  like  change  in  mar- 
ginal note  thereto. 

Page  323.  For  the  number  to  the  paragraph  following  paragraph 
830,  which  has  been  omitted,  read  "  831." 

Page  325.  In  act  cited  at  end  of  paragraph  839,  read  ("  31  "  Stat. 
L.,  901),  instead  of  ("30"  Stat.  L.,  901), 

Page  337.  In  marginal  note  to  paragraph  8670,  instead  of  "  v.  19, 
p.  50,"  read  "  v.  29,  p.  60;"  and  in  second  line  of  note 
2,  instead  of  March  "  3,"  1901,  read  March  "  2,"  1901. 

Page  339.  In  date  of  act  cited  at  end  of  paragraph  871,  read  March 
2,  "  1899,"  instead  of  March  2,  "  1889." 

Page  391.  In  citation  to  statute  at  end  of  paragraph  1049,  and  in 
the  marginal  note  thereof,  read  March  1,  "  1893," 
instead  of  "1892." 

Page  416.  In  marginal  note  to  paragraph  1112,  read  sec.  4,  August 
"  18,"  1894,  instead  of  sec.  4,  August  "  17,"  1894. 

Page  417.  In  date  of  act  cited  at  end  of  paragraph  1113,  read 
August  "  18,"  1894,  instead  of  August  "  17,"  1894. 

Page  420.  In  date  of  act  cited  at  end  of  paragraph  1116,  read 
August  "  18,"  1894,  instead  of  August  "  17,"  1894,  and 
make  corresponding  change  in  marginal  note  thereto. 

Page  505.  In  citations  of  statute  to  paragraph  1354,  read  (21  Stat. 
L.,  "604"),  instead  of  (21  Stat.  L.,  "80");  and 
make  corresponding  change  in  marginal  note  thereto. 
See  note  on  this  statute ,  in  Supplement  to  the  Revised 
Statutes,  volume  2,  page  HO. 

Page  538.  In  paragraph  1440,  second  line,  read  "  two  "  first  lieu- 
tenants, instead  of  "  one  "  first  lieutenant. 

Page  543.  In  subdivision  to  chapter  31  read  "  1468.  The  com- 
mandant of  cadets,"  instead  of  "  1468.  The  same, 
pay  and  allowances ;"  and  to  the  number  following,  on 
same  page,  read  "  1469.  Superintendent  and  com- 
mandant, pay  of,"  instead  of  "  1469.  The  comman- 
dant of  cadets." 

Page  642.  In  tenth  line  from  top  of  foot-note,  instead  of  February 
28,  "  1895,"  read  February  28,  "  1795." 

Page  648.  In  date  of  act  cited  at  end  of  paragraph  1693,  read 
"  1887  "  instead  of  "  1901,"  and  24  Stats.,  "  402  "  in- 
stead of  "  401,"  and  make  corresponding  changes  in 
marginal  note  thereto. 


ERRATA.  1159 

Page     825.  For  paragraph  2103,  substitute  paragraph  2103a. 

Page    898.  In  date  of  act  cited  at  end  of  paragraph  2294,  read 

"  1886  "  instead  of  "  1896." 
Page    917.  In  subdivision  to  chapter  44  read— 

"  2366,  2367,  2368,  2369.    Purchases. 

2370.  State  monuments. 

2371.  Erection  of  monuments,  restriction. 

2372.  The  same,  construction. 

2373.  The  same,  location. 

2374.  Leases. 

2375.  Donation  of  land  for  roads. 

2376.  Donations  of  cannon,  balls,  etc. 

2377.  Injuries  to  monuments,  trees,  etc. 

2378.  Right  of  way  to  Chattanooga  Rapid  Transit 

Railroad." 

Page  928.  In  last  line  of  paragraph  2383  read  "  eighteen  hundred 
and  ninety-four,"  instead  of  "eight  hundred  and 
ninety- four." 

Page  954.  In  marginal  note  to  paragraph  2448  read :  July  "  24,"  in- 
stead of  July  "  14." 

Page  1130.  After  "Extradition:  enforcement  of,  read  "2090-2093," 
instead  of  "  2080-2083." 

Page  1135.  After  "Military  Storekeepers:"  subsubject  "ordnance" 
read  "  807,"  instead  of  "  1169-1171." 

Page  1136.  After  "  Militia"  subsubject  "  property  returns"  read 
"  1695,"  instead  of  "  1690." 


CHAPTER  I. 
THE  EXECUTIVE. 

lla.  Employees  of  the  Executive  Departments  and  other  establish- 
ments of  the  executive  branch  of  the  Government  may  be  detailed 
from  time  to  time  to  the  office  of  the  President  of  the  United  States, 
for  such  temporary  assistance  as  may  be  necessary.  Act  of  February 
26,1907  (34  Stats.,  401). 

CHAPTER  II. 

PROVISIONS  APPLICABLE  TO  THE  SEVERAL  EXECUTIVE  DEPARTMENTS. 
APPOINTMENT  OF  CLERKS;  RESTRICTIONS  ON  APPOINTMENT. 

28a.  Hereafter  it  shall  be  unlawful  to  detail  civil  officers,  clerks, 
or  other  subordinate  employees  who  are  authorized  or  employed 
under  or  paid  from  appropriations  made  for  the  military  or  naval 
establishments,  or  any  other  branch  of  the  public  service  outside  of 
the  District  of  Columbia,  except  those  officers  and  employees  whose 
details  are  now  especially  provided  by  law,  for  duty  in  any  bureau, 
office,  or  other  division  of  any  Executive  Department  in  the  District 
of  Columbia,  except  temporary  details  for  duty  connected  with  their 
respective  offices.  Sec.  6,  Act  of  June  82, 1906  (34  Stats.,  449) . 

(This  paragraph  amplifies  paragraph  28.) 

28b.  It  shall  not  be  lawful  hereafter  for  any  clerk  or  other  em- 
ployee in  the  classified  service  in  any  of  the  Executive  Departments 
to  be  transferred  from  one  Department  to  another  Department  until 
such  clerk  or  other  employee  shall  have  served  for  a  term  of  three 
years  in  the  Department  from  which  he  desires  to  be  transferred. 
Sec.  5,  Act  of  June  22, 1906  (34  Stats.,  449). 

31a.  The  appropriations  herein  made  for  the  officers,  clerks,  and 
persons  employed  in  the  public  service  shall  not  be  available  for  the 
compensation  of  any  persons  incapacitated  otherwise  than  tempo- 
rarily for  performing  such  service,  and  the  heads  of  Departments 
shall  cause  this  provision  to  be  enforced.  Sec.  3,  Act  of  February 
26,  1907  (34  Stats.,  993). 

(This  paragraph  takes  the  place  of  paragraph  31.) 

1161 


1162  MILITARY   LAWS   OF   THE   UNITED   STATES. 

CONTINGENT  FUNDS. 

56a.  Section  one  hundred  and  ninety-two,  Revised  Statutes,1  shall 
not  apply  to  the  subscriptions  to  newspapers  by  the  military  informa- 
tion division  for  the  fiscal  years  ending  June  thirtieth,  nineteen  hun- 
dred, June  thirtieth,  nineteen  hundred  and  one,  June  thirtieth,  nine- 
teen hundred  and  two,  June  thirtieth,  nineteen  hundred  and  three, 
and  thereafter.  Act  of  March  2, 1903  (32  Stats.,  929). 

(This  modifies  paragraph  56.) 

56b.  So  much  of  section  one  hundred  and  ninety-two  of  the  Re- 
vised Statutes  of  the  United  States  as  requires  newspapers  purchased 
for  the  use  of  the  Executive  Departments  to  be  preserved  for  the  per- 
manent files  of  such  Departments  be,  and  the  same  is  hereby,  repealed. 
Sec.  7,  Act  of  June  22, 1906  (34  Stats.,  44$). 

(This  paragraph  amends  paragraph  56.) 

58a.  For  contingent  expenses  of  the  military  information  division, 
General  Staff  Corps,  including  the  purchase  of  law  books,  professional 
books  of  reference,  professional  and  technical  periodicals  and  news- 
papers, and  of  the  military  attaches  at  the  United  States  embassies 
and  legations  abroad,  and  of  the  branch  office  of  the  Military  Informa- 
tion Division  at  Manila,  to  be  expended  under  the  direction  of  the  Sec- 
retary of  War,  ten  thousand  dollars :  Provided,  That  section  thirty- 
six  hundred  and  forty-eight,  Revised  Statutes,2  shall  not  apply  to  sub- 
scriptions for  foreign  and  professional  newspapers  and  periodicals 
to  be  paid  for  from  this  appropriation.  Act  of  April  23,  1904  (33 
Stats.,  260). 

(This  provision  now  appears  annually  in  the  appropriation  act  for  the  support 
of  the  Army.  It  has  the  effect  of  modifying  paragraph  617.) 

ESTIMATES. 

64a.  Hereafter  the  estimates  for  expenses  of  the  Government,  ex- 
cept those  for  sundry  civil  expenses,  shall  be  prepared  and  submitted 

1  SEC.  192,  R.  S.    The  amount  expended  in  any  one  year  for  newspapers,  for 
any  Department,  except  the  Department  of  State,  including  all  the  Bureaus 
and  offices  connected  therewith,  shall  not  exceed  one  hundred  dollars.    And  all 
newspapers  purchased  with  the  public  money  for  the  use  of  either  of  the  De- 
partments must  be  reserved  as  files  for  such  Department. 

2  SEC.  3648,  R.  S.  No  advance  of  public  money  shall  be  made  in  any  case  what- 
ever.   And  in  all  cases  of  contracts  for  the  performance  of  any  service,  or  the 
delivery  of  articles  of  any  description,  for  the  use  of  the  United  States,  payment 
shall  not  exceed  the  value  of  the  service  rendered,  or  of  the  articles  delivered 
previously  to  such  payment.     It  shall,  however,  be  lawful,  under  the  special 
direction  of  the  President,  to  make  such  advances  to  the  disbursing  officers  of  the 
Government  as  may  be  necessary  to  the  faithful  and  prompt  discharge  of  their 
respective  duties,  and  to  the  fulfillment  of  the  public  engagements.     The  Presi- 
dent may  also  direct  such  advances  as  he  may  deem  necessary  and  proper,  to 
persons  in  the  military  and  naval  service  employed  on  distant  stations,  where 
the  discharge  of  the  pay  and  emoluments  to  which  they  may  be  entitled  cannot 
be  regularly  effected. 


SUPPLEMENT.  1163 

each  year  according  to  the  order  and  arrangement  of  the  appropria- 
tion Acts  for  the  year  preceding.  And  any  changes  in  such  order 
and  arrangement,  and  transfers  of  salaries  from  one  office  or  bureau 
to  another  office  or  bureau,  or  the  consolidation  of  offices  or  bureaus 
desired  by  the  head  of  any  Executive  Department  may  be  submitted 
by  note  in  the  estimates.  * 

Hereafter  the  heads  of  the  several  Executive  Departments  and  all 
other  officers  authorized  or  required  to  make  estimates  for  the  public 
service  shall  include  in  their  annual  estimates  furnished  the  Secretary 
of  the  Treasury  for  inclusion  in  the  Book  of  Estimates  all  estimates 
of  appropriations  required  for  the  service  of  the  fiscal  year  for  which 
they  are  prepared  and  submitted,  and  special  or  additional  estimates 
for  that  fiscal  year  shall  only  be  submitted  to  carry  out  laws  subse- 
quently enacted,  or  when  deemed  imperatively  necessary  for  the  pub- 
lic service  by  the  Department  in  which  they  shall  originate,  in  which 
case  such  special  or  additional  estimate  shall  be  accompanied  by  a 
(full  statement  of  its  imperative  necessity  and  reasons  for  its  omission 
'in  the  annual  est  iinates.  Sec.  4,  Act  of  June  22, 1906  (34  Stats.,  448) . 

68a.  The  Public  Printer  is  authorized  hereafter  to  procure  and 
supply,  on  the  requisition  of  the  head  of  any  Executive  Department 
or  other  Government  establishment,  complete  manifold  blanks,  books, 
and  forms,  required  in  duplicating  processes;  also  complete  patented 
devices  with  which  to  file  money-order  statements,  or  other  uniform 
official  papers,  and  to  charge  such  supplies  to  the  allotment  for  print- 
ing and  binding  of  the  Department  or  Government  establishment 
requiring  the  same.  Act  of  June  28, 1902  (32  Stats.,  481). 

68b.  Hereafter  no  book  or  document  not  having  to  do  with  the  ordi- 
nary business  transactions  of  the  Executive  Departments  shall  be 
printed  on  the  requisition  of  any  Executive  Department  or  unless  the 
same  shall  have  been  expressly  authorized  by  Congress,  Act  of 
March  J,  1905  (33  Stats.,  1249). 

68c.  Hereafter,  in  the  printing  and  binding  of  documents  or  reports 
emanating  from  the  Executive  Departments,  bureaus,  and  independ- 
ent offices  of  the  Government,  the  cost  of  which  is  now  charged  to 
the  allotment  for  printing  and  binding  for  Congress,  or  to  appropria- 
tions or  allotments  of  appropriations  other  than  those  made  to  the 
Executive  Departments,  bureaus,  or  independent  offices  of  the  Gov- 
ernment, the  cost  of  illustrations,  composition,  stereotyping,  and 
other  work  involved  in  the  actual  preparation  for  printing,  apart 
from  the  creation  of  manuscript,  shall  be  charged  to  the  appropria- 
tion or  allotment  of  appropriation  for  the  printing  and  binding  of 
the  Department,  bureau,  or  independent  office  of  the  Government  in 
which  such  documents  or  reports  originate ;  the  balance  of  cost  shall 
be  charged  to  the  allotment  for  printing  and  binding  for  Congress, 
and  to  the  appropriation  or  allotment  of  appropriation  of  the  Execu- 


1164  MILITARY   LAWS   OF    THE    UNITED   STATES. 

tive  Department,  bureau,  or  independent  office  of  the  Government, 
in  proportion  to  the  number  delivered  to  each ;  the  cost  of  any  copies 
of  such  documents  or  reports  distributed  otherwise  than  through 
Congress,  or  the  Executive  Departments,  bureaus,  and  independent 
offices  of  the  Government,  if  such  there  be,  shall  be  charged  as  hereto- 
fore :  Provided,  That  on  or  before  the  first  day  of  December  in  each 
fiscal  year  each  Executive  Department,  bureau,  or  independent  office 
of  the  Government  to  which  an  appropriation  or  allotment  of  appro- 
priation for  printing  and  binding  is  made,  shall  obtain  from  the 
Public  Printer  an  estimate  of  the  probable  cost  of  all  publications  of 
such  Department,  bureau,  or  independent  office  now  required  by  law 
to  be  printed,  and  so  much  thereof  as  would,  under  the  terms  of  this 
resolution,  be  charged  to  the  appropriation  or  allotment  of  appro- 
priation of  the  Department,  bureau,  or  independent  office  of  the  Gov- 
ernment in  which  such  publications  originate,  shall  thereupon  be  set 
aside  to  be  applied  only  to  the  printing  and  binding  of  such  docu- 
ments and  reports,  and  shall  not  be  available  for  any  other  purpose 
until  all  of  such  allotment  of  cost  on  account  of  such  documents  and 
reports  shall  have  been  fully  paid.  Joint  Res.  of  March  30, 1906  (3 '4 
Stats.,  825). 

68d.  Tho,  number  of  copies  of  any  public  document  or  report  now 
authorized  to  be  printed  or  which  may  hereafter  be  authorized  to 
be  printed  for  any  of  the  Executive  Departments,  or  bureaus  or 
branches  thereof,  or  independent  offices  of  the  Government  may  be 
supplied  in  two  or  more  editions,  instead  of  one,  upon  a  requisition 
on  the  Public  Printer  by  the  official  head  of  such  Department  or 
independent  office,  but  in  no  case  shall  the  aggregate  of  said  editions 
exceed  the  number  of  copies  now  authorized,  or  which  may  hereafter 
be  authorized.  Joint  Res.  of  March  30, 1906  (34  Stats.,  826). 

68e.  Hereafter  there  shall  be  submitted  in  the  regular  annual  esti- 
mates to  Congress  under  and  as  a  part  of  the  expenses  for  "  Print- 
ing and  binding,"  estimates  for  all  printing  and  binding  required  by 
each  of  the  Executive  Departments,  their  bureaus  and  offices,  and 
other  Government  establishments  at  Washington,  District  of  Colum- 
bia, for  each  fiscal  year;  and  after  the  fiscal  year  nineteen  hundred 
and  seven  no  appropriations  other  than  those  made  specifically  and 
solely  for  printing  and  binding  shall  be  used  for  such  purposes  in  any 
Executive  Department  or  other  Government  establishment  in  the 
District  of  Columbia:  Provided,  That  nothing  in  this  section  shall 
apply  to  stamped  envelopes,  or  envelopes  and  articles  of  stationery 
other  than  letter  heads  and  note  heads,  printed  in  the  course  of  manu- 
facture. Sec.  2,  Act  of  June  30,  1906  (34  Stats.,  762). 

68f .  Hereafter  no  part  of  the  appropriations  made  for  printing  and 
binding  shall  be  used  for  any  illustration,  engraving,  or  photograph 
in  any  document  or  report  ordered  printed  by  Congress  unless  the 


SUPPLEMENT.  1165 

order  to  print  expressly  authorizes  the  same,  nor  in  any  document 
or  report  of  any  executive  department  or  other  Government  estab- 
lishment until  the  head  of  the  executive  department  or  Government 
establishment  shall  certify  in  a  letter  transmitting  such  report  that 
the  illustration  is  necessary  and  relates  entirely  to  the  transaction 
of  public  business.  Sec.  1,  Act  of  March  3, 1905  (33  Stats.,  IMS). 

75a,  Hereafter  the  Secretary  of  the  Treasury  shall  require,  and  it 
shall  be  the  duty  of  the  head  of  each  Executive  Department  or  other 
Government  establishment  to  furnish  him,  within  thirty  days  after 
the  close  of  each  fiscal  year,  a  statement  of  all  money  arising  from 
proceeds  of  public  property  of  any  kind  or  from  any  source  other 
than  the  postal  service,  received  by  said  head  of  Department  or  other 
Government  establishment  during  the  previous  fiscal  year  for  or  on 
account  of  the  public  service,  or  in  any  other  manner  in  the  discharge 
of  his  official  duties  other  than  as  salary  or  compensation,  which  was 
not  paid  into  the  General  Treasury  of  the  United  States,  together 
with  a  detailed  account  of  all  payments,  if  any,  made  from  such 
funds  during  such  year.  All  such  statements,  together  with  a  similar 
statement  applying  to  the  Treasury  Department,  shall  be  transmitted 
by  the  Secretary  of  the  Treasury  to  Congress  at  the  beginning  of  each 
regular  session.  Sec.  5,  Act  of  June  SO,  1906  (34  Stats.,  70S). 

MISCELLANEOUS  REQUIREMENTS. 

lOOa.  No  part  of  any  money  appropriated  by  this  Act  shall  be  used 
for  purchase,  maintaining,  driving,  or  operating  any  carriage  or  other 
vehicle,  other  than  those  authorized  for  personal  purposes  in  section 
two  of  the  legislative,  executive,  and  judicial  appropriation  Act  for 
the  fiscal  year  nineteen  hundred  and  five,  unless  the  same  shall  have 
conspicuously  painted  thereon  at  all  times  the  full  name  of  the  Ex- 
ecutive Department  or  other  branch  of  the  public  service  to  which 
the  same  belong  and  in  the  service  of  which  the  same  are  used.  Sec. 
3,  Act  of  April  28, 1904  (33  Stats.,  513) . 

lOOb.  No  part  of  any  money  appropriated  by  this  or  any  other  Act 
shall  be  used  for  purchasing,  maintaining,  driving,  or  operating  any 
carriage  or  vehicle  (other  than  those  for  the  use  of  the  President  of 
the  United  States,  the  heads  of  the  Executive  Departments,  and  the 
Secretary  to  the  President,  and  other  than  those  used  for  transporta- 
tion of  property  belonging  to  or  in  the  custody  of  the  United  States) , 
for  the  personal  or  official  use  of  any  officer  or  employee  of  any  of 
the  Executive  Departments  or  other  Government  establishments  at 
Washington,  District  of  Columbia,  unless  the  same  shall  be  specific- 
ally authorized  by  law  or  provided  for  in  terms  by  appropriation  of 
money,  and  all  such  carriages  and  vehicles  so  procured  and  used  for 
official  purposes  shall  have  conspicuously  painted  thereon  at  all  times 


1166  MILITARY   LAWS    OF    THE    UNITED    STATES. 

the  full  name  of  the  Executive  Department  or  other  branch  of  the 
public  service  to  which  the  same  belong  and  in  the  service  of  which 
the  same  are  used.    Sec.  4,  Act  of  February  3,  1905  (33  Stats.,  687). 
(This  paragraph  takes  the  place  of  paragraph  lOOa.) 


CHAPTER  III. 
THE  DEPARTMENT  OF  WAR. 
DUTIES  OF  THE  SECRETARY  OF  WAR. 

126a.  No  steamship  in  the  transport  service  of  the  United  States 
shall  be  sold  or  disposed  of  without  the  consent  of  Congress  having 
been  first  had  or  obtained.  Act  of  March  2,  1903  (32  Stats.,  938) . 

126b.  No  action  looking  to  the  discontinuance  of  the  transport  serv- 
ice shall  be  taken  without  further  action  of  Congress.  Act  of  March 
2,1903  (32  Stats.,  939). 

126c.  On  and  after  July  first,  nineteen  hundred  and  six,  no  mer- 
chandise except  supplies  for  the  Army  or  Navy  shall  be  transported 
by  sea,  under  penalty  of  forfeiture  thereof,  between  ports  of  the 
United  States  and  ports  or  places  in  the  Philippine  Archipelago, 
directly  or  via  a  foreign  port,  or  for  any  part  of  the  voyage,  in  any 
other  vessel  than  a  vessel  of  the  United  States.  But  this  section  shall 
not  be  construed  to  prohibit  the  sailing  of  any  foreign  vessel  between 
any  port  of  the  United  States  and  any  port  or  place  in  the  Philippine 
Archipelago:  Provided,  That  no  merchandise  other  than  that  im- 
ported in  such  vessel  from  some  foreign  port  which  has  been  specified 
on  the  manifest  as  for  another  port,  and  which  shall  not  have  been  un- 
loaded, shall  be  carried  between  a  port  of  the  United  States  and  a  port 
or  place  in  the  Philippine  Archipelago.  Sec:  1,  Act  of  April  15, 1904 
(33  Stats.,  181). 

126d.  Vessels  of  the  United  States,  or  belonging  to  the  United 
States,  and  no  others,  shall  be  employed  in  the  transportation  by  sea 
of  coal,  provisions,  fodder,  or  supplies  of  any  description,  purchased 
pursuant  to  law,  for  the  use  of  the  Army  or  Navy  unless  the  Presi- 
dent shall  find  that  the  rates  of  freight  charges  by  said  vessels  are 
excessive  and  unreasonable,  in  which  case,  contracts  shall  be  made 
under  the  law  as  it  now  exists :  Provided,  That  no  greater  charges  be 
made  by  such  vessels  for  transportation  of  articles  for  the  use  of  the 
said  Army  and  Navy  than  are  made  by  such  vessels  for  transportation 
of  like  goods  for  private  parties  or  companies.  Act  of  April  28, 1904 
(33  Stats.,  518) . 

126e.  On  and  after  April  eleventh,  nineteen  hundred  and  nine,  no 
merchandise  except  supplies  for  the  Army  or  Navy  shall  be  trans- 
ported by  sea,  under  penalty  of  forfeiture  thereof,  between  ports  of 


SUPPLEMENT.  1167 

the  United  States  and  ports  or  places  in  the  Philippine  Archipelago, 
directly  or  via  a  foreign  port,  or  for  any  part  of  the  voyage,  in  any 
other  vessel  than  a  vessel  of  the  United  States.  But  this  section  shall 
not  be  construed  to  prohibit  the  sailing  of  any  foreign  vessel  between 
any  port  of  the  United  States  and  any  port  or  place  in  the  Philippine 
Archipelago:  Provided,  That  no  merchandise  other  than  that  im- 
ported in  such  vessel  from  some  foreign  port  which  has  been  specified 
on  the  manifest  as  for  another  port,  and  which  shall  have  not  been 
unloaded,  shall  be  carried  between  a  port  of  the  United  States  and  a 
port  or  place  in  the  Philippine  Archipelago.  Sec.  1,  Act  of  April 
30,1906  (34  Stats.,  154). 

(This  paragraph  takes  the  place  of  paragraph  126c.) 

126f.  On  and  after  April  eleventh,  nineteen  hundred  and  nine,  no 
foreign  vessel  shall  transport  passengers  between  ports  of  the  United 
States  and  ports  or  places  in  the  Philippine  Archipelago,  either 
directly  or  by  way  of  a  foreign  port,  under  a  penalty  of  two  hundred 
dollars  for  each  passenger  so  transported  and  landed.  Sec.  2,  Act  of 
April  30,  1906  (34  Stats.,  1-54). 

126g.  Sections  one  and  two  of  this  Act  shall  not  apply  to  the  trans- 
portation of  merchandise  or  passengers  between  ports  or  places  in 
the  Philippine  Archipelago.  Until  Congress  shall  have  authorized 
the  registry  as  vessels  of  the  United  States  of  vessels  owned  in  the 
Philippine  Archipelago  the  government  of  the  Philippine  Islands  is 
hereby  authorized  to  adopt,  from  time  to  time,  and  enforce  regula- 
tions governing  the  transportation  of  merchandise  and  passengers 
between  ports  or  places  in  the  Philippine  Archipelago.  Sec.  3,  Act  of 
April  30,  1906  (34  Stats.,  154). 

126h.  Sections  one  and  two  of  this  Act  shall  not  apply  to  the  voy- 
age of  a  vessel  between  a  port  of  the  United  States  and  a  port  or 
place  in  the  Philippine  Archipelago  begun  before  April  eleventh, 
nineteen  hundred  and  nine.  Sec.  4,  Act  of  April  30, 1906  (34  Stats., 
154). 

1261.  Sections  one  and  two  of  this  Act  shall  not  apply  to  vessels 
owned  by  the  United  States.  Sec.  5,  Act  of  April  30, 1906  (34  Stats., 

154). 

126j.  On  and  after  the  passage  of  this  Act  the  same  tonnage  taxes 

shall  be  levied,  collected,  and  paid  upon  all  foreign  vessels  coming 
into  the  United  States  from  the  Philippine  Archipelago  which  are 
required  by  law  to  be  levied,  collected,  and  paid  upon  vessels  coming 
into  the  United  States  from  foreign  countries:  Provided,  however, 
That  until  April  eleventh,  nineteen  hundred  and  nine,  the  provisions 
of  law  restricting  to  vessels  of  the  United  States  the  transportation 
of  passengers  and  merchandise  directly  or  indirectly  from  one  port  of 
the  United  States  to  another  port  of  the  United  States  shall  not  be 


1168  MILITAKY   LAWS    OF    THE    UNITED    STATES. 

applicable  to  foreign  vessels  engaging  in  trade  between  the  Philippine 
Archipelago  and  the  United  States :  And  provided  further,  That  the 
Philippine  Commission  shall  be  authorized  and  empowered  to  issue 
licenses  to  engage  in  lighterage  or  other  exclusively  harbor  business 
to  vessels  or  other  craft  actually  engaged  in  such  business  at  the  date 
of  the  passage  of  this  Act,  and  to  vessels  or  other  craft  built  in  the 
Philippine  Islands  or  in  the  United  States  and  owned  by  citizens  of 
the  United  States  or  by  inhabitants  of  the  Philippine  Islands.  Sec.  6, 
Act  of  April  30, 1906  (34  Stats.,  154). 

126k.  The  Secretary  of  Commerce  and  Labor  shall,  from  time  to 
time,  issue  regulations  for  the  enforcement  of  this  Act,  except  as  other- 
wise provided  in  section  three :  Provided,  That  such  of  the  naviga- 
tion laws  of  the  United  States  as  are  in  force  in  the  Philippine  Archi- 
pelago in  regard  to  vessels  arriving  in  the  Philippine  Islands  from 
the  mainland  territory  and  other  insular  possessions  of  the  United 
States  shall  continue  to  be  administered  by  the  proper  officials  of  the 
government  of  the  Philippine  Islands.  Sec.  7,  Act  of  April  30,  1906 
(34  Stats.,  155). 

CONGRESS  OF    NATIONS. 

141a.  The  sum  of  three  thousand  dollars  a  year  is  hereby  appropri- 
ated, out  of  any  money  in  the  Treasury  not  otherwise  appropriated, 
for  the  support  and  maintenance  of  the  permanent  international  com- 
mission of  the  congresses  of  navigation  and  for  the  payment  of  the 
actual  expenses  of  the  properly  accredited  national  delegates  of  the 
United  States  to  the  meetings  of  the  congresses  and  of  the  commis- 
sion ;  and  that  the  Secretary  of  War  be,  and  is  hereby,  authorized  to 
draw  his  warrant  each  year  upon  the  Secretary  of  the  Treasury  for 
such  sum,  not  to  exceed  three  thousand  dollars,  as  may  in  his  opinion 
be  proper  to  apply  to  the  purposes  above  mentioned,  and  that  the  said 
sum  shall  be  disbursed  under  such  regulations  as  may  be  prescribed 
by  the  Secretary  of  War. 

The  national  delegates  aforesaid  from  the  United  States  shall  serve 
without  compensation,  but  shall  be  reimbursed  for  their  actual 
expenses  incurred  while  traveling  to  and  from  the  meetings,  and 
while  in  attendance  thereon,  from  the  funds  herein  appropriated  and 
authorized  to  be  expended.  Act  of  June  28, 1902  (32  Stats.,  485). 

BUREAU  OF  INSULAR  AFFAIRS. 

141b.  The  Division  of  Insular  Affairs  of  the  War  Department,  or- 
ganized by  the  Secretary  of  War,  is  hereby  continued  until  otherwise 
provided,  and  shall  hereafter  be  known  as  the  Bureau  of  Insular 
Affairs  of  the  War  Department.  The  business  assigned  to  said  Bu- 
reau shall  embrace  all  matters  pertaining  to  civil  government  in 


SUPPLEMENT.  1169 

the  island  possessions  of  the  United  States  subject  to  the  jurisdiction 
of  the  War  Department ;  and  the  Secretary  of  War  is  hereby  author- 
ized to  detail  an  officer  of  the  Army  whom  he  may  consider  especially 
well  qualified,  to  act  under  the  authority  of  the  Secretary  of  War  as 
the  chief  of  said  Bureau;  and  said  officer  while  acting  under  said 
detail  shall  have  the  rank,  pay,  and  allowances  of  a  colonel.  Sec.  87, 
Act  of  July  1, 1902  (32  Stats.,  712). 

141  c.  The  Chief  of  the  Bureau  of  Insular  Affairs  of  the  War  De- 
partment shall  hereafter  be  appointed  by  the  President  for  the  period 
of  four  years,  unless  sooner  relieved,  with  the  advice  and  consent  of 
the  Senate,  and  while  holding  that  office  he  shall  have  the  rank,  pay, 
and  allowances  of  a  brigadier-general.  Act  of  June  25,  1906  (34 
Stats.,  456). 

(This  paragraph  amends  paragraph  141b.) 

141d.  The  Secretary  of  War  is  hereby  authorized  to  detail  an  officer 
of  the  Army,  whom  he  may  consider  especially  well  qualified,  to  act 
as  principal  assistant  to  the  Chief  of  the  Bureau  of  Insular  Affairs 
of  the  War  Department,  and  said  principal  assistant  while  acting 
under  said  detail  shall  have  the  rank,  pay,  and  allowances  of  a  major. 
Act  of  March  2,  1907  (34  Stats.,  1162). 

141e.  The  provisions  of  section  twenty-seven  of  the  Act  of  Feb- 
ruary second,  nineteen  hundred  and  one,  with  reference  to  the  trans- 
fer of  officers  of  the  line  to  the  departments  of  the  staff  for  tours  of, 
service,  shall  apply  to  the  vacancy  created  by  this  Act  and  to  the 
return  of  the  officer  so  detailed  to  the  line  of  the  Army.  Act  of 
March  2,  1907  (34  Stats.,  1162). 

(See  paragraph  582.) 

APPROPRIATIONS. 

272a.  No  Executive  Department  or  other  Government  establish- 
ment of  the  United  States  shall  expend,  in  any  one  fiscal  year,  any  sum 
in  excess  of  appropriations  made  by  Congress  for  that  fiscal  year,  or 
involve  the  Government  in  any  contract  or  other  obligation  for  the 
future  payment  of  money  in  excess  of  such  appropriations  unless 
such  contract  or  obligation  is  authorized  by  law.  Nor  shall  any  De- 
partment or  any  officer  of  the  Government  accept  voluntary  service  for 
the  Government  or  employ  personal  service  in  excess  of  that  author- 
ized by  law,  except  in  cases  of  sudden  emergency  involving  the  loss 
of  human  life  or  the  destruction  of  property.  All  appropriations 
made  for  contingent  expenses  or  other  general  purposes,  except 
appropriations  made  in  fulfillment  of  contract  obligations  expressly 
authorized  by  law,  or  for  objects  required  or  authorized  by  law  with- 
out reference  to  the  amounts  annually  appropriated  therefor,  shall,  on 
22924—08 74 


1170  MILITARY   LAWS    OF    THE    UNITED    STATES. 

or  before  the  beginning  of  each  fiscal  year,  be  so  apportioned  by 
monthly  or  other  allotments  as  to  prevent  expenditures  in  one  portion 
of  the  year  which  may  necessitate  deficiency  or  additional  appropria- 
tions to  complete  the  service  of  the  fiscal  year  for  which  said  appro- 
priations are  made ;  and  all  such  apportionments  shall  be  adhered  to 
and  shall  not  be  waived  or  modified  except  upon  the  happening  of 
some  extraordinary  emergency  or  unusual  circumstance  which  could 
not  be  anticipated  at  the  time  of  making  such  apportionment,  but  this 
provision  shall  not  apply  to  the  contingent  appropriations  of  the 
Senate  or  House  of  Representatives ;  and  in  case  said  apportionments 
are  waived  or  modified  as  herein  provided,  the  same  shall  be  waived 
or  modified  in  writing  by  the  head  of  such  Executive  Department  or 
other  Government  establishment  having  control  of  the  expenditure, 
and  the  reasons  therefor  shall  be  fully  set  forth  in  each  particular 
case  and  communicated  to  Congress  in  connection  with  estimates  for 
any  additional  appropriations  required  on  account  thereof.  Any  per- 
son violating  any  provision  of  this  section  shall  be  summarily  re- 
moved from  office  and  may  also  be  punished  by  a  fine  of  not  less  than 
one  hundred  dollars  or  by  imprisonment  for  not  less  than  one  month. 
Act  of  February  27, 1906  (34  Stats.,  48). 

(This  paragraph  amends  Section  3679  of  the  Revised  Statutes,  as  amended  by 
section  4  of  the  deficiency  appropriation  act  of  March  3,  1905,  33  Stats.,  1257.) 

272b.  No  Act  of  Congress  hereafter  passed  shall  be  construed  to 
make  an  appropriation  out  of  the  Treasury  of  the  United  States,  or  to 
authorize  the  execution  of  a  contract  involving  the  payment  of  money 
in  excess  of  appropriations  made  by  law,'  unless  such  Act  shall  in 
specific  terms  declare  an  appropriation  to  be  made  or  that  a  contract 
may  be  executed.  Sec.  9,  Act  of  June  30, 1906  (34  Stats.,  764). 

(See  paragraphs  272a,  659,  and  1623.) 

APPLICATION    OF    BALANCES. 

279a.  Hereafter  the  appropriations  "  Ordnance-stores  ammuni- 
tion," "  Small-arms  target  practice,"  and  "  Ordnance  stores  and  sup- 
plies "  shall  be  available  for  two  years  to  procure  the  stores  authorized 
by  them.  Act  of  March  2, 1907  (34  Stats.,  1175). 

(See  paragraph  282.) 


CHAPTER  V. 

THE  DEPARTMENT  OF  THE  TREASURY — THE  ACCOUNTING  OFFICERS. 
DESIGNATED  DEPOSITORIES. 

290a.  The  treasury  of  the  Philippine  Islands  and  such  banking 
associations  in  said  islands  with  a  paid  up  capital  of  not  less  than  two 
million  dollars  and  chartered  by  the  United  States  or  any  State 


SUPPLEMENT.  1171 

thereof  as  may  be  designated  by  the  Secretary  of  War  and  the  Secre- 
tary of  the  Treasury  of  the  United  States  shall  be  depositories  of 
public  money  of  the  United  States,  subject  to  the  provisions  of  exist- 
ing law  governing  such  depositories  in  the  United  States :  Provided, 
That  the  treasury  of  the  government  of  said  islands  shall  not  be 
required  to  deposit  bonds  in  the  Treasury  of  the  United  States,  or 
to  give  other  specific  securities  for  the  safe-keeping  of  public  money 
except  as  prescribed,  in  his  discretion,  by  the  Secretary  of  War. 
Sec.  85,  Act  of  July  1, 1902  (32  Stats.,  711). 


CHAPTER  VII. 

THE    DEPARTMENT    OF    JUSTICE — HABEAS    CORPUS — THE    COURT    OF 

CLAIMS. 

HABEAS.  CORPUS. 

36 la.  The  privilege  of  the  writ  of  habeas  corpus  shall  not  be  sus- 
pended, unless  when  in  cases  of  rebellion,  insurrection,  or  invasion 
the  public  safety  may  require  it,  in  either  of  which  events  the  same 
may  be  suspended  by  the  President,  or  by  the  governor,  with  the 
approval  of  the  Philippine  Commission,  wherever  during  such  period 
the  necessity  for  such  suspension  shall  exist.  Sec.  5,  Act  of  July  1, 
1920  (32  Stats.,  692). 

(This  paragraph  applies  to  the  Philippine  Islands,  being  a  part  of  the  "Act 
temporarily  to  provide  for  the  administration  of  the  affairs  of  civil  government 
in  the  Philippine  Islands,  and  for  other  purposes.") 


CHAPTER   XI. 

THE  MILITARY  ESTABLISHMENT — GENERAL  PROVISIONS  OF 
ORGANIZATION. 

NATIVE  TROOPS TROOPS  IN  THE  PHILIPPINE  ISLANDS. 

501a.  Any  companies  of  Philippine  scouts  ordered  to  assist  the 
Philippine  constabulary  in  the  maintenance  of  order  in  the  Philippine 
Islands  may  be  placed  under  the  command  of  officers  serving  as  chief 
or  assistant  chiefs  of  the  Philippine  constabulary,  as  herein  provided : 
Provided,  That  when  the  Philippine  scouts  shall  be  ordered  to  assist 
the  Philippine  constabulary,  said  scouts  shall  not  at  any  time  be 
placed  under  the  command  of  inspectors  or  other  officers  of  the  con- 
stabulary below  the  grade  of  assistant  chief  of  constabulary.  Sec.  2, 
Act  of  January  30, 1903  (32  Stats.,  783). 


1172  MILITARY   LAWS    OF    THE    UNITED    STATES. 

THE  PORTO  RICAN  REGIMENT. 

505a.  Citizens  of  Porto  Rico  shall  be  eligible  for  enlistment  in  the 
Regular  Army  and  the  Porto  Rico  Regiment  may  be  ordered  for  serv- 
ice outside  of  the  island  of  Porto  Rico.  Act  of  March  2,  1903  (32 
Stats.,  934). 

(This  amplifies   paragraphs  671  and  1366  in   regard  to  enlistments.) 

505b.  For  Porto  Rico  Provisional  Regiment  of  Infantry,  composed 
of  two  battalions  of  four  companies  each,  to  include  the  enlisted  men 
of  the  present  regiment  who  may  be  in  the  service  June  thirtieth, 
nineteen  hundred  and  four,  and  officers  as  herein  provided.  The 
field  officers  shall  be  detailed  from  the  officers  of  the  Regular  Army 
of  the  same  grade  and  shall  receive  the  pay  and  emoluments  of  their 
grade.  The  present  officers  of  the  regiment  below  the  grade  of  field 
officers  who  are  mentally,  morally,  and  physically  qualified  and  have 
proved  efficient  in  their  respective -positions  may  be  reappointed  by 
the  President,  by  and  with  the  advice  and  consent  of  the  Senate  (and 
such  officers  shall  be  entitled  to  preference  in  such  appointments)  for 
a  provisional  term  of  four  years.  Officers  so  reappointed  shall  be 
eligible  for  promotion  in  the  regiment  up  to  and  including  the  rank 
of  captain,  upon  examination  as  to  their  fitness  for  such  promotion. 
Vacancies  then  existing  or  thereafter  occurring  in  the  grade  of  sec- 
ond lieutenant  may  be  filled  by  the  President,  in  his  discretion,  by 
and  with  the  advice  and  consent  of  the  Senate,  by  the  appointment  of 
citizens  of  Porto  Rico  for  the  provisional  term  of  four  years,  whose 
qualifications  for  commissions  shall  be  established  by  such  examina- 
tion as  the  President  may  prescribe,  who  shall  also  be  eligible  for  pro- 
motion in  the  regiment  up  to  and  including  the  rank  of  captain,  upon 
an  examination  as  to  their  fitness.  Vacancies  not  filled  as  hereinbe- 
fore provided  by  the  reappointment  or  promotion  of  the  present  offi- 
cers or  by  the  appointment  or  promotion  of  citizens  of  Porto  Rico, 
shall  be  filled  by  detail  from  the  line  of  the  infantry  of  the  Army  of 
the  same  grade  with  the  vacancy  to  be  filled.  Men  hereafter  enlisted 
in  the  regiment  shall  be  citizens  of  Porto  Rico  and  shall  be  enlisted 
for  a  term  of  two  years;  and  except  in  the  case  of  noncommissioned 
officers  shall  not  be  reenlisted  in  time  of  peace.  The  names  of  all  en- 
listed men  who  have  served  honorably  in  the  regiment  shall  be  kept  at 
the  headquarters  of  the  regiment,  and  these  men  shall  be  regarded  as 
a  reserve,  to  be  specially  considered  in  time  of  war.  The  pay  and  al- 
lowances of  officers  and  enlisted  men  of  the  regiment  shall  be  the 
same  as  authorized  for  like  grades  in  the  Regular  Army.  Act  of 
April  23,  1904  (33  Stats.,  266}. 

(This  paragraph  alters  the  provision  of  paragraph  505.) 


SUPPLEMENT.  1173 

THE    VOLUNTEER    ARMY. 

518a.  All  the  volunteer  forces  of  the  United  States  called  for  by 
authority  of  Congress  shall,  except  as  hereinbefore  provided,  be  or- 
ganized in  the  manner  provided  by  the  Act  entitled  "An  Act  to  pro- 
vide for  temporarily  increasing  the  military  establishment  of  the 
United  States  in  time  of  war,  and  for  other  purposes,"  approved 
April  twenty-second,  eighteen  hundred  and  ninety-eight.  Sec.  24> 
Act  of  January  21,  1903  (32  Stats.,  780). 

(This  paragraph  has  reference  to  the  "Act  to  promote  the  efficiency  of  the 
militia,  and  for  other  purposes."  The  provisions  of  this  Act  are  incorporated, 
in  this  supplement,  in  the  chapter  entitled  "Militia,"  excepting  section  23  of 
the  Act  which  belongs  more  properly  to  the  "Volunteer  Army"  and  which  will 
be  found  in  this  supplement  as  paragraph  522a.) 

522a.  For  the  purpose  of  securing  a  list  of  persons  specially  quali- 
fied to  hold  commissions  in  any  volunteer  force  which  may  hereafter 
be  called  for  and  organized  under  the  authority  of  Congress,  other 
than  a  force  composed  of  organized  militia,  the  Secretary  of  War  is 
authorized  from  time  to  time  to  convene  boards  of  officers  at  suitable 
and  convenient  army  posts  in  different  parts  of  the  United  States, 
who  shall  examine  as  to  their  qualifications  for  the  command  of 
troops  or  for  the  performance  of  staff  duties  all  applicants  who  shall 
have  served  in  the  Regular  Army  of  the  United  States,  in  any  of  the 
volunteer  forces  of  the  United  States,  or  in  the  organized  militia  of 
any  State  or  Territory  or  District  of  Columbia,  or  who,  being  a  citizen 
of  the  United  States,  shall  have  attended  or  pursued  a  regular  course 
of  instruction  in  any  military  school  or  college  of  the  United  States 
Army,  or  shall  have  graduated  from  any  educational  institution  to 
which  an  officer  of  the  Army  or  Navy  has  been  detailed  as  superin- 
tendent or  professor  pursuant  to  law  after  having  creditably  pursued 
the  course  of  military  instruction  therein  provided.  Such  examina- 
tions shall  be  under  rules  and  regulations  prescribed  by  the  Secretary 
of  War,  and  shall  be  especially  directed  to  ascertain  the  practical 
capacity  of  the  applicant.  The  record  of  previous  service  of  the 
applicant  shall  be  considered  as  a  part  of  the  examination.  Upon  the 
conclusion  of  each  examination  the  board  shall  certify  to  the  War 
Department  its  judgment  as  to  the  fitness  of  the  applicant,  stating  the 
office,  if  any,  which  it  deems  him  qualified  to  fill,  and,  upon  approval 
by  the  President,  the  names  of  the  persons  certified  to  be  qualified 
shall  be  inscribed  in  a  register  to  be  kept  in  the  War  Department  for 
that  purpose.  The  persons  so  certified  and  registered  shall,  subject 
to  a  physical  examination  at  the  time,  constitute  an  eligible  class  for 
commissions  pursuant  to  such  certificates  in  any  volunteer  force  here- 
after called  for  and  organized  under  the  authority  of  Congress,  other 
thai!  a  force  composed  of  organized  militia,  and  the  President  may 


1174  MILITARY   LAWS   OF   THE   UNITED   STATES. 

authorize  persons  from  this  class,  to  attend  and  pursue  a  regular 
course  of  study  at  any  military  school  or  college  of  the  United  States 
other  than  the  Military  Academy  at  West  Point  and  to  receive  from 
the  annual  appropriation  for  the  support  of  the  Army  the  same  allow- 
ances and  commutations  as  provided  in  this  Act  for  officers  of  the 
organized  militia:  Provided ',  That  no  person  shall  be  entitled  to 
receive  a  commission  as  a  second  lieutenant  after  he  shall  have  passed 
the  age  of  thirty;  as  first  lieutenant  after  he  shall  have  passed  the 
age  of  thirty-five;  as  captain  after  he  shall  have  passed  the  age  of 
forty;  as  major  after  he  shall  have  passed  the  age  of  forty-five;  as 
lieutenant-colonel  after  he  shall  have  passed  the  age  of  fifty,  or  as 
colonel  after  he  shall  have  passed  the  age  of  fifty-five:  And  provided 
further,  That  such  appointments  shall  be  distributed  proportionately 
as  near  as  may  be,  among  the  various  States  contributing  such  volun- 
teer force :  And  provided,  That  the  appointments  in  this  section  pro- 
vided for  shall  not  be  deemed  to  include  appointments  to  any  office  in 
any  company,  troop,  battery,  battalion,  or  regiment  of  the  organized 
militia  which  volunteers  as  a  body  or  the  officers  of  which  are  ap- 
pointed by  the  governor  of  a  State  or  Territory.  Sec.  23,  Act  of 
January  21, 1903  (32  Stats.,  779). 


CHAPTER  XII. 
GENERAL  OFFICERS,  AIDS,  AND  MILITARY  SECRETARIES. 

555a.  When  the  office  of  Lieu  tenant- General  shall  become  vacant  it 
shall  not  thereafter  be  filed,  but  said  office  shall  cease  and  determine : 
Provided  further,  That  nothing  in  this  provision  shall  affect  the  re- 
tired list.  Act  of  March  2,  1907  (34  Stats.,  1160). 

(This  paragraph  amends  paragraph  555.     See  paragraph  558.) 


CHAPTER  XIII. 
RANK  AND  COMMAND — TACTICAL  AND  TERRITORIAL  ORGANIZATIONS. 

CLERKS  AND  MESSENGERS. 

572a.  Pay  to  clerks  and  messengers  at  headquarters  of  division  and 
departments  and  office  of  the  Chief  of  Staff. 

One  chief  clerk,  at  the  office  of  the  Chief  of  Staff,  two  thousand 
dollars  per  annum. 

Four  clerks,  at  one  thousand  eight  hundred  dollars  each  per  annum. 

Ten  clerks,  at  one  thousand  six  hundred  dollars  each  per  annum. 

Twenty-five  clerks,  at  one  thousand  four  hundred  dollars  each  per 
annum. 


SUPPLEMENT.  1175 

Sixty-five  clerks,  at  one  thousand  two  hundred  dollars  each  per 
annum. 

Eighty-six  clerks,  at  one  thousand  dollars  each  per  annum. 

Sixty-eight  general-service  messengers,  at  seven  hundred  and 
twenty  dollars  each  per  annum. 

In  all,  two  hundred  and  seventy-three  thousand  one  hundred  and 
sixty  dollars.  Act  of  April  23,  1904  (3$  State.,  261). 

(This  paragraph  amends  paragraph  572  by  providing  for  the  clerks  needed 
under  the  new  organization  for  the  General  Staff  and  for  military  divisions.) 

573a.  It  shall  not  hereafter  be  lawful  to  detail  clerks  or  other  ci- 
vilian employees  authorized  for  the  Office  of  the  General  Staff  for 
duty,  temporary  or  otherwise,  in  any  office  or  bureau  of  the  War  De- 
partment at  Washington,  District  of  Columbia,  or  to  detail  clerks  or 
other  employees  from  the  War  Department  for  service  in  the  Office 
of  the  General  Staff.  Act  of  June  22, 1906  (34  Stats.,  418) . 

573b.  No  clerk,  messenger,  or  laborer  at  headquarters  of  divisions, 
departments,  or  office  of  the  Chief  of  Staff,  shall  be  assigned  to  duty 
with  any  bureau  in  the  War  Department.  Act  of  March  2, 1907  (34 
Stats.,  1161). 


CHAPTER  XIV. 

THE  STAFF  DEPARTMENTS — GENERAL  PROVISIONS — DISBURSING 

OFFICERS. 

APPOINTMENTS  AND  DETAILS. 

577a.  No  officer  hereafter  detailed  or  appointed  under  the  pro- 
visions of  section  twenty-six  of  the  Act  of  February  second,  nineteen 
hundred  and  one,  who  has  less  than  four  years  to  serve  from  the  date 
of  his  detail  or  appointment  to  the  date  of  his  retirement  shall  serve 
under  such  detail  or  appointment  or  be  paid  as  if  on  the  active  list 
beyond  the  date  of  his  retirement.  Act  of  June  30,  1902  (32  Stats., 
509). 

SETTLEMENT     OF     ACCOUNTS     ARISING     DURING     THE     SPANISH-AMERICAN 

WAR. 

605a.  The  proper  accounting  officers  of  the  Treasury  are  hereby, 
directed,  in  the  settlement  of  the  accounts  of  disbursing  officers  of  the 
War  Department,  arising  between  the  twenty-first  day  of  April, 
eighteen  hundred  and  ninety-eight,  from  which  date  war  with  Spain 
is  declared  to  have  existed,  and  the  eighth  day  of  July,  nineteen  hun- 
dred and  one,  inclusive,  the  date  on  which  the  last  organization  of  the 


1176  MILITARY   LAWS   OF   THE   UNITED   STATES. 

Volunteer  Army  was  mustered  out  of  the  service  of  the  United  States, 
to  allow  such  credits  for  payments  and  for  losses  of  funds,  vouchers, 
and  property  as  may  be  recommended  under  authority  of  the  Secre- 
tary, of  War  by  the  heads  of  the  military  bureaus  to  which  such  ac- 
counts respectively  pertain.  Sec.  1,  Act  of  March  3, 1903  (32  Stats., 
955). 

605b.  The  accounts  of  military  officers,  whether  of  the  line  or  staff, 
for  Government  property  charged  to  them,  shall  be  closed  by  the 
proper  accounting  officers  whenever,  in  the  judgment  of  the  Secretary 
of  War,  it  will  be  for  the  interest  of  the  United  States  to  do  so: 
Provided,  That  such  accounts  originated  subsequent  to  April  twenty- 
first,  eighteen  hundred  and  ninety-eight,  and  prior  to  the  ninth  day  of 
July,  nineteen  hundred  and  one :  Provided  further,  That  no  settle- 
ment shall  be  made  by  the  officers  of  the  Treasury,  under  this  act,  of 
the  accounts  of  any  officer  whose  combined  responsibility  for  public 
money  and  Government  property  shall  exceed  the  sum  of  five  thou- 
sand dollars,  and  only  of  such  officers  of  the  Army  in  whose  accounts 
there  is  no  apparent  fraud  against  the  United  States :  And  provided 
'further,  That  this  act  shall  remain  in  force  for  two  years  from  ano! 
after  its  passage,  and  no  longer.  Sec.  2,  Act  of  March  3,  1903  (32 
Stats.,  956). 

DEPOSIT  AND  SAFE-KEEPING  OF  THE  PUBLIC    MONEY. 

607a.  All  funds  received  as  the  value  of  military  stores  transferred 
by  the  several  staff  departments  of  the  Army  to  the  Insular  Depart- 
ment of  the  Philippines  shall  be  deposited  in  the  Treasury  of  the 
United  States  and  remain  available  during  the  fiscal  year  nineteen 
hundred  and  five  for  the  procurement  of  like  military  stores  to  replace 
those  so  transferred.  Act  of  April  23, 1904  (33  Stats.,  275). 

LOST    CHECKS DUPLICATE    CHECKS. 

631a.  Whenever  any  original  disbursing  officer's  check  is  lost, 
stolen,  or  destroyed,  the  Secretary  of  the  Treasury  may  authorize  the 
officer  issuing  the  same,  after  the  expiration  of  six  months  and  within 
three  years  from  the  date  of  such  disbursing  officer's  check,  to  issue  a 
duplicate  thereof  upon  the  execution  of  such  bond  to  indemnify  the 
United  States  as  the  Secretary  of  the  Treasury  may  prescribe :  Pro- 
vided, That  when  such  original  disbursing  officer's  check  does  not 
exceed  in  amount  the  sum  of  fifty  dollars  the  Secretary  of  the  Treas- 
ury may  authorize  the  issuance  of  a  duplicate  at  any  time  after  the 
expiration  of  thirty  days  and  within  three  years  from  the  date  of 
such  disbursing  officer's  check.  Act  of  June  19, 1906  (34  Stats.,  301). 

(This  paragraph  amends  section  3646  of  the  Revised  Statutes,  as  amended  by 
the  act  of  March  23,  1906,  and  takes  the  place  of  paragraph  631.) 


SUPPLEMENT.  1177 

FOEMS  OF  KEEPING  AND  RENDERING  ACCOUNTS. 

635a.  Hereafter,  in  all  payments  to  be  made  under  the  provisions  of 
army  appropriation  acts,  when  the  rate  of  compensation  is  annual, 
payment  shall  be  made  monthly  at  the  rate  of  one-twelfth  of  the 
annual  rate,  and  of  such  monthly  rate  and  of  all  other  monthly  rates 
of  compensation  one-thirtieth  shall  be  the  daily  rate  for  computation 
of  pay  for  fractional  parts  of  a  month ;  and  for  the  purposes  of  this 
Act  each  and  every  month  shall  be  held  to  consist  of  thirty  days, 
whether  the  actual  number  of  days  be  greater  or  less.  Act  of  March 
2,1903  (32  Stats.,  934} . 

(See  Circular  33,  War  Department,  1904.) 

635b.  The  annual  compensation  of  officers,  agents,  and  employees  of 
the  United  States  for  services  rendered  subsequent  to  June  thirtieth, 
nineteen  hundred  and  four,  shall  be  divided  into  twelve  equal  install- 
ments, one  of  which  shall  be  the  pay  for  each  calendar  month ;  and  in 
making  payments  for  a  fractional  part  of  a  month,  one-thirtieth  of 
one  of  such  installments,  or  of  a  monthly  compensation,  shall  be  the 
rate  to  be  paid  for  each  day.  For  the  purpose  of  computing  such 
compensation  each  and  every  month  shall  be  held  to  consist  of  thirty 
days,  without  regard  to  the  actual  number  of  days  in  any  month,  thus 
excluding  the  thirty-first  day  of  any  month  from  the  computation, 
and  treating  February  as  if  it  actually  had  thirty  days.  Sec.  h  Act 
of  April  28, 1904  (33  Stats.,  513}. 

(See  Circular  33,  War  Department,  1904.) 

635c.  Hereafter,  where  the  compensation  of  any  person  in  the  mili- 
tary service  of  the  United  States  is  annual  or  monthly  the  following 
rules  for  division  of  time  and  computation  of  pay  for  services  ren- 
dered are  hereby  established:  Annual  compensation  shall  be  divided 
into  twelve  equal  installments,  one  of  which  shall  be  the  pay  for  each 
calendar  month ;  and  in  making  payments  for  a  fractional  part  of  a 
month  one-thirtieth  of  one  of  such  installments,  or  of  a  monthly 
compensation,  shall  be  the  daily  rate  of  pay.  For  the  purpose  of 
computing  such  compensation  and  for  computing  time  for  services 
rendered  during  a  fractional  part  of  a  month  in  connection  with 
annual  or  monthly  compensation,  each  and  every  month  shall  be  held 
to  consist  of  thirty  days,  without  regard  to  the  actual  number  of 
days  in  any  calendar  month,  thus  excluding  the  thirty-first  of  any 
calendar  month  from  the  computation  and  treating  February  as  if 
it  actually  had  thirty  days.  Any  person  entering  the  service  of  the 
United  States  during  a  thirty-one  day  month  and  serving  until  the 
end  thereof  shall  be  entitled  to  pay  for  that  month  from  the  date  of 
entry  to  the  thirtieth  day  of  said  month,  both  days  inclusive;  and 


1178  MILITARY   LAWS   OF    THE   UNITED   STATES. 

any  person  entering  said  service  during  the  month  of  February  and 
serving  until  the  end  thereof  shall  be  entitled  to  one  month's  pay, 
less  as  many  thirtieths  thereof  as  there  were  days  elapsed  prior  to 
date  of  entry :  Provided,  That  for  one  day's  unauthorized  absence  on 
the  thirty-first  day  of  any  calendar  month  one  day's  pay  shall  be  for- 
feited. Act  of  June  12,  1906  (34  Stats.,  248). 

(This  paragraph  takes  the  place  of  paragraphs  635a,  635b,  and  1192a,  and 
amends  paragraph  1192.  See  paragraph  802.  The  act  of  June  30, 1906  (34  Stats., 
763),  contains  a  similar  provision  to  the  above,  substituting  for  the  words  "  any 
person  in  the  military  service  of  the  United  States,  "  the  words  "  any  person  in 
the  service  of  th£  United  States.") 


CHAPTER  XV. 

THE  ADJUTANT-GENERAL'S  DEPARTMENT. 

663a.  The  officers  of  the  Adjutant- General's  Department,  except  the 
Adjutant- General,  and  the  officers  of  the  Record  and  Pension  Office 
shall  hereafter  constitute  one  department  of  the  Army,  to  be  known 
as  the  Military  Secretary's  Department ;  and  the  Adjutant-General's 
Office  and  the  Record  and  Pension  Office,  heretofore  constituting 
bureaus  of  the  War  Department,  shall  hereafter  constitute  a  consoli- 
dated bureau  to  be  known  as  the  Military  Secretary's  Office  of  the  War 
Department.  The  officers  so  consolidated  shall  be  borne  on  one  list  in 
the  order  of  rank  held  by  them,  and  those  of  them  who  hold  perma- 
nent appointments  as  officers  of  the  Adjutant-General's  Department 
or  of  the  Record  and  Pension  Office  shall  be  entitled  to  promotion 
below  the  grade  of  brigadier-general,  as  now  provided  by  law  and 
in  the  order  of  their  standing  on  said  list.  Except  as  otherwise  pro- 
vided herein,  the  laws  now  in  force  shall  continue  to  govern  the 
appointment,  promotion,  and  detail  of  all  officers  of  the  consolidated 
department  hereby  created :  Provided,  That  the  officers  of  the  said  con- 
solidated department  shall  be  subject  to  the  supervision  of  the  Chief 
of  Staff  in  all  matters  pertaining  to  the  command,  discipline,  or 
administration  of  the  existing  military  establishment:  Provided 
further,  That  no  appointments  or  details  to  the  grade  of  assistant 
adjutant-general  with  the  rank  of  major  shall  be  made  until  the  num- 
ber of  officers  of  that  grade  shall  be  reduced  to  less  than  ten,  and 
thereafter  the  number  of  officers  of  said  grade  in  the  consolidated 
department  shall  be  ten:  Provided  further,  That  of  the  officers  con- 
solidated as  hereinbefore  provided  the  senior  in  rank,  who  shall  be 
chief  of  the  consolidated  department  and  the  title  of  whose  office  is 
hereby  changed  to  that  of  the  military  secretary,  shall  hereafter  have 
the  rank  of  major-general,  and  the  second  senior  of  said  officers  shall 


SUPPLEMENT.  1179 

hereafter  have  the  rank  of  brigadier-general  :  Provided  further,  That 
when  the  office  of  Military  Secretary  with  the  rank  of  major-general 
shall  hereafter  become  vacant,  it  shall  not  be  filled  with  said  rank, 
and  thereafter  the  chief  of  the  Military  Secretary's  Department  shall 
have  the  rank  of  a  brigadier-general  with  the  title  of  The  Military 
Secretary,  and  there  shall  be  only  one  officer  above  the  rank  of  colonel 
in  the  said  department.  Except  as  hereinafter  provided,  the  remain- 
ing offices  of  the  consolidated  department  shall  retain  the  titles  that 
they  now  bear:  Provided  further,  That  when  the  office  of  Adjutant- 
General  shall  become  vacant  the  vacancy  so  created  on  the  active  list 
of  the  Army  shall  not  be  filled,  and  thereafter  the  several  officers  now 
designated  by  the  title  assistant  adjutant-general  and  by  the  title 
assistant  chief  of  the  Record  and  Pension  Office  shall  be  designated 
by  the  title  Military  Secretary.  Act  of  April  23,  1904  (33  Stats., 


(This  paragraph  merges  the  Adjutant-General's  Department  with  the  Record 
and  Pension  Office;  the  Military  Secretary's  Department  assuming  the  duties 
heretofore  appertaining  to  both.  The  laws  applicable  to  the  Adjutant-General's 
Department  and  to  the  Record  and  Pension  Office  are  now  applicable  to  the 
Military  Secretary's  Department,  except  where  otherwise  provided.  See  Chap- 
ter XXV,  Military  Laws  of  the  United  States,  "The  Record  and  Pension 
Office.") 

663b.  Nothing  in  this  Act  shall  be  so  construed  as  to  deprive  any 
officer  of  his  commission  or  to  increase  the  total  number  of  officers  of 
the  Army,  except  as  herein  specially  provided,  and  all  laws  or  parts 
of  laws  inconsistent  with  the  provisions  of  this  Act  are  hereby  repealed. 
Acttf  April  23,  1904  (33  Stats.,  276}. 

663c.  Whenever  the  office  of  the  Adjutant-General  and  the  Record 
and  Pension  Office  shall  be  consolidated  by  operation  of  law,  any 
appropriation  available  at  the  time  of  such  consolidation,  or  that  may 
thereafter  become  available,  for  the  support  of  either  of  those  offices 
shall  be  equally  available  for  the  support  of  the  bureau  formed  by  the 
consolidation,  and  all  employees  provided  by  law  for  either  of  said 
offices,  except  such  employees  as  were  transferred  by  the  Secretary 
of  War  to  the  Military  Information  Division  of  the  General  Staff 
prior  to  April  first,  nineteen  hundred  and  four,  shall  be  regarded  as 
employees  of  the  consolidated  bureau  and  shall  be  exclusively  engaged 
upon  the  work  of  that  bureau  as  required  in  the  case  of  the  employees 
of  the  Record  and  Pension  Office  by  the  Acts  making  appropriations 
for  the  legislative,  executive,  and  judicial  expenses  of  the  Govern- 
ment for  the  fiscal  years  nineteen  hundred  and  four  and  nineteen 
hundred  and  five.  Act  of  April  27,  1904  (33  Stats.,  401). 

663d.  Hereafter  the  Military  Secretary's  Department  of  the  Army 
shall  be  known  as  the  Adjutant-General's  Department,  the  senior  in 
rank  of  the  officers  of  said  department  shall  be  designated  by  the  title 


1180  MHJTABY   LAWS   OF    THE    UNITED    STATES. 

of  The  Adjutant-General,  the  other  officers  of  the  Department  shall 
be  designated  by  the  title  of  Adjutant-General,  and  The  Military 
Secretary's  Office  of  the  War  Department  shall  be  known  as  the 
Adjutant-General's  Office.  Act  of  March  £,  1907  (34  Stats.,  1158). 


THE  RECRUITING  SERVICE. 
OATH  OF  ENLISTMENT. 

679a.  Hereafter  the  Secretary  of  War  shall  be  authorized  to  de- 
tach from  the  Army  at  large  such  number  of  enlisted  men  as  may 
be  necessary  to  perform  duty  at  the  various  recruit  depots  and  the 
United  States  military  prison,  and  of  the  enlisted  men  so  detached, 
and  while  performing  such  duty,  there  shall  be  allowed  for  each 
depot  and  the  prison  one  who  shall  have  the  rank,  pay,  and  allow- 
ances of  battalion  or  squadron  sergeant-major,  and  for  each  recruit 
and  prison  company  one  who  shall  have  the  rank,  pay,  and  allowances 
of  first  sergeant,  five  the  rank.  pay.  and  allowances  of  sergeant,  and 
six  the  rank,  pay,  and  allowances  of  corporal,  of  the  arm  of  the  serv- 
ice to  which  they  respectively  belong.  Act  of  June  12,  1906  (34 
Stat^  242). 

(See  paragraph  679.) 

679b.  Hereafter  recruit  and  prison  companies  shall  have  noncom- 
missioned officers,  musicians,  artificers  and  cooks  of  the  number  and 
grades  allowed  by  law  for  companies  of  infantry.  Act  of  March  2. 
1907  (34Stuts.,1160). 

(See  paragraphs  679  and  679o.) 


CHAPTER  XVII. 

THE  JUDGE- ADVOCATE-GENERAL'S  DEPARTMENT. 
PROMOTIONS.  APPOINTMENTS.  DETAILS. 

694a.  Vacancies  created  or  caused  by  this  Act  in  the  grade  of  major 
may  be  filled  by  appointment   of  officers  holding  commission 
judge-advocate  of  volunteers  since  April  twenty- first,  eighteen  hun- 
dred and  ninety-eight.     Vacancies  which  may  occur  thereafter  in 
the  grade  of  major  in  the  Judge- Advocate- General's  Department 
.-hall  be  filled  by  the  appointment  of  officers  of  the  line,  or  of  per 
who  have  satisfactorily  served  as  judge-advocates  of  volunteers  since 
April  twenty-first,  eighteen  hundred  and  ninety-eight,  or  of  persons 


SUPPLEMENT.  1181 

from  civil  life  who  at  date  of  appointment  are  not  over  thirty-five 
years  of  age  and  who  shall  pass  a  satisfactory  examination  to  be  pre- 
scribed by  the  Secretary  of  War.  Sec.  15,  Act  of  February  2,  1901 
(31  Stats.,  751}. 

(This  paragraph  takes  the  place  of  paragraph  694,  from  which  part  of  the 
text  was  omitted.) 


CHAPTER  XVIII. 
THE  QUARTERMASTER'S  DEPARTMENT. 
PROMOTIONS,  TRANSFERS,  AND  DETAILS. 

706a.  The  military  storekeeper*now  on  duty  at  the  White  House  as 
doorkeeper  to  the  President  may  be  continued  in  that  employment  and 
shall  receive  the  full  pay  and  allowances  of  his  grade  from  the  date  of 
his  retirement  until  relieved  by  the  President.  Act  of  Jime  30,  1902 
(32  Stats.,  511}. 

POST    QUARTERMASTER-SERGEANTS. 

707a.  Two  hundred  quartermaster-sergeants,  at  four  hundred  and 
eight  dollars  each.     Act  of  April  23, 1904  (33  Stats.,  261}. 
(See  paragraph  707.) 

THE    PROCUREMENT    OF    SUPPLIES. 

714a.  For  providing  prizes  to  be  established  by  the  Secretary  of 
War  for  enlisted  men  of  the  Army  who  graduate  from  the  Army 
schools  for  bakers  and  cooks,  the  total  amount  of  such  prizes  at  the 
various  schools  not  to  exceed  nine  hundred  dollars  per  annum, 
*  *  *  dollars.  Act  of  March  2, 1907  (34  Stats.,  1166} . 

(See  paragraph  714.) 

715a.  For  continuing  the  construction,  equipment,  and  maintenance 
of  suitable  buildings  at  military  posts  and  stations  for  the  conduct  of 
the  post  exchange,  school,  library,  reading,  lunch,  amusement  rooms, 
and  gymnasium,  to  be  expended  in  the  discretion  and  under  the  direc- 
tion of  the  Secretary  of  War,  five  hundred  thousand  dollars:  Pro- 
vided, That  not  more  than  forty  thousand  dollars  of  the  above 
appropriation  shall  be  expended  at  any  one  post  or  station.  Act  of 
April  23, 1904  (33  Stats.,  270}. 

(See  paragraphs  715  and  1551.) 

716a.  No  part  of  the  appropriations  for  the  Quartermaster's  De- 
partment shall  be  expended  on  printing,  unless  the  same  shall  be  done 


1182  MILITARY   LAWS    OF    THE    UNITED    STATES. 

by  contract  after  due  notice  and  competition,  except  in  such  cases  as 
the  emergency  will  not  admit  of  the  giving  notice  of  competition,  and 
in  cases  where  it  is  impracticable  to  have  the  necessary  printing  done 
by  contract  the  same  may  be  done,  with  the  approval  of  the  Secretary 
of  War,  by  the  purchase  of  material  and  the  hire  of  necessary  labor  for 
the  purpose.  Act  of  March  2, 1907  (34  Stats.,  1167) . 

(This  amends  paragraph  716  by  adding  to  the  conditional  prohibition  the 
"purchase  of  material.") 

» 

719a.  Whenever  the  ice  machines,  steam  laundries,  and  electric 
plants  shall  not  come  in  competition  with  private  enterprise  for  sale 
to  the  public,  and  in  the  opinion  of  the  Secretary  of  War  it  becomes 
necessary  to  the  economical  use  and  administration  of  such  ice 
machines,  steam  laundries,  and  electric  plants  as  have  been  or  may 
hereafter  be  established  in  pursuance  of  law,  surplus  ice  may  be  dis- 
posed of,  laundry  work  may  be  done  for  other  branches  of  the  Gov- 
ernment, and  surplus  electric  light  and  power  may  be  sold  on  such 
terms  and  in  accordance  with  such  regulations  as  may  be  prescribed 
by  the  Secretary  of  War:  Provided,  That  the  funds  received  from 
such  sales  and  in  payment  of  such  laundry  work  shall  be  used  to 
defray  the  cost  of  operation  of  said  ice,  laundry,  and  electric  plants ; 
and  the  sales  and  expenditures  herein  provided  for  shall  be  accounted 
for  in  accordance  with  the  methods  prescribed  by  law,  and  any  sums 
remaining,  after  such  cost  of  maintenance  and  operation  have  been 
defrayed,  shall  be  deposited  in  the  Treasury  to  the  credit  of  the  ap- 
propriation from  which  the  cost  of  operation  of  such  plant  is  paid. 
Act  of  March  2, 1907  (34  Stats.,  1167). 

TRANSPORTATION. 

720a.  In  time  of  war  or  threatened  war  preference  and  precedence 
shall,  upon  the  demand  of  the  President  of  the  United  States,  be 
given,  over  all  other  traffic,  to  the  transportation  of  troops  and 
material  of  war,  and  carriers  shall  adopt  every  means  within  their 
control  to  facilitate  arid  expedite  the  military  traffic.  Sec.  2,  Act 
of  June  29, 1906  (34  Stats.,  587). 

USE  OF  TRANSPORTS. 

724a.  No  part  of  this  appropriation  shall  be  applied  to  the  payment 
of  the  expenses  of  using  transports  in  any  other  Government  work 
than  the  transportation  of  the  Army,  its  supplies  and  employees ;  and 
when,  in  the  opinion  of  the  Secretary  of  War,  accommodations  are 
available,  transportation  may  be  provided  for  the  officers,  enlisted 
men,  employees,  and  supplies  of  the  Navy,  the  Marine  Corps,  and  for 
members  and  employees  of  the  Philippine  and  Hawaiian  governments, 


SUPPLEMENT.  1183 

officers  of  the  War  Department,  Members  of  Congress,  other  officers 
of  the  Government  while  traveling  on  official  business,  and  without 
expense  to  the  United  States,  for  the  families  of  those  persons  herein 
authorized  to  be  transported,  and  when  accommodations  are  available, 
transportation  may  be  provided  for  general  passengers  to  the  island 
of  Guam,  rates  and  regulations  therefor  to  be  prescribed  by  the  Sec- 
retary of  War.  Act  of  March®,  1907  (34  Stats.,  1170). 

PUBLIC  ANIMALS;  VETERINARIANS. 

732a.  When  practicable,  horses  shall  be  purchased  in  the  open  mar- 
ket at  all  military  posts  or  stations,  when  needed,  at  a  maximum  price 
to  be  fixed  by  the  Secretary  of  War.  Act  of  March  2, 1907  (34  Stats., 
1168). 

(This  paragraph  amends  paragraph  732.) 

FUEL  AND   FORAGE. 

740a.  Hereafter,  fuel  may  be  furnished  to  commissioned  officers 'on 
the  active  list  by  the  Quartermaster's  Department,  for  the  actual  use 
of  such  officers  only,  at  the  rate  of  three  dollars  per  cord  for  standard 
oak  wood,  or  at  an  equivalent  rate  for  other  kinds  of  fuel,  the  amount 
so  furnished  to  each  to  be  limited  to  the  officer's  actual  personal  neces- 
sities as  certified  to  by  him.  Act  of  June  12, 1906  (34  Stats.,  250). 

740b.  Hereafter  the  heat  and  light  actually  necessary  for  the  au- 
thorized allowance  of  quarters  for  officers  and  enlisted  men  shall  be 
furnished  at  the  expense  of  the  United  States  under  such  regulations 
as  the  Secretary  of  War  may  prescribe.  Act  of  March  2,  1907  (34 
Stats.,  1167). 

OFFICERS'  HORSES. 

741a.  When  a  mounted  officer  of  the  line  is  ordered  to  duty  beyond 
the  seas  or  to  make  a  change  of  station  in  the  United  States  in  which 
the  cost  of  transportation  for  the  private  horses  which  he  is  required 
to  keep  exceeds  the  sum  allowed  for  that  purpose  in  the  Army  Regu- 
lations, the  Secretary  of  War  is  authorized,  under  such  regulations  in 
respect  to  inspection  and  valuation  as  he  may  prescribe,  to  permit  the 
purchase  of  said  horses  by  the  Quartermaster's  Department  at  a  price 
not  exceeding  the  average  contract  price  paid  for  horses  during  the 
preceding  fiscal  year,  from  which  sum  shall  be  deducted  one-seventh 
of  such  contract  price  for  each  year,  or  major  fraction  of  a  year, 
which  may  have  elapsed  since  date  of  purchase  by  said  officer.  Act 
of  March  2, 1903  (32  Stats.,  937). 

741b.  Nothing  in  the  Act  making  appropriations  for  the  legislative, 
executive,  and  judicial  expenses  of  the  Government  for  the  fiscal 


1184  MILITARY   LAWS    OF    THE    UNITED    STATES. 

year  nineteen  hundred  and  seven,  or  any  other  Act,  shall  hereafter 
be  held  or  construed  so  as  to  deprive  officers  of  the  Army,  wherever 
on  duty  in  the  military  service  of  the  United  States,  of  forage,  bed- 
ding, shoeing,  or  shelter  for  their  authorized  number  of  horses,  or 
of  any  means  of  transportation  or  maintenance  therefor  for  which 
provision  is  made  by  the  terms  of  this  Act.  Act  of  March  2, 1907  (34 
Stats.,  1166). 

WORKING    PARTIES    AND    EXTRA    DUTY   PAY. 

745a.  Extra  pay  shall  not  be  paid  to  any  enlisted  man 

who  receives  extra-duty  pay  under  existing  laws  or  army  regulations. 
Act  of  March  2, 1907  (34  Stats.,  1066). 

(See  paragraph  745). 

CLOTHING    AND    BEDDING. 

750a.  For  indemnity  to  officers  and  men  of  the  Army  for  clothing 
and  bedding,  and  so  forth,  destroyed  since  April  twenty-second,  eight- 
een hundred  and  ninety-eight,  by  order  of  medical  officers  of  the 
Army  for  sanitary  reasons,  four  million  dollars.  Act  of  June  30, 
1902,  (32  Stats.,  517). 

(This  provision  appears  also  in  subsequent  army  appropriation  acts,  and  its 
effect  is  to  broaden  the  scope  of  paragraph  750  within  certain  dates.) 

ACCOUNTABILITY  FOR  CLOTHING. 

753a.  Clothing  balances  accumulating  to  the  soldier's  credit  under 
section  thirteen  hundred  and  two  shall,  when  payable  to  him  upon 
his  discharge,  be  paid  out  of  the  appropriation  for  pay  of  the  Army 
for  the  then  current  fiscal  year.  Act  of  June  12,  1906  (34  Stats., 
246). 

(This  paragraph  amends  section  1308  of  the  Revised  Statutes.  See  para- 
graph 753.) 


CHAPTER  XIX. 

THE  SUBSISTENCE  DEPARTMENT. 

POST  COMMISSARY-SERGEANTS.         • 

762a.  Two  hundred  post  commissary-sergeants,  at  four  hundred 
and  eight  dollars  each,  eighty-one  thousand  six  hundred  dollars. 
Act  of  April  23,  1904  (33  Stats.,  261). 

(See  paragraph  762.) 

DUTIES. 

768a.  Hereafter  officers  intrusted  with  the  disbursement  of  funds 
for  the  subsistence  of  the  Army  are  hereby  authorized  to  keep,  at 


SUPPLEMENT.  1185 

their  own  risk,  in  their  personal  possession  for  disbursement,  such 
restricted  amounts  of  subsistence  funds  for  facilitating  payments  of 
small  amounts  to  public  creditors  as  shall  from  time  to  time  be  au- 
thorized by  the  Secretary  of  War.  Act  of  March  2, 1907  (34  Stats., 
1166}. 

THE  RATION. 

769a.  For  difference  between  the  cost  of  the  ration  at  twenty- five 
cents  and  the  cost  of  rations  differing  in  whole  or  in  part  from  the 
ordinary  ration,  to  be  issued  to  enlisted  men  in  camp  in  the  United 
States  during  periods  of  recovery  from  low  conditions  of  health  con- 
sequent upon  service  in  unhealthy  regions  or  in  debilitating  climates 
(to  be  expended  only  under  special  authority  of  the  Secretary  of 
War)  ;  and  for  ice  to  organizations  of  enlisted  men  stationed  at  such 
places  as  the  Secretary  of  War  may  determine;  in  all,  seven  million 
dollars,  to  be  expended  under  the  direction  of  the  Secretary  of  War, 
and  accounted  for  as  "  Subsistence  of  the  Army,"  and  for  that  pur- 
pose to  constitute  one  fund.  Act  of  April  23, 1904  (38  Stats.,  268}. 

770a.  Hereafter  the  emergency  ration  prescribed  for  use  on  emer- 
gent occasions  shall,  when  issued,  be  furnished  in  addition  to  the 
regular  ration  under  such  regulations  as  may  be  prescribed  by  the 
Secretary  of  War.  Act  of  March  2,  1907  (34  Stats.,  1165}. 

(See  section  5  of  paragraph  770.) 

COMMUTATION    OF    RATIONS. 

791a.  For  payment  of  commutation  of  rations  in  lieu  of  the  regular 
established  ration  for  members  of  the  Nurse  Corps  (female)  while 
on  duty  in  hospital,  and  for  enlisted  men?  applicants  for  enlistment 
held  under  observation,  and  general  prisoners  sick  therein,  at  the 
rate  of  thirty  cents  per  ration  (except  that  at  the  General  Hospital 
at  Fort  Bayard,  New  Mexico,  fifty  cents  per  ration  is  authorized  for 
enlisted  patients  in  said  hospital)  to  be  paid  to  the  surgeon  in  charge, 
*  *  *  dollars.  Act  of  March  2, 1907  (34  Stats.,  1166}. 

(This  paragraph  amends  paragraph  791.     See  paragraphs  769a  and  773.) 


CHAPTER   XX. 

THE  PAY  DEPARTMENT. 

DUTIES. 

801a.  All  the  money  hereinbefore  appropriated  for  pay  of  the  Army 
and  miscellaneous  shall  be  disbursed  and  accounted  for  by  officers  of 
the  Pay  Department  as  pay  of  the  Army,  and  for  that  purpose  shall 
constitute  one  fund.     Act  of  April  23, 1904  (33  Stats.,  267}. 
22924—08 75 


1186  MILITARY   LAWS   OF   THE   UNITED   STATES. 

801b.  Hereafter  all  payments  to  the  militia  under  the  provisions  of 
section  fifteen  of  the  Act  of  Congress  approved  January  twenty-first, 
nineteen  hundred  and  three,  and  all  allowances  for  mileage  shall  be 
made  solely  from  the  sums  herein  appropriated  for  such  purposes. 
Act  of  April  23, 1904  (33  Stats.,  267). 

(See  paragraphs  1662a  and  1662b.) 

801c.  All  the  accounts  of  individual  paymasters  shall  be  analyzed 
under  the  several  heads  of  the  appropriation  and  recorded  in  detail 
by  the  Paymaster-General  of  the  Army  before  said  accounts  are  for- 
warded to  the  Treasury  Department  for  final  audit.  Act  of  April 
23, 1904  (33  Stats.,  267). 

801d.  All  the  money  hereinbefore  appropriated,  except  the  appro- 
priation for  mileage  of  officers  and  contract  surgeons  when  author- 
ized by  law,  for  pay  of  the  Army  and  miscellaneous  shall  be  dis- 
bursed and  accounted  for  by  officers  of  the  Pay  Department  as  pay 
of  the  Army,  and  for  that  purpose  shall  constitute  one  fund.  Act 
of  June  12, 1906  (34  Stats.,  248). 

(This  paragraph  takes  the  place  of  paragraph  801a%) 

801e.  Hereafter  all  the  accounts  of  individual  paymasters  shall  be 
analyzed  under  the  several  heads  of  the  appropriation  and  recorded 
in  detail  by  the  Paymaster-General  of  the  Army  before  said  accounts 
are  forwarded  to  the  Treasury  Department  for  final  audit,  and  the 
Secretary  of  War  may  hereafter  authorize  the  assignment  to  duty 
in  the  office  of  the  Paymaster-General,  not  to  exceed  five  paymasters' 
clerks,  now  authorized  by  law.  Act  of  March  2,  1905  (33  Stats., 
832). 

(This  paragraph  takes  the  place  of  paragraph  801c.) 

PAY  OF  COMMISSIONED  OFFICERS. 

81  la.  Hereafter  all  commissioned  officers  of  the  Army  may  transfer 
or  assign  their  pay  accounts,  when  due  and  payable,  under  such  reg- 
ulations and  restrictions  as  the  Secretary  of  War  may  prescribe.  Act 
of  March  2, 1907  (34  Stats.,  1159). 

(See  paragraph  909a.) 

RETIRED    OFFICERS. 

824a.  No  part  of  this  sum  shall  be  used  for  payment  of  further  in- 
crease of  longevity  pay  to  officers  now  on  the  retired  list,  and 
officers,  hereafter  retired  from  active  service  shall  not  be  therefrom 
allowed  or  paid  any  increase  of  longevity  pay  above  the  sum  allowed 
and  paid  to  such  officers  at  the  date  of  retirement,  unless  retired  on 
account  of  wounds  received  in  battle.  Act  of  June  30, 1902  (32  Stats., 
511). 


SUPPLEMENT.  1187 

824b.  Hereafter,  except  in  case  of  officers  retired  on  account  of 
wounds  received  in  battle,  no  officer  now  on  the  retired  list  shall  be 
allowed  or  paid  any  further  increase  of  longevity  pay,  and  officers 
hereafter  retired,  except  as  herein  provided,  shall  not  be  allowed  or 
paid  any  further  increase  of  longevity  pay  above  that  which  had 
accrued  at  date  of  their  retirement.  Act  of  March  2,  1903  (32  Stats., 
932}. 

(This  paragraph  changes  the  law  heretofore  existing.  See  note  5  to  para- 
graph 824.) 

PAY   DURING    ABSENCE. 

828a,  Leaves  to  be  absent  from  the  Philippine  Islands,  other  than  to 
return  to  the  United  States,  which  may  be  granted  officers  of  the 
Army  serving  in  said  islands  and  sailing  from  Manila,  shall  be 
regarded  as  taking  effect  on  the  dates  such  officers  reach  Manila,  and 
as  terminating  on  the  dates  of  their  departure  from  Manila,  in 
returning  to  their  stations.  Act  of  March  2, 1907  (34  Stats.,  1171). 

BARRACKS   AND    QUARTERS. 

830a.  At  all  posts  and  stations  where  there  are  public  quarters  be- 
longing to  the  United  States  officers  may  be  furnished  with  quarters 
in  kind  in  such  public  quarters,  and  not  elsewhere,  by  the  Quarter- 
master's Department,  assigning  to  the  officers  of  each  grade, 
respectively,  such  number  of  rooms  as  is  stated  in  the  following 
table,  namely :  Second  lieutenants,  two  rooms ;  first  lieutenants,  three 
rooms;  captains,  four  rooms;  majors,  five  rooms;  lieutenant- 
colonels,  six  rooms;  colonels,  seven  rooms;  brigadier-generals,  eight 
rooms;  major-generals,  nine  rooms;  lieutenant-general,  ten  rooms: 
Provided  further.  That  at  places  where  there  are  no  public  quarters 
commutation  therefor  may  be  paid  by  the  Pay  Department  to  the 
officer  entitled  to  the  same  at  a  rate  not  exceeding  twelve  dollars 
per  month  per  room.  Act  of  March  2,  1907  (34  Stats.,  1168}. 

(This  paragraph  amends  section  9  of  the  act  of  June  17,  1878,  20  Stats., 
page  151,  and  takes  the  place  of  paragraph  830.) 

TRAVEL    ALLOWANCES. 

840a.  Hereafter  officers,  active  and  retired,  when  traveling  under 
competent  orders  without  troops,  and  retired  officers  who  have  so 
traveled  since  March  third,  nineteen  hundred  and  five,  shall  be.  paid 
seven  cents  per  mile  and  no  more ;  distances  to  be  computed  and  mile- 
age to  be  paid  over  the  shortest  usually  traveled  routes,  with 
deduction  as  hereinafter  provided;  and  payment  and  settlement 
of  mileage  accounts  of  officers  shall  be  made  according  to  distances 


1188  MILITAKY  LAWS    OF   THE   UNITED   STATES. 

and  deductions  computed  over  routes  established  and  by  mileage  tables 
prepared  by  the  Paymaster-General  of  the  Army  under  the  direction 
of  the  Secretary  of  War.  Act  of  June  12,  1906  (34  Stats.,  246). 

(This  paragraph  amends  paragraph  840.) 

840b.  When  the  station  of  an  officer  is  changed  while  he  is  on  leave 
of  absence  he  will  on  joining  the  new  station  be  entitled  to  mileage 
for  the  distance  to  the  new  station  from  the  place  where  he  received 
the  order  directing  the  change,  provided  the  distance  be  no  greater 
than  from  the  old  to  the  new  station ;  but  if  the  distance  be  greater 
he  will  be  entitled  to  mileage  for  a  distance  equal  to  that  from  the 
old  to  the  new  station  only.  Act  of  June  12, 1906  (34  Stats.,  247). 

(This  paragraph  is  a  reenactment  of  similar  provisions  contained  in  the 
urgent  deficiencies  appropriation  act  of  February  27,  1907,  34  Stats.,  32.) 

841a.  For  all  sea  travel  actual  expenses  only  shall  be  paid  to  officers, 
contract  surgeons,  contract  dental  surgeons,  and  veterinarians,  to  pay- 
masters' clerks,  and  to  the  expert  accountant  of  the  Inspector-Gen- 
eral's Department,  when  traveling  on  duty  under  competent  orders, 
with  or  without  troops,  and  the  amount  so  paid  shall  not  include  any 
shore  expenses  at  port  of  embarkation  or  debarkation;  but  for  the 
purpose  of  determining  allowances  for  all  travel  under  orders,  or  for 
officers  and  enlisted  men  on  discharge,  travel  in  the  Philippine  Archi- 
pelago, the  Hawaiian  Archipelago^  the  home  waters  of  the  United 
States,  and  between  the  United  States  and  Alaska  shall  not  be  re- 
garded as  sea  travel  and  shall  be  paid  for  at  the  rates  established  by 
law  for  land  travel  within  the  boundaries  of  the  United  States.  Act 
of  June  12, 1906  (43  Stats.,  247) . 

(This  paragraph  takes  the  place  of  paragraphs  841  and  847a.) 

843a.  Officers  who  so  desire  may,  upon  application  to  the  Quarter- 
master's Department,  be  furnished  under  their  orders  transportation 
requests  for  the  entire  journey  by  land,  exclusive  of  sleeping  and  par- 
lor car  accommodations,  or  by  water;  and  the  transportation  so  fur- 
nished shall,  if  travel  was  performed  under  a  mileage  status,  be  a 
charge  against  the  officer's  mileage  account,  to  be  deducted  at  the  rate 
of  three  cents  per  mile  by  the  paymaster  paying  the  account,  and  of  the 
amount  so  deducted  there  shall  be  turned  over  to  an  authorized  officer 
of  the  Quartermaster's  Department  three  cents  per  mile  for  trans- 
portation furnished,  except  over  any  railroad  which  is  a  free  or  fifty 
per  centum  land-grant  railroad,  for  the  credit  of  the  appropriation  for 
the  transportation  of  the  Army  and  its  supplies.  Act  of  June  12, 1906 
(34  Stats.,  246) . 

(This  paragraph  takes  the  place  of  paragraph  843.) 

844a.  When  the  established  route  of  travel  shall,  in  whole  or  in 
part,  be  over  the  line  of  anv  railroad  on  which  the  troops  and  supplies 


SUPPLEMENT.  1189 

of  the  United  States  are  entitled  to  be  transported  free  of  charge,  or 
over  any  fifty  per  centum  land-grant  railroad,  officers  traveling  as 
herein  provided  for  shall,  for  the  travel  over  such  roads,  be  furnished 
with  transportation  requests,  exclusive  of  sleeping  and  parlor  car  ac- 
commodations, by  the  Quartermaster's  Department.  Act  of  June  12, 
1906  (34  Stats.,  2^6). 

(This  paragraph  takes  the  place  of  paragraph  844.) 

MILEAGE  TO  PAYMASTERS'   CLERKS  AND   TO   THE   EXPERT  ACCOUNTANT  OF 


847a.  Hereafter  actual  expenses  only  shall  be  paid  to  paymasters' 
clerks  and  the  expert  accountant  of  the  Inspector-General's  Depart- 
ment for  sea  travel  when  traveling  on  duty  to,  from,  or  between  our 
island  possessions.  Act  of  June  30, 1902  (32  Stats.,  511). 

(See  paragraph  847.) 

PAY  OF  ENLISTED    MEN. 

862a.  Hereafter  first-class  gunners  of  field  artillery  shall  receive 
two  dollars  per  month  and  second-class  gunners  one  dollar  per  month 
in  addition  to  their  pay.  Act  of  April  23, 1904  (33  Stats.,  260) . 

(See  paragraph  1444.) 

ADDITIONAL    PAY. 

865a.  Expert  riflemen,  hereafter  qualifying  as  such,  shall  receive 
one  dollar  a  month  in  addition  to  their  pay.  Act  of  March  2,  1903 
(32  Stats.,  929). 

865b.  Hereafter  enlisted  men  qualifying  as  expert  riflemen  shall 
receive  in  addition  to  their  pay  three  dollars  per  month ;  those  quali- 
fying as  sharpshooters,  two  dollars  per  month,  and  those  qualifying 
as  marksmen,  one  dollar  per  month,  under  such  regulation  as  the 
Secretary  of  War  may  prescribe.  Act  of  June  12,  1906  (34  Stats., 
241). 

(This  takes  the  place  of  paragraph  865a.) 

REENLISTMENT    AND    CONTINUOUS    SERVICE    PAY. 

869a.  All  enlisted  men  of  the  Regular  Army  who  served  as  commis- 
sioned officers  of  United  States  Volunteers  organized  in  eighteen 
hundred  and  ninety-eight  and  eighteen  hundred  and  ninety-nine,  or 
who  have  served  or  may  be  now  serving  as  such  in  the  Porto  Rico 
Provisional  Regiment  or  in  the  Philippine  Scouts,  who,  upon  their 
muster  out,  have  returned  or  may  return  to  the  ranks  of  the  Regular 
Army,  shall  have  such  period  of  service  counted  as  if  it  had  been 
rendered  as  enlisted  men,  and  that  they  be  entitled  to  all  continuous- 


1190  MILITAKY   LAWS    OF    THE    UNITED    STATES. 

service  pay  and  to  count,  in  computing  the  time  necessary  to  enable 
them  to  retire,  as  enlisted  men.    Act  of  March  2, 1903  (32  Stats.,  934)  • 
(See  paragraphs  1381  and  1381a.) 

869b.  All  enlisted  men  of  the  Regular  Army  who  have  been  ap- 
pointed commissioned  officers  of  Philippine  Scouts  subsequent  to 
March  second,  nineteen  hundred  and  three,  or  who  may  hereafter  be 
so  appointed,  and  who,  upon  their  muster  out,  have  returned  or  may 
return  to  the  ranks  of  the  Regular  Army,  shall  have  such  period  of 
service  counted  as  if  it  had  been  rendered  as  enlisted  men,  and  that 
they  be  entitled  to  all  continuous  service  pay  and  to  count,  in  com- 
puting the  time  necessary  to  enable  them  to  retire,  as  enlisted  men. 
Act  of  June  12,  1906  ($4  Stats.,  247). 

(This  paragraph  amends  paragraph  869a.) 

DEPOSITS. 

879a.  Any  enlisted  man  of  the  Army  may  deposit  his  savings,  in 
sums  not  less  than  five  dollars,  with  any  army  paymaster,  who 
shall  furnish  him  a  deposit  book,  in  which  shall  be  entered  the  name 
of  the  paymaster  and  of  the  soldier,  and  the  amount,  date,  and  place 
of  such  deposit.  The  amount  so  deposited  shall  be  accounted  for  in 
the  same  manner  as  other  public  funds,  and  shall  be  deposited  in  the. 
Treasury  of  the  United  States  and  kept  as  a  separate  fund,  known  as 
pay  of  the  Army  deposit  fund,  repayment  of  which  to  the  enlisted 
man  on  discharge  from  the  service  shall  .be  made  out  of  the  fund 
created  by  said  deposits,  and  shall  not  be  subject  to  forfeiture  by  sen- 
tence of  court-martial,  but  shall  be  forfeited  by  desertion,  and  shall 
not  be  permitted  to  be  paid  until  final  payment  on  discharge,  or  to  the 
heirs  or  representatives  of  a  deceased  soldier,  and  that  such  deposits 
be  exempt  from  liability  for  such  soldier's  debts :  Provided,  That  the 
Government  shall  be  liable  for  the  amount  deposited  to  the  person 
so  depositing  the  same.  Act  of  June  12, 1906  (34  Stats.,  246). 

(This  paragraph  amends  Section  1305  of  the  Revised  Statutes  and  takes  the 
place  of  paragraph  879.) 

STOPPAGES  AND  DEDUCTIONS. 

889a.  So  much  of  section  forty-eight  hundred  and  nineteen,  Re- 
vised Statutes,  as  requires  that  twelve  and  one-half  cents  per  month 
be  deducted  from  the  pay  of  retired  enlisted  men  of  the  Army  and 
passed  to  the  credit  of  the  Commissioners  of  the  Soldiers'  Home  in 
the  District  of  Columbia,  be,  and  the  same  is  hereby,  repealed.  Act 
of  June  12,  1906  (34  Stats.,  242). 

(This  paragraph  supersedes  paragraphs  889  and  2271). 


_  SUPPLEMENT.  1191 

if   UNIVE. 

CHAPTER    XXI. 

THE  MEDICAL  DEPARTMENT. 
CONTRACT  SURGEONS DENTAL  SURGEONS. 

907a,  For  two  hundred  and  fifty  contract  surgeons,  four  hundred 
and  fifty  thousand  dollars.  Act  of  April  23,  1904  (33  Stats.,  266). 
(See  paragraph  907.) 

908a.  Hereafter  the  number  of  dental  surgeons  authorized  by  law 
shall  be  thirty-one,  of  which  number  one  shall  be  detailed  to  the 
United  States  Military  Academy.  Act  of  March  2,  1907  (34  Stats., 
1163). 

(This  paragraph  amends  paragraph  908.) 

909a.  Hereafter  contract  surgeons  and  contract  dental  surgeons  on 
duty  in  Alaska,  Hawaii,  the  Philippine  Islands,  and  Porto  Rico  may 
transfer  or  assign  their  pay  accounts,  when  due  and  payable,  in  the 
methods  now  provided  by  regulations  for  commissioned  officers  of  the 
Army.  Act  of  April  23, 1904  (33  Stats.,  266). 

909b.  For  the  pay  of  civilian  physicians  employed  to  examine 
physically  applicants  for  enlistment  and  enlisted  men,  and  to  render 
other  professional  services  from  time  to  time  under  proper  authority, 
*  *  *  dollars.  Act  of  March  2, 1907  (34  Stats.,  1172). 

DUTIES. 

910a.  The  Surgeon-General  of  the  Army,  the  Surgeon-General  of 
the  Navy,  and  the  supervising  Surgeon-General  of  the  Marine-Hos- 
pital Service,  are  hereby  constituted  a  board  with  authority,  subject 
to  the  approval  of  the  Secretary  of  the  Treasury,  to  promulgate  from 
time  to  time  such  rules  as  may  be  necessary  in  the  judgment  of  said 
board  to  govern  the  issue,  suspension,  and  revocation  of  licenses  for 
the  maintenance  of  establishments  for  the  propagation  and  prepara- 
tion of  viruses,  serums,  toxins,  antitoxins,  and  analogous  products, 
applicable  to  the  prevention  and  cure  of  diseases  of  man,  intended  for 
sale  in  the  District  of  Columbia,  or  to  be  sent,  carried,  or  brought  for 
sale  from  any  State,  Territory,  or  the  District  of  Columbia,  into 
any  other  State,  Territory,  or  the  District  of  Columbia,  or  from 
the  United  States  into  any  foreign  country,  or  from  any  foreign 
country  into  the  United  States:  Provided,  That  all  licenses  issued 
for  the  maintenance  of  establishments  for  the  propagation  and  prep- 
aration in  any  foreign  country  of  any  virus,  serum,  toxin,  antitoxin, 
or  product  aforesaid,  for  sale,  barter,  or  exchange  in  the  United 


1192  MILITARY   LAWS    OF    THE    UNITED    STATES. 

States,  shall  be  issued  upon  condition  that  the  licentiates  will  permit 
the  inspection  of  the  establishments  where  said  articles  are  propa- 
gated and  prepared,  in  accordance  with  section  three  of  this  Act. 
Sec.  4,  Act  of  July  1, 1902  (32  Stats.,  729). 

910b.  There  shall  be  an  advisory  board  for  the  hygienic  laboratory 
provided  by  the  Act  of  Congress  approved  March  third,  nineteen  hun- 
dred and  one,  for  consultation  with  the  Surgeon-General  of  the  Public 
Health  and  Marine-Hospital  Service  relative  to  the  investigations  to 
be  inaugurated,  and  the  methods  of  conducting  the  same,  in  said  lab- 
oratory. Said  board  shall  consist  of  three  competent  experts,  to  be 
detailed  from  the  Army,  the  Navy,  and  the  Bureau  of  Animal  Indus- 
try by  the  Surgeon-General  of  the  Army,  the  Surgeon-General  of  the 
Navy,  and  the  Secretary  of  Agriculture,  respectively,  which  experts, 
with  the  director  of  the  said  laboratory,  shall  be  ex  officio  mem- 
bers of  the  board,  and  serve  without  additional  compensation.  Five 
other  members  of  said  board  shall  be  appointed  by  the  Surgeon- 
General  of  the  Public  Health  and  Marine-Hospital  Service,  with  the 
approval  of  the  Secretary  of  the  Treasury,  who  shall  be  skilled  in 
laboratory  work  in  its  relation  to  the  public  health,  and  not  in  the 
regular  employment  of  the  Government.  The  said  five  members  shall 
each  receive  compensation  of  ten  dollars  per  diem  while  serving  in 
conference,  as  aforesaid,  together  with  allowance  for  actual  and  neces- 
sary traveling  expenses  and  hotel  expenses  while  in  conference.  Said 
conference  is  not  to  exceed  ten  days  in  any  one  fiscal  year.  The  term 
of  service  of  the  five  members  of  said  board,  not  in  the  regular  employ- 
ment of  the  Government,  first  appointed  shall  be  so  arranged  that  one 
of  said  members  shall  retire  each  year,  the  subsequent  appointments 
to  be  for  a  period  of  five  years.  Appointments  to  fill  vacancies 
occurring  in  a  manner  other  than  as  above  provided  shall  be  made  for 
the  unexpired  term  of  the  member  whose  place  has  become  vacant. 
Sec.  5,  Act  of  July  1, 1902  (32  Stats.,  713) . 

913a.  When  a  contract  surgeon  is  in  charge  of  a  hospital  he  shall 
have  the  same  authority  as  a  commissioned  medical  officer.  Act  of 
April  23, 1904  (33  Stats.,  266). 

(See  paragraph  907  and  note  thereto;  see  also  A.  R.  1418  and  1421  of  1904.) 

MEDICAL  ATTENDANCE PHILIPPINE   CONSTABULARY. 

913b.  Whenever  it  shall  be  made  to  appear  to  the  satisfaction  of 
the  Chief  of  the  Philippines  Constabulary,  or  of  ah  assistant  chief  of 
the  Philippines  Constabulary  in  charge  of  an  established  district,  that 
an  officer  or  enlisted  man  of  the  Philippines  Constabulary  is  suffering 
from  illness  or  injury  incurred  in  line  of  duty  and  that  there  is  not 
within  reach  or  available  a  medical  officer  required  by  law  to  render 
medical  or  surgical  attendance  to  such  officer  or  enlisted  man,  as  pro- 


SUPPLEMENT.  1193 

vided  by  law,  the  Chief  of  the  Philippines  Constabulary,  or  an  assist- 
ant chief  of  the  Philippines  Constabulary,  as  herein  defined,  may  spe- 
cially authorize  the  employment  of  an  available  medical  officer  or  con- 
tract surgeon  of  the  United  States  Army  to  render  such  medical  at- 
tendance as  may  be  required,  and  pay  therefor  in  accordance  with  the 
prescribed  schedule  of  fees  for  medical  services  in  the  Philippines 
Constabulary. 

SEC.  2.  In  any  case  in  which  an  officer  or  enlisted  man  of  the  Phil- 
ippines Constabulary  entitled  to  medical  treatment  is  received  at  a 
military  hospital  under  the  control  of  the  United  States  military  au- 
thorities, the  regular  schedule  of  fees  for  subsistence  and  attendance 
at  such  hospital  shall  be  paid  and  no  more,  and  in  such  cases  payment 
shall  be  made  on  proper  vouchers  by  the  paymaster  of  the  Philippines 
Constabulary  to  the  chief  surgeon  of  the  Division  of  the  Philippines, 
and  not  as  a  personal  fee  to  any  officer  in  charge  of  such  military  hos- 
pital. 

SEC.  3.  The  appropriations  for  medical  attendance  of  the  Philip- 
pines Constabulary  are  hereby  made  available  for  payment  for  medi- 
cal attendance  as  herein  provided,  subject  to  the  conditions  prescribed 
for  such  attendance  in  Act  Numbered  Eight  hundred  and  seven,  that 
officers  shall  be  entitled  only  to  reimbursement  for  hospital  charges 
incurred  by  them  by  reason  of  injury  or  disability  received  in  line  of 
duty. 

SEC.  4.  In  all  cases  in  which  suspensions  have  been  made  by  the 
Auditor  for  the  Philippine  Islands  on  account  of  payments  made  by 
disbursing  officers  for  the  Philippines  Constabulary  to  medical  offi- 
cers or  contract  surgeons  of  the  United  States  Army  for  medical  serv- 
ices rendered  to  members  of  the  Philippines  Constabulary,  and  such 
payments  have  not  been  refunded,  the  Auditor  is  hereby  authorized  to 
credit  the  accounts  of  such  disbursing  officers  with  the  amounts  so 
suspended,  and  the  appropriations  against  which  the  same  were  at 
the  time  charged  are  hereby  made  available  for  such  payments,  and 
for  this  purpose  and  to  this  extent  this  Act  is  made  retroactive. 

SEC.  5.  In  cases  in  which  payments  have  been  made  by  provin- 
cial treasurers,  upon  the  orders  of  the  provincial  boards,  to  officers 
of  the  United  States  Army  or  to  medical  officers  receiving  salaries 
from  the  Insular  Government  but  whose  duties  did  not  require  them 
to  render  such  service,  for  medical  attendance  upon  provincial  pris- 
oners, the  Auditor  is  hereby  authorized  to  allow  credit  in  the  accounts 
of  such  provincial  treasurers  for  such  payments  when  it  shall  be 
shown  to  his  satisfaction  that  there  was  available  no  medical  officer 
required  by  law  to  perform  such  medical  service,  the  provisions  of 
Act  Numbered  One  hundred  and  forty-eight  to  the  contrary  notwith- 
standing: Provided,  That  such  payments  are  reasonable,  and  a 


1194  MILITAKY   LAWS    OF    THE    UNITED    STATES. 

certificate  of  the  Commissioner  of  Public  Health  that  the  fees 
charged  in  any  case  are  reasonable  may  be  accepted  by  the  Auditor 
as  final.  The  president  of  a  provincial  board  of  health  or  of  a  mu- 
nicipal board  of  health  may  be  required  to  render,  without  charge, 
to  any  officer  or  enlisted  man  of  the  Philippines  Constabulary,  or  to 
a  provincial  prisoner,  such  medical  service  as  may  be  needed  in  any 
case,  upon  notice  by  the  officer  in  immediate  command  of  such  Con- 
stabulary officer  or  enlisted  man  or  by  the  governor  of  the  province, 
as  the  case  may  be,  of  the  necessity  for  such  service ;  or  to  any  indi- 
gent person  when  directed  to  render  such  service  by  the  provincial 
governor  or  by  a  municipal  president,  as  the  case  may  be :  Provided, 
That  in  no  case  shall  the  president  of  a  provincial  board  of  health 
or  the  president  of  a  municipal  board  of  health  be  paid  for  medical 
services  rendered  to  any  person  authorized  by  law  to  receive  medical 
attendance  at  the  expense  of  the  Insular  Government  or  at  the  expense 
of  a  province.  Sees.  1  to  5,  Act  of  the  Philippine  Commission  of 
November  7,  1903  (No.  985). 

THE    HOSPITAL,   CORPS. 

914a.  The  Hospital  Corps  of  the  United  States  Army  shall  consist 
of  sergeants  first  class,  sergeants,  corporals,  privates  first  class,  and 
privates.  Act  of  March  2,  1903  (32  Stats.,  930). 

(This  paragraph  amends  paragraph  914.  See  also  paragraphs  915-921,  and 
924.) 

919a.  The  rank  and  pay  of  sergeants  first  class,  sergeants,  and  pri- 
vates first  class  shall  be  as  now  provided  by  law  for  hospital  stewards, 
acting  hospital  stewards,  and  privates  of  the  Hospital  Corps;  corpo- 
rals shall  receive  twenty  dollars  per  month  and  privates  sixteen  dol- 
lars, with  such  increase  on  account  of  length  of  service  as  is  now  or 
may  hereafter  be  allowed  by  law  to  other  enlistedjnen.  Act  of  March 
2,  1903  (32  Stats.,  930). 

(See  paragraphs  923  and  924). 

924a.  The  Secretary  of  War  is  authorized  to  organize  companies  of 
instruction,  ambulance  companies,  field  hospital,  and  other  detach- 
ments of  the  Hospital  Corps  as  the  necessities  of  the  service  may 
require.  Act  of  March  2, 1903  (32  Stats.,  930) . 

PURCHASES    OF    MEDICAL    SUPPLIES. 

932a.  Purchase  of  medicines  and  medical  stores,  or  the  engagement 
of  services  not  personal  for  the  Medical  Department  of  the  Army, 
may  be  made  by  the  Medical  Department  in  open  market  in  the 
manner  common  among  business  men  when  the  aggregate  of  the 


SUPPLEMENT.  1195 

amount  required  does  not  exceed  two  hundred  dollars,  but  every  such 
purchase  or  employment  shall  be  promptly  reported  to  the  Secretary 

of  War.    Act  of  April  23, 1904  (33  Stats.,  272) . 
(Tliis  paragraph  amends  paragraph  932.) 

SALE    OF    MEDICAL    SUPPLIES. 

934a.  Hereafter  civilian  employees  of  the  Army  stationed  at  mili- 
tary posts  may,  under  regulations  to  be  made  by  the  Secretary  of 
War,  purchase  necessary  medical  supplies  when  prescribed  by  a  medi- 
cal officer  of  the  Army.  Act  of  April  23,  1904  (33  Stats.,  273). 

(This  paragraph  amends  paragraph  934.) 

935a.  Hereafter  all  moneys  arising  from  dispositions  of  serviceable 
medical  and  hospital  supplies  authorized  by  law  and  regulation  shall 
constitute  one  fund  on  the  books  of  the  Treasury  Department,  which 
shall  be  available  to  replace  medical  and  hospital  supplies  throughout 
the  fiscal  year  in  which  the  dispositions  were  effected  and  throughout 
the  following  fiscal  year.  Act  of  June  12, 1906  (34  Stats.,  256) . 

MISCELLANEOUS. 

935b.  For  medical  care  and  treatment  not  otherwise  provided  for, 
including  care  and  subsistence  in  private  hospitals,  of  officers,  en- 
listed men,  and  civilian  employees  of  the  Army,  of  applicants  for 
enlistment,  and  of  prisoners  of  war  and  other  persons  in  military 
custody  or  confinement,  when  entitled  thereto  by  law,  regulation,  or 
contract :  Provided,  That  this  shall  not  apply  to  officers  and  enlisted 
men  who  are  treated  in  private  hospitals  or  by  civilian  physicians 
while  on  furlough,  *  *  *  dollars.  Act  of  March  2,  1907  (34 
Stats.,  1172). 

935c.  For  the  proper  care  and  treatment  of  epidemic  and  con- 
tagious diseases  in  the  Army  or  at  military  posts  or  stations,  includ- 
ing measures  to  prevent  the  spread  thereof,  and  the  payment  of 
reasonable  damages  not  otherwise  provided  for,  for  bedding  and 
clothing  injured  or  destroyed  in  such  prevention,  *  *  *  dollars. 
Act  of  March  2, 1907  (34  Stats.,  1172). 

NATIONAL  SANITARIUM  AT  HOT  SPRINGS,  SOUTH  DAKOTA. 

939a.  One  hundred  and  fifty  thousand  dollars  is  hereby  appro- 
priated for  the  erection  of  a  National  Sanitarium  for  Disabled  Vol- 
unteer Soldiers  at  Hot  Springs,  in  the  State  of  South  Dakota,  which 
shall  be  erected  by  and  under  the  direction  of  the  Board  of  Managers 
of  the  National  Home  for  Disabled  Volunteer  Soldiers,  which  Sani- 
tarium, when  in  a  condition  to  receive  members,  shall  be  subject  to 


1196  MILITARY   LAWS    OP    THE    UNITED    STATES. 

such  rules,  regulations,  and  restrictions  as  shall  be  .provided  by  said 
Board  of  Managers :  Provided,  That  such  Sanitarium  shall  be  erected 
on  land  donated  to  the  United  States  by  the  people  of  Hot  Springs, 
South  Dakota,  and  accompanied  with  a  deed  of  perpetual  lease  to 
one  or  more  of  the  medical  or  hot  springs  for  the  use  of  the  above- 
named  Sanitarium,  the  location  and  area  of  the  land  and  springs  of 
hot  water  to  be  selected  by  the  Board  of  Managers  of  the  National 
Home  for  Disabled  Volunteer  Soldiers,  or  such  persons  as  they  may 
appoint  to  make  the  selection  of  location  and  hot  springs,  and  that 
exclusive  jurisdiction  shall  be  vested  in  said  Board  of  Managers  over 
the  premises  occupied  by  said  Sanitarium  as  over  other  realty  held 
by  said  Board  until  further  enactment  by  the  Congress  of  the 
United  States.  Sec.  1,  act  of  May  29, 1902  (32  Stats.,  282). 

939b.  The  further  sum  of  twenty  thousand  dollars  is  hereby  appro- 
priated, to  be  used  for  the  transportation  to  and  from  said  Sanitarium 
of  such  patients  as  may  be  ordered  to  said  Sanitarium  by  said  Board 
of  Managers  and  for  equipping  and  maintaining  said  Sanitarium,  sub- 
ject to  the  aforesaid  rules  and  regulations  of  said  Board  of  Managers: 
Provided,  That  any  member  of  the  National  Home  for  Disabled  Vol- 
unteer Soldiers  who  shall  be  certified  to  said  Sanitarium  by  the  medi- 
cal and  legal  authorities  of  said  Board  of  Managers  shall  be  admitted 
and  treated  thereat  until  discharged  therefrom  or  returned  *o  some 
Branch  of  the  National  Home  by  order  of  said  Board  of  Managers. 
Sec.  2,  Act  of  May  29, 1902  (32  Stats.,  282). 

GENERAL  HOSPITAL,  FORT  BAYARD,  NEW  MEXICO. 

939c.  All  persons  admitted  to  treatment  in  the  general  hospital  at 
Fort  Bayard,  New  Mexico,  shall,  while  patients  in  said  hospital,  be 
subject  to  the  rules  and  articles  for  the  government  of  the  armies  of 
the  United  States.  Act  of  June  12, 1906  (34  Stats.,  255). 

939d.  The  hospital  at  Fort  Bayard,  New  Mexico,  for  the  treatment 
of  tuberculosis,  shall  be  opened  to  the  treatment  of  the  officers  and 
men  of  the  Navy  and  Marine  Corps.  Act  of  March  2,  1907  (34 
Stats.,  1172). 


CHAPTER  XXII. 

THE  CORPS  or  ENGINEERS. 

ORGANIZATION. 

953a.  The  Corps  of  Engineers  shall  consist  of  one  Chief  of  Engi- 
neers with  the  rank  of  brigadier-general,  of  ten  colonels,  sixteen  lieu- 
tenant-colonels, thirty-two  majors,  forty-three  captains,  forty-three 
first  lieutenants,  and  forty-three  second  lieutenants.  The  enlisted 


SUPPLEMENT.  1197 

force  provided  in  section  eleven  of  this  Act,  and  the  officers  serving 
with  the  organized  battalions  thereof,  shall  constitute  a  part  of  the 
line  of  the  Army:  Provided,  That  the  Chief  of  Engineers  shall  be 
appointed  as  now  provided  by  law,  and  hereafter  vacancies  in  the 
Corps  of  Engineers  in  all  other  grades  above  that  of  second  lieuten- 
ant shall  be  filled  by  promotion,  according  to  seniority,  from  the 
Corps  of  Engineers.  Any  vacancies  occurring  at  any  time  in  the 
grade  of  second  lieutenant  shall  be  left  for  future  promotions  from 
the  corps  of  cadets  at  the  United  States  Military  Academy.  Act  of 
April  23,  1904  (33  Stats.,  263). 

(This  paragraph  contains  an  amendment  to  section  22  of  the  act  of  February 
2,  1901.  See  paragraph  953.  See  also  paragraphs  954~956,  and  962.) 

PUBLIC  BUILDINGS  AND  GROUNDS. 

978a.  Section  seventeen  hundred  and  ninety-seven  of  the  Revised 
Statutes  of  the  United  States  is  hereby  amended  to  read  as  follows : 

"  SEC.  1797.  That  the  Chief  of  Engineers  shall  have  charge  of  the 
public  buildings  and  grounds  in  the  District  of  Columbia,  under  such 
regulations  as  may  be  prescribed  by  the  President,  through  the  War 
Department,  except  those  buildings  and  grounds  which  are  otherwise 
provided  for  by  law ;  and  when  it  shall  be  made  to  appear  to  the  said 
Chief  of  Engineers,  or  to  the  officer  under  his  direction  having  imme- 
diate charge  of  said  public  buildings  and  grounds,  that  any  person 
or  persons  is  in  unlawful  occupation  of  any  portion  of  said  public 
lands  in  the  District  of  Columbia,  it  shall  be  the  duty  of  said  officer 
in  charge  thereof  to  notify  the  marshal  of  the  District  of  Columbia  in 
writing  of  such  unlawful  occupation,  and  the  said  marshal  shall 
thereupon  cause  the  said  trespasser  or  trespassers  to  be  ejected  from 
said  lands,  and  shall  restore  possession  of  the  same  to  the  officer 
charged  by  law  with  the  custody  thereof."  Act  of  April  28, 1902  (32 
Stats.,  152). 

(This  extends  the  duties  of  the  Chief  of  Engineers.     See  paragraph  978.) 

978b.  Hereafter  no  public  building,  or  the  approaches  thereto,  other 
than  the  Capitol  building  and  the  White  House,  in  the  District  of 
Columbia,  shall  be  used  or  occupied  in  any  manner  whatever  in  con- 
nection with  ceremonies  attending  the  inauguration  of  President  of 
the  United  States,  or  other  public  function,  except  as  may  hereafter  be 
expressly  authorized  by  law.  Act  of  April  28, 1902  (32  Stats.,  152). 

980a.  The  action  of  the  Commissioners  of  the  District  of  Columbia 
in  heretofore  granting  permits  for  the  extension  of  any  building  or 
buildings,  or  any  part  or  parts  thereof,  in  the  District  of  Columbia, 
beyond  the  building  line  and  upon  the  streets  and  avenues  of  said  city, 
is  hereby  ratified,  without  prejudice,  however,  to  the  legal  rights  of 
the  Government  in  the  event  of  the  destruction  by  fire  or  otherwise 


1198  MILITAKY  LAWS   OF   THE   UNITED   STATES. 

of  any  such  structure.  And  hereafter  no  such  permits  shall  be  granted 
except  upon  special  application  and  with  the  concurrence  of  all  of  said 
Commissioners  and,  where  such  extensions  are  to  be  placed  upon  build- 
ings to  be  erected  on  land  adjoining  United  States  public  reservations, 
the  approval  of  the  Secretary  of  War.  Act  of  June  21,  1906  (34 
Stats.,  385). 

(This  paragraph  amends  the  act  of  March  3,  1891,  26  Stats.,  868.) 

THE    WASHINGTON    MONUMENT. 

990a.  For  the  care  and  maintenance  of  the  Washington  Monument, 
namely:  For  one  custodian,  at  one  hundred  dollars  per  month;  one 
steam  engineer,  at  eighty  dollars  per  month;  one  assistant  steam 
engineer,  at  sixty  dollars  per  month ;  one  fireman,  at  fifty  dollars  per 
month;  one  assistant  fireman,  at  forty-five  dollars  per  month;  one 
conductor  of  elevator  car  at  seventy-five  dollars  per  month;  one 
attendant  on  floor,  at  sixty  dollars  per  month ;  one  attendant  on  top 
floor,  at  sixty  dollars  per  month ;  three  night  and  day  watchmen,  at 
sixty  dollars  per  month  each.  Act  of  April  28, 1904  (33  Stats.,  493). 

(This  paragraph  modifies  the  pay  of  certain  employees  as  set  forth  in  para- 
graph 990.) 

LIGHT-HOUSE   BOARD. 

1028a.  The  following-named  offices,  bureaus,  divisions,  and 
branches  of  the  public  service,  now  and  heretofore  under  the  juris- 
diction of  the  Department  of  the  Treasury,  and  all  that  pertains  to 
the  same,  known  as  the  Light-House  Board,  the  Light-House  Estab- 
lishment, 

******* 

*  *  *  are  transferred  from  the  Department  of  the  Treasury  to 
the  Department  of  Commerce  and  Labor,  and  the  same  shall  here- 
after remain  under  the  jurisdiction  and  supervision  of  the  last-named 
Department.  Sec.  4,  Act  of  February  14, 1903  (32  Stats.,  826). 

(This  paragraph  affects  the  provisions  of  paragraphs  1024  and  1025.) 

1028b.  All  duties  performed  and  all  power  and  authority  now  pos- 
sessed or  exercised  by  the  head  of  any  executive  department  in  and 
over  any  bureau,  office,  officer,  board,  branch,  or  division  of  the  public 
service  by 'this  Act  transferred  to  the  Department  of  Commerce  and 
Labor,  or  any  business  arising  therefrom  or  pertaining  thereto,  or  in 
relation  to  the  duties  performed  by  and  authority  conferred  by  law 
upon  such  bureau,  officer,  office,  board,  branch,  or  division  of  the 
public  service,  whether  of  an  appellate  or  revisory  character  or  other- 
wise, shall  hereafter  be  vested  in  and  exercised  by  the  head  of  the  said 
Department  of  Commerce  and  Labor. 


SUPPLEMENT.  1199 

All  duties,  power,  authority  and  jurisdiction,  whether  supervisory, 
appellate  or  otherwise,  noAv  imposed  or  conferred  upon  the  Secretary 
of  the  Treasury  by  Acts  of  Congress  relating  to  merchant  vessels  or 
yachts,  their  measurement,  numbers,  names,  registers,  enrollments, 
licenses,  commissions,  records,  mortgages,  bills  of  sale,  transfers, 
entry,  clearance,  movements  and  transportation  of  their  cargoes  and 
passengers,  owners,  officers,  seamen,  passengers,  fees,  inspection, 
equipment  for  the  better  security  of  life,  and  by  Acts  of  Congress 
relating  to  tonnage  tax,  boilers  on  steam  vessels,  the  carrying  of 
inflammable,  explosive  or  dangerous  cargo  on  vessels,  the  use  of 
petroleum  or  other  similar  substances  to  produce  motive  power  and 
relating  to  the  remission  or  refund  of  fines,  penalties,  forfeitures, 
exactions  or  charges  incurred  for  violating  any  provision  of  law 
relating  to  vessels  or  seamen  or  to  informer's  shares  of  such  fines,  and 
by  Acts  of  Congress  relating  to  the  Commissioner  and  Bureau  of 
Navigation,  Shipping  Commissioners,  their  officers  and  employees-, 
Steamboat-Inspection  Service  and  any  of  the  officials  thereof,  shall 
be  and  hereby  are  transferred  to  and  imposed  and  conferred  upon  the 
Secretary  of  Commerce  and  Labor  from  and  after  the  time  of  the 
transfer  of  the  Bureau  of  Navigation,  the  Shipping  Commissioners 
and  the  Steamboat-Inspection  Service  to  the  Department  of  Com- 
merce and  Labor,  and  shall  not  thereafter  be  imposed  upon  or  exer- 
cised by  the  Secretary  of  the  Treasury.  And  all  Acts  or  parts  of 
Acts  inconsistent  with  this  Act  are,  so  far  as  inconsistent,  hereby 
repealed.  Sec.  10,  Act  of  February  14, 1903  (32  Stats.,  829) . 

THE  MISSISSIPPI  RIVER  COMMISSION. 
MISCELLANEOUS    PROVISIONS    RESPECTING    THE    MISSISSIPPI    RIVEB. 

1043a.  Any  funds  which  have  been,  or  may  hereafter  be,  appro- 
priated by  Congress  for  improving  the  Mississippi  River  between 
the  Head  of  the  Passes  and  the  mouth  of  the  Ohio  River,  and  which 
may  be  allotted  to  levees,  may  be  expended,  under  the  direction  of  the 
Secretary  of  War,  in  accordance  with  the  plans,  specifications,  and 
recommendations  of  the  Mississippi  River  Commission,  as  approved 
by  the  Chief  of  Engineers,  for  levees  upon  any  part  of  said  river  be- 
tween  the  Head  of  the  Passes  and  Cape  Girardeau,  Missouri.  Act  of 
June  4,  1906  (34  Stats.,  208). 

THE    CALIFORNIA    DEBRIS    COMMISSION. 

106 la.  In  case  a  majority  of  the  members  of  said  Commission,  with- 
in thirty  days  after  the  time  so  fixed,  concur  in  the  decision  in  favor 
of  the  petitioner  or  petitioners,  the  said  Commission  shall  thereupon 


1200  MILITAKY   LAWS    OF    THE    UNITED    STATES. 

make  an  order  directing  the  methods  and  specifying  in  detail  the 
manner  in  which  operations  shall  proceed  in  such  mine  or  mines; 
what  restraining  or  impounding  works,  if  any,  if  facilities  therefor 
can  be  found,  shall  be  built  and  maintained;  how  and  of  what  ma- 
terial ;  where  to  be  located ;  and  in  general  set  forth  such  further  re- 
quirements and  safeguards  as  will  protect  the  public  interests  and 
prevent  injury  to  the  said  navigable  rivers  and  the  lands  adjacent 
thereto,  with  such  further  conditions  and  limitations  as  will  observe 
all  the  provisions  of  this  Act  in  relation  to  the  working  thereof  and 
the  payment  of  taxes  on  the  gross  proceeds  of  the  same:  Provided, 
That  all  expense  incurred  in  complying  with  said  order  shall  be  borne 
by  the  owner  or  owners  of  such  mine  or  mines :  And  provided  further, 
That  where  it  shall  appear  to  said  Commission  that  hydraulic  min- 
ing may  be  carried  on  without  injury  to  the  navigation  of  said  navi- 
gable rivers  and  the  lands  adjacent  thereto,  an  order  may  be  made 
authorizing  such  mining  to  be  carried  on  without  requiring  the  con- 
struction of  any  restraining  or  impounding  works  or  any  settling 
reservoirs :  And  provided  also,  That  where  such  an  order  is  made  a 
license  to  mine,  no  taxes  provided  for  herein  on  the  gross  proceeds  of 
such  mining  operations  shall  be  collected.  Act  of  February  27, 1907 
(34  Stats.,  1002). 

(This  paragraph  amends  section  13  of  the  act  of  March- 1,  1893,  and  takes 
the  place  of  paragraph  1061.) 

1081a.  So  much  of  the  act  of  March  third,  eighteen  hundred  and 
ninety-nine,  as  provides  that  the  members  of  the  California  De- 
bris Commission  shall  receive  only  actual  expenses  in  lieu  of  mileage 
while  traveling  on  duty  is  hereby  repealed,  and  hereafter  the  officers 
of  the  commission  shall  receive  the  mileage  allowed  by  law.  Act  of 
June  6,  1900  (31  Stats.,  631}. 

(This  paragraph  takes  the  place  of  paragraph  1081.) 

THE  ISTHMIAN  CANAL  COMMISSION. 

1085a.  To  enable  the  President  to  construct  the  canal  and  works 
appurtenant  thereto  as  provided  in  this  Act,  there  is  hereby  created 
the  Isthmian  Canal  Commission,  the  same  to  be  composed  of  seven 
members,  who  shall  be  nominated  and  appointed  by  the  President,  by 
and  with  the  advice  and  consent  of  the  Senate,  and  who  shall  serve 
until  the  completion  of  said  canal  unless  sooner  removed  by  the  Presi- 
dent, and  one  of  whom  shall  be  named  as  the  chairman  of  said  Com- 
mission. Of  the  seven  members  of  said  Commission  at  least  four  of 
them  shall  be  persons  learned  and  skilled  in  the  science  of  engineering, 
and  of  the  four  at  least  one  shall  be  an  officer  of  the  United  States 
Army,  and  at  least  one  other  shall  be  an  officer  of  the  United  States 


SUPPLEMENT.  1201 

Navy,  the  said  officers  respectively  being  either  upon  the  active  or  the 
retired  list  of  the  Army  or  of  the  Navy.  Said  commissioners  shall 
each  receive  such  compensation  as  the  President  shall  prescribe  until 
the  same  shall  have  been  otherwise  fixed  by  the  Congress.  In  addi- 
tion to  the  members  of  said  Isthmian  Canal  Commission,  the  President 
is  hereby  authorized  through  said  Commission  to  employ  in  said  serv- 
ice any  of  the  engineers  of  the  United  States  Army  at  his  discretion, 
and  likewise  to  employ  any  engineers  in  civil  life,  at  his  discretion, 
and  any  other  persons  necessary  for  the  proper  and  expeditious  prose- 
cution of  said  work.  The  compensation  of  all  such  engineers  and 
other  persons  employed  under  this  Act  shall  be  fixed  by  said  Com- 
mission, subject  to  the  approval  of  the  President.  The  official  salary 
of  any  officer  appointed  or  employed  under  this  Act  shall  be  deducted 
from  the  amount  of  salary  or  compensation  provided  by  or  which 
shall  be  fixed  under  the  terms  of  this  Act.  Said  Commission  shall  in 
all  matters  be  subject  to  the  direction  and  control  of  the  President, 
and  shall  make  to  the  President  annually  and  at  such  other  periods  as 
may  be  required,  either  by  law  or  by  the  order  of  the  President,  full 
and  complete  reports  of  all  their  actings  and  doings  and  of  all  moneys 
received  and  expended  in  the  construction  of  said  work  and  in  the  per- 
formance of  their  duties  in  connection  therewith,  which  said  reports 
shall  be  by  the  President  transmitted  to  Congress.  And  the  said 
Commission  shall  furthermore  give  to  Congress,  or  either  House  of 
Congress,  such  information  as  may  at  any  time  be  required  either  by 
Act  of  Congress  or  by  the  order  of  either  House  of  Congress.  The 
President  shall  cause  to  be  provided  .and  assigned  for  the  use  of  the 
Commission  such  offices  as  may,  with  the  suitable  equipment  of  the 
same,  be  necessary  and  proper,  in  his  discretion,  for  the  proper  dis- 
charge of  the  duties  thereof.  Sec.  7,  Act  of  June  28, 1902  (32  Stats., 


GOVERNMENT    OF    THE    CANAL    ZONE    AT    PANAMA. 

1085b.  The  President  is  hereby  authorized,  upon  the  acquisition  of 
the  property  of  the  New  Panama  Canal  Company  and  the  payment  to 
the  Eepublic  of  Panama  of  the  ten  millions  of  dollars  provided  by 
article  fourteen  of  the  treaty  between  the  United  States  and  the  Re- 
public of  Panama,  the  ratifications  of  which  wyere  exchanged  on  the 
twenty-sixth  day  of  February,  nineteen  hundred  and  four,  to  be  paid 
to  the  latter  Government,  to  take  possession  of  and  occupy  on  behalf 
of  the  United  States  the  zone  of  land  and  land  under  water  of  the 
width  of  ten  miles,  extending  to  the  distance  of  five  miles  on  each  side 
of  the  center  line  of  the  route  of  the  canal  to  be  constructed  thereon, 
which  said  zone  begins  in  the  Caribbean  sea  three  marine  miles  from 
mean  low-water  mark  and  extends  to  and  across  the  Isthmus  of  Pan- 
ama into  the  Pacific  Ocean  to  the  distance  of  three  marine  miles  from 
22924—08 76 


1202  MILITAKY   LAWS    OF    THE    UNITED    STATES. 

mean  low-water  mark,  and  also  of  all  islands  within  said  zone,  and  in 
addition  thereto  the  group  of  islands  in  the  Bay  of  Panama  named 
Perico,  Naos,  Culebra,  and  Flamenco,  and,  from  time  to  time,  of  any 
lands  and  waters  outside  of  said  zone  which  may  be  necessary  and  con- 
venient for  the  construction,  maintenance,  operation,  sanitation,  and 
protection  of  the  said  canal,  or  of  any  auxiliary  canals  or  other  works 
necessary  and  convenient  for  the  construction,  maintenance,  operation, 
sanitation,  and  protection  of  said  enterprise,  the  use,  occupation,  and 
control  whereof  were  granted  to  the  United  States  by  article  two  of 
said  treaty.  The  said  zone  is  hereinafter  referred  to  as  "  the  Canal 
Zone."  The  payment  of  the  ten  millions  of  dollars  provided  by 
article  fourteen  of  said  treaty  shall  be  made  in  lieu  of  the  indefinite 
appropriation  made  in  the  third  section  of  the  Act  of  June  twenty- 
eighth,  nineteen  hundred  and  two,  and  is  hereby  appropriated  for  said 
purpose. 

SEC.  2.  That  until  the  expiration  of  the  Fifty-eighth  Congress, 
unless  provision  for  the  temporary  government  of  the  Canal  Zone  be 
sooner  made  by  Congress,  all  the  military,  civil,  and  judicial  powers 
as  well  as  the  power  to  make  all  rules  and  regulations  necessary  for 
the  government  of  the  'Canal  Zone  and  all  the  rights,  powers,  and 
authority  granted  by  the  terms  of  said  treaty  to  the  United  States 
snail  be  vested  in  such  person  or  persons  and  shall  be  exercised  in  such 
manner  as  the  President  shall  direct  for  the  government  of  said  Zone 
and  maintaining  and  protecting  the  inhabitants  thereof  in  the  free 
enjoyment  of  their  liberty,  property,  and  religion.  Sees.  1  and  2, 
Act  of  April  28,  1904  ($3  Stats..,  J$9). 

1085c.  That  the  Secretary  of  the  Treasury  is  hereby  authorized  to 
borrow  on  the  credit  of  the  United  States  from  time  to  time,  as  the 
proceeds  may  be  required  to  defray  expenditures  authorized  by  this 
Act  (such  proceeds  when  received  to  be  used  only  for  the  purpose  of 
meeting  such  expenditures) ,  the  sum  of  one  hundred  and  thirty  mil- 
lion dollars,  or  so  much  thereof  as  may  be  necessary,  and  to  prepare 
and  issue  therefor  coupon  or  registered  bonds  of  the  United  States  in 
such  form  as  he  may  prescribe,  and  in  denominations  of  twenty  dol- 
lars or  some  multiple  of  that  sum,  redeemable  in  gold  coin  at  the 
pleasure  of  the  United  States  after  ten  years  from  the  date  of  their 
issue,  and  payable  thirty  years  from  such  date,  and  bearing  interest 
payable  quarterly  in  gold  coin  at  the  rate  of  two  per  centum  per  an- 
num ;  and  the  bonds  herein  authorized  shall  be  exempt  from  all  taxes 
or  duties  of  the  United  States,  as  well  as  from  taxation  in  any  form 
by  or  under  State,  municipal,  or  local  authority :  Provided,  That  said 
bonds  may  be  disposed  of  by  the  Secretary  of  the  Treasury  at  not  less 
than  par,  under  such  regulations  as  he  may  prescribe,  giving  to  all 
citizens  of  the  United  States  an  equal  opportunity  to  subscribe  there- 
for, but  no  commissions  shall  be  allowed  or  paid  thereon ;  and  a  sum 


SUPPLEMENT.  1203 

not  exceeding  one-tenth  of  one  per  centum  of  the  amount  of  the  bonds 
herein  authorized  is  hereby  appropriated,  out  of  any  money  in  the 
Treasury  not  otherwise  appropriated,  to  pay  the  expense  of  prepar- 
ing, advertising,  and  issuing  the  same.  Sec.  8,  Act  of  June  28,  1902 
(32  Stats.,  484). 

1085d.  All  expenditures  from  the  appropriation  herein  made  for 
the  Isthmian  Canal  shall  be  paid  from,  or  reimbursed  to  the  Treas- 
ury of  the  United  States  out  of,  the  proceeds  of  the  sale  of  bonds 
authorized  in  section  eight  of  the  said  Act  approved  June  twenty- 
oighth,  nineteen  hundred  and  two.  Sec.  1,  Act  of  March  4,  1907  (34 
Stats.,  1369). 

1085e.  That  the  two  per  cent  bonds  of  the  United  States  authorized 
by  section  eight  of  the  Act  entitled  "An  Act  to  provide  for  the  con- 
struction of  a  canal  connecting  the  waters  of  the  Atlantic  and  Pacific 
oceans,"  approved  June  twenty-eight,  nineteen  hundred  and  two, 
shall  have  all  the  rights  and  privileges  accorded  by  law  to  other  two 
per  cent  bonds  of  the  United  States,  and  every  national  banking  asso- 
ciation having  on  deposit,  as  provided  by  law,  such  bonds  issued 
under  the  provisions  of  said  section  eight  of  said  Act  approved  June 
twenty-eight,  nineteen  hundred  and  two,  to  secure  its  circulating 
notes,  shall  pay  to  the  Treasurer  of  the  United  States,  in  the  months 
of  January  and  July,  a  tax  of  one-fourth  of  one  per  cent  each  half 
year  upon  the  average  amount  of  such  of  its  notes  in  circulation  as  are 
based  upon  the  deposit  of  said  two  per  cent  bonds;  and  such  tases 
shall  be  in  lieu  of  existing  taxes  on  its  notes  in  circulation  imposed 
by  section  fifty-two  hundred  and  fourteen  of  the  Revised  Statutes. 
Section  1,  Act  of  December  21, 1905  (34  Stats.,  5). 

1085f.  The  President  shall  annually,  and  at  such  other  periods  as 
may  be  provided,  either  by  law  or  by  his  order,  require  full  and  com- 
plete reports  to  be  made  to  him  by  the  persons  appointed  or  em- 
ployed by  him  in  charge  of  the  government  of  the  Canal  Zone,  the 
construction  of  the  Isthmian  Canal,  and  the  operation  of  the  Panama 
Railroad,  including  an  itemized  account  of  all  moneys  received  and 
expended,  which  said  reports  shall  be  by  the  President  transmitted 
to  Congress.  The  President  shall  annually  cause  to  be  made,  by  the 
persons  appointed  and  employed  by  him  in  charge  of  the  government 
of  said  Canal  Zone  and  the  construction  of  said  canal,  estimates  of 
expenditures  and  appropriations,  in  detail  as  far  as  practicable, 
which  estimates  shall  cover  all  annual  salaries  paid  to  persons  em- 
ployed on  said  work,  excepting  laborers  and  skilled  laborers,  and 
shall  be  submitted  to  Congress  in  the  manner  provided  in  section  five 
of  the  Act  entitled  "An  Act  making  appropriations  for  the  legislative, 
executive,  and  judicial  expenses  of  the  Government  for  the  fiscal  year 
ending  June  thirtieth,  nineteen  hundred  and  two,  and  for  other  pur- 
poses." And  no  money  shall  be  expended  for  any  of  the  purposes  of 


1204  MILITAKY   LAWS    OF    THE    UNITED    STATES. 

constructing  and  maintaining  said  Isthmian  Canal,  or  for  any  ex- 
penses incident  thereto,  except  in  accordance  with  appropriations 
made  by  Congress.  Sec.  3,  Act  of  December  21, 1905  (34  Stats.,  6). 

(This  paragraph  amends  paragraph  1085a.) 

1085g.  The  President  is  hereby  authorized  to  cause  to  be  entered 
into  such  contract  or  contracts  as  may  be  deemed  necessary  for  the 
proper  excavation,  construction,  completion,  and  defense  of  said 
canal,  harbors,  and  defenses,  by  the  route  finally  determined  upon 
under  the  provisions  of  this  Act.  Appropriations  therefor  shall  from 
time  to  time  be  hereafter  made,  not  to  exceed  in  the  aggregate  the 
additional  sum  of  one  hundred  and  thirty-five  millions  of  dollars 
should  the  Panama  route  be  adopted,  or  one  hundred  and  eighty 
millions  of  dollars  should  the  Nicaragua  route  be  adopted.  Sec.  5, 
Act  of  June  28, 1902  (32  Stats.,  483). 

1085h.  Nothing  contained  in  section  five  of  the  Act  of  June  twenty- 
eighth,  nineteen  hundred  and  two,  entitled  "An  Act  to  provide  for 
the  construction  of  a  canal  connecting  the  waters  of  the  Atlantic  and 
Pacific  oceans,"  shall  prevent  the  President  from  entering  into  such 
contract  or  contracts  as  may  be  deemed  expedient  by  him  for  the  com- 
pletion of  the  construction  of  the  Panama  Canal.  Sec.  6,  Act  of 
March  4,  1907  (34  Stats.,  1370). 

10851.  The  appropriations  for  the  pay  of  officers  and  employees  of 
the  several  departments  on  the  Isthmus  under  the  Act  of  June  thir- 
tieth, nineteen  hundred  and  six,  shall  apply  to  the  pay  of  such  officers 
and  employees  when  necessarily  temporarily  detailed  upon  duty 
away  from  the  Isthmus.  Sec.  7,  Act  of  March  4,  1907  (34  Stats., 
1370). 

1085J.  Purchases  of  material  and  equipment  for  use  in  the  construc- 
tion of  the  Panama  Canal  shall  be  restricted  to  articles  of  domestic 
production  and  manufacture,  from  the  lowest  responsible  bidder,  unless 
the  President  shall,  in  any  case,  deem  the  bids  or  tenders  therefor  to 
be  extortionate  or  unreasonable.  Joint  Res.  of  June  25,  1906  (34 
Stats.,  835). 

1085k.  All  laws  affecting  imports  of  articles,  goods,  wares,  and  mer- 
chandise and  entry  of  persons  into  the  United  States  from  foreign 
countries  shall  apply  to  articles,  goods,  wares,  and  merchandise  and 
persons  coming  from  the  Canal  Zone,  Isthmus  of  Panama,  and  seek- 
ing entry  into  any  State  or  Territory  of  the  United  States  or  the  Dis- 
trict of  Columbia.  Act  of  March  2, 1905  (33  Stats.,  843). 

10851.  Hereafter  the  accounts  for  the  Isthmian  Canal-  Commission 
shall  be  audited  by  the  Auditor  for  the  War  Department.  Act  of 
February  3, 1905  (33  Stats.,  647). 

1085m.  The  provisions  of  the  Act  entitled  "An  Act  relating  to  the 
limitations  of  the  hours  of  daily  service  of  laborers  and  mechanics 


SUPPLEMENT.  1205 

employed  upon  the  public  works  of  the  United  States  and  of  the  Dis- 
trict of  Columbia,-'  approved  August  first,  eighteen  hundred  and 
ninety-two,  shall  not  apply  to  alien  laborers  employed  in  the  con- 
struction of  the  Isthmian  Canal  within  the  Canal  Zone.  Act  of  Feb- 
ruary, 27, 1906  (34  Stats.,  33}. 

1085n.  The  provisions  of  an  Act  entitled  "An  Act  relating  to  the 
limitations  of  the  hours  of  daily  service  of  laborers  and  mechanics 
employed  upon  the  public  works  of  the  United  States  and  of  the  Dis- 
trict of  Columbia,"  approved  August  first,  eighteen  hundred  and 
ninety-two,  and  of  an  Act  entitled  "An  Act  making  appropriations  to 
supply  urgent  deficiencies  in  the  appropriations  for  the  fiscal  year 
ending  June  thirtieth,  nineteen  hundred  and  six,  and  for  prior  years, 
and  for  other  purposes,"  approved  February  twenty-seventh,  nineteen 
hundred  and  six,  shall  not  apply  to  unskilled  alien  laborers  and  to  the 
foremen  and  superintendents  of  such  laborers  employed  in  the  con- 
struction of  the  isthmian  canal  within  the  Canal  Zone.  Sec.  4i  Act 
of  June  30, 1906  (34  Stats.,  669). 

(This  paragraph  amends  paragraph  1085m.) 

FORTIFICATIONS. 

1086a.  Hereafter  in  acquiring  sites  for  fortifications  it  shall  be  the 
duty  of  the  Secretary  of  War,  in  every  case  of  such  acquirement,  to 
purchase  or  otherwise  procure  at  the  same  time,  under  this  and  future 
appropriations  for  this  purpose,  sufficient  land  for  necessary  barracks 
and  quarters  for  the  artillery  troops  required  in  connection  with  each 
of  such  fortifications;  but  no  part  of  the  money  appropriated  for 
military  posts  shall  be  used  for  the  purchase  of  any  land  except  as 
herein  specifically  provided.  Act  of  April  28,  1904  (3$  Stats.,  497). 

1086b.  It  shall  be  the  duty  of  the  Secretary  of  War  to  apply  the 
money  herein  appropriated  under  the  heading  "  Fortifications  and 
other  works  of  defense,"  in  carrying  on  the  various  works,  by  con- 
tract or  otherwise,  as  may  be  most  economical  and  advantageous 
to  the  Government.  Where  said  works  are  done  by  contract,  such 
contract  shall  be  made  after  sufficient  public  advertisement  for  pro- 
posals, in  such  manner  and  form  as  the  Secretary  of  War  shall  pre- 
scribe; and  such  contracts  shall  be  made  with  the  lowest  responsible 
bidders,  accompanied  by  such  securities  as  the  Secretary  of  War  shall 
require,  conditioned  for  the  faithful  prosecution  and  completion  of 
the  work  according  to  such  contract.  Act  of  April  21,  1904  (3$ 
Stats.,  234). 

THE    NAVIGABLE   WATERS    OF   THE   UNITED    STATES. 

1097a.  Grand  River  in  the  State  of  Missouri  above  the  city  of 
Brunswick,  in  the  county  of  Chariton  in  said  State,  is  hereby  declared 


1206  MILITAEY   LAWS    OF    THE    UNITED    STATES. 

to  be  not  a  navigable  stream  and  shall  be  so  treated  by  the  Secretary 
of  War  and  by  all  other  authorities.  Act  of  February  15,  1905  (33 
Stats.,  715). 

RIVER    AND    HARBOR    WORKS. 

1098a.  There  shall  be  organized  in  the  Office  of  the  Chief  of  Engi- 
neers, United  States  Army,  by  detail  from  time  to  time  from  the 
Corps  of  Engineers,  a  board  of  five  engineer  officers,  whose  duties 
shall  be  fixed  by  the  Chief  of  Engineers,  and  to  whom  shall  be  referred 
for  consideration  and  recommendation,  in  addition  to  any  other  duties 
assigned,  so  far  as  in  the  opinion  of  the  Chief  of  Engineers  may  be 
necessary,  all  reports  upon  examinations  and  surveys  provided  for  by 
Congress,  and  all  projects  or  changes  in  projects  for  works  of  river 
and  harbor  improvement  heretofore  or  hereafter  provided  for.  And 
the  board  shall  submit  to  the  Chief  of  Engineers  recommendations  as 
to  the  desirability  of  commencing  or  continuing  any  and  all  improve- 
ments upon  which  reports  are  required.  And  in  the  consideration  of 
such  works  and  projects  the  board  shall  have  in  view  the  amount  and 
character  of  commerce  existing  or  reasonably  prospective  which  will 
be  benefited  by  the  improvement,  and  the  relation  of  the  ultimate  cost 
of  such  work,  both  as  to  cost  of  construction  and  maintenance,  to  the 
public  commercial  interests  involved,  and  the  public  necessity  for  tKe 
work  and  propriety  of  its  construction,  continuance,  or  maintenance 
at  the  expense  of  the  United  States.  And  such  consideration  shall  be 
given  as  time  permits  to  such  works  as  have  heretofore  been  provided 
for  by  Congress,  the  same  as  in  the  case  of  new  works  proposed.  The 
board  shall,  when  it  considers  the  same  necessary,  and  with  the  sanc- 
tion and  under  orders  from  the  Chief  of  Engineers,  make,  as  a  board 
or  through  its  members,  personal  examinations  of  localities.  And  all 
facts,  information,  and  arguments  which  are  presented  to  the  board 
for  its  consideration  in  connection  with  any  matter  referred  to  it  by 
the  Chief  of  Engineers  shall  be  reduced  to  and  submitted  in  writing, 
and  made  a  part  of  the  records  of  the  Office  of  the  Chief  of  Engineers. 
It  shall  further  be  the  duty  of  said  board,  upon  a  request  transmitted 
to  the  Chief  of  Engineers  by  the  Committee  on  River  and  Harbors 
of  the  House  of  Representatives,  or  the  Committee  on  Commerce  of 
the  Senate,  in  the  same  manner  to  examine  and  report  through  the 
Chief  of  Engineers  upon  any  projects  heretofore  adopted  by  the  Gov- 
ernment or  upon  which  appropriations  have  been  made,  and  report 
upon  the  desirability  of  continuing  the  same  or  upon  any  modifica- 
tions thereof  which  may  be  deemed  desirable. 

The  board  shall  have  authority,  with  the  approval  of  the  Chief  of 
Engineers,  to  rent  quarters,  if  necessary,  for  the  proper  transaction 
of  its  business,  and  to  employ  such  civil  employees  as  may,  in  the 
opinion  of  the  Chief  of  Engineers,  be  required  for  properly  transact- 


SUPPLEMENT.  1207 

ing  the  business  assigned  to  it,  and  the  necessary  expenses  of  the  board 
shall  be  paid  from  allotments  made  by  the  Chief  of  Engineers  from 
any  appropriations  made  by  Congress  for  the  work  or  works  to  which 
the  duties  of  the  board  pertain.  Sec.  3,  Act  of  June  13,  1902  (32 
Stats.,  372). 

1103a.  No  appropriations  heretofore  or  hereafter  made  for  improv- 
ing harbors  and  deepening  channels  shall  be  used  for  the  construction 
of  Government  dredges  for  use  on  the  Great  Lakes  or  on  the  Atlantic 
coast  north  of  Cape  Henry  unless  there  shall  be  a  specific  appropria- 
tion for  that  purpose :  Provided,  however,  That  this  provision  shall 
not  apply  to  any  dredge  the  construction  of  which  has  heretofore  been 
authorized  by  the  Secretary  of  War.  Sec.  4,  Act  of  April  28,  1904 
(33  Stats.,  452).- 

PURCHASE    AND    SALE    OF    LANDS. 

1106a.  When  any  land  or  other  property  which  has  been  heretofore 
or  may  be  hereafter  purchased  or  acquired  for  the  improvement  of 
rivers  and  harbors  is  no  longer  needed,  or  is  no  longer  serviceable,  it 
may  be  sold  in  such  manner  as  the  Secretary  of  War  may  direct,  and 
the  proceeds  credited  to  the  appropriation  for  the  work  for  which  it 
was  purchased  or  acquired ;  and  the  Secretary  of  War  may  direct  the 
transfer  of  any  property  employed  in  river  and  harbor  works,  and  in 
such  event  the  property  so  transferred  shall  be  valued  and  credited  to 
the  project  upon  which  it  was  theretofore  used  and  charged  to  the 
project  to  which  it  shall  be  transferred.  The  Secretary  may  also 
direct  a  temporary  transfer  of  any  property  employed  in  the  improve- 
ment of  rivers  and  harbors  whenever,  in  his  judgment,  such  transfer 
would  secure  efficient  or  economical  results,  and  such  adjustment  in 
the  way  of  charges  and  credits  shall  be  made  between  the  projects 
affected  as  may  be  equitable.  Sec.  5,  Act  of  June  13, 1902  (32  Stats., 
373). 

1106b.  Whenever  any  person,  company,  or  corporation,  municipal 
or  private,  shall  undertake  to  secure  any  land  or  easement  therein, 
needed  in  connection  with  a  work  of  river  and  harbor  improvement 
duly  authorized  by  Congress,  for  the  purpose  of  conveying  the  same 
to  the  United  States  free  of  cost,  or  for  the  purpose  of  constructing, 
maintaining,  and  operating  locks,  dry  docks,  or  other  works  to  be 
conveyed  to  the  United  States  free  of  cost,  and  of  constructing,  main- 
taining and  operating  dams  for  use  in  connection  therewith,  and 
shall  be  unable  for  any  reason  to  obtain  the  same  by  purchase  and 
acquire  a  valid  title  thereto,  the  Secretary  of  War  may,  in  his  discre- 
tion, cause  proceedings  to  be  instituted  in  the  name  of  the  United 
States  for  the  acquirement  by  condemnation  of  said  land  or  easement, 
and  it  shall  be  the  duty  of  the  Attorney-General  of  the  United  States 
to  institute  and  conduct  such  proceedings  upon  the  request  of  the 


1208  MILITARY   LAWS    OF    THE    UNITED    STATES. 

Secretary  of  War:  Provided,  That  all  expenses  of  said  proceedings 
and  any  award  that  may  be  made  thereunder  shall  be  paid  by  the  said 
person,  company,  or  corporation,  to  secure  which  payment  the  Secre- 
tary of  War  may  require  the  said  person,  company,  or  corporation  to 
execute  a  proper  bond  in  such  amount  as  he  may  deem  necessary 
before  said  proceedings  are  commenced.  Act  of  June  29,  1906  (34 
Stats.,  632}. 

(This  paragraph  amends  paragraph  1106.) 

OPERATION   OF  CANALS  AND  OTHER   WORKS  OF   IMPROVEMENT. 

1113a.  That  section  four  of  the  river  and  harbor  Act  of  August 
eighteenth,  eighteen  hundred  and  ninety-four,  be,  and  is  hereby, 
amended  so  as  to  read  as  follows : 

"  SEC.  4.  That  it  shall  be  the  duty  of  the  Secretary  of  War  to  pre- 
scribe such  rules  and  regulations  for  the  use,  administration,  and 
navigation  of  any  or  all  canals  and  similar  works  of  navigation  that 
now  are,  or  that  hereafter  may  be,  owned,  operated,  or  maintained  by 
the  United  States  as  in  his  judgment  the  public  necessity  may  re- 
quire; and  he  is  also  authorized  to  prescribe  regulations  to  govern 
the  speed  and  movement  of  vessels  and  other  water  craft  in  any  pub- 
lic navigable  channel  which  has  been  improved  under  authority  of 
Congress,  whenever,  in  his  judgment,  such  regulations  are  necessary 
to  protect  such  improved  channels  from  injury,  or  to  prevent  inter- 
ference with  the  operations  of  the  United  States  in  improving  navi- 
gable waters  or  injury  to  any  plant  that  may  be  employed  in  such 
operations.  Such  rules  and  regulations  shall  be  posted,  in  conspicu- 
ous and  appropriate  places,  for  the  information  of  the  public;  and 
every  person  and  every  corporation  which  shall  violate  such  rules  and 
regulations  shall  be  deemed  guilty  of  a  misdemeanor  and,  on  convic- 
tion thereof  in  any  district  court  of  the  United  States  within  whose 
territorial  jurisdiction  such  offense  may  have  been  committed,  shall 
be  punished  by  a  fine  not  exceeding  five  hundred  dollars,  or  by  im- 
prisonment (in  the  case  of  a  natural  person)  not  exceeding  six 
months,  in  the  discretion  of  the  court."  Sec.  11,  Act  of  June  13, 1902 
(32  Stats.,  37 !>}. 

(This  paragraph  amends  paragraphs  1112  and  1113.) 

BRIDGES,  ETC.,  OVER  THE  NAVIGABLE  WATERS  OF  THE  UNITED  STATES. 

1114a.  Any  bridge  built  in  accordance  with  the  provisions  of  this 
Act  shall  be  a  lawful  structure  and  shall  be  recognized  and  known  as 
a  post  route,  upon  which  no  higher  charge  shall  be  made  for  the 
transmission  over  the  same  of  the  mails,  the  troops,  and  the  munitions 
of  war  of  the  United  States  than  the  rate  per  mile  paid  for  the  trans- 


SUPPLEMENT.  1209 

portation  over  any  railroad,  street  railway,  or  public  highway  lead- 
ing to  said  bridge ;  and  the  United  States  shall  have  the  right  to  con- 
struct, maintain,  and  repair,  without  any  charge  therefor,  telegraph 
and  telephone  lines  across  and  upon  said  bridge  and  its  approaches; 
and  equal  privileges  in  the  use  of  said  bridge  and  its  approaches  shall 
be  granted  to  all  telegraph  and  telephone  companies.  Sec.  2,  Act  of 
March  23,  1906  (34  Stats.,  85). 

1114b.  When,  hereafter,  authority  is  granted  by  Congress  to  any 
persons  to  construct  and  maintain  a  dam  for  water  power  or  other 
purposes  across  any  of  the  navigable  waters  of  the  United  States, 
such  dams  shall  not  be  built  or  commenced  until  the  plans  and  specifi- 
cations for  its  construction,  together  with  such  drawings  of  the  pro- 
posed construction  and  such  map  of  the  proposed  location  as  may  be 
required  for  a  full  understanding  of  the  subject,  have  been  submitted 
to  the  Secretary  of  War  and  Chief  of  Engineers  for  their  approval,  or 
until  they  shall  have  approved  such  plans  and  specifications  and  the 
location  of  such  dam  and  accessory  works;  and  when  the  plans  for 
any  dam  to  be  constructed  under  the  provisions  of  this  Act  have  been 
approved  by  the  Chief  of  Engineers  and  by  the  Secretary  of  War  it 
shall  not  be  lawful  to  deviate  from  such  plans  either  before  or  after 
completion  of  the  structure  unless  the  modification  of  such  plans  has 
previously  been  submitted  to  and  received  the  approval  of  the  Chief 
of  Engineers  and  of  the  Secretary  of  War:  Provided,  That  in  ap- 
proving of  said  plans  and  location  such  conditions  and  stipulations 
may  be  imposed  as  the  Chief  of  Engineers  and  the  Secretary  of  War 
may  deem  necessary  to  protect  the  present  and  future  interests  of  the 
United  States,  which  may  include  the  condition  that  such  persons 
shall  construct,  maintain,  and  operate,  without  expense  to  the  United 
States,  in  connection  with  said  dam  and  appurtenant  works,  a  lock  or 
locks,  booms,  sluices,  or  any  other  structures  which  the  Secretary  of 
War  and  the  Chief  of  Engineers  at  any  time  may  deem  necessary  in 
the  interest  of  navigation,  in  accordance  with  such  plans  as  they  may 
approve,  and  also  that  whenever  Congress  shall  authorize  the  con- 
struction of  a  lock,  or  other  structures  for  navigation  purposes,  in 
connection  with  such  dam,  the  person  owning  such  dam  shall  convey 
to  the  United  States,  free  of  cost,  title  to  such  land  as  may  be  required 
for  such  constructions  and  approaches,  and  shall  grant  to  the  United 
States  a  free  use  of  water  power  for  building  and  operating  such  con- 
structions. Sec.  1,  Act  of  June  21, 1906  (34  Stats.,  386) . 

1114c.  The  right  is  hereby  reserved  to  the  United  States  to  con- 
struct, maintain,  and  operate,  in  connection  with  any  dam  built  under 
the  provisions  of  this  Act,  a  suitable  lock  or  locks,  or  any  other  struc- 
tures for  navigation  purposes,  and  at  all  times  to  control  the  said  dam 
and  the  level  of  the  pool  caused  by  said  dam  to  such  an  extent  as  may 


1210  MILITAKY   LAWS    OF    THE    UNITED    STATES. 

be  necessary  to  provide  proper  facilities  for  navigation.  Sec.  2,  Act 
of  June  21, 1906  (34  Stats.,  386). 

1114d.  The  person,  company,  or  corporation  building,  maintaining, 
or  operating  any  dam  and  appurtenant  works,  under  the  provisions 
of  this  Act,  shall  be  liable  for  any  damage  that  may  be  inflicted  there- 
by upon  private  property,  either  by  overflow  or  otherwise.  The  per- 
sons owning  or  operating  any  such  dam  shall  maintain,  at  their  own 
expense,  such  lights  and  other  signals  thereon  and  such  fishways  as 
the  Secretary  of  Commerce  and  Labor  shall  prescribe.  Sec.  3,  Act  of 
June  21,  1906  (34  Stats.,  386). 

1114e.  All  rights  acquired  under  this  Act  shall  cease  and  be  deter- 
mined if  the  person,  company,  or  corporation  acquiring  such  rights 
shall,  at  any  time,  fail  to  comply  with  any  of  the  provisions  and  re- 
quirements of  the  Act,  or  with  any  of  the  stipulations  and  conditions 
that  may  be  prescribed  as  aforesaid  by  the  Chief  of  Engineers  and 
the  Secretary  of  War.  Sec.  4,  Act  of  June  21,  1906  (34  Stats.,  386). 

1114f.  Any  persons  who  shall  fail  or  refuse  to  comply  with  the 
lawful  order  of  the  Secretary  of  War  and  the  Chief  of  Engineers, 
made  in  accordance  with  the  provisions  of  this  Act,  shall  be  deemed 
guilty  of  a  violation  of  this  Act,  and  any  persons  who  shall  be  guilty 
of  a  violation  of  this  Act  shall  be  deemed  guilty  of  a  misdemeanor  and 
on  conviction  thereof  shall  be  punished  by  a  fine  not  exceeding  five 
thousand  dollars,  and  every  month  such  persons  shall  remain  in  de- 
fault shall  be  deemed  a  new  offense  and  subject  such  persons  to 
additional  penalties  therefor;  and  in  addition  to  the  penalties  above 
described  the  Secretary  of  War  and  the  Chief  of  Engineers  may,  upon 
refusal  of  the  persons  owning  or  controlling  any  such  dam  and  acces- 
sory works  to  comply  with  any  lawful  order  issued  by  the  Secretary 
of  War  or  Chief  of  Engineers  in  regard  thereto,  cause  the  removal  of 
such  dam  and  accessory  works  as  an  obstruction  to  navigation  at  the 
expense  of  the  persons  owning  or  controlling  such  dam,  and  suit  for 
such  expense  may  be  brought  in  the  name  of  the  United  States  against 
such  persons,  and  recovery  had  for  such  expense  in  any  court  of 
competent  jurisdiction;  and  the  removal  of  any  structures  erected  or 
maintained  in  violation  of  the  provisions  of  this  Act  or  the  order  or 
direction  of  the  Secretary  of  War  or  Chief  of  Engineers  made  in  pur- 
suance thereof  may  be  enforced  by  injunction,  mandamus,  or  other 
summary  process,  upon  application  to  the  circuit  court  in  the  district 
in  which  such  structure  may,  in  whole  or  in  part,  exist,  and  proper 
proceedings  to  this  end  may  be  instituted  under  the  direction  of  the 
Attorney-General  of  the  United  States  at  the  request  of  the  Chief  of 
Engineers  or  the  Secretary  of  War;  and  in  case  of  any  litigation 
arising  from  any  obstruction  or  alleged  obstruction  to  navigation 
created  by  the  construction  of  any  dam  under  this  Act,  the  cause  or 


SUPPLEMENT.  1211 

question  arising  may  be  tried  before  the  circuit  court  of  the  United 
States  in  any  district  in  which  any  portion  of  said  obstruction  or  dam 
touches.  Sec.  5,  Act  of  June  21, 1906  (34  Stats.,  386). 

1114g.  Whenever  Congress  shall  hereafter  by  law  authorize  the 
construction  of  any  dam  across  any  of  the  navigable  waters  of  the 
United  States,  and  no  time  for  the  commencement  and  completion  of 
such  dam  is  named  in  said  Act,  the  authority  thereby  granted  shall 
cease  and  be  null  and  void  unless  the  actual  construction  of  the  dam 
authorized  in  such  Act  be  commenced  within  one  year  and  completed 
within  three  years  from  the  date  of  the  passage  of  such  Act.  Sec.  6, 
Act  of  June  21,  1906  (34  Stats.,  387). 

1114h.  The  right  to  alter,  amend,  or  repeal  this  Act  is  hereby  ex- 
pressly reserved  as  to  any  and  all  dams  which  may  be  constructed  in 
accordance  with  the  provisions  of  this  Act,  and  the  United  States  shall 
incur  no  liability  for  the  alteration,  amendment,  or  repeal  thereof  to 
the  owner  or  owners  or  any  other  persons  interested  in  any  dam  which 
shall  have  been  constructed  in  accordance  with  its  provisions.  Sec.  7, 
Act  of  June  21, 1906  (34  Stats.,  387). 

11141.  The  word  "  persons  "  as  used  in  this  Act  shall  be  construed 
to  import  both  the  singular  and  the  plural,  as  the  case  demands,  and 
shall  include  corporations,  companies,  and  associations.  Sec.  8,  Act  of 
June  21, 1906  (34  Stats.,  387). 

1115a.  No  bridge  erected  or  maintained  under  the  provisions  of 
this  Act  shall  at  any  time  unreasonably  obstruct  the  free  navigation 
of  the  waters  over  which  it  is  constructed,  and  if  any  bridge  erected 
in  accordance  with  the  provisions  of  this  Act  shall,  in  the  opinion  of 
the  Secretary  of  War,  at  any  time  unreasonably  obstruct  such  navi- 
gation, either  on  account  of  insufficient  height,  width  of  span,  or  other- 
wise, or  if  there  be  difficulty  in  passing  the  draw  opening  or  the  draw- 
span  of  such  bridge  by  rafts,  steamboats,  or  other  water  craft,  it  shall 
be  the  duty  of  the  Secretary  of  War,  after  giving  the  parties  inter- 
ested reasonable  opportunity  to  be  heard,  to  notify  the  persons  own- 
ing or  controlling  such  bridge  to  so  alter  the  same  as  to  render  navi- 
gation through  or  under  it  reasonably  free,  easy,  and  unobstructed, 
stating  in  such  notice  the  changes  required  to  be  made,  and  prescrib- 
ing in  each  case  a  reasonable  time  in  which  to  make  such  changes,  and 
if  at  the  end  o£  the  time  so  specified  the  changes  so  required  have  not 
been  made,  the  persons  owning  or  controlling  such  bridge  shall  be 
deemed  guilty  of  a  violation  of  this  Act;  and  all  such  alterations 
shall  be  made  and  all  such  obstructions  shall  be  removed  at  the  expense 
of  the  persons  owning  or  operating  said  bridge.  The  persons  owning 
or  operating  any  such  bridge  shall  maintain,  at  their  own  expense, 
such  lights  and  other  signals  thereon  as  the  Secretary  of  Commerce 
and  Labor  shall  prescribe.  If  the  bridge  shall  be  constructed  with  a 
draw,  then  the  draw  shall  be  opened  promptly  by  the  persons  owning 


1212  MILITARY   LAWS    OF    THE    UNITED    STATES. 

or  operating  such  bridge  upon  reasonable  signal  for  the  passage  of 
boats  and  other  water  craft.  If  tolls  shall  be  charged  for  the  transit 
over  any  bridge  constructed  under  the  provisions  of  this  Act,  of 
engines,  cars,  street  cars,  wagons,  carriages,  vehicles,  animals,  foot 
passengers,  or  other  passengers,  such  tolls  shall  be  reasonable  and 
just,  and  the  Secretary  of  War  may,  at  any  time,  and  from  time  to 
time,  prescribe  the  reasonable  rates  of  toll  for  such  transit  over  such 
bridge,  and  the  rates  so  prescribed  shall  be  the  legal  rates  and  shall 
be  the  rates  demanded  and  received  for  such  transit.  Sec.  4t  Act  of 
March  23,  1906  (34  Stats.,  85). 

(This  paragraph  and  paragraph  1115&  take  the  place  of  paragraphs  1115, 
1116,  and  1117.) 

1115b.  Any  persons  who  shall  fail  or  refuse  to  comply  with  the 
lawful  order  of  the  Secretary  of  War  or  the  Chief  of  Engineers,  made 
in  accordance  with  the  provisions  of  this  Act,  shall  be  deemed  guilty 
of  a  violation  of  this  Act,  and  any  persons  who  shall  be  guilty  of  a 
violation  of  this  Act  shall  be  deemed  guilty  of  a  misdemeanor  and  on 
conviction  thereof  shall  be  punished  in  any  court  of  competent  juris- 
diction by  a  fine  not  exceeding  five  thousand  dollars,  and  every  month 
such  persons  shall  remain  in  default  shall  be  deemed  a  new  offense  and 
subject  such  persons  to  additional  penalties  therefor ;  and  in  addition 
to  the  penalties  above  described  the  Secretary  of  War  and  the  Chief 
of  Engineers  may,  upon  refusal  of  the  persons  owning  or  controlling 
any  such  bridge  and  accessory  works  to  comply  with  any  lawful  order 
issued  by  the  Secretary  of  War  or  Chief  of  Engineers  in  regard 
thereto,  cause  the  removal  of  such  bridge  and  accessory  works  at  the 
expense  of  the  persons  owning  or  controlling  such  bridge,  and  suit 
for  such  expense  may  be  brought  in  the  name  of  the  United  States 
against  such  persons,  and  recovery  had  for  such  expense  in  any  court 
of  competent  jurisdiction ;  and  the  removal  of  any  structures  erected 
or  maintained  in  violation  of  the  provisions  of  this  Act  or  the  order 
or  direction  of  the  Secretary  of  War  or  Chief  of  Engineers  made  in 
pursuance  thereof  may  be  enforced  by  injunction,  mandamus,  or  other 
summary  process,  upon  application  to  the  circuit  court  in  the  district 
in  which  such  structure  may,  in  whole  or  in  part,  exist,  and  proper 
proceedings  to  this  end  may  be  instituted  under  the  direction  of  the 
Attorney- General  of  the  United  States  at  the  request  of  the  Secretary 
of  War ;  and  in  case  of  any  litigation  arising  from  any  obstruction  or 
alleged  obstruction  to  navigation  created  by  the  construction  of  any 
bridge  under  this  Act,  the  cause  or  question  arising  may  be  tried 
before  the  circuit  court  of  the  United  States  in  any  district  which 
any  portion  of  such  obstruction  or  bridge  touches.  Sec.  5,  Act  of 
March  23, 1906  (34  Stats.,  85). 

(See  note  to  paragraph  1115.) 


SUPPLEMENT.  1213 

1117a.  Any  regulations  heretofore  or  hereafter  prescribed  by  the 
Secretary  of  War  in  pursuance  of  the  fourth  and  fifth  sections  of  the 
river  and  harbor  Act  of  August  eighteenth,  eighteen  hundred  and 
ninety- four,  and  any  regulations  hereafter  prescribed  in  pursuance  of 
the  aforesaid  section  four  as  amended  by  section  eleven  of  this  Act, 
may  be  enforced  as  provided  in  section  seventeen  of  the  river  and 
harbor  Act  of  March  third,  eighteen  hundred  and  ninety-nine,  the 
provisions  whereof  are  hereby  made  applicable  to  the  said  regulations. 
Sec.  6,  Act  of  June  13, 1902  (32  Stats.,  374}. 

(See  paragraphs  1112,  1113,  1116,  1117,  and  1113a.) 

1117b.  All  railroad  companies  desiring  the  use  of  any  railroad 
bridge  built  in  accordance  with  the  provisions  of  this  Act  shall  be 
entitled  to  equal  rights  and  privileges  relative  to  the  passage. of  rail- 
way trains  or  cars  over  the  same  and  over  the  approaches  thereto 
upon  payment  of  a  reasonable  compensation  for  such  use ;  and  in  case 
of  any  disagreement  between  the  parties  in  regard  to  the  terms  of 
such  use  or  the  sums  to  be  paid  all  matters  at  issue  shall  be  deter- 
mined by  the  Secretary  of  War  upon  hearing  the  allegations  and 
proofs  submitted  to  him.  Sec.  3,  Act  of  March  23,  1906  (34  Stats., 
85). 

1117c.  Whenever  Congress  shall  hereafter  by  law  authorize  the 
construction  of  any  bridge  over  or  across  any  of  the  navigable  waters 
of  the  United  States,  and  no  time  for  the  commencement  and  com- 
pletion of  such  bridge  is  named  in  said  Act,  the  authority  thereby 
granted  shall  cease  and  be  null  and  void  unless  the  actual  construction 
of  the  bridge  authorized  in  such  Act  be  commenced  within  one  year 
and  completed  within  three  years  from  the  date  of  the  passage  of 
such  Act.  Sec.  6,  Act  of  March  23,  1906  (34  Stats.,  86}. 

1117d.  The  word  "  persons  "  as  used  in  this  Act  shall  be  construed 
to  import  both  the  singular  and  the  plural,  as  the  case  demands,  and 
shall  include  municipalities,  quasi  municipal  corporations,  corpora- 
tions, companies,  and  associations.  Sec.  7,  Act  of  March  23,  1906 
(34  Stats.,  86} . 

1117e.  The  right  to  alter,  amend,  or  repeal  this  Act  is  hereby  ex- 
pressly reserved  as  to  any  and  all  bridges  which  may  be  built  in 
accordance  with  the  provisions  of  this  Act,  and  the  United  States 
shall  incur  no  liability  for  the  alteration,  amendment,  or  repeal 
thereof  to  the  owner  or  owners  or  any  other  persons  interested  in  any 
bridge  which  shall  have  been  constructed  in  accordance  with  its  pro- 
visions. Sec.  8,  Act  of  March  23, 1906  (34  Stats.,  86). 

HARBOR  LINES. 

1119a.  The  Secretary  of  War  *  *  is  hereby,  empowered,  sub- 
ject to  the  restrictions  and  under  the  conditions  hereinafter  men- 


1214  MILITARY   LAWS    OF    THE    UNITED    STATES. 

tioned,  to  authorize  the  construction,  extension,  and  maintenance  of 
any  wharf,  pier,  dolphin,  boom,  weir,  breakwater,  sea  wall,  bulkhead, 
jetty,  or  other  structure  on  any  of  the  lands  belonging  to  the  United 
States  which  underlie  the  harbor  areas  and  navigable  streams  and 
bodies  of  water  in  or  surrounding  Porto  Rico  and  the  islands  adjacent 
thereto  and  the  filling  in  and  dredging  of  such  lands.  Sec.  1,  Act  of 
June  11,  1906  (34  Stats.,  234). 

1119b.  The  word  "  person  "  as  used  in  this  Act  shall  be  construed 
to  import  either  the  singular  or  the  plural,  as  the  case  demands,  and 
shall  include  individuals,  municipalities,  quasi-municipal  corpora- 
tions, corporations,  companies,  and  associations.  Sec.  2,  Act  of  June 
11,1906  (34  Stats.,  234). 

1119c.  The  powers  granted  in  the  foregoing  sections  shall  be  sub- 
ject, however,  to  the  following, restrictions: 

(a)  No    authorization    to    any    person    to    construct,    extend,    or 
maintain  any  such  structure  shall  continue  for  a  longer  period  than 
the  period  set  forth  in  such  authorization,  and  shall  provide  that 
the  Government  of  the  United  States  or  with  the  approval  of  the 
Secretary  of  War  the  government  of  Porto  Rico  shall  have  the  right 
at  any  time  after  the  expiration  of  thirty  years  from  the  date  of 
such    authorization,   and   after   three   months'   notice,   to   take   any 
such  structure  from  the  owner  thereof  upon  paying  the  value  of  the 
same  at  the  time  it  shall  be  so  taken,  and  the  amount  paid  shall  not 
exceed  the  original  cost  of  the  same  as  may  be  fixed  under  paragraph 
(f)   hereof.     In  case  the  Government  of  the  United  States  or  the 
government  of  Porto  Rico,  exercising  the  right  of  purchase  as  afore- 
said should  claim  that  the  value  of  the  structure  when  seized  and 
taken  is  less  than  its  original  cost,  the  extent  of  deterioration  or 
diminution  from  the  original  value  shall  be  determined  by  a  board 
or  commission  of  four  members,  two  of  whom  shall  be  appointed 
by  the  Secretary  of  War  for  the  Government  of  the  United  States 
or  by  the  Governor  of  Porto  Rico  for  the  government  of  Porto  Rico 
as  the  case  may  be  and  two  by  the  owner  of  such  structure.     If  the 
four  members  thus  chosen  and  appointed  shall  not  be  able  to  agree, 
they  shall  choose  by  mutual  agreement  a  referee,  whose  decision 
shall  be  final,  but  in  no  case  shall  the  amount  to  be  paid  exceed  the 
original  cost  as  fixed  under  the  provisions  of  said  paragraph   (f). 
If  the  four  members  thus  chosen  and  appointed  are  unable  by  mutual 
agreement  to  select  a  referee,  then  the  Chief  of  Engineers  of  the 
United  States  Army  shall  be  the  referee,  and  his  decision  shall  be 
final. 

All  authorizations  granted  by  the  Secretary  of  War  for  any  such 
construction,  extension,  or  maintenance 

(b)  Shall  be  subject  to  alteration,  amendment,  or  repeal  by  Con- 
gress; 


SUPPLEMENT.  1215 

(c)  Shall  provide  that  the  wharfage  fees  and  charges  for  vessels, 
for  passengers,  and  for  goods  loaded  or  discharged  on,  from,  at,  or 
over  any  such  structure,  and  for  approach  and  entry  to  any  such 
structure,  shall  be  no  greater  than  are  just,  reasonable,  and  fairly 
remunerative,  and  for  that  purpose  shall  at  all  times  be  subject  to 
regulation  and  revision  by  the  said  Secretary  of  War;  that  such 
fees  and  charges  shall  be  the  same  for  all  persons,  and  all  persons 
shall  have  equal  right  to  approach,  enter,  and  use  the  said  structure, 
subject   to   such   reasonable   rules   and   regulations   as   the   grantee 
thereof  may  establish,  all  of  which  rules  and  regulations  shall  be 
subject  to  revision  by  the  Secretary  of  War ; 

(d)  That  all  necessary  dredging  in  or  in  connection  with  the  said 
structure,  or  the  use  thereof,  shall  be  made  by  the  grantee  of  the 
authorization ; 

(e)  That  such  authorization  shall  be  null  and  void  unless  actual 
construction  shall  be  commenced  within  one  year  from  the  date  of 
such  authorization  by  the  Secretary  of  War,  and  completed  within 
three  years   from  the  date  of  such   authorization,  or  within  such 
lesser  periods  as  may  be  therein  fixed :  Provided,  That  the  Secretary 
of  War  may  for  due  cause  shown  extend  the  time  for  the  completion 
of  such  construction  for  a  reasonable  period. 

(f)  That  duly  verified  accounts  of  expenditure  for  the  construc- 
tion, extension,  or  improvement  of  such  structure  shall  be  exhibited 
to,  and  filed  with,  the  United  States  army  engineer  at  the  city  of 
San  Juan,  Porto  Rico,  who  shall  report  to  the  Secretary  of  War 
the  entire  cost  of  such  structure,  extension,  or  improvement  to  be 
built  under  such  authorization. 

(g)  That  the  said  structure  shall  not  be  sublet,  sold,  transferred, 
or  assigned,  nor  shall  the  authorization  therefor  be  granted,  sold, 
transferred,  or  assigned  without  the  consent  of  the  Secretary  of  War, 
nor  in  any  case  to  a  person  engaged,  directly  or  indirectly,  in  the 
same  line  of  business,  in  the  same  harbor  area,  navigable  stream, 
or  body  of  water,  and  that  any  grant,  subletting,  sale,  transfer,  or 
assignment  in  violation  hereof  shall  be  null  and  void; 

(h)  That  any  and  all  vessels  owned  or  chartered  by  the  United 
States  Government  shall  in  case  of  any  emergency,  or  in  time  of 
war,  have  prior  right,  free  of  charge,  to  the  use  of  any  such  struc- 
ture; and 

(i)  Shall  contain  such  further  restrictions  as  the  Secretary  of 
War  may  see  fit  to  impose  therein.  Sec.  3,  Act  of  June  11,  1906  (34 
Stats.,  235}. 

1119d,  No  such  authorization  by  the  Secretary  of  War  shall  be 
granted  to  any  person  unless  the  applicant  therefor  shall  first  furnish 
to  the  Secretary  of  War  satisfactory  proof  either  that  he  (or  it)  is 
the  owner  or  lessee  of  the  approaches  to  the  shore  end  of  the  proposed 


1216  MILITARY   LAWS    OF    THE    UNITED    STATES. 

structure,  with  the  right  to  use  the  same  in  connection  therewith,  or 
that  he  (or  it)  is  the  owner  of  a  franchise  granting  the  right  to  use 
said  approaches  in  connection  with  such  proposed  structure.  Every 
application  to  the  Secretary  of  War  for  any  such  authorization  shall 
be  accompanied  by  plans  and  specifications  for  such  structure,  exten- 
sion, or  improvement,  which  said  plans  and  specifications  shall  be 
submitted  to,  and  approved  by,  the  Chief  of  Engineers  of  the  United 
States  Army  before  the  granting  of  any  such  authorization  by  the 
Secretary  of  War,  and  such  plans  and  specifications  shall  not  be  de- 
viated from  in  any  such  structure,  extension,  or  improvement  without 
the  written  consent,  first  obtained,  of  the  said  Chief  of  Engineers. 
Sec.  4,  Act  of  June  11, 1906  (34  Stats.,  236). 

1119e.  Nothing  herein  contained  shall  be  so  construed  as  to  affect 
legal  or  equitable  rights,  if  any,  existing  at  the  date  of  the  approval 
of  this  Act  which  were  acquired  by  the  government  of  Porto  Rico  or 
any  other  party  under  any  contract,  lease  or  license,  for  the  construc- 
tion, extension,  improvement,  or  maintenance  of  any  such  structure, 
granted  by  the  United  States  authorities  prior  to  the  approval  of  this 
Act.  Sec.  6,  Act  of  June  11,  1906  (34  Stats.,  236). 

NIAGARA    FALLS. 

1150a.  The  diversion  of  water  from  Niagara  River  or  its  tributa- 
ries, in  the  State  of  New  York,  is  hereby  prohibited,  except  with  the 
consent  of  the  Secretary  of  War  as  hereinafter  authorized  in  section 
two  of  this  Act:  Provided,  That  this  prohibition  shall  not  be  in- 
terpreted as  forbidding  the  diversion  of  the  waters  of  the  Great 
Lakes  or  of  Niagara  River  for  sanitary  or  domestic  purposes,  or  for 
navigation,  the  amount  of  which  may  be  fixed  from  time  to  time  by 
the  Congress  of  the  United  States  or  by  the  Secretary  of  War  of  the 
United  States  under  its  direction.  Sec.  1,  Act  of  June  29,  1906  (34 
Stats.,  626). 

1150b.  The  Secretary  of  War  is  hereby  authorized  to  grant  permits 
for  the  diversion  of  water  in  the  United  States  from  said  Niagara 
River  or  its  tributaries  for  the  creation  of  power  to  individuals,  com- 
panies, or  corporations  which  are  now  actually  producing  power 
from  the  waters  of  said  river,  or  its  tributaries,  in  the  State  of  New 
York,  or  from  the  Erie  Canal;  also  permits  for  the  transmission  of 
power  from  the  Dominion  of  Canada  into  the  United  States,  to  com- 
panies legally  authorized  therefor,  both  for  diversion  and  transmis- 
sion, as  hereinafter  stated,  but  permits  for  diversion  shall  be  issued 
only  to  the  individuals,  companies,  or  corporations  as  aforesaid,  and 
only  to  the  amount  now  actually  in  use  or  contracted  to  be  used  in  fac- 
tories the  buildings  for  which  are  now  in  process  of  construction,  not 
exceeding  to  any  one  individual,  company  or  corporation  as  afore- 


SUPPLEMENT.  1217 

said  a  maximum  amount  of  eight  thousand  six  hundred  cubic  feet 
per  second,  and  not  exceeding  to  all  individuals,  companies  or  cor- 
porations as  aforesaid  an  aggregate  amount  of  fifteen  thousand  six 
hundred  cubic  feet  per  second;  but  no  revocable  permits  shall  be 
issued  by  the  said  Secretary  under  the  provisions  hereafter  set  forth 
for  the  diversion  of  additional  amounts  of  water  from  the  said 
river  or  its  tributaries  until  the  approximate  amount  for  which  per- 
mits may  be  issued  as  above,  to  wit,  fifteen  thousand  six  hundred 
cubic  feet  per  second,  shall  for  a  period  of  not  less  than  six  months 
have  been  diverted  from  tne  waters  of  said  river  or  its  tributaries,  in 
the  State  of  New  York :  Provided,  That  the  said  Secretary,  subject  to 
the  provisions  of  section  five  of  this  Act,  under  the  limitations  relat- 
ing to  time  above  set  forth  is  hereby  authorized  to  grant  revocable 
permits,  from  time  to  time,  to  such  individuals,  companies,  or  cor- 
porations, or  their  assigns,  for  the  diversion  of  additional  amounts  of 
water  from  the  said  river  or  its  tributaries  to  such  amount,  if  any,  as, 
in  conection  with  the  amount  diverted  on  the  Canadian  side,  shall  not 
injure  or  interfere  with  the  navigable  capacity  of  said  river,  or  its 
integrity  and  proper  volume*as  a  boundary  stream,  or  the  scenic  gran- 
deur of  Niagara  Falls ;  and  that  the  quantity  of  electrical  power  which 
may  by  permits  be  allowed  to  be  transmitted  from  the  Dominion 
of  Canada  into  the  United  States,  shall  be  one  hundred  and  sixty 
thousand  horsepower :  Provided  further,  That  the  said  Secretary,  sub- 
ject to  the  provisions  of  section  five  of  this  Act,  may  issue  revocable 
permits  for  the  transmission  of  additional  electrical  power  so  gen- 
erated in  Canada,  but  in  no  event  shall  the  amount  included  in  such 
permits,  together  with  the  said  one  hundred  and  sixty  thousand  horse- 
power and  the  amount  generated  and  used  in  Canada,  exceed  three 
hundred  and  fifty  thousand  horsepower:  Provided  always,  That  the 
provisions  herein  permitting  diversions  and  fixing  the  aggregate 
horespower  herein  permitted  to  be  transmitted  into  the  United  States, 
as  aforesaid,  are  intended  as  a  limitation  on  the  authority  of  the  Sec- 
retary of  War,  and  shall  in  no  wise  be  construed  as  a  direction  to  said 
Secretary  to  issue  permits,  and  the  Secretary  of  War  shall  make  regu- 
lations preventing  or  limiting  the  diversion  of  water  and  the  admis- 
sion of  electrical  power  as  herein  stated;  and  the  permits  for  the 
transmission  of  electrical  power  issued  by  the  Secretary  of  War  may 
specify  the  persons,  companies,  or  corporations  by  whom  the  same 
shall  be  transmitted,  and  the  persons,  companies,  or  corporations  to 
whom  the  same  shall  be  delivered.  Sec.  2,  Act  of  June  29,  1906  (34 
Stats.,  626). 

1150c.  Any  person,  company,  or  corporation  diverting  water  from 

the  said  Niagara  River  or  its  tributaries,  or  transmitting  electrical 

power  into  the  United  States  from  Canada,  except  as  herein  stated,  or 

violating  any  of  the  provisions  of  this  Act,  shall  be  deemed  guilty  of 

22924—08 77 


1218  MILITARY   LAWS    OF    THE    UNITED    STATES. 

a  misdemeanor,  and  on  conviction  thereof  shall  be  punished  by  a  fine 
not  exceeding  two  thousand  five  hundred  dollars  nor  less  than  five 
hundred  dollars,  or  by  imprisonment  (in  the  case  of  a  natural  person) 
not  exceeding  one  year,  or  by  both  such  punishments,  in  the  discre- 
tion of  the  court.  And,  further,  the  removal  of  any  structures  or 
parts  of  structures  erected  in  violation  of  this  Act,  or  any  construc- 
tion incidental  to  or  used  for  such  diversion  of  water  or  transmission 
of  power  as  is  herein  prohibited,  as  well  as  any  diversion  of  water  or 
transmission  of  power  in  violation  hereof,  may  be  enforced  or  en- 
joined at  the  suit  of  the  United  States  by  any  circuit  court  having 
jurisdiction  in  any  district  in  which  the  same  may  be  located,  and 
proper  proceedings  to  this  end  may  be  instituted  under  the  direction 
of  the  Attorney-General  of  the  United  States.  Sec.  3,  Act  of  June 
29,  1906  (34  Stats.,  627). 

1150d.  The  provisions  of  this  Act  shall  remain  in  force  for  three 
years  from  and  after  date  of  its  passage,  at  the  expiration  of  which 
time  all  permits  granted  hereunder  by  the  Secretary  of  War  shall  ter- 
minate unless  sooner  revoked,  and  the  ^Secretary  of  War  is  hereby 
authorized  to  revoke  any  or  all  permits  granted  by  him  by  authority 
of  this  Act,  and  nothing  herein  contained  shall  be  held  to  confirm, 
establish,  or  confer  any  rights  heretofore  claimed  or  exercised  in  the 
diversion  of  water  or  the  transmission  of  power.  Sec.  5,  Act  of  June 
29,  1906  (34  Stats.,  626). 


CHAPTER  XXIII. 

THE  ORDNANCE  DEPARTMENT — THE  BOARD  or  ORDNANCE  AND 
FORTIFICATION,  ARMS,  ARMORIES,  AND  ARSENALS. 

ORGANIZATION. 

1151a.  The  Ordnance  Department  shall  consist  of  one  chief  of  ord- 
nance with  the  rank  of  brigadier-general ;  six  colonels,  nine  lieutenant- 
colonels,  nineteen  majors,  twenty-five  captains,  twenty-five  first  lieu- 
tenants, and  the  enlisted  men,  including  ordnance-sergeants,  as  now 
authorized  by  law.  Act  of  June  25, 1906  (34  Stats.,  455). 

(This  paragraph  amends  paragraph  1151.) 

DETAILS. 

1155a.  Hereafter  details  for  service  to  the  grade  of  first  lieutenant 
in  the  Ordnance  Department  under  the  provisions  of  the  Act  of  Feb- 
ruary second,  nineteen  hundred  and  one,  may  be  made,  from  the  Army 
at  large,  from  the  grade  of  first  or  second  lieutenant,  and  officers  so 
detailed  shall,  while  so  serving,  receive  the  pay  of  first  lieutenant: 


SUPPLEMENT.  1219 

Provided,  That  no  officer  shall  be  so  detailed  except  upon  such  exam- 
ination as  may  be  prescribed  by  the  Secretary  of  War.    Act  of  March 

2,1903  (32  Stats.,  9^2}. 

(This  paragraph  amends  paragraph  1155.) 

1155b.  Details  to  the  Ordnance  Department  under  the  provisions  of 
the  Act  of  February  second,  nineteen  hundred  and  one,  may  be  made 
from  the  Army  at  large  from  the  grade  in  which  the  vacancy  exists, 
or  from  the  grade  below :  Provided,  That  no  officer  shall  be  so  detailed 
except  upon  the  recommendation  of  a  board  of  ordnance  officers,  and 
after  at  least  one  examination,  which  shall  be  open  to  competition: 
And  provided  further,  That  officers  so  detailed  in  grades  below  that 
of  major  shall  not  be  again  eligible  for  such  detail  until  after  they 
shall  have  served  for  at  least  one  year  out  of  that  department.  Act 
of  June  25,  1906  (34  Stats.,  455). 

(This  paragraph  amends  paragraphs  1155,  11550,  and  1156.) 

MISCELLANEOUS    REQUIREMENTS. 

1161a.  The  services  of  skilled  draftsmen  and  such  other  services, 
not  clerical,  as  the  Secretary  of  War  may  deem  necessary,  may  be 
employed  in  the  office  of  the  Chief  of  Ordnance  to  carry  into  effect 
the  various  appropriations  for  the  armament  of  fortifications,  to  be 
paid  from  such  appropriations,  in  addition  to  the  amount  specifically 
appropriated  for  draftsmen  in  the  Army  Ordnance  Bureau:  Pro- 
vided, That  the  entire  expenditures  for  this  purpose  for  .the  fiscal 
year  ending  June  thirtieth,  nineteen  hundred  and  five,  shall  not 
exceed  forty  thousand  dollars,  and  that  the  Secretary  of  War  shall 
each  year  in  the  annual  estimates  report  to  Congress  the  number  of 
persons  so  employed  and  the  amount  paid  to  each.  Act  of  March  18, 
1904  (33  Stats.,  115). 

PURCHASES. 

1169a.  Hereafter  purchases  of  ordnance  and  ordnance  stores  and 
supplies  and  the  procurement  of  services  may  be  made  by  the  Ord- 
nance Department  in  open  market,  in  the  manner  common  among 
business  men,  when  the  aggregate  of  the  amount  required  does  not 
exceed  two  hundred  dollars,  but  every  such  purchase  exceeding  one 
hundred  dollars  shall  be  immediately  reported  to  the  Secretary  of 
War.  Act  of  April  23, 1904  (33  Stats.,  275) . 

(This  paragraph  amends  paragraph  1169.) 

SALES  OF  SERVICEABLE  ORDNANCE  AND  ORDNANCE  STORES. 

1178a.  Hereafter  moneys  arising  from  deductions  made  from  car- 
riers on  account  of  the  loss  of  or  damage  to  military  stores  in  transit 
shall  be  credited  to  the  proper  appropriation  or  funds  out  of  which 


1220  MILITAKY   LAWS    OP    THE    UNITED    STATES. 

such  or  similar  stores  shall  be  replaced  and  individual  pieces  of  United 
States  armament  which  are  not  needed  on  account  of  historical  value, 
and  can  be  advantageously  replaced,  may  be  sold  at  a  price  not  less 
than  their  cost  price,  when  there  exist  for  such  sale  sentimental  rea- 
sons adequate  in  the  judgment  of  the  Secretary  of  War  or  Secretary 
of  the  Navy.  Act  of  March  2, 1905  (33  Stats.,  840). 
(See  paragraphs  1181a  and  1640a.) 

1181a.  Hereafter  all  moneys  arising  from  disposition  authorized  by 
law  and  regulation  of  serviceable  ordnance  and  ordnance  stores  shall 
constitute  one  fund  on  the  books  of  the  Treasury  Department,  which 
shall  be  available  to  replace  ordnance  and  ordnance  stores  throughout 
the  fiscal  year  in  which  the  disposition  was  effected  and  throughout 
the  following  year.  The  Secretary  of  War  is  hereby  authorized  to 
sell  to  American  designers  such  serviceable  ordnance  and  ordnance 
stores  as  may  be  necessary  in  the  development  of  designs  which  may 
be  used  in  the  military  service:  Provided,  That  such  ordnance  and 
ordnance  stores  can  be  spared  for  the  purpose,  and  funds  arising  from 
such  sales  shall  be  available  to  replace  like  ordnance  and  ordnance 
stores.  Act  of  April  23, 1904  (33  Stats.,  276} . 

AMMUNITION    FOR    MORNING   AND    EVENING    GUN. 

1184a.  For  firing  the  morning  and  evening  gun  at  military  posts 
prescribed  by  General  Orders,  Numbered  Seventy,  Headquarters  of 
the  Army,  dated  July  twenty-third,  eighteen  hundred  and  sixty- 
seven,  and  at  National  Home  for  Disabled  Volunteer  Soldiers  and  its 
several  branches,  including  National  Soldiers'  Home  in  Washington, 
District  of  Columbia,  and  at  Soldiers  and  Sailors'  State  Homes,  in- 
cluding material  for  cartridges,  bags,  reworking  obsolete  powder,  and 
so  forth,  thirteen  thousand  five  hundred  dollars.  Act  of  April  23, 
1904  (33  Stats.,  275}. 

(This  paragraph  amends  paragraph  1184  by  providing  for  "reworking  obso- 
lete powder.") 

ARMS,   ARMORIES,    AND   ARSENALS. 

1192a.  Hereafter  all  employees  of  the  Ordnance  Department  whose 
rate  of  compensation  is  annual  shall  be  paid  monthly  at  the  rate  of 
one-twelfth  of  the  annual  rate,  and  of  such  monthly  rate  and  of  all 
other  monthly  rates  of  compensation  one-thirtieth  shall  be  the  daily 
rate  for  computation  of  pay  for  fractional  parts  of  a  month ;  and  for 
the  purposes  of  this  provision  each  and  every  month  shall  be  held  to 
consist  of  thirty  days,  whether  the  actual  number  of  days  be  greater 
or  less.  Act  of  April  23, 1904  (33  Stats.,  276) . 

(See  paragraph  635a.) 


SUPPLEMENT.  1221 

MISCELLANEOUS   PROVISIONS. 

1201a.  For  the  purpose  of  furnisnmg  a  national  trophy  and  medals 
and  other  prizes  to  be  provided  and  contested  for  annually,  under 
such  regulations  as  may  be  prescribed  by  the  Secretary  of  War,  said 
contest  to  be  open  to  the  Army,  Navy,  Marine  Corps,  and  the  National 
Guard  or  organized  militia  of  the  several  States,  Territories,  and  of 
the  District  of  Columbia,  and  for  the  cost  of  the  trophy,  prizes,  and 
medals  herein  provided  for,  the  sum  of  two  thousand  five  hundred 
dollars  be,  and  the  same  is  hereby,  appropriated,  out  of  any  money  in 
the  Treasury  not  otherwise  appropriated,  to  be  expended  for  the  pur- 
poses hereinbefore  prescribed  under  the  direction  of  the  Secretary  of 
War.  Act  of  April  28, 1904  ($3  Stats.,  580) . 

(See  General  Orders,  61,  H.  A.,  1903,  and  General  Orders,  53,  War  Depart- 
ment, 1904.) 

1201b.  For  the  purpose  of  furnishing  a  national  trophy  and  medals 
and  other  prizes  to  be  provided  and  contested  for  annually,  under 
such  regulations  as  may  be  prescribed  by  the  Secretary  of  War,  said 
contest  to  be  open  to  the  Army,  Navy,  Marine  Corps,  and  the  Na- 
tional Guard  or  organized  militia  of  the  several  States,  Territories, 
and  of  the  District  of  Columbia,  and  for  the  cost  of  the  trophy, 
prizes,  and  medals  herein  provided  for,  and  for  the  promotion  of 
rifle  practice,  the  sum  of  four  thousand  dollars  be,  and  the  same  is 
hereby,  appropriated,  out  of  any  money  in  the  Treasury  not  other- 
wise appropriated,  to  be  expended  for  the  purposes  hereinbefore 
prescribed  under  the  direction  of  the  Secretary  of  War.  Act  of 
March  2, 1907  (34  Stats.,  1175). 

(This  paragraph  amends  paragraph  1201a,  by  providing  for  the  "  promotion 
of  rifle  practice.") 

1201c,  The  Chief  of  Ordnance,  in  conducting  manufacturing  or 
similar  operations,  is  authorized  to  charge  any  indirect  or  general 
expense  for  labor  or  material  therefor  against  any  of  the  appropria- 
tions authorizing  these  operations  in  such  manner  as  is  most  eco- 
nomical and  efficient,  provided  that  the  methods  adopted  shall  show 
that  each  of  such  appropriations  bears  its  ratable  share  of  the  total 
amount  of  these  expenses.  Act  of  March  2, 1907  (34  Stats.,  1062). 

THE   BOARD   OF   ORDNANCE   AND    FORTIFICATIONS. 

1215a.  All  material  purchased  under  the  foregoing  provisions  of 
this  Act  shall  be  of  American  manufacture,  except  in  cases  when,  in 
the  judgment  of  the  Secretary  of  War,  it  is  to  the  manifest  interest 
of  the  United  States  to  make  purchases  in  limited  quantities  abroad, 


1222  MILITAKY   LAWS    OF    THE    UNITED    STATES. 

which  material  shall  be  admitted  free  of   duty.    Act   of  April  21, 
1904  (33  Stats. ,237}. 

( See  paragraph  1542.  Similar  provisions  were  embodied  in  the  "  Act  making 
appropriation  for  fortifications  and  other  works  of  defense,  etc.,"  approved 
June  6,  1902,  and  the  Act  making  appropriation  for  the  same  purpose,  approved 
March  3,  1903.) 


CHAPTER  XXIV. 

THE  SIGNAL  CORPS. 
ORGANIZATION. 

121 8a.  There  shall  be  added  to  the  Signal  Corps  of  the  Army,  as 
now  authorized  by  law,  one  lieutenant-colonel,  two  majors,  four  cap- 
tains, and  four  first  lieutenants.  Act  of  March  8, 1903  (32  Stats.,  932). 

(This  paragraph  increases  the  number  of  officers  provided  for  in  paragraph 
1218.) 

1219a.  That  the  President  be,  and  is  hereby,  authorized  to  appoint, 
by  and  with  the  advice  and  consent  of  the  Senate,  an  officer  of  the  Sig- 
nal Corps  as  chief  of  the  telegraph  and  cipher  bureau  of  the  Executive 
Office,  who  shall  have,  while  so  serving,  the  rank,  pay,  and  allowances 
of  a  major.  Act  of  March  2, 1903  (32  Stats., 


APPOINTMENTS,  PROMOTIONS,  DETAILS. 

1222a.  The  vacancies  thus  created  or  caused  shall  be  filled  first  by 
the  promotion  of  officers  of  the  Signal  Corps,  according  to  seniority, 
and  thereafter  by  details  from  the  line  of  the  Army.  Act  of  March 
2,1903  (32  Stats.,  932). 

(See  paragraph  1218a.) 

ENLISTED  MEN. 

1224a.  Hereafter  second-class  privates  of  the  Signal  Corps  shall  be 
designated  as  privates,  with  the  same  pay  and  allowances  as  now  al- 
lowed by  law  to  second-class  privates.  Fifty  first-class  sergeants  may 
be  temporarily  added  to  the  Signal  Corps  for  service  in  the  Philippine 
Islands  and  Alaska ;  such  additional  force,  or  part  thereof,  to  be  con- 
tinued only  as  long  as  in  the  opinion  of  the  Secretary  of  War  (or  the 
President)  it  may  be  necessary  for  the  efficiency  of  the  Army.  Act 
of  June  30, 1902  (32  Stats.,  509). 

(This  paragraph  amends  paragraph  1224.) 

1224b.  One  hundred  and  thirty-two  first-class  sergeants,  at  five 
hundred  and  forty  dollars  each. 


SUPPLEMENT.  1223 

One  hundred  and  forty-four  sergeants,  at  four  hundred  and  eight 
dollars  each. 

One  hundred  and  fifty-six  corporals,  at  two  hundred  and  forty  dol- 
lars each. 

Five  hundred  and  fifty-two  first-class  privates,  at  two  hundred  and 
four  dollars  each. 

One  hundred  and  sixty-eight  privates,  at  one  hundred  and  fifty-six 
dollars  each. 

Twenty- four  cooks,  at  two  hundred  and  forty  dollars  each. 

Thirty-six  master  signal  electricians,  at  nine  hundred  dollars  each. 
The  increase  of  enlisted  men  herein  authorized  shall  take  effect  imme- 
diately. Act  of  April  23, 1904  (33  Stats.,  261). 

(This  paragraph  increases  the  enlisted  strength  of  the  Signal  Corps.  See 
paragraph  1224.) 

SKILLED  DRAFTSMEN,  ETC. 

1224c.  The  services  of  skilled  draftsmen  and  such  other  services  as 
the  Secretary  of  War  may  deem  necessary  may  be  employed  only  in 
the  Signal  Office  to  carry  into  effect  the  various  appropriations  for 
fortifications  and  other  works  of  defense,  to  be  paid  from  such  ap- 
propriations, in  addition  to  the  foregoing  employees  appropriated  for 
in  the  Signal  Office :  Provided,  That  the  entire  expenditures  for  this 
purpose  for  the  fiscal  year  ending  June  thirtieth,  nineteen  hundred 
and  eight,  shall  not  exceed  twenty- five  thousand  dollars,  and  that  the 
Secretary  of  War  shall  each  year  in  the  annual  estimates  report  to 
Congress  the  number  of  persons  so  employed,  their  duties,  and  the 
amount  paid  .to  each.  Act  of  February  26,  1907  (34  Stats.,  964). 

DUTIES. 

1230a,  Hereafter  the  purchase  of  signal  stores  and  equipment,  or 
the  engagement  of  services  not  personal,  by  the  Signal  Corps  of  the 
Army,  may  be  made  by  the  Signal  Corps  of  the  Army  in  open  market 
in  the  manner  common  among  business  men  when  the  aggregate  of 
the  amount  required  does  not  exceed  two  hundred  dollars,  but  every 
such  purchase  or  employment  shall  be  promptly  reported  to  the  Secre- 
tary of  War.  Act  of  March  2, 1903  (32  Stats.,  929) . 

MILITARY  TELEGRAPH  LINES. 

1233a.  That  of  the  receipts  of  the  Washington-Alaska  Military 
Cable  and  Telegraph  System  that  have  been  covered  into  the  Treasury 
of  the  United  States,  the  sum  of  one  hundred  and  ninety  thousand 
dollars  be,  and  the  same  is  hereby,  made  available  until  expended  for 
defraying  the  cost  of  such  extensions  and  betterments  of  the  system 
as  may  be  approved  by  the  Secretary  of  War,  the  extent  of  such  ex- 


1224  MILITARY   LAWS    OF    THE    UNITED    STATES. 

tensions  and  the  cost  thereof  to  be  reported  to  Congress  by  the  Secre- 
tary of  War:  Provided  further,  That  hereafter  detailed  estimates 
shall  be  submitted  to  Congress  for  any  further  extension  of  the  cable 
or  telegraph  lines  in  the  district  of  Alaska.  Act  of  March  2,  1907 
(34  Stats.,  1159). 

CHAPTER  XXV. 

THE  RECORD  AND  PENSION  OFFICE. 
RECORD  AND  PENSION  OFFICE. 

1239a.  That  the  military  rolls  and  records  of  the  Indian  wars  or 
any  other  wars  prior  to  the  civil  war,  now  preserved  in  the  Interior 
or  other  Departments,  be  transferred  to  the  War  Department,  to  be 
preserved  in  the  Record  and  Pension  Office  of  that  Department,  and 
that  they  shall  be  properly  indexed  and  arranged  for  use.  Joint  Res. 
of  April  28,  1904  (33  Stats..  591). 


CHAPTER  XXVI. 
CHAPLAINS. 

1258a.  The  President  may,  from  time  to  time,  select  from  among 
the  chaplains  of  the  Army  any  chaplains  having  not  less  than  ten 
years'  service,  in  the  grade  of  captain,  who  shall  have  been  commended 
as  worthy  of  special  distinction  for  exceptional  efficiency  by  the 
regimental  or  district  commanders  with  whose  commands  they  may 
be  serving  as  chaplains,  approved  through  regular  military  channels, 
and  may,  with  the  advice  and  consent  of  the  Senate,  promote  such 
regimental  or  artillery  chaplains  to  be  chaplains  with  the  grade, 
pay,  and  allowances  of  major;  every  such  promotion  being  made 
with  a  view  to  active  service  until  the  statutory  age  for  the  compul- 
sory relinquishment  thereof,  except  in  cases  of  physical  disability 
incurred  in  the  line  of  duty:  Provided,  That  the  total  number  in 
active  service  so  promoted  shall  not  at  any  time  exceed  fifteen,  and 
that  the  remaining  chaplains  shall  have  the  grade,  pay,  and  allow- 
ances of  captain,  mounted,  after  they  shall  have  completed  seven  years 
of  service:  And  provided  further,  That  all  persons  who  may  here- 
after be  appointed  as  chaplains  shall  have  the  grade,  pay,  and  allow- 
ances of  first  lieutenant,  mounted,  until  they  shall  have  completed 
seven  years  of  service. 

SEC.  2.  That  all  officers  provided  for  in  this  Act  shall  have  a  uni- 
form designation  in  official  address  as  chaplains  of  their  respective 
regiments  or  of  the  Artillery  Corps. 


SUPPLEMENT.  1225 

SEC.  3.  That  nothing  in  this  Act  shall  be  construed  as  depriving 
any  chaplain  of  his  commission  in  the  Army,  or  as  interfering  with 
existing  law  pertaining  to  regimental  and  corps  assignments  or 
transfers,  and  that  nothing  herein  contained  shall  be  held  or  con- 
strued to  increase  the  number  of  chaplains,  as  now  authorized  by  law, 
or  to  reduce  the  grade  of  any  now  serving. 

SEC.  4.  That  all  laws  and  parts  of  laws  inconsistent  with  the  pro- 
visions of  this  Act  be,  and  the  same  are  hereby,  repealed.  Act  of 
April  21,  1904  (33  Stats.,  226). 

(This  paragraph  amends  paragraph  1258.) 

1258b.  In  addition  to  the  number  of  chaplains  now  authorized  by 
law  there  shall  hereafter  be  one  for  the  Corps  of  Engineers.  Act  of 
Jum  12,  1906  (34  Stats.,  256). 

(This  paragraph  amends  paragraph  1258a.) 

1258c.  In  addition  to  the  chaplains  now  authorized  for  the  Artil- 
lery Corps  the  President  is  authorized  to  appoint,  by  and  with  the 
advice  and  consent  of  the  Senate,  and  subject  to  the  laws  governing 
appointment  of  chaplains  in  the  Army,  one  chaplain  for  each  regi- 
ment of  field  artillery  and  two  for  the  coast  artillery,  with  the  rank, 
pay,  and  allowances  now  authorized  by  law  for  chaplains  in  the 
Army.  Sec.  12,  Act  of  January  25, 1907  (34  Stats.,  864). 

(This  paragraph  amends  paragraph  1258a.) 


CHAPTER  XXVII. 

COMMISSIONED  OFFICERS. 
APPOINTMENTS. 

1270a,  Vacancies  in  the  grade  of  second  lieutenant  shall  be  filled  as 
now  provided  by  law,  except  that  no  person  shall  be  appointed  from 
civil  life  before  he  shall  have  reached  the  age  of  twenty-one  years, 
nor  after  he  shall  have  reached  the  age  of  twenty-seven  years,  nor 
until  he  shall  have  passed  a  satisfactory  examination  as  to  his  moral, 
physical,  and  educational  qualifications.  Sec.  5*  Act  of  March  2, 
1899  (30  Stats.,  979). 

LEAVES  OF  ABSENCE. 

1287a.  Officers  appointed  to  the  Regular  Army  from  the  volunteer 
service,  whose  service  has  been  continuous,  shall,  in  the  computation 
of  leaves  of  absence  after  their  appointment  in  the  Regular  Army,  be 


1226  MILITAKY   LAWS    OF    THE    UNITED    STATES. 

entitled  to  the  leave  credits  which  accrued  to  them  as  volunteer  offi- 
cers where  such  leave  credits  were  not  availed  of  during  their  volun- 
teer service.     Act  of  June  30,  1902  (32  Stats.,  508}.    ' 
(See  paragraphs  826-828.) 

DETAILS  FROM  THE  RETIRED  LIST. 

1290a.  Section  twelve  hundred  and  twenty-five  of  the  Revised  Stat- 
utes,1 concerning  the  detail  of  officers  of  the  Army  and  Navy  to  edu- 
cational institutions,  is  hereby,  amended  so  as  to  permit  the  President 
to  detail  under  the  provisions  of  that  Act,  and  in  addition  to  the  de- 
tail of  the  officers  of  the  Army  and  Navy  now  authorized  to  be  de- 
tailed under  the  existing  provisions  of  said  Act,  such  retired  officers 
and  noncommissioned  officers  of  the  Army  and  Navy  of  the  United 
States  as  in  his  judgment  may  be  required  for  that  purpose  to  act  as 
instructors  in  military  drill  and  tactics  in  schools  in  the  United 
States  and  Territories  where  such  instructions  shall  have  been  author- 
ized by  the  educational  authorities  thereof,  and  where  the  services 
of  such  instructors  shall'  have  been  applied  for  by  said  authorities. 
Sec.  1,  Act  of  April  21, 190  J^  (33  Stats.,  225}. 

(This  paragraph  amends  paragraphs  1288-1290.) 

1291a.  No  detail  shall  be  made  under  this  Act  to.  any  school  unless 
it  shall  pay  the  cost  of  commutation  of  quarters  of  the  retired  officers 
or  noncommisisoned  officers  detailed  thereto  and  the  extra-duty  pay 
to  which  they  may  be  entitled  by  law  to  receive  for  the  performance 
of  special  duty:  Provided,  That  no  detail  shall  be  made  under  the 
provisions  of  this  Act  unless  the  officers  and  noncommissioned  officers 
to  be  detailed  are  willing  to  accept  such  position :  Provided  further, 
That  they  shall  receive  no  compensation  from  the  Government  other 
than  their  retired  pay.  Sec.  2,  Act  of  April  21, 1904  (33  Stats.,  225} . 

(This  paragraph  takes  the  place  of  paragraph  1291.) 

1  SEC.  1225,  R.  S.  The  President  may,  upon  the  application  of  any  established 
college  or  university  within  the  United  States,  having  capacity  to  educate,  at 
the  same  time,  not  less  than  one  hundred  and  fifty  male  students,  detail  an 
officer  of  the  Army  to  act  as  president,  superintendent,  or  professor  thereof; 
but  the  number  of  officers  so  detailed  shall  not  exceed  (twenty)  (thirty)  at 
any  time,  and  they  shall  be  apportioned  throughout  the  United  States,  as  nearly 
as  may  be  practicable,  according  to  population.  Officers  so  detailed  shall  be 
governed  by  general  rules  prescribed,  from  time  to  time,  by  the  President.  The 
Secretary  of  War  is  authorized  to  issue  at  his  discretion  and  under  proper  regu- 
lations to  be  prescribed  by  him,  out  of  any  small  arms  or  pieces  of  field  artillery 
belonging  to  the  Government  and  which  can  be  spared  for  that  purpose,  such 
number  of  the  same  as  may  appear  to  be  required  for  military  instruction  and 
practice,  by  the  students  of  any  college  or  university  under  the  provisions  of 
this  section;  and  the  Secretary  shall  require  a  bond  in  each  case,  in  double  the 
value  of  the  property,  for  the  care  and  safe-keeping  thereof,  and  for  the  return 
of  the  same  when  required. 


SUPPLEMENT.  1227 

ISSUES  OF  ORDNANCE  AND   ORDNANCE   STORES. 

1292a.  The  Secretary  of  War  is  authorized  to  issue  at  his  discre- 
tion, and  under  proper  regulations  to  be  prescribed  by  him,  out  of 
ordnance  and  ordnance  stores  belonging  to  the  Government,  and 
which  can  be  spared  for  that  purpose,  upon  the  approval  of  the  gov- 
ernors of  the  respective  States  and  Territories,  such  number  of  the 
same  as  may  be  required  for  military  instruction  and  practice  by  such 
school,  and  the  Secretary  shall  require  a  bond  in  each  case,  for  double 
the  value  of  the  property,  for  the  care  and  safe-keeping  thereof  and 
for  the  return  of  the  same  when  required.  Sec.  3,  Act  of  April  21, 
1904  (33  Stats.,  226}. 

(This  paragraph  takes  the  place  of  paragraph  1292.) 

1292b.  The  Secretary  of  War  is  hereby  authorized  to  issue,  at  his 
discretion  and  under  proper  regulations  to  be  prescribed  by  him,  with- 
out cost  of  transportation  to  the  United  States,  such  obsolete  ordnance 
and  ordnance  stores  as  may  be  available  to  State  and  Territorial  edu- 
cational institutions  and  to  State  soldiers  and  sailors  orphans'  homes, 
for  purposes  of  drill  and  instruction. 

And  the  Secretary  of  War  shall  require  from  such  institutions  or 
homes  a  bond  in  each  case  in  double  the  value  of  the  property  issued, 
for  the  care  and  safe-keeping  thereof  and  for  the  return  of  the  same 
to  the  United  States  when  required :  Provided,  That  the  issues  herein 
provided  for  shall  be  made  only  to  institutions  upon  recommendation 
of  the  governors  of  States  and  Territories  and  shall  not  be  made  in 
any  case  to  any  educational  institution  to  which  issues  of  such  stores 
are  allowed  to  be  made  under  provisions  of  existing  law.  Act  of  June 
30,  1906  (34  Stats.,  817). 

(See  paragraphs  1182,  1183,  1292,  and  1292a.) 

RETIREMENT  OF  OFFICERS. 

1299a.  Hereafter  no  officer  holding  a  rank  above  that  of  colonel 
shall  be  retired  except  for  disability  or  on  account  of  having  reached 
the  age  of  sixty-four  years  until  he  shall  have  served  at  least  one  year 
in  such  rank.  Act  of  June  12, 1906  (34  Stats.,  245} . 

(This  paragraph  amends  paragraph  1299.) 

RETIREMENT  OF  OFFICERS. 

13 03 a.  Any  officer  of  the  Army  below  the  grade  of  brigadier- general 
who  served  with  credit  as  an  officer  or  as  an  enlisted  man  in  the  regu- 
lar or  volunteer  forces  during  the  civil  war  prior  to  April  ninth, 
eighteen  hundred  and  sixty-five,  otherwise  than  as  a  cadet,  and  whose 
name  is  borne  on  the  official  register  of  the  Army,  and  who  has  here- 


1228  MILITARY   LAWS    OF    THE    UNITED    STATES. 

tofore  been,  or  may  hereafter  be,  retired  on  account  of  wounds  or 
disability  incident  to  the  service,  or  on  account  of  age  or  after  forty 
years'  service,  may,  in  the  discretion  of  the  President,  by  and  with 
the  advice  and  consent  of  the  Senate,  be  placed  on  the  retired  list  of 
the  Army  with  the  rank  and  retired  pay  of  one  grade  above  that  ac- 
tually held  by  him  at  the  time  of  retirement :  Provided,  That  this  Act 
shall  not  apply  to  any  officer  who  received  an  advance  of  grade  since 
the  date  of  his  retirement  or  who  has  been  restored  to  the  Army  and 
placed  on  the  retired  list  by  virtue  of  the  provisions  of  a  special  Act 
of  Congress ;  and  the  Secretary  of  War  may  assign  retired  officers  of 
the  Army,  with  their  consent,  to  active  duty  in  recruiting,  for  service 
in  connection  with  the  organized  militia  in  the  several  States  and 
Territories  upon  the  request  of  the  governor  thereof,  as  military  at- 
taches, upon  courts-martial,  courts  of  inquiry  and  boards,  and  to 
staff  duties  not  involving  service  with  troops ;  and  such  officers  while 
so  assigned  shall  receive  the  full  pay  and  allowances  of  their  respec- 
tive grades.  Act  of  April  23, 1904  (33  Stats.,  264}  - 

1303b.  A  colonel  or  lieutenant-colonel  heretofore  or  hereafter  as- 
signed to  active  duty  shall  hereafter  receive  the  same  pay  and  allow- 
ances as  a  retired  major  would  receive  under  a  like  assignment.  Act 
of  June  12, 1906  (34  Stats.,  245). 

1303c.  Officers  who  served  creditably  in  the  regular  or  volunteer 
forces  during  the  civil  war  prior  to  April  ninth,  eighteen  hundred 
and  sixty-five,  and  who  now  hold  the  rank  of  brigadier-general  on 
the  active  list  of  the  Army,  having  previously  held  that  rank  for 
three  years  or  more,  shall,  when  retired  from  active  service,  have  the 
rank  and  retired  pay  of  major-general.  Act  of  March  2,  1907  (34 
Stats.,  1163). 

MISCELLANEOUS    PROVISIONS. 

1323a.  In  addition  to  the  detail  of  retired  officers  now  authorized 
by  law,  it  shall  hereafter  be  lawful  for  the  Secretary  of  War  to  detail, 
whenever  in  his  judgment  the  public  interests  require  it,  not  exceed- 
ing twenty  retired  officers  for  service  in  connection  with  the  organized 
militia  in  the  States  or  Territories,  upon  the  request  of  the  governor 
thereof,  and  such  retired  officers  shall  be  entitled,  while  so  employed, 
to  receive  the  full  pay  and  allowances  of  their  respective  grades.  Act 
of  March  2,  1903  (32  Stats.,  932). 

MISCELLANEOUS    PROVISIONS    RESPECTING    COMMISSIONED    OFFICERS. 

1332a.  Officers  of  the  Army  of  the  United  States  may  be  detailed 
for  service  as  chief  and  assistant  chiefs,  the  said  assistant  chiefs  not 
to  exceed  in  number  four,  of  the  Philippine  constabulary,  and  that 
during  the  continuance  of  such  details  the  officer  serving  as  chief  shall 
have  the  rank,  pay,  and  allowances  of  brigadier-general,  and  the  offi- 


SUPPLEMENT.  1229 

cers  serving  as  assistant  chiefs  shall  have  the  rank,  pay,  and  allow- 
ances of  colonel :  Provided,  That  the  difference  between  the  pay  and 
allowances  of  brigadier-general  and  colonel,  as  herein  provided,  and 
the  pay  and  allowances  of  the  officers  so  detailed  in  the  grades  from 
which  they  are  detailed  shall  pe  paid  out  of  the  Philippine  treasury. 
Sec.  1,  Act  of  January  30,  1903  (32  Stats.,  783}. 


CHAPTER  XXVIII. 

BREVETS — MEDALS  OF  HONOR — CERTIFICATES  OF  MERIT — FOREIGN 

DECORATIONS. 
MEDALS  OF  HONOR. 

1356a.  For  three  thousand  medals  of  honor  to  be  prepared,  with 
suitable  emblematic  devices,  upon  the  design  of  the  medal  of  honor 
heretofore  issued,  or  upon  an  improved  design,  together  with  appro- 
priate rosettes  or  other  insignia  to  be  worn  in  lieu  of  the  medal,  and 
to  be  presented  by  direction  of  the  President,  and  in  the  name  of  Con- 
gress, to  such  officers,  noncommissioned  officers,  and  privates  as  have 
most  distinguished,  or  may  hereafter  most  distinguish,  themselves  by 
their  gallantry  in  action,  twelve  thousand  dollars :  Provided,  That  the 
Secretary  of  War  be,  and  he  is  hereby,  authorized  and  directed  to  use 
so  many  of  the  medals  and  rosettes  or  other  insignia  provided  for  by 
this  Act  as  may  be  necessary  to  replace  the  medals  that  have  been 
issued  under  the  joint  resolution  of  Congress  approved  July  twelfth, 
eighteen  hundred  and  sixty-two,  and  section  six  of  the  Act  of  Con- 
gress approved  March  third,  eighteen  hundred  and  sixty-three:  And 
provided  further,  That  whenever  it  shall  appear  from  official  records 
in  the  War  Department  that  any  officer  or  enlisted  man  of  the  Army 
so  distinguished  himself  in  action  as  to  entitle  him  to  the  award  of 
the  Congressional  medal  of  honor  under  the  provisions  of  the  sixth 
section  of  the  Act  of  Congress  approved  March  third,  eighteen  hun- 
dred and  sixty-three,  entitled  "  An  Act  making  appropriations  for 
the  sundry  civil  expenses  of  the  Government  for  the  year  ending 
June  thirtieth,  eighteen  hundred  and  sixty-four,  and  for  the  year 
ending  the  thirtieth  of  June,  eighteen  hundred  and  sixty-three,  and 
for  other  purposes,"  the  fact  that  the  person  who  so  distinguished 
himself  has  since  become  separated  from  the  military  service,  or  that 
the  award  of  the  medal  to  him  was  not  specifically  recommended  or 
applied  for  while  he  was  in  the  said  service,  shall  not  be  held  to  pre- 
vent the  award  and  presentation  of  the  medal  to  such  person  under  the 
provisions  of  the  law  hereinbefore  cited.  Act  of  April  23,  190 4 
(33  Stats.,  27 ^}. 

(See  paragraphs  1350  aiid  1357.) 


1230  MILITARY   LAWS    OF    THE    UNITED    STATES. 

135Gb.  That  in  any  case  where  the  President  of  the  United  States 
has  heretofore,  under  any  Act  or  resolution  of  Congress,  caused  any 
medal  to  be  made  and  presented  to  any  officer  or  person  in  the  United 
States  on  account  of  distinguished  or  meritorious  services,  on  a  proper 
showing  made  by  such  person  to  the  satisfaction  of  the  President  that 
such  medal  has  been  lost  or  destroyed  through  no  fault  of  the  benefi- 
ciary, and  that  diligent  search  has  been  made  therefor,  the  President 
is  hereby  authorized  to  cause  to  be  prepared  and  delivered  to  such 
person  a  duplicate  of  such  medal,  the  cost  of  which  shall  be  paid  out 
of  any  money  in  the  Treasury  not  otherwise  appropriated.  Joint 
Res.  of  April  15,  1904  (33  Stats.,  588). 

(See  paragraph  1357.) 

1356c.  The  holders  of  medals  of  honor  under  the  Act  approved 
July  twelfth,  eighteen  hundred  and  sixty-two,  and  section  six  of  the 
Act  approved  March  third,  eighteen  hundred  and  sixty-three,  shall 
not  be  required  to  surrender  such  medals  in  case  such  medals  are 
replaced,  in  pursuance  of  the  provisions  of  the  Act  of  Congress 
approved  April  twenty -third,  nineteen  hundred  and  four;  and  that 
wherever  the  holders  of  such  medals  of  honor  have  surrendered 
them,  in  order  to  receive  the  medals  provided  for  by  said  Act  ap- 
proved April  twenty-third,  nineteen  hundred  and  four,  such  medals 
shall  be  returned  to  them :  Provided,  That  no  recipient  of  both  medals 
shall  wear  both  medals  at  the  same  time.  Joint  Res.,  February  27, 
1907  (34  Stats.,  1422). 

(This  paragraph  amends  paragraph  1356a.) 

CORPS    BADGES    AND    INSIGNIA   OF    SOCIETIES. 

1362a.  The  distinctive  badge  adopted  by  the  Army  and  Navy  Union 
of  the  United  States  may  be  worn,  in  their  own  right,  upon  all  public 
occasions  of  ceremony  by  officers  and  enlisted  men  of  the  Army  and 
Navy  of  the  United  States  who  are  members  of  said  organization. 
Joint  Res.,  March  2, 1907  (34  Stats.,  1^23). 

1363a.  The  distinctive  badges  adopted  by  military  societies  of  men 
who  served  in  the  armies  and  navies  of  the  United  States  during  the 
Chinese  relief  expedition  of  nineteen  hundred  may  be  worn  upon  all 
occasions  of  ceremony  by  officers  and  men  of  the  Army  and  Navy  of 
the  United  States  who  are  members  of  said  organization  in  their  own 
right.  Joint  Res.,  January  12,  1903  (32  Stats.,  1229). 

1363b.  Whoever,  in  the  District  of  Columbia,  not  being  a  member 
of  the  Military  Order  of  the  Loyal  Legion  of  the  United  States,  of 
the  Grand  Army  of  the  Republic,  of  the  Sons  of  Veterans,  of  the 
Woman's  Relief  Corps,  of  the  Union  Veteran's  Union,  of  the  Union 
Veteran  Legion,  of  the  United  Spanish  War  Veterans,  of  the  Na- 


SUPPLEMENT. 


1231 


tional  Society  of  the  Daughters  of  the  American  Revolution,  and  not 
entitled  under  the  rules  of  the  order  to  wear  the  same,  willfully  wears 
or  uses  the  insignia,  distinctive  ribbon,  or  badge  of  membership,  ro- 
sette, or  button  thereof,  or  who  uses  or  wears  the  same  to  obtain  aid 
or  assistance  thereby,  shall  be  punished  by  a  fine  of  not  more  than 
twenty  dollars  or  by  imprisonment  for  not  more  than  thirty  days,  or 
by  both  such  fine  and  imprisonment.  Act  of  March  15,  1906  (34 
Stats.,  62). 


CHAPTER  XXIX. 

ENLISTED  MEN. 
RETIREMENT  OF  ENLISTED  MEN. 

1379a.  When  an  enlisted  man  shall  have  served  thirty  years  either 
in  the  Army,  Navy,  or  Marine  Corps,  or  in  all,  he  shall,  upon  making 
application  to  the  President,  be  placed  upon  the  retired  list,  with 
seventy-five  per  centum  of  the  pay  and  allowances  he  may  then  be  in 
receipt  of,  and  that  said  allowances  shall  be  as  follows:  Nine  dollars 
and  fifty  cents  per  month  in  lieu  of  rations  and  clothing  and  six  dol'- 
lars  and  twenty- five  cents  per  month  in  lieu  of  quarters,  fuel,  and 
light:  Provided,  That  in  computing  the  necessary  thirty  years'  time 
all  service  in  the  Army,  Navy,  and  Marine  Corps  shall  be  credited. 

SEC.  2.  That  all  Acts  and  jparts  of  Acts,  so  far  as  they  conflict  with 
the  provisions  of  this  Act,  are  hereby  repealed.  Sees.  1  and  2,  Act  of 
March  2,  1907  (34  Stats.,  1217). 

(This  paragraph  takes  the  place  of  paragraph  1379.  See  paragraphs  869a, 
and  1381a.) 

1381a.  Hereafter  in  computing  the  length  of  service  for  retirement, 
credit  shall  be  given  soldiers  for  double  the  time  of  their  actual  serv- 
ice in  China,  Cuba,  the  Philippine  Islands,  the  Island  of  Guam, 
Alaska,  and  Panama ;  but  double  credit  shall  not  be  given  for  service 
hereafter  rendered  in  Porto  Rico  or  the  Territory  of  Hawaii.  Act  of 
April  23,  1904  (33  Stats.,  264}. 

(This  paragraph  takes  the  place  of  paragraph  1381.  See  paragraphs  869  and 
869a.) 

DUPLICATE  CERTIFICATES  OF  DISCHARGE. 

1388a.  Whenever  satisfactory  proof  shall  be  furnished  to  the  War 
Department  that  any  officer  or  enlisted  man  who  has  been  or  shall 
hereafter  be  honorably  discharged  from  the  military  service  of  the 
United  States  has  lost  his  certificate  of  discharge,  or  the  same  has  been 


1232  MILITARY   LAWS    OF    THE    UNITED    STATES. 

destroyed  without  his  privity  or  procurement,  the  Secretary  of  War 
shall  be  authorized  to  furnish  to  such  officer  or  enlisted  man,  or  to  the 
widow  of  such  officer  or  enlisted  man,  a  certificate  of  such  discharge, 
to  be  indelibly  marked,  so  that  it  may  be  known  as  a  certificate  in  lieu 
of  a  lost  or  destroyed  discharge :  Provided,  That  such  certificate  shall 
not  be  accepted  as  a  voucher  for  the  payment  of  any  claim  against  the 
United  States  for  pay,  bounty,  or  other  allowance,  or  as  evidence  in 
any  other  case.  Act  of  July  1, 1902  (32  Stats.,  629} . 

(This  paragraph  virtually  takes  the  place  of  sec.  224  of  R.  S. ;  paragraph 

1388.) 

APPREHENSION  OF   DESERTERS REWARDS. 

1409a.  For  the  apprehension,  securing,  and  delivering  of  deserters,' 
including  escaped  military  prisoners,  and  the  expenses  incident  to 
their  pursuit ;  and  no  greater  sum  than  fifty  dollars  for  each  deserter 
or  escaped  military  prisoner  shall,  in  the  discretion  of  the  Secretary 
of  War,  be  paid  to  any  civil  officer  or  citizen  for  such  services  and 
expenses.  Act  of  April  23, 1904  (33  Stats.,  269} . 

(This  paragraph  takes  the  place  of  paragraph  1409.) 

DECEASED    SOLDIERS. 

1415a.  Hereafter,  in  the  settlement  of  the  accounts  of  deceased  offi- 
cers or  enlisted  men  of  the  Army,  where  the  amount  due  the  decedent's 
estate  is  less  than  five  hundred  dollars  and  no  demand  is  presented  by 
a  duly  appointed  legal  representative  of  the  estate,  the  accounting 
officers  may  allow  the  amount  found  due  to  the  decedent's  widow  or 
legal  heirs  in  the  following  order  of  precedence :  First,  to  the  widow ; 
second,  if  decedent  left  no  widow,  or  the  widow  be  dead  at  time  of 
settlement,  then  to  the  children  or  their  issue,  per  stirpes ;  third,  if  no 
widow  or  descendants,  then  to  the  father  and  mother  in  equal  parts, 
provided  the  father  has  not  abandoned  the  support  of  his  family,  in 
which  case  to  the  mother  alone ;  fourth,  if  either  the  father  or  mother 
be  dead  then  to  the  one  surviving;  fifth,  if  there  be  no  widow,  child, 
father,  or  mother  at  the  date  of  settlement,  then  to  the  brothers  and 
sisters  and  children  of  deceased  brothers  and  sisters,  per  stirpes: 
Provided,  That  this  Act  shall  not  be  so  construed  as  to  prevent  pay- 
ment from  the  amount  due  the  decedent's  estate  of  funeral  expenses, 
provided  a  claim  therefor  is  presented  by  the  person  or  persons  who 
actually  paid  the  same  before  settlement  by  the  accounting  officers. 
Act  of  June  30, 1906  (34  Stats.,  750). 

EXPENSES  OF  TRANSPORTATION  AND  BURIAL. 

1416a.  To  enable  the  Secretary  of  War,  in  his  discretion,  to  cause  to 
be  transported  to  their  homes  the  remains  of  officers  and  soldiers  who 


SUPPLEMENT.  1233 

die  at  military  camps  or  who  are  killed  in  action  or  who  die  in  the 
field  or  hospital  in  Alaska  and  at  places  outside  of  the  limits  of  the 
United  States,  or  who  die  while  on  voyage  at  sea,  forty  thousand 
dollars.    Act  of  April  28,  1904  (33  Stats.,  496). 
(This  paragraph  takes  the  place  of  paragraph  1416.) 

1417a.  [For]  expenses  of  the  interment  of  officers  killed  in  action  or 
who  die  when  on  duty  in  the  field,  or  at  military  posts  or  on  the  fron- 
tiers, or  when  traveling  under  orders,  and  of  noncommissioned 
officers  and  soldiers ;  and  in  all  cases  where  such  expenses  would  have 
been  lawful  claims  against  the  Government  reimbursement  may  be 
made  of  expenses  heretofore  or  hereafter  incurred  by  individuals  of 
burial  and  transportation  of  remains  of  officers,  including  acting 
assistant  surgeons,  not  to  exceed  the  amount  now  allowed  in  the  cases 
of  officers,  and  for  the  reimbursement  in  the  cases  of  enlisted  men  not 
exceeding  the  amount  now  allowed  in  their  cases,  may  be  paid  out  of 
the  proper  funds  appropriated  by  this  Act,  and  the  disbursing  officers 
shall  be  credited  with  such  reimbursement  heretofore  made ;  but  here- 
after no  reimbursement  shall  be  made  of  such  expenses  incurred  prior 
to  the  twenty-first  day  of  April,  eighteen  hundred  and  ninety-eight. 
Act  of  April  23,  1904  (33  Stats.,  269). 

(See  paragraph  1417.) 

141 8a.  To  enable  the  Secretary  of  War,  in  his  discretion,  to  cause 
to  be  transported  to  their  homes  the  remains  of  civilian  employees  of 
the  Army  who  have  died,  or  may  hereafter  die,  while  in  the  employ 
of  the  War  Department  in  Cuba,  Porto  Rico,  Hawaii,  China,  Alaska, 
and  the  Philippines,  including  the  remains  of  any  honorably  dis- 
charged soldiers  who  are  entitled  under  the  terms  of  their  discharge 
to  return  transportation  on  Goverment  transport,  and  who  die  while 
on  said  transport,  five  thousand  dollars.  Act  of  April  28,  1904 
(33  Stats.,  496). 

(This  paragraph  takes  the  place  of  paragraph  1418.) 


CHAPTER  XXX. 

THE  TROOPS  OF  THE  LINE. 

CAVALRY. 

1424a.  Each  cavalry  band  shall  consist  of  one  chief  musician ;  one 
chief  trumpeter ;  one  principal  musician ;  one  drum  major,  who  shall 
have  the  rank,  pay,  and  allowances  of  a  first  sergeant;  four  ser- 
geants ;  eight  cor(porals ;  one  cook,  and  eleven  privates.  Sec.  '2,  act  of 
March  2, 1899  (30  Stats.,  977). 

(This  paragraph  takes  the  place  of  paragraph  1424,  which  is  defective.) 
22924—08 78 


1234  MILITARY    LAWS    OF    THE    UNITED    STATES. 

THE    ARTILLERY    CORPS. 

1443a.  One  hundred  electrician  sergeants,  to  be  assigned  for  duty 
at  such  places  as  the  Secretary  of  War  may  direct,  at  four  hundred 
and  eight  dollars  each,  *  *  *  :  Provided,  That  there  shall  be 
added  to  the  Artillery  Corps  twenty-five  master  electricians,  to  be 
enlisted  by  the  Secretary  of  War,  after  such  examination  as  he  may 
prescribe,  who  shall  receive  seventy-five  dollars  per  month  and  the 
allowance  of  an  ordnance  sergeant.  Act  of  March  2, 1903  (32  Stats., 
930). 

(This  paragraph  takes  the  place  of  paragraph  1443.) 

1443b.  The  artillery  of  the  United  States  Army  shall  consist  of  the 
Chief  of  Artillery,  the  coast  artillery,  and  the  field  artillery.  The 
coast  artillery  and  the  field  artillery  shall  be  organized  as  hereinafter 
specified,  and  the  artillery  shall  belong  to  the  line  of  the  Army :  Pro- 
vided, That  on  and  after  July  first,  nineteen  hundred  and  eight,  the 
Chief  of  Artillery  shall  cease  to  exercise  supervision  over  the  field 
artillery  and  shall  thereafter  be  designated  as  the  Chief  of  Coast 
Artillery.  Sec.  1,  Act  of  January  25, 1907  (34  Stats.,  861). 

(This  paragraph  and  the  following  paragraphs  take  the  place  of  all  previous 
paragraphs  referring  to  the  organization  of  the  artillery.) 

1443c.  On  and  after  the  approval  of  this  Act  the  coast  artillery  and 
the  field  artillery  shall  be  permanently  separated,  the  separation  to  be 
effected  as  follows: 

All  officers  in  the  present  Artillery  Corps  shall  remain  on  one  list 
as  regards  promotion  until  sufficient  promotions  shall  have  been  made 
as  far  as  the  present  number  of  officers  permit,  to  provide  in  each 
grade,  together  with  the  officers  remaining  therein,  the  total  number 
of  officers  of  the  grade  provided  for  in  this  Act  for  the  coast  and  field 
artillery  combined.  After  such  promotion  they  shall,  in  each  grade, 
be  assigned  by  the  President  to  the  coast  artillery  or  to  the  field 
artillery,  according  to  special  aptitude  and  qualifications  and  agree- 
ably to  individual  preference,  so  far  as  may  be  practicable  and  for  the 
good  of  the  service,  such  assignments  to  be  permanent ;  and  all  officers 
promoted  or  appointed  in  the  artillery  thereafter  shall  be  commis- 
sioned as  officers  of  the  coast  artillery  or  the  field  artillery,  as  the  case 
may  be,  and  shall  be  promoted  by  seniority  in  their  own  branch,  sub- 
ject to  the  provisions  of  the  laws  governing  promotion  in  the  Army  at 
large.  Sec.  9,  Act  of  January  25, 1907  (34  Stats.,  863). 

1443d.  All  vacancies  created  or  caused  by  this  Act  which  can  be 
filled  by  promotion  of  officers  now  in  the  Artillery  Corps  shall  be 
filled  by  promotion  according  to  seniority,  subject  to  examination  as 
now  prescribed  by  law.  Of  the  vacancies  created  or  caused  by  this 
Act  which  can  not  be  filled  by  promotion  of  officers  now  in  the  Artil- 


SUPPLEMENT.  1235 

lery  Corps,  one-fifth  in  each  branch  shall  be  filled  in  each  fiscal  year 
until  the  total  number  of  officers  herein  provided  for  shall  have  been 
attained.  The  vacancies  remaining  in  the  grade  of  second  lieutenant 
shall  be  filled  by  appointment  in  the  following  order:  First,  of  gradu- 
ates of  the  United  States  Military  Academy ;  second,  of  enlisted  men 
whose  fitness  for  advancement  shall  have  been  determined  by  competi- 
tive examination;  third,  of  candidates  from  civil  life;  and  all  such 
appointments  shall  be  made  in  accordance  with  the  provisions  of 
existing  law.  Sec.  10,  Act  of  January  25,1907  (34  Stats.,  863). 

1443e.  The  regimental  and  battalion  noncommissioned  staff  officers- 
herein  authorized  for  regiments  of  field  artillery  shall  have  the  pay 
and  allowances  of  corresponding  grades  in  the  cavalry ;  the  battalion 
quartermaster-sergeant  shall  have  the  pay  and  allowances  of  sergeant- 
major,  junior  grade,  of  the  Artillery  Corps ;  the  chief  mechanic  the 
pay  and  allowances  of  sergeant,  and  the  mechanics  of  field  artillery 
the  pay  and  allowances  of  artificers  of  field  artillery ;  engineer,  sixty- 
five  dollars  a  month  and  allowances  of  ordnance-sergeant ;  electrician- 
sergeant,  first  class,  forty-five  dollars  a  month  and  allowances  of  ord- 
nance-sergeant ;  electrician-sergeant,  second  class,  thirty-five  dollars  a 
month  and  allowances  of  ordnance-sergeant;  master  gunner,  the  pay 
and  allowances  of  ordnance-sergeant ;  fireman,  thirty  dollars  a  month 
and  allowances  of  ordnance-sergeant;  and  that  the  rates  of  pay  of  all 
other  enlisted  men  of  the  coast  and  the  field  artillery  shall  be  as  now 
provided  by  law:  Provided,  That  casemate  electricians,  observers, 
first  class,  and  plotters  shall  receive  nine  dollars  a  month  in  addition 
to  their  pay ;  that  chief  planters,  chief  loaders,  observers,  second  class, 
gun  commanders,  and  gun  pointers  shall  receive  seven  dollars  a 
month  in  addition  to  their  pay,  and  that  first-class  gunners  shall  re- 
ceive two  dollars  a  month  and  second-class  gunners  one  dollar  a 
month  in  addition  to  their  pay:  Provided  further,  That  the  number 
of  casemate  electricians  shall  not  exceed  forty- four;  that  the  number 
of  observers,  first  class,  shall  not  exceed  one  hundred  and  seventy; 
that  the  number  of  plotters  shall  not  exceed  one  hundred  and  seventy ; 
that  the  number  of  chief  planters  shall  not  exceed  forty-four ;  that  the 
number  of  chief  loaders  shall  not  exceed  forty- four;  that  the  number 
of  observers,  second  class,  shall  not  exceed  one  hundred  and  seventy ; 
that  the  number  of  gun  commanders  shall  not  exceed  three  hundred 
and  seventy-eight,  and  that  the  number  of  gam  pointers  shall  not  ex- 
ceed three  hundred  and  seventy-eight:  And  provided  further,  That 
no  enlisted  man  shall  receive  under  this  section  more  than  one  addi- 
tion to  his  pay.  Sec.  11,  Act  of  January  25,  1907  (34  Stats.,  863). 

THE  COAST  ARTILLERY  CORPS. 

1443f.  The  coast  artillery  is  the  artillery  charged  with  the  care  and 
use  of  the  fixed  and  movable  elements  of  land  and  coast  fortifications, 


1236  MILITAKY   LAWS    OF    THE    UNITED    STATES. 

including  the  submarine  mine  and  torpedo  defenses.  Sec.  3,  Act  of 
January  25, 1907  (34  Stats.,  861). 

1443g.  The  coast  artillery  shall  constitute  a  corps,  and  shall  consist 
of  one  Chief  of  Coast  Artillery  with  the  rank,  pay,  and  allowances  of 
a  brigadier-general,  as  provided  in  section  one  of  this  Act;  fourteen 
colonels;  fourteen  lieutenant-colonels;  forty-two  majors;  two  hundred 
and  ten  captains ;  two  hundred  and  ten  first  lieutenants,  and  two  hun- 
dred and  ten  second  lieutenants;  and  the  captains  and  lieutenants 
provided  for  in  this  section  not  required  for  duty  with  companies 
shall  be  available  for  duty  as  staff  officers  of  the  various  coast  artillery 
commands  and  for  such  other  details  as  may  be  authorized  by  law  and 
regulations;  twenty-one  sergeants-major  with  the  rank,  pay,  and  al- 
lowances of  regimental  sergeants-major  of  infantry;  twenty-six 
master  electricians;  sixty  engineers;  seventy- four  electrician-ser- 
geants, first  class;  seventy-four  electrician-sergeants,  second  class; 
forty-two  sergeants-major  with  the  rank,  pay,  and  allowances  of  bat- 
talion sergeants-major  of  infantry;  forty-two  master  gunners;  sixty 
firemen ;  one  hundred  and  seventy  companies,  and  fourteen  bands,  or- 
ganized as  now  provided  for  by  law  for  artillery  corps  bands.  Sec.  5, 
Act  of  January  25, 1907  (34  Stats.,  861). 

1443h.  Each  company  of  coast  artillery  shall  consist  of  one  'captain, 
one  first  lieutenant,  one  second  lieutenant,  one  first  sergeant,  one  quar- 
termaster-sergeant, two  cooks,  two  mechanics,  two  musicians,  and  such 
number  of  sergeants,  corporals,  and  privates  as  may  be  fixed  by  the 
President  in  accordance  with  the  requirements  of  the  service  to  which 
it  may  be  assigned :  Provided,  That  the  total  number  of  sergeants  and 
corporals  in  the  coast  artillery,  so  fixed,  shall  not  exceed  one  thousand 
three  hundred  and  sixty  and  two  thousand  and  forty,  respectively, 
and  that  the  total  enlisted  strength  of  the  coast  artillery,  as  provided 
under  this  Act,  shall  not  exceed  nineteen  thousand  one  hundred  and 
forty-seven,  exclusive  of  master  electricians,  electrician-sergeants, 
first  class,  and  electrician-sergeants,  second  class.  Sec.  6,  Act  of  Jan- 
uary 25, 1907  (34  Stats.,  862). 

THE  FIELD  ARTILLERY. 

14431.  The  field  artillery  is  the  artillery  which  accompanies  an 
army  in  the  field,  and  includes  light  artillery,  horse  artillery,  siege 
artillery,  and  mountain  artillery.  Sec.  4,  Act  of  January  25,  1907 
(34  Stats.,  861). 

1443J.  The  field  artillery  shall  consist  of  six  regiments,  each  organ- 
ized as  follows:  One  colonel,  one  lieutenant-colonel,  two  majors, 
eleven  captains,  thirteen  first  lieutenants,  and  thirteen  second  lieuten- 
ants; two  veterinarians,  one  sergeant-major,  one  quartermaster-ser- 
geant, one  commissary-sergeant,  two  battalion  sergeants-major,  two 


SUPPLEMENT.  1237 

battalion  quartermaster-sergeants,  two  color- sergeants,  one  band,  and 
six  batteries  organized  into  two  battalions  of  three  batteries  each. 
Of  the  officers  herein  provided  the  captains  and  lieutenants  not  re- 
quired for  duty  with  batteries  shall  be  available  for  detail  as  regi- 
mental and  battalion  staff  officers,  and  for  such  other  details  as  may 
be  authorized  by  law  and  regulations.  Battalion  adjutants  shall  be 
detailed  from  the  captains,  and  battalion  quartermasters  and  commis- 
saries from  lieutenants.  Each  field  artillery  band  shall  be  organized 
as  provided  by  law  for  cavalry  bands:  Provided,  That  the  President 
in  his  discretion  may  increase  by  nine  mounted  orderlies  the  regi- 
mental strength  herein  authorized.  Sec.  7,  Act  of  January  25,  1907 
(34  Stats.,  862). 

1443k.  Each  battery  of  field  artillery  shall  consist  of  one  captain, 
two  first  lieutenants,  two  second  lieutenants,  one  first  sergeant,  one 
quartermaster-sergeant,  one  stable  sergeant,  one  chief  mechanic,  six 
sergeants,  twelve  corporals,  four  mechanics,  three  cooks,  two  mu- 
sicians, and  one  hundred  and  two  privates,  the  commisioned  officers 
to  be  assigned  from  among  those  hereinbefore  authorized  for  the  regi- 
ment :  Provided,  That  the  President  in  his  discretion  may  increase  the 
number  of  sergeants  in  any  battery  of  field  artillery  to  eight,  the 
number  of  corporals  to  sixteen,  the  number  of  mechanics  to  seven, 
the  number  of  musicians  to  three,  and  the  number  of  privates  to  one 
hundred  and  forty-nine:  Provided  further,  That  nothing  contained 
in  this  Act  shall  increase  the  total  number  of  enlisted  men  in  the  line 
of  the  Army,  together  with  the  native  scouts,  as  authorized  by  section 
thirty-six  of  the  Act  of  Congress  approved  February  second,  nine- 
teen hundred  and  one,  entitled  "An  Act  to  increase  the  efficiency  of 
the  permanent  military  establishment  of  the  United  States."1  Sec.  8, 
Act  of  January  25,  1907  (3 4  Stats..  862}. 


CHAPTER  XXXI. 

THE  UNITED  STATES  MILITARY  ACADEMY — THE  ARMY  WAR  COLLEGE — 
THE. SERVICE  SCHOOLS. 

THE   MILITARY    ACADEMY. 

ORGANIZATION  :   ACADEMIC   AND   MILITARY   STAFF. 

1458a.  For  pay  of  one  associate  professor  of  modern  languages,  in 
addition  to  pay  as  captain,  five  hundred  dollars.  Act  of  April  28, 
190^  (33  Stats.,  U®}. 

(The  above  appropriation  act  amends  paragraph  1458,  by  the  creation  of  an 
additional  office.) 


1238  MILITAKY   LAWS    OF    THE    UNITED    STATES. 

1458b.  For  one  civilian  instructor  of  French,  to  be  employed  under 
rules  prescribed  by  the  Secretary  of  War,  two  thousand  dollars  ; 

For  two  civilian  instructors  in  Spanish,  at  two  thousand  dollars  per 
year  each,  to  be  employed  under  rules  prescribed  by  the  Secretary  of 
War,  four  thousand  dollars.  Act  of  April  £8,1904  (33  Stats., 


(The  above  appropriation  act  amends  paragraph  1458  by  the  creation  of  two 
additional  offices.) 

1458c.  For  pay  of  one  professor  of  ordnance  and  science  of  gunnery 
(lieutenant-colonel),  in  addition  to  pay  as  major:  Provided,  'fhat  the 
position  shall  be  filled  by  the  detail  of  an  officer  of  the  Army,  who, 
while  so  serving,  shall  have  the  title  and  status  of  other  professors, 
*  *  *  five  hundred  dollars.  Act  of  March  2,  1907  (34  Stats., 
1063). 

(The  above  paragraph  amends  paragraphs  1458  and  1471.) 

THE   ACADEMIC    STAFF. 

1471a.  The  professors  and  the  associate  professor  of  the  United 
States  Military  Academy  shall  have  the  actual  rank  in  the  United 
States  Army  now  assigned  to  them  by  assimilation  in  the  regulations 
of  the  Military  Academy  prescribed  by  the  President  of  the  United 
States,  and  that  they  shall  exercise  command  only  in  the  academic 
department  of  the  United  States  Military  Academy.  Act  of  June  28, 
1902  (32  Stats.  ,409). 

(See  note  to  paragraph  1495.) 

CORPS    OF    CADETS. 

1479a.  The  number  of  cadets  authorized  to  be  appointed  by  the 
President  from  the  United  States  at  large  shall  not  at  any  one  time 
exceed  forty.  Act  of  June  28,  1902  (32  Stats.,  410)  . 

(This  paragraph  amends  paragraph  1479.) 

1480a.  Hereafter  the  actual  and  necessary  traveling  expenses  of 
candidates  while  proceeding  from  their  homes  to  the  Military 
Academy  for  qualification  as  cadets  shall,  if  admitted,  be  credited  to 
their  accounts  and  paid  after  admission  from  the  appropriation  for 
the  transportation  of  the  Army  and  its  supplies.  Act  of  June  28, 
1902  (32  Stats.,  409). 

(This  paragraph  amends  paragraph  1480.) 

1480b.  Cadets  appointed  to  the  Military  Academy  at  West  Point, 
New  York,  for  admission  after  the  year  nineteen  hundred  and  seven, 
may  be  admitted  on  the  first  day  of  March  in  place  of  the  first  day 
of  June.  Act  of  March  2,  1907  (34  Stats.,  1063). 


SUPPLEMENT.  1239 

PAY    AND    ALLOWANCES. 

1485a.  Hereafter  the  pay  of  cadets  shall  be  fixed  at  five  hundred 
dollars  per  annum  and  one  ration  per  day,  or  commutation  therefor, 
such  commutation  to  be  thirty  cents  per  day,  to  be  paid  from  the 
appropriation  for  the  subsistence  of  the  Army.  Act  of  June  28, 1902 
(32  Stats.,  409). 

(This  paragraph  amends  paragraph  1485.) 

THE    MILITARY    ACADEMY    BAND.     • 

1508a.  The  Military  Academy  band  shall  hereafter  consist  of  one 
teacher  of  music,  who  shall  be  the  leader  of  the  band,  one  enlisted 
band  sergeant  and  assistant  leader,  and  of  forty  enlisted  musicians. 
The  teacher  of  music  shall  receive  the  pay  of  a  second  lieutenant,  not 
mounted ;  the  enlisted  band  sergeant  and  assistant  leader  shall  receive 
six  hundred  dollars  per  year;  and  of  the  enlisted  musicians  of  the 
band,  twelve  shall  each  receive  thirty-four  dollars  per  month,  twelve 
shall  each  receive  twenty-five  dollars  per  month,  and  the  remaining 
sixteen  shall  each  receive  seventeen  dollars  per  month,  and  each  of  the 
aforesaid  enlisted  men  shall  also  be  entitled  to  the  clothing,  fuel,  ra- 
tions, and  other  allowances  of  musicians  of  cavalry;  and  the  said 
teacher  of  music,  the  band  sergeant  and  assistant  leader,  and  the  en- 
listed musicians  of  the  band  shall  be  entitled  to  the  same  benefits  in  re- 
spect to  pay,  emoluments,  and  retirement  arising  from  longevity,  re- 
enlistment,  and  length  of  service  as  are,  or  may  hereafter  -become,  ap- 
plicable to  other  officers  or  enlisted  men  of  the  Army.  Act  of  March 
3,  1905  (33  Stats.,  853). 

(This  paragraph  amends  section  1111  of  the  Revised  Statutes  and  takes  the 
place  of  paragraph  1508.) 

GENERAL  ARMY  SERVICE  MEN,  QUARTERMASTER'S  DEPARTMENT. 

1510a.  Hereafter  no  part  of  the  moneys  appropriated  for  use  of  the 
Quartermaster's  Department  shall  be  used  in  payment  of  extra  duty 
pay  for  the  Army  service  men  in  the  Quartermaster's  Department  at 
West  Point.  Act  of  March  2, 1907  (34  Stats.,  1167) . 

ARMY    AVAR    COLLEGE. 

1514a.  The  Secretary  of  War  is  hereby  authorized  to  expend  the 
sum  of  four  hundred  thousand  dollars,  or  so  much  thereof  as  may  be 
necessary,  from  the  unexpended  balance  of  an  emergency  fund  appro- 
priated in  the  Act  approved  March  third,  eighteen  hundred  and 
ninety-nine,  for  the  erection  of  the  necessary  buildings  for  the  Army 
War  College,  established  at  Washington  Barracks,  District  of  Co- 
lumbia, for  the  instruction  of  officers  of  the  Army  and  militia  of  the 
United  States.  Act  of  June  30,  1902  (32  Stats.,  512). 

(See  paragraph  1514  and  General  Orders,  155,  H.  A.  1901.) 


1240  MILITAKY   LAWS    OF    THE    UNITED    STATES. 

UNITED    STATES    ENGINEER    SCHOOL. 

1515a.  The  Secretary  of  War  is  hereby  authorized  to  expend  the 
sum  of  five  hundred  thousand  dollars,  or  so  much  thereof  as  may  be 
necessary,  from  the  unexpected  balance  of  the  appropriation  for 
barracks  and  quarters  for  the  fiscal  year  ending  June  thirtieth,  nine- 
teen hundred,  which  sum  is  hereby  reappropriated  for  the  construc- 
tion of  the  necessary  buildings  for  the  Engineer  School  at  Washing- 
ton Barracks,  District  of  Columbia,  Act  of.  June  30, 1902,  '(32  Stats., 
519}. 

(See  General  Orders,  155,  H.  A.  1901.) 

1515b.  For  equipment  and  maintenance  of  the  United  States  Engi- 
neer School  at  Washington  Barracks,  District  of  Columbia,  includ- 
ing purchase  of  instruments,  implements,  and  materials,  for  the  use 
of  the  school  and  for  instruction  of  engineer  troops  in  their  special 
duties  as  sappers  and  miners ;  for  land  and  submarine  mines,  ponto- 
niers,  torpedo  drill,  and  signaling ;  for  purchase  and  binding  of  pro- 
fessional works  of  recent  date  treating  of  military  and  civil  engineer- 
ing and  kindred  scientific  subjects,  for  the  library  of  the  United 
States  Engineer  School.  Act  of  June  30,  1902  (32  Stats.,  519). 

(This  paragraph  takes  the  place  of  paragraph  1515.  See  General  Orders,  155, 
H..A.  1901.) 

UNITED    STATES    SERVICE    SCHOOLS. 

1519a.  To  provide  means  for  the  theoretical  and  practical  instruc- 
tion at  the  Artillery  School,  at  Fort  Monroe,  Virginia ;  the  School  of 
Submarine  Defense,  at  Fort  Totten,  New  York;  the  General  Service 
and  Staff  College,  at  Fort  Leavehworth,  Kansas,  and  the  School  of 
Application  for  Cavalry  and  Field  Artillery,  at  Fort  Riley,  Kansas, 
by  the  purchase  of  text-books,  books  of  reference,  scientific  and  pro- 
fessional papers,  the  purchase  of  modern  instruments  and  material 
for  theoretical  and  practical  instruction,  and  for  all  other  absolutely 
necessary  expenses,  to  be  allotted  in  such  proportions  as  may,  in  the 
opinion  of  the  Secretary  of  War,  be  for  the  best  interest  of  the  mili- 
tary service,  twenty-five  thousand  dollars.  Act  of  April  23,  190  J,. 
(33  Stats. ,259). 

(See  General  Orders,  155,  H.  A.  1901.) 


CHAPTER  XXXII. 

CONTRACTS  AND  PURCHASES. 
MISCELLANEOUS  REQUIREMENTS. 

1543a.  Hereafter  the  purchase  of  supplies  and  the  procurement  of 
services  for  all  branches  of  the  Army  service  may  be  made  in  open 


SUPPLEMENT.  1241 

market,  in  the  manner  common  among  business  men,  when  the  aggre- 
gate of  the  amount  required  does  not  exceed  five  hundred  dollars ;  but 
every  such  purchase  exceeding  one  hundred  dollars  shall  be  promptly 
reported  to  the  Secretary  of  War  for  approval,  under  such  regulations 
as  he  may  prescribe.  Act  of  June  12,  1906  (34  Stats.,  258). 

(This  paragraph  makes  general  to  "all  branches  of  the  army  service"  the 
authority  to  purchase  supplies  and  procure  services  in  open  market,  and  in- 
creases the  amount  that  may  be  thus  expended  to  "five  hundred  dollars.") 

PENAL  OFFENSES. 

1566a.  Every  officer,  clerk,  agent,  or  employee  of  the  United  States, 
and  every  person  representing  himself  to  be  or  assuming  to  act  as 
such  officer,  clerk,  agent,  or  employee,  who  is  guilty  of  extortion,  under 
color  of  his  office,  clerkship,  agency,  or  employment,  or  under  color 
of  his  pretended  or  assumed  office,  clerkship,  agency,  or  employment, 
and  every  person  who  shall  attempt  any  act  which  if  performed  would 
make  him  guilty  of  such  extortion,  shall  be  punished  by  a  fine  of  not 
more  than  five  hundred  dollars  or  by  imprisonment  for  not  more  than 
one  year,  or  by  both  such  fine  and  imprisonment,  except  those  officers 
or  agents  of  the  United  States  otherwise  differently  and  specially  pro- 
vided for  in  the  subsequent  sections  of  this  chapter.  Act  of  June  28, 
1906  (34  Stats.,  546). 

(This  paragraph  amends  section  5481  of  the  Revised  Statutes  and  takes  the 
place  of  paragraph  1566.  It  has  reference  to  Title  70,  Chapter  6,  R.  S.) 

THE   EIGHT- HOUR   LAW. 

1573a.  The  provisions  of  the  Act  entitled  "An  Act  relating  to  the 
limitations  of  the  hours  of  daily  service  of  laborers  and  mechanics 
employed  upon  the  public, works  of  the  United  States  and  of  the  Dis- 
trict of  Columbia,"  approved  August  first,  eighteen  hundred  and 
ninety-two,  shall  not  apply  to  alien  laborers  employed  in  the  construc- 
tion of  the  Isthmian  Canal  within  the  Canal  Zone.  Act  of  February 
27,1906  (34  Stats.,  33). 

(This  paragraph  amends  paragraph  1573.) 

1573b.  The  provisions  of  an  Act  entitled  "An  Act  relating  to  the 
limitations  of  the  hours  of  daily  service  of  laborers  and  mechanics 
employed  upon  the  public  works  of  the  United  States  and  of  the  Dis- 
trict of  Columbia,"  approved  August  first,  eighteen  hundred  and 
ninety-two,  and  of  an  Act  entitled  "  An  Act  making  appropriations 
to  supply  urgent  deficiencies  in  the  appropriations  for  the  fiscal  year 
ending  June  thirtieth,  nineteen  hundred  and  six,  and  for  prior  years, 
and  for  other  purposes,"  approved  February  twenty-seventh,  nineteen 
hundred  and  six,  shall  not  apply  to  unskilled  alien  laborers  and  to  the 
foremen  and  superintendents  of  such  laborers  employed  in  the  con- 


1242  MILITARY   LAWS    OF    THE    UNITED    STATES. 

struction  of  the  isthmian  canal  within  the  Canal  Zone.    Sec.  4,  Act  of 
June  30,  1906  (34  Stats.,  669). 

(The  above -paragraph  amends  paragraphs  1573  and  3573a.) 

BONDS  TO  SECURE  PAYMENT  FOR  LABOR  AND  MATERIALS. 

1576a.  Hereafter  any  person  or  persons  entering  into  a  formal  con- 
tract with  the  United  States  for  the  construction  of  any  public  build- 
ing, or  the  prosecution  and  completion  of  any  public  work,  or  for 
repairs  upon  any  public  building  or  public  work,  shall  be  required, 
before  commencing  such  work,  to  execute  the  usual  penal  bond,  with 
good  and  sufficient  sureties,  with  the  additional  obligation  that  such 
contractor  or  contractors  shall  promptly  make  payments  to  all  per- 
sons supplying  him  or  them  with  labor  and  materials  in  the  prosecu- 
tion of  the  work  provided  for  in  such  contract ;  and  any  person, 
company,  or  corporation  who  has  furnished  labor  or  materials  used 
in  the  construction  or  repair  of  any  public  building  or  public  work, 
and  payment  for  which  has  not  been  made,  shall  have  the  right  to 
intervene  and  be  made  a  party  to  any  action  instituted  by  the  United 
States  on  the  bond  of  the  contractor,  and  to  have  their  rights  and 
claims  adjudicated  in  such  action  and  judgment  rendered  thereon, 
subject,  however,  to  the  priority  of  the  claim  and  judgment  of  the 
United  States.  If  the  full  amount  of  the  liability  of  the  surety  on 
said  bond  is  insufficient  to  pay  the  full  amount  of  said  claims  and 
demands,  then,  after  paying  the  full  amount  due  the  United  States, 
the  remainder  shall  be  distributed  pro  rata  among  said  interveners. 
If  no  suit  should  be  brought  by  the  United  States  within  six  months 
from  the  completion  and  final  settlement  of  said  contract,  then  the 
person  or  persons  supplying  the  contractor  with  labor  and  materials 
shall,  upon  application  therefor,  and  furnishing  affidavit  to  the  De- 
partment under  the  direction  of  which  said  work  has  been  prosecuted 
that  labor  or  materials  for  the  prosecution  of  such  work  has  been  sup- 
plied by  him  or  them,  and  payment  for  which  has  not  been  made,  be 
furnished  with  a  certified  copy  of  said  contract  and  bond,  upon  which 
he  or  they  shall  have  a  right  of  action,  and  shall  be,  and  are  hereby, 
authorized  to  bring  suit  in  the  name  of  the  United  States  in  the  cir- 
cuit court  of  the  United  States  in  the  district  in  which  said  contract 
was  to  be  performed  and  executed,  irrespective  of  the  amount  in  con- 
troversy in  such  suit,  and  not  elsewhere,  for  his  or  their  use  and 
benefit,  against  said  contractor  and  his  sureties,  and  to  prosecute  the 
same  to  final  judgment  and  execution:  Provided,  That  where  suit  is 
instituted  by  any  of  such  creditors  on  the  bond  of  the  contractor  it 
shall  not  be  commenced  until  after  the  complete  performance  of  said 
contract  and  final  settlement  thereof,  and  shall  be  commenced  within 
one  year  after  the  performance  and  final  settlement  of  said  contract, 


SUPPLEMENT.  1243 

and  not  later:  And  provided  further,  That  where  suit  is  so  instituted 
by  a  creditor  or  by  creditors,  only  one  action  shall  be  brought,  and 
any  creditor  may  file  his  claim  in  such  action  and  be  made  party 
thereto  within  one  year  from  the  completion  of  the  work  under  said 
contract,  and  not  later.  If  the  recovery  on  the  bond  should  be  inade- 
quate to  pay  the  amounts  found  due  to  all  of  said  creditors,  judgment 
shall  be  given  to  each  creditor  pro  rata  of  the  amount  of  the  recovery. 
The  surety  on  said  bond  may  pay  into  court,  for  distribution  among 
said  claimants  and  creditors,  the  full  amount  of  the  sureties'  liability, 
to  wit,  the  penalty  named  in  the  bond,  less  any  amount  which  said 
surety  may  have  had  to  pay  to  the  United  States  by  reason  of  the 
execution  of  said  bond,  and  upon  so  doing  the  surety  will  be  relieved 
from  further  liability :  Provided  further,  That  in  all  suits  instituted 
under  the  provisions  of  this  Act  such  personal  notice  of  the  pendency 
of  such  suits,  informing  them  of  their  right  to  intervene  as  the  court 
may  order,  shall  be  given  to  all  known  creditors,  and  in  addition 
thereto  notice  of  publication  in  some  newspaper  of  general  circula- 
tion, published  in  the  State  or  town  where  the  contract  is  being  per- 
formed, for  at  least  three  successive  weeks,  the  last  publication  to  be 
at  least  three  months  before  the  time  limited  therefor.  Act  of  Feb- 
ruary 24,  1905  (33  Stats.,  811}. 

(This  paragraph  amends  the  act  of  March  13,  1894,  28  Stats.,  278,  and  takes 
the  place  of  paragraph  1576.) 


CHAPTER  XXXIII. 

THE  PUBLIC  LANDS — MILITARY  RESERVATIONS — MILITARY  POSTS. 

HOMESTEADS. 

1587a.  The  rights  of  honorably  discharged  Union  soldiers  and  sail- 
ors of  the  late  civil  and  the  Spanish  war,  as  defined  and  described  in 
sections  twenty-three  hundred  and  four  and  twenty-three  hundred 
and  five  of  the  Revised  Statutes,1  as  amended  by  the  Act  of  March 

1  SEC.  2304,  R.  S.  Every  private  soldier  and  officer  who  has  served  in  the  Army 
of  the  United  States  during  the  recent  rebellion,  for  ninety  days,  and  who  was 
honorably  discharged,  and  has  remained  loyal  to  the  Government,  including  the 
troops  mustered  into  the  service  of  the  United  States  by  virtue  of  the  third 
section  of  an  act  approved  February  thirteenth,  eighteen  hundred  and  sixty-two, 
and  every  seaman,  marine,  and  officer  who  has  served  in  the  Navy  of  the 
United  States,  or  in  the  Marine  Corps,  during  the  rebellion,  for  ninety  days, 
and  who  was  honorably  discharged,  and  has  remained  loyal  to  the  Govern- 
ment, shall,  on  compliance  with  the  provisions  of  this  chapter,  as  hereinafter 
modified,  be  entitled  to  enter  upon  and  receive  patents  for  a  quantity  of  public 
lands  not  exceeding  one  hundred  and  sixty  acres,  or  one-quarter  section,  to 
be  taken  in  compact  form,  according  to  legal  subdivisions,  including  the  alter- 
nate reserved  sections  of  public  lands  along  the  line  of  any  railroad  or  other 
public  work,  not  otherwise  reserved  or  appropriated,  and  other  lands  subject 
to  entry  under  the  homestead  laws  of  the  United  States;  but  such  homestead 


1244  MILITARY   LAWS    OF    THE    UNITED    STATES. 

first,  nineteen  hundred  and  one,  shall  not  be  abridged.     Sec.  4-,  Act 
of  April  27, 1904  (33  Stats.,  322). 
(See  paragraphs  1586,  1587,  and  1592.) 

ACQUISITION  OF  LANDS  BY  THE  UNITED  STATES.        (PHILIPPINE  ISLANDS.) 

1599a.  All  the  property  and  rights  which  may  have  been  acquired 
in  the  Philippine  Islands  by  the  United  States  under  the  treaty  of 
peace  with  Spain,  signed  December  tenth,  eighteen  hundred  and 
ninety-eight,  except  such  land  or  other  property  as  shall  be  desig- 
nated by  the  President  of  the  United  States  for  military  and  other 
reservations  of  the  Government  of  the  United  States,  are  hereby 
placed  under  the  control  of  the  government  of  said  islands  to  be  ad- 
ministered for  the  benefit  of  the  inhabitants  thereof,  except  as  pro- 
vided is  this  Act.  Sec.  12,  Act  of  July  1, 1902  (32  Stats.,  695) . 

PUBLIC  LANDS    (PHILIPPINE   ISLANDS). 

1599b.  Whenever  it  shall  be  made  to  appear  to  the  secretary  of  any 
province  or  the  commander  of  any  military  department  in  the  Philip- 
pine Islands  that  any  lands  within  the  province  are  saline  in  character, 
it  shall  be  the  duty  of  said  provincial  secretary  or  commander,  under 
the  regulations  of  the  Government  of  the  Philippine  Islands,  to  take 
testimony  in  reference  to  such  lands,  to  ascertain  their  true  character, 
and  to  report  the  same  to  the  secretary  of  the  interior  for  the  Philip- 
pine Islands;  and  if,  upon  such  testimony,  the  secretary  of  the  in- 
terior shall  find  that  such  lands  are  saline  and  incapable  of  being  pur- 
chased under  any  of  the  laws  relative  to  the  public  domain,  then  and 
in  such  case  said  lands  shall  be  offered  for  sale  at  the  office  of  the 
provincial  secretary  or  such  other  officer  as  by  the  said  government  may 
be  described  as  mining  recorder  of  the  province  or  department  in  which 
the  same  shall  be  situated,  as  the  case  may  be,  under  such  regulations 
as  may  be  prescribed  by  said  Government  and  sold  to  the  highest 
bidder,  for  cash,  at  a  price  of  not  less  than  three  dollars  per  hectare; 
and  in  case  such  lands  fail  to  sell  when  so  offered,  then  the  same  shall 
be  subject  to  private  sale  at  such  office,  for  cash,  at  a  price  not  less 
than  three  dollars  per  hectare,  in  the  same  manner  as  other  lands  in 

settler  shall  be  allowed  six  months  after  locating  his  homestead,  and  filing  his 
declaratory  statement,  within  which  to  make  his  entry  and  commence  his 
settlement  and  improvement. 

SEC.  2305,  R.  S.  The  time  which  the  homestead  settler  has  served  in  the 
Army,  Navy,  or  Marine  Corps  shall  be  deducted  from  the  time  heretofore  re- 
quired to  perfect  title,  or  if  discharged  on  account  of  wounds  received  or 
disability  incurred  in  the  line  of  duty,  then  the  term  of  enlistment  shall  be 
deducted  from  the  time  heretofore  required  to  perfect  title,  without  reference  to 
the  length  of  time  he  may  have  served  ;  but  no  patent  shall  issue  to  any  homestead 
settler  who  has  not  resided  upon,  improved,  and  cultivated  his  homestead  for  a 
period  of  at  least  one  year  after  he  shall  have  commenced  his  improvements. 


SUPPLEMENT.  1245 

the  said  Islands  are  sold.  All  executive  proclamations  relating  to  the 
sales  of  public  saline  lands  shall  be  published  in  only  two  newspapers, 
one  printed  in  the  English  language  and  one  in  the  Spanish  language, 
at  Manila,  which  shall  be  designated  by  said  Secretary  of  the  interior. 
Sec.  58,  Act  of  July  1,  1902  (32  Stats.,  705). 

1599c.  Whenever  it  shall  be  made  to  appear  to  the  secretary  of  any 
province  or  the  commander  of  any  military  department  in  the  Philip- 
pine Islands  that  any  lands  within  the  province  are  saline  in  charac- 
ter, it  shall  be  the  duty  of  said  provincial  secretary  or  commander, 
under  the  regulations  of  the  government  of  the  Philippine  Islands, 
to  take  testimony  in  reference  to  such  lands,  to  ascertain  their  true 
character,  and  to  report  the  same  to  the  secretary  of  the  interior  for 
the  Philippine  Islands;  and  if  upon  such  testimony  the  secretary  of 
the  interior  shall  find  that  such  lands  are  saline  and  incapable  of  be- 
ing purchased  under  any  of  the  laws  relative  to  the  public  domain, 
then  and  in  such  case  said  lands  shall  be  offered  for  sale  at  the  office 
of  the  provincial  secretary,  or  such  other  officer  as  by  the  said  govern- 
ment may  be  described  as  mining  recorder  of  the  province  or  depart- 
ment in  which  the  same 'shall  be  situated,  as  the  case  may  be,  under 
such  regulations  as  may  be  prescribed  by  said  government  and  sold  to 
the  highest  bidder  for  cash  at  a  price  of  not  less  than  six  pesos  per 
hectare;  and  in  case  such  lands  fail  to  sell  when  so  offered,  then  the 
same  shall  be  subject  to  private  sale  at  such  office,  for  cash,  at  a  price 
not  less  than  six  pesos  per  hectare,  in  the  same  manner  as  other  lands 
in  the  said  islands  are  sold.  All  executive  proclamations  relating  to 
the  sales  of  public  saline  lands  shall  be  published  in  only  two  news- 
papers, one  printed  in  the  English  language  and  one  in  the.  Spanish 
language,  at  Manila,  which  shall  be  designated  by  said  secretary  of 
the  interior.  Sec.  9,  Act  of  February  6, 1905  (33  Stats.,  697) . 

(This  paragraph  amends  section  58  of  the  act  of  July  1,  1902,  and  takes  the 
place  of  paragraph  1599&.) 

ACKNOWLEDGMENT  OF  DEEDS. 

1599d,  Deeds  and  other  instruments  affecting  land  situate  in  the 
District  of  Columbia  or  any  Territory  of  the  United  States  may  be 
acknowledged  in  the  islands  of  Guam  and  Samoa  or  in  the  Canal 
Zone  before  any  notary  public  or  judge,  appointed  therein  by  proper 
authority,  or  by  any  officer  therein  who  has  ex  officio  the  powers  of  a 
notary  public :  Provided,  That  the  certificate  by  such  notary  in 
Guam,  Samoa,  or  the  Canal  Zone,  as  the  case  may  be,  shall  be  accom- 
panied by  the  certificate  of  the  governor  or  acting  governor  of  such 
place  to  the  effect  that  the  notary  taking  said  acknowledgment  was  in 
fact  the  officer  he  purported  to  be;  and  any  deeds  or  other  instru- 
ments affecting  lands  so  situate,  so  acknowledged  since  the  first  day 


1246  MILITARY    LAWS    OF    THE    UNITED    STATES. 

of  January,  nineteen  hundred  and  five,  and  accompanied  by  such  cer- 
tificate shall  have  the  same  effect  as  such  deeds  or  other  instruments 
hereafter  so  acknowledged  and  -certified.  Act  of  June  28,  1906  (34 
Stats.,  552). 

RUINS  OR   MONUMENTS. 

1614a.  Any  person  who  shall  appropriate,  excavate,  injure,  or  de- 
stroy any  historic  or  prehistoric  ruin  or  monument,  or  any  object  of 
antiquity,  situated  on  lands  owned  or  controlled  by  the  Government 
of  the  United  States,  without  the  permission  of  the  Secretary  of  the 
Department  of  the  Government  having  jurisdiction  over  the  lands 
on  which  said  antiquities  are  situated,  shall,  upon  conviction,  be 
fined  in  a  sum  of  not  more  than  five  hundred  dollars  or  be  imprisoned 
for  a  period  of  not  more  than  ninety  days,  or  shall  suffer  both  fine 
and  imprisonment,  in  the  discretion  of  the  court.  Sec.  1,  Act  of  June 
8,1906  (34  Stats.,  225) . 

1614b.  The  President  of  the  United  States  is  hereby  authorized,  in 
his  discretion,  to  declare  by  public  proclamation  historic  landmarks, 
historic  and  prehistoric  structures,  and  other  objects  of  historic  or 
scientific  interest  that  are  situated  upon  the  lands  owned  or  con- 
trolled by  the  Government  of  the  United  States  to  be  national  monu- 
ments, and  may  reserve  as  a  part  thereof  parcels  of  land,  the  limits 
of  which  in  all  cases  shall  be  confined  to  the  smallest  area  compati- 
ble with  the  proper  care  and  management  of  the  objects  to  be  pro- 
tected: Provided,  That  when  such  objects  are  situated  upon  a  tract 
covered  by  a  bona  fide  unperfected  claim  or  held  in  private  owner- 
ship, the  tract,  or  so  much  thereof  as  may  be  necessary  for  the  proper 
care  and  management  of  the  object,  may  be  relinquished  to  the  Gov- 
ernment, and  the  Secretary  of  the  Interior  is  hereby  authorized  to 
accept  the  relinquishment  of  such  tracts  in  behalf  of  the  Government 
of  the  United  States.  Sec.  2,  Act  of  June  8, 1906  (34  Stats.,  225) . 

1614c.  Permits  for  the  examination  of  ruins,  the  excavation  of 
archaeological  sites,  and  the  gathering  of  objects  of  antiquity  upon 
the  lands  under  their  respective  jurisdictions  may  be  granted  by  the 
Secretaries  of  the  Interior,  Agriculture,  and  War  to  institutions 
which  they  may  deem  properly  qualified  to  conduct  such  examina- 
tion, excavation,  or  gathering,  subject  to  such  rules  and  regulations 
as  they  may  prescribe :  Provided,  That  the  examinations,  excavations, 
and  gatherings  are  undertaken  for  the  benefit  of  reputable  museums, 
universities,  colleges,  or  other  recognized  scientific  or  educational 
institutions,  with  a  view  to  increasing  the  knowledge  of  such  objects, 
and  that  the  gatherings  shall  be  made  for  permanent  preservation  in 
public  museums.  Sec.  3,  Act  of  June-8, 1906  (34  Stats.,  225) . 

1614d.  The  Secretaries  of  the  Departments  aforesaid  shall  make 
and  publish  from  time  to  time  uniform  rules  and  regulations  for  the 


SUPPLEMENT.  1247 

purpose  of  carrying  out  the  provisions  of  this  Act.     Sec.  4?  Act  of 
June  8, 1906  (34  Stats.,  22-1}. 

MILITARY  POSTS. 

1621a.  Hereafter  no  military  post  within  the  United  States  shall  be 
established  without  the  express  authority  of  Congress.  Act  of  March 

2,1905  (33  Stats.,  836}. 

HAWAII. 

1625a.  The  Secretary  of  War  is  authorized  to  acquire  leases  in  such 
lands  in  Hawaii  as  have  been  set  aside  for  purposes  of  a  military  post. 
Act  of  June  28, 1902  (32  Stats.,  464). 


CHAPTEK    XXXIV. 

THE  PUBLIC  PROPERTY. 

DEFICIENCY  IN,  AND  DAMAGE  TO,  PUBLIC  PROPERTY. 

1640a.  Hereafter  moneys  arising  from  deductions  made  from  car- 
riers on  account  of  the  loss  of  or  damage  to  military  stores  in  transit 
shall  be  credited  to  the  proper  appropriation  or  funds  out  of  which 
such  or  similar  stores  shall  be  replaced  and  individual  pieces  of 
United  States  armament  which  are  not  needed  on  account  of  histor- 
ical value,  and  can  be  advantageously  replaced,  may  be  sold  at  a  price 
no£  less  than  their  cost  price,  when  there  exist  for  such  sale  senti- 
mental reasons  adequate  in  the  judgment  of  the  Secretary  of  War  or 
Secretary  of  the  Navy.  Act  of  March  2, 1905  (33  Stats.,  840) . 

(See  paragraphs  1178  and  llSla.) 


CHAPTEE  XXXV. 

THE  MILITIA — THE  MILITIA  OF  THE  DISTRICT  OF  COLUMBIA — THE 

TERRITORIAL  MILITIA. 

COMPOSITION  AND  ENROLLMENT. 

1650a,  Sections  sixteen  hundred  and  twenty-five  to  sixteen  hundred 
and  sixty,  both  included,  of  title  sixteen  of  the  Revised  Statutes,  and 
section  two  hundred  and  thirty-two  therof,  relating  to  the  militia, 
are  hereby  repealed.  Sec.  25,  Act  of  January  21,  1903  (32  Stats., 
780). 

(This  paragraph  repeals  paragraphs  133,  1651  to  1690,  both  inclusive,  and 
paragraphs  2020  to  2022,  both  inclusive.) 


1248  MILITARY   LAWS    OF    THE    UNITED    STATES. 

1651a.  The  militia  shall  consist  of  every  able-bodied  male  citizen  of 
the  respective  States,  Territories,  and  the  District  of  Columbia,  and 
every  able-bodied  male  of  foreign  birth  who  has  declared  his  intention 
to  become  a  citizen,  who  is  more  than  eighteen  and  less  than  forty-five 
years  of  age.  Sec.  1,  Act  of  January  21, 1903  (32  Stats.,  775) . 

(This  and  the  following  paragraph  take  the  place  of  the  paragraph  repealed 
by  the  act  of  January  21,  1903  (32  Stats.,  775).  See  paragraphs  1650a  and 
1707.) 

1651b.  [The  militia]  shall  be  divided  into  two  classes — the  organ- 
ized militia,  to  be  known  as  the  National  Guard  of  the  State,  Terri- 
tory, or. District  of  Columbia,  or  by  such  other  designations  as  may 
be  given  them  by  the  laws  of  the  respective  States  or  Territories,  and 
the  remainder  to  be  known  as  the  Reserve  Militia.  Sec.  1,  Act  of 
January  21, 1903  (32  Stats.,  775). 

EXEMPTIONS. 

1655a.  The  Vice-President  of  the  United  States,  the  officers,  judi- 
cial and  executive,  of  the  Government  of  the  United  States,  the  mem- 
bers and  officers  of  each  House  of  Congress,  persons  in  the  military  or 
naval  service  of  the  United  States,  all  custom-house  officers,  with 
their  clerks,  postmasters  and  persons  employed  by  the  United  States 
in  the  transmission  of  the  mail,  ferrymen  employed  at  any  ferry  on 
a  post  road,  artificers  and  workmen  employed  in  the  armories  and  ar- 
senals of  the  United  States,  pilots,  mariners  actually  employed  in  the 
sea  service  of  any  citizen  or  merchant  within  the  United  States,  and 
all  persons  who  are  exempted  by  the  laws  of  the  respective  States  or 
Territories  shall  be  exempted  from  militia  duty,  without  regard  to 
age.  Sec.  2,  Act  of  January  21,  1903  (32  Stats.,  775). 

(See  paragraph  1708.) 

1655b.  Nothing  in  this  Act  shall  be  construed  to  require  or  compel 
any  member  of  any  well-recognized  religious  sect  or  organization  at 
present  organized  and  existing  whose  creed  forbids  its  members  to 
participate  in  war  in  any  form,  and  whose  religious  convictions  are 
against  war  or  participation  therein,  in  accordance  with  the  creed  of 
said  religious  organization,  to  serve  in  the  militia  or  any  other  armed 
or  volunteer  force  under  the  jurisdiction  and  authority  of  the  United 
States.  Sec.  2,  Act  of  January  21, 1903  (32  Stats.,  775). 

ORGANIZATION. 

1656a.  The  regularly  enlisted,  organized,  and  uniformed  active 
militia  in  the  several  States  and  Territories  and  the  District  of  Co- 
lumbia who  have  heretofore  participated  or  shall  hereafter  partici- 


SUPPLEMENT.  1249 

pate  in  the  apportionment  of  the  annual  appropriation  provided 
by  section  sixteen  hundred  and  sixty-one  of  the  Revised  Statutes  of 
the  United  States,  as  amended,  whether  known  and  designated  as 
National  Guard,  militia,  or  otherwise,  shall  constitute  the  organized 
militia.  The  organization,  armament,  and  discipline  of  the  organ- 
ized militia  in  the  several  States  and  Territories  and  in  the  District 
of  Columbia  shall  be  the  same  as  that  which  is  now  or  may  hereafter 
be  prescribed  for  the  Regular  and  Volunteer  Armies  of  the  United 
States,  within  five  years  from  the  date  of  the  approval  of  this  Act. 
Sec.  3,  Act  of  January  21, 1903  (32  Stats.,  775}. 
(See  paragraph  1717.) 

1657a.  The  President  of  the  United  States,  in  time  of  peace,  may 
by  order  fix«the  minimum  number  of  enlisted  men  in  each  company, 
troop,  battery,  signal  corps,  engineer  corps,  and  hospital  corps.  Sec. 
3,  Act  of  January  21, 1903  (32  Stats.,  775}. 

(See  paragraph  1718.) 

1661a.  Any  corps  of  artillery,  cavalry  and  infantry  existing  in  any 
of  the  States  at  the  passage  of  the  Act  of  May  eighth,  seventeen  hun- 
dred and  ninety-two,  which,  by  the  laws,  customs  or  usages  of  the 
said  States  have  been  in  continuous  existence  since  the  passage  of 
said  Act  under  its  provisions  and  under  the  provisions  of  Section 
two  hundred  and  thirty-two  and  Sections  sixteen  hundred  and 
twenty-five  to  sixteen  hundred  and  sixty,  both  inclusive,  of  Title  six- 
teen of  the  Revised  Statutes  of  the  United  States  relating  to  the  Mi- 
litia, shall  be  allowed  to  retain  their  accustomed  privileges,  subject, 
nevertheless,  to  all  other  duties  required  by  law  in  like  manner  as 
the  other  Militia.  Sec.  3,  Act  of  January  21,  1903  (32  Stats.,  775}. 

INSTRUCTION    AND   DISCIPLINE. 

1662a.  The  Secretary  of  War  is  hereby  authorized  to  provide  for 
participation  by  any  part  of  the  organized  militia  of  any  State  or 
Territory  on  the  request  of  the  governor  thereof  in  the  encampment, 
maneuvers,  and  field  instruction  of  any  part  of  the  Regular  Army  at 
o»  near  any  military  post  or  camp  or  lake  or  seacoast  defenses  of  the 
United  States.  In  such  case  the  organized  militia  so  participating 
shall  receive  the  same  pay,  subsistence,  and  transportation  as  is  pro- 
vided by  law  for  the  officers  and  men  of  the  Regular  Army,  to  be  paid 
out  of  the  appropriation  for  the  pay,  subsistence,  and  transportation 
of  the  Army :  Pro  vided,  That  the  command  of  such  military  post  or 
camp  and  of  the  officers  and  troops  of  the  United  States  there  sta- 
tioned shall  remain  with  the  regular  commander  of  the  post  without 
regard  to  the  rank  of  the  commanding  or  other  officers  of  the  militia 

22024 — 08 79 


1250  MILITARY   LAWS    OF    THE    UNITED    STATES. 


temporarily  so  encamped  within  its  limits  or  in  its  vicinity.  Sec.  15, 
Act  of  January  21, 1903  (32  Stats.,  777). 

1662b.  No  part  of  the  sums  appropriated  for  the  support  of  the 
Regular  Army  shall  be  used  to  pay  any  part  of  the  expenses  of  the 
organized  militia  of  any  State,  Territory,  or  District  of  Columbia, 
while  engaged  in  joint  encampment,  maneuvers,  and  field  instruction 
of  the  Regular  Army  and  militia  as  provided  by  section  fifteen  of  the 
Act  of  January  twenty-first,  nineteen  hundred  and  three,  entitled 
"  An  Act  to  promote  the  efficiency  of  the  militia,  and  for  other  pur- 
poses." Act  of  April  23, 1904  (33  Stats.,  265). 

1662c.  Each  State  or  Territory  furnished  with  material  of  war 
under  the  provisions  of  this  or  former  Acts  of  Congress  shall,  dur- 
ing the  year  next  preceding  each  annual  allotment  of  funds,  in  accord- 
ance with  section  sixteen  hundred  and  sixty-one  of  the  Revised  Stat- 
utes as  amended,  have  required  every  company,  troop,  and  battery 
in  its  organized  militia  not  excused  by  the  governor  of  such  State  or 
Territory  to  participate  in  practice  marches  or  go  into  camp  of  in- 
struction at  least  five  consecutive  days,  and  to  assemble  for  drill  and 
instruction  at  company,  battalion,  or  regimental  armories  or  rendez- 
vous or  for  target  practice  not  less  than  twenty-four  times,  and  shall 
also  have  required  during  such  year  an  inspection  of  each  such  com- 
pany, troop,  and  battery  to  be  made  by  an  officer  of  such  militia  or 
an  officer  of  the  Regular  Army.  Sec.  18,  Act  of  January  21, 1903  (32 
Stats.,  778). 

1662d.  Upon  the  application  of  the  governor  of  any  State  or  Terri- 
tory furnished  with  material  of  war  under  the  provisions  of  this  Act 
or  former  laws  of  Congress,  the  Secretary  of  War  may  detail  one  or 
more  officers  of  the  Army  to  attend  any  encampment  of  the  organ- 
ized militia,  and  to  give  such  instruction  and  information  to  the  offi- 
cers and  men  assembled  in  such  camp  as  may  be  requested  by  the  gov- 
ernor. Such  officer  or  officers  shall  immediately  make  a  report  of 
such  encampment  to  the  Secretary  of  War,  who  shall  furnish  a  copy 
thereof  to  the  governor  of  the  State  or  Territory.  Sec.  19,  Act  of 
January  21, 1903  (32  Stats.,  778). 

1662e.  Upon  application  of  the  governor  of  any  State  or  Territory 
furnished  with  material  of  war  under  the  provisions  of  this  Act  or 
former  laws  of  Congress,  the  Secretary  of  War  may,  in  his  discretion^ 
detail  one  or  more  officers  of  the  Army  to  report  to  the  governor  of 
such  State  or  Territory  for  duty  in  connection  with  the  organized 
militia.  All  such  assignments  may  be  revoked  at  the  request  of  the 
governor  of  such  State  or  Territory  or  at  the  pleasure  of  the  Secretary 
of  War.  Sec.  20,  Act  of  January  21, 1903  (32  Stats.,  779) . 

1662f.  Hereafter  when  any  portion  of  the  organized  militia  of  any 
State,  Territory,  or  the  District  of  Columbia  participates  in  the  en- 
campment, maneuvers,  and  field  instruction  of  any  part  of  the  Regular 


SUPPLEMENT.  1251 

Army,  under  the  provisions  of  section  fifteen  of  the  Act  of  January 
twenty-first,  nineteen  hundred  and  three,  they  may,  after  being  duly 
mustered  by  an  officer  of  the  Regular  Army,  be  paid  at  any  time  after 
such  muster  for  the  period  from  the  date  of  leaving  the  home  rendez- 
vous to  date  of  return  thereto  as  determined  in  advance,  both  dates 
inclusive,  and  such  payment,  if  otherwise  correct,  shall  pass  to  the 
credit  of  the  paymaster  making  the  same.  Act  of  June  12,  1906  (3%, 
Stats.,  249). 

1663a.  Whenever  any  officer  of  the  organized  militia  shall,  upon 
recommendation  of  the  governor  of  any  State,  Territory,  or  general 
commanding  the  District  of  Columbia,  and  when  authorized  by  the 
President,  attend  and  pursue  a  regular  course  of  study  at  any  military 
school  or  college  of  the  United  States  such  officer  shall  receive  from  the 
annual  appropriation  for  the  support  of  the  Army  the  same  travel 
allowances,  and  quarters,  or  commutation  of  quarters,  to  which  an 
officer  of  the  Regular  Army  would  be  entitled  if  attending  such  school 
or  college  under  orders  from  proper  military  authority,  and  shall  also 
receive  commutation  of  subsistence  at  the  rate  of  one  dollar  per  day 
while  in  actual  attendance  upon  the  course  of  instruction.  Sec.  16, 
Act  of  January  12,  1903  (32  Stats.,  778) . 

RETURNS. 

1664a.  There  shall  be  appointed  in  each  State,  Territory  and  Dis- 
trict of  Columbia,  an  Adjutant-General,  who  shall  perform  such  duties 
as  may  be  prescribed  by  the  laws  of  such  State,  Territory,  and  District, 
respectively,  and  make  returns  to  the  Secretary  of  War,  at  such  times 
and  in  such  form  as  he  shall  from  time  to  time  prescribe,  of  the 
strength  of  the  organized  militia,  and  also  make  such  reports  as  may 
from  time  to  time  be  required  by  the  Secretary  of  War.  That  the 
Secretary  of  War  shall,  with  his  annual  report  of  each  year,  transmit 
to  Congress  an  abstract  of  the  returns  and  reports  of  the  adjutants- 
general  of  the  States,  Territories,  and  the  District  of  Columbia,  with 
such  observations  thereon  as  he  may  deem  necessary  for  the  informa- 
tion of  Congress.  Sec.  12,  Act  of  January  21, 1903  (32  Stats.,  776) . 

(See  paragraphs  1715  and  1716.) 

ACTIVE   SERVICE   OF   THE   MILITIA. 

1669a.  Whenever  the  United  States  is  invaded,  or  in  danger  of 
invasion  from  any  foreign  nation,  or  of  rebellion  against  the  authority 
of  the  Government  of  the  United  States,  or  the  President  is  unable, 
with  the  other  forces  at  his  command,  to  execute  the  laws  of  the  Union 
in  any  .part  thereof,  it  shall  be  lawful  for  the  President  to  call  forth, 
for  a  period  not  exceeding  nine  months,  such  number  of  the  militia  of 


1252  MILITARY   LAWS    OF    THE    UNITED    STATES. 

the  State  or  of  the  States  or  Territories  or  of  the  District  of  Columbia 
as  he  may  deem  necessary  to  repel  such  invasion,  suppress  such  rebel- 
lion, or  to  enable  him  to  execute  such  laws,  and  to  issue  his  orders  for 
that  purpose  to  such  officers  of  the  militia  as  he  may  think  proper. 
Sec.  4,  Act  of  January  21, 1903  (32  Stats.,  776). 

(See  paragraph  1711.) 

1670a.  When  the  militia  of  more  than  one  State  is  called  into  the 
actual  service  of  the  United  States  by  the  President  he  may,  in  his  dis- 
cretion, apportion  them  among  such  States  or  Territories  or  to  the 
District  of  Columbia  according  to  representative  population.  Sec.  6, 
Act  of  January  21, 1903  (32  Stats.,  776). 

1671a.  The  militia,  when  called  into  the  actual  service  of  the  United 
States,  shall  be  subject  to  the  same  Rules  and  Articles  of  War  as  the 
regular  troops  of  the  United  States.  Sec.  9,  Act  of  January  21, 1903 
(32  Stats.,  776). 

1672a.  Courts-martial  for  the  trial  of  officers  or  men  of  the  militia, 
when  in  the  service  of  the  United  States,  shall  be  composed  of  militia 
officers  only.  Sec.  8,  Act  of  January  21, 1903  (32  Stats.,  776) . 

1673a.  Whenever  the  President  calls  forth  the  militia  of  any  State 
or  Territory  or  of  the  District  of  Columbia  to  be  employed  in  the 
service  of  the  United  States,  he  may  specify  in  his  call  the  period  for 
which  such  service  is  required,  not  exceeding  nine  months,  and  the 
militia  so  called  shall  continue  to  serve  during  the  term  so  specified, 
unless  sooner  discharged  by  order  of  the  President.  Sec.  5,  Act  of 
January  21, 1903  (32  Stat.,  776). 

(See  paragraph  1711.) 

1674a.  Every  officer  and  enlisted  man  of  the  militia  who  shall  be 
called  forth  in  the  manner  hereinbefore  prescribed  and  shall  be  found 
fit  for  military  service  shall  be  mustered  or  accepted  into  the  United 
States  service  by  a  duly  authorized  mustering  officer  of  the  United 
States:  Provided,  however,  That  any  officer  or  enlisted  man  of  the 
militia  who  shall  refuse  or  neglect  to  present  himself  to  such  mus- 
tering officer  upon  being  called  forth  as  herein  prescribed  shall  be 
subject  to  trial  by  court-martial,  and  shall  be  punished  as  such  court- 
martial  may  direct.  Sec.  7,  Act  of  January  21, 1903  (32  Stats.,  776) . 

(See  paragraph  1711.) 

PAY,    KATIONS,   EMOLUMENTS. 

1681a.  The  militia,  when  called  into  the  actual  service  of  the 
United  States,  shall,  during  their  time  of  service,  be  entitled  to  the 
same  pay  and  allowances  as  are  or  may  be  provided  by  law  for  the 
Regular  Army.  Sec.  10,  Act  of  January  21,  1903  (32  Stats.,  776). 


SUPPLEMENT.  1253 

1683a.  When  the  militia  is  called  into  the  actual  service  of  the 
United  States,  or  any  portion  of  the  militia  is  accepted  under  the  pro- 
visions of  this  Act,  their  pay  shall  commence  from  the  day  of  their 
appearing  at  the  place  of  company  rendezvous.  But  this  provision 
shall  not  be  construed  to  authorize  any  species  of  expenditure  previ- 
ous to  arriving  at  such  places  of  rendezvous  which  is  not  provided  by 
existing  laws  to  be  paid  after  their  arrival  at  such  places  of  rendez- 
vous. Sec.  11,  Act  of  January  21, 1903  (32  Stats.,  776). 

PENSIONS. 

1687a.  When  any  officer,  noncommissioned  officer,  or  private  of  the 
militia  is  disabled  by  reason  of  wounds  or  disabilities  received  or 
incurred  in  the  service  of  the  United  States  he  shall  be  entitled  to  all 
the  benefits  of  the  pension  laws  existing  at  the  time  of  his  service,  and 
in  case  such  officer,  noncommissioned  officer,  or  private  dies  in  the 
service  of  the  United  States  or  in  returning  to  his  place  of  residence 
after  being  mustered  out  of  such  service,  or  at  any  time,  in  conse- 
quence of  wounds  or  disabilities  received  in  such  service,  his  widow 
and  children,  if  any,  shall  be  entitled  to  all  the  benefits  of  such  pension 
laws.  Sec.  22,  Act  of  January  21, 1903  (32  Stats.,  779) . 

ARMAMENT   AND    EQUIPMENT. 

169 la.  The  sum  of  two  million  dollars  is  hereby  annually  appro- 
priated, to  be  paid  out  of  any  money  in  the  Treasury  not  otherwise 
appropriated,  for  the  purpose  of  providing  arms,  ordnance  stores, 
quartermaster  stores,  and  camp  equipage  for  issue  to  the  militia,  such 
appropriation  to  remain  available  until  expended.  Sec.  1,  Act  of 
June  22,  1906  (34  Stats.,  449). 

(This  paragraph  reenacts  and  amends  section  1661  of  the  Revised  Statutes, 
as  amended  by  the  acts  of  February  12,  1887,  and  June  6,  1900.  See  paragraph 
1691.) 

169 lb.  Said  appropriation  shall  be  apportioned  among  the  several 
States  and  Territories,  under  the  direction  of  the  Secretary  of  War, 
according  to  the  number  of  Senators  and  Representatives  to  which 
each  State  respectively  is  entitled  in  the  Congress  of  the  United 
States,  and  to  the  Territories  and  District  of  Columbia  such  propor- 
tion and  under  such  regulations  as  the  President  may  prescribe :  Pro- 
vided, however,  That  no  State  shall  be  entitled  to  the  benefits  of  the 
appropriation  apportioned  to  it  unless  the  number  of  its  regularly 
enlisted,  organized,  and  uniformed  active  militia  shall  be  at  least  one 
hundred  men  for  each  Senator  and  Representative  to  which  such  State 
is  entitled  in  the  Congress  of  the  United  States.  And  the  amount  of 
said  appropriation  which  is  thus  determined  not  to  be  available  shall 


1254  MILITAKY   LAWS    OF    THE    UNITED    STATES. 

be  covered  back  into  the  Treasury :  Provided  also,  That  the  sums  so 
apportioned  among  the  several  States  and  Teritories  and  the  District 
of  Columbia  shall  be  available  for  the  purpose  named  in  section  four- 
teen of  the  Act  of  January  twenty-first,  nineteen  hundred  and  three, 
for  the  actual  excess  of  expenses  of  travel  in  making  the  inspections 
therein  provided  for  over  the  allowances  made  for  same  by  law ;  for 
the  promotion  of  rifle  practice,  including  the  acquisition,  construction, 
maintenance,  and  equipment  of  shooting  galleries  and  suitable  target 
ranges;  for  the  hiring  of  horses  and  draft  animals  for  the  use  of 
mounted  troops,  batteries,  and  wagons;  for  forage  for  the  same  and 
for  such  other  incidental  expenses  in  connection  with  encampments, 
maneuvers,  and  field  instruction  provided  for  in  sections  fourteen  and 
fifteen  of  the  said  Act  of  January  twenty-first,  nineteen  hundred  and 
three,  as  the  Secretary  of  War  may  deem  necessary.  Sec.  2,  Act  of 
June  22,  1906  (34  Stats.,  449). 

(This  paragraph  reenacts  and  amends  section  2  of  the  act  of  February  12, 
1887.  See  paragraph  1693.) 

1692a.  The  annual  appropriation  made  by  section  sixteen  hundred 
and  sixty-one,  Revised  Statutes,  as  amended,  shall  be  available  for 
the  purpose  of  providing  for  issue  to  the  organized  militia  any  stores 
and  supplies  or  publications  which  are  supplied  to  the  Army  by  any 
department.  Any  State,  Territory,  or  the  District  of  Columbia  may, 
with  the  approval  of  the  Secretary  of  War,  purchase  for  cash  from 
the  War  Department,  for  use  of  its  militia,  stores,  supplies,  material 
of  war,  or  military  publications,  such  as  are  furnished  to  the  Army, 
in  addition  to  those  issued  under  the  provisions  of  this  Act,  at  the 
price  at  which  they  are  listed  for  issue  to  the  Army,  with  the  cost  of 
transportation  added,  and  funds  received  from  such  sales  shall  be 
credited  to  the  appropriations  to  which  they  belong  and  shall  not  be 
covered  into  the  Treasury,  but  shall  be  available  until  expended  to 
replace  therewith  the  supplies  sold  to  the  State  and  Territories  and 
to  the  District  of  Columbia  in  the  manner  herein  provided.  Sec.  17, 
Act  of  January  21,  1903  (32  Stats.,  778). 

(See  paragraph  277,  1691-1693.) 

1692b.  The  sums  hereby  appropriated  for  the  expenses  of  the  or- 
ganized militia  for  such  joint  encampment,  maneuvers,  and  field  in- 
struction shall  be  disbursed  as,  and  for  that  purpose  shall  constitute, 
one  fund ;  and  the  Secretary  of  War  shall  hereafter  forward  to  Con- 
gress at  its  next  session  a  detailed  statement  of  the  expenses  of  such 
encampments  and  maneuvers.  Act  of  April  23,.  1904  (33  Stats.,  265). 

(This  paragraph  relates  to  the  joint  encampment,  etc.,  provided  for  by  sec- 
tions 15  and  21  of  the  act  of  January  21,  1903.  See  paragraphs  1662a  and 
1699a.) 


SUPPLEMENT.  1255 

1693a.  Whenever  it  shall  appear  by  the  report  of  inspections,  which 
it  shall  be  the  duty  of  the  Secretary  of  War  to  cause  to  be  made  at 
least  once  in  each  year  by  officers  detailed  by  him  for  that  purpose, 
that  the  organized  militia  of  a  State  or  Territory  or  of  the  District  of 
Columbia  is  sufficiently  armed,  uniformed,  and  equipped  for  active 
duty  in  the  field,  the  Secretary  of  War  is  authorized,  on  the  requisi- 
tion of  the  governor  of  such  State  or  Territory,  to  pay  to  the  quarter- 
master-general thereof,  or  to  such  other  officer  of  the  militia  of  said 
State  as  the  said  governor  may  designate  and  appoint  for  the  pur- 
pose, so  much  of  its  allotment  out  of  the  said  annual  appropriation 
under  section  sixteen  hundred  and  sixty-one  of  the  Revised  Statutes 
as  amended  as  shall  be  necessary  for  the  payment,  subsistence,  and 
transportation  of  such  portion  of  said  organized  militia  as  shall  en- 
gage in  actual  field  or  camp  service  for  instruction,  and  the  officers 
and  enlisted  men  of  such  militia  while  so  engaged  shall  be  entitled 
to  the  same  pay,  subsistence,  and  transportation  or  travel  allowances 
as  officers  and  enlisted  men  of  corresponding  grades'  of  the  Regular 
Army  are  or  may  hereafter  be  entitled  by  law,  and  the  officer  so  des- 
ignated and  appointed  shall  be  regarded  as  a  disbursing  officer  of  the 
United  States,  and  shall  render  his  accounts  through  the  War  De- 
partment to  the  proper  accounting  officers  of  the  Treasury  for  settle- 
ment, and  he  shall  be  required  to  give  good  and  sufficient  bonds  to 
the  United  States,  in  such  sums  as  the  Secretary  of  War  may  direct, 
faithfully  to  account  for  the  safe-keeping  and  payment  of  the  public 
moneys  so  intrusted  to  him  for  disbursement.  Sec.  14,  Act  of  Jan- 
uary 81,  1903  (32  Stats.,  777). 

(See  paragraph  1693.) 

1694a.  The  purchase  or  manufacture  of  arms,  ordnance  stores, 
quartermaster  stores,  and  camp  equipage  for  the  militia  under  the 
provisions  of  this  Act  shall  be  made  under  the  direction  of  the  Secre- 
tary of  War,  as  such  arms,  ordnance  and  quartermaster  stores,  and 
camp  equipage  are  now  manufactured  or  otherwise  provided  for  the 
use  of  the  Regular  Army,  and  they  shall  be  receipted  for  and  shall 
remain  the  property  of  the  United  States,  and  be  annually  accounted 
for  by  the  governors  of  the  States  and  Territories  and  by  the  com- 
manding general  of  the  National  Guard  of  the  District  of  Columbia, 
for  which  purpose  the  Secretary  of  War  shall  prescribe  and  supply 
the  necessary  blanks  and  make  such  regulations  as  he  may  deem  nec- 
essary to  protect  the  interests  of  the  United  States.  Sec.  3,  Act  of 
June  £0,  1906  (34  Stats.,  450). 

(This  paragraph  reenacts  and  amends  section  3  of  the  act  of  February  12, 
1887.  See  paragraph  1694.) 

1696a.  Whenever  any  property  furnished  to  any  State  or  Territory, 
or  the  District  of  Columbia,  as  hereinbefore  provided,  has  been 


1256  MILITARY   LAWS    OF    THE    UNITED    STATES. 

lost  or  destroyed,  or  has  become  unserviceable  or  unsuitable  from 
use  in  service,  or  from  any  other  cause,  it  shall  be  examined  by  a  dis- 
interested surveying  officer  of  the  organized  militia,  to  be  appointed 
by  the  governor  of  the  State  or  Territory,  or  the  commanding  gen- 
eral 'of  the  National  Guard  of  the  District  of  Columbia,  to,  whom 
the  property  has  been  issued,  and  his  report  shall  be  forwarded  by 
said  governor  or  commanding  general  direct  to  the  Secretary  of  War, 
and  if  it  shall  appear  to  the  Secretary  of  War  from  the  record  of  sur- 
vey that  the  property  has  been  lost  or  destroyed  through  unavoidable 
causes,  he  is  hereby  authorized  to  relieve  the  State  from  further  ac- 
countability therefor;  if  it  shall  appear  that  the  loss  or  destruction 
of  property  was  due  to  carelessness  or  neglect  or  that  its  loss  could 
have  been  avoided  by  the  exercise  of  reasonable  care,  the  money  value 
thereof  shall  be  charged  against  the  allotment  to  the  States  under 
section  sixteen  hundred  and  sixty-one  of  the  Revised  Statutes  as 
amended.  If  the  articles  so  surveyed  are  found  to  be  unserviceable 
or  unsuitable,  the  Secretary  of  War  shall  direct  what  disposition,  by 
sale  or  otherwise,  shall  be  made  of  them,  except  unserviceable  clothing 
which  shall  be  destroyed,  and  if  sold  the  proceeds  of  such  sale  shall 
be  covered  into  the  Treasury  of  the  United  States.  Sec.  4,  Act  of 
June  m,  1906  (34  Stats.,  450). 

(This  paragraph  amends  section  4  of  the  act  of  February  12,  1887,  and  takes 
the  place  of  paragraph  1696.) 

1699a.  The  troops  of  the  militia  encamped  at  any  military  post  or 
camp  of  the  United  States  may  be  furnished  such  amounts  of  ammu- 
nition for  instruction  in  firing  and  target  practice  as  may  be  pre- 
scribed by  the  Secretary  of  War,  and  such  instruction  in  firing  shall 
be  carried  on  under  the  direction  of  an  officer  selected  for  that  pur- 
pose by  the  proper  militan^  commander.  Sec.  21,  Act  of  January  21, 
1903  (32  Stats.,  779). 

1700a,  The  Secretary  of  War  is  hereby  authorized  to  issue,  on  the 
requisitions  of  the  governors  of  the  several  States  and  Territories,  or 
of  the  commanding  general  of  the  militia  of  the  District  of  Columbia, 
such  number  of  the  United  States  standard  service  magazine  arms, 
with  bayonets,  bayonet  scabbards,  gun  slings,  belts,  and  such  other 
necessary  accouterments  and  equipments  as  are  required  for  the  Army 
of  the  United  States,  for  arming  all  of  the  organized  militia  in  said 
States  and  Territories  and  District  of  Columbia,  without  charging  the 
cost  or  value  thereof,  or  any  which  have  been  issued  since  December 
first,  nineteen  hundred  and  one,  or  any  expense  connected  therewith, 
against  the  allotment  to  said  State,  Territory,  or  District  of  Columbia, 
out  of  the  annual  appropriation  provided  by  section  sixteen  hundred 
and  sixty-one  of  the  Revised  Statutes,  as  amended,  or  requiring  pay- 


SUPPLEMENT.  1257 

ment  therefor,  and  to  exchange,  without  receiving  any  money  credit 
therefor,  ammunition,  or  parts  thereof,  suitable  to  the  new  arms, 
round  for  round,  for  corresponding  ammunition  suitable  to  the  old 
arms  theretofore  issued  to  said  State,  Territory,  or  District  by  the 
United  States:  Provided,  That  said  rifles  and  carbines  and  other 
property  shall  be  receipted  for  and  shall  remain  the  property  of  the 
United  States  and  be  annually  accounted  for  by  the  governors  of  the 
States  and  Territories  as  now  required  by  law,  and  that  each  State, 
Territory,  and  District  shall,  on  receipt  of  the  new  arms,  turn  in  to 
the  Ordnance  Department  of  the  United  States  Army,  without  re- 
ceiving any  money  credit  therefor,  and  without  expense  for  transpor- 
tation, all  United  States  rifles  and  carbines  now  in  its  possession. 

To  provide  means  to  carry  into  effect  the  provisions  of  this  section, 
the  necessary  money  to  cover  the  cost  of  exchanging  or  issuing  the 
new  arms,  accouterments,  equipments,  and  ammunition  to  be  ex- 
changed or  issued  hereunder  is  hereby  appropriated  out  of  any  moneys 
in  the  Treasury  not  otherwise  appropriated.  Sec,  13,  Act  of  January 
21,1903  (32  Stats.,  777). 

(See  paragraphs  1694,  1739-1740.) 

1700b.  For  the  purpose  of  furnishing  the  necessary  articles  requisite 
to  fully  arm,  equip,  and  supply  each  regiment,  battalion,  squadron, 
company,  troop,  battery,  signal,  engineer,  and  hospital  corps  and 
medical  department  of  the  organized  militia  of  the  several  States, 
Territories,  and  the  District  of  Columbia  with  the  same  armament  and 
equipment  as  are  now  prescribed  for  corresponding  branches  of  the 
line  or  staff  in  the  Regular  Army,  without  cost  to  said  States,  Terri- 
tories, or  the  District  of  Columbia,  but  to  remain  the  property  of  the 
United  States,  and  to  be  accounted  for  in  the  manner  now  prescribed 
by  law,  the  Secretary  of  War  is  hereby  authorized,  under  such  regu- 
lations as  he  may  prescribe,  on  the  requisitions  of  the  governors  of  the 
several  States  and  Territories,  or  the  commanding  general  of  the 
militia  of  the  District  of  Columbia,  to  issue  the  said  armament  and 
equipment  to  the  organized  militia ;  and  the  sum  of  two  million  dol- 
lars is  hereby  appropriated  and  made  immediately  available  until  ex- 
pended for  the  procurement  and  issue  of  the  articles  constituting  the 
same.  Act  of  March,  2, 1903  (32  Stats.,  942} . 

1700c.  For  the  purpose  of  procuring  field-artillery  material  for  the 
organized  militia  of  the  several  States,  Territories,  and  the  District 
of  Columbia,  without  cost  to  the  said  States,  Territories,  or  the 
District  of  Columbia,  but  to  remain  the  property  of  the  United  States 
and  to  be  accounted  for  in  the  manner  now  prescribed  by  law,  the 
Secretary  of  War  is  hereby  authorized,  under  such  regulations  as  he 
may  prescribe,  on  the  requisitions  of  the  governors  of  the  several 
States  and  Territories  or  the  commanding  general  of  the  militia  of 


1258  MILITARY    LAWS    OF    THE    UNITED    STATES. 

the  District  of  Columbia,  to  issue  said  artillery  material  to  the  organ- 
ized militia;  and  the  sum  of  five  hundred  and  eighty-five  thousand 
dollars  is  hereby  appropriated  and  made  immediately  available,  for 
the  procurement  and  issue  of  the  articles  constituting  the  same.  Act 
of  April  23,  1904  (33  Stats.,  275). 

1700d.  It  shall  be  the  duty  of  the  Secretary  of  War,  whenever  a  new 
type  of  small  arm  shall  have  been  adopted  for  the  use  of  the  Regular 
Army,  and  when  a  sufficient  quantity  of  such  arms  shall  have  been 
manufactured  to  constitute,  in  his  discretion,  an  adequate  reserve  for 
the  armament  of  any  regular  and  volunteer  forces  that  it  may  be 
found  necessary  to  raise  in  case  of  war,  to  cause  the  organized  militia 
of  the  United  States  to  be  furnished  with  small  arms  of  the  type  so 
adopted,  with  bayonets  and  the  necessary  accouterments  and  equip- 
ments, including  ammunition  therefor:  Provided,  That  such  issues 
shall  be  made  in  the  manner  provided"  in  section  thirteen  of  the  Act 
approved  January  twenty-first,  nineteen  hundred  and  three,  entitled 
"An  Act  to  promote  the  efficiency  of  the  militia,  and  for  other  pur- 
poses." Act  of  March  2, 1907  (34  Stats.,  1174). 

(See  paragraph  1700a.) 

1700e.  The  Secretary  of  War  is  hereby  authorized  to  sell,  at  the 
prices  at  which  they  are  listed  for  the  Army,  upon  the  request  of  the 
governors  of  the  several  States  and  Territories,  such  magazine  rifles 
belonging  to  the  United  States  as  are  not  necessary  for  the  equip- 
ment of  the  Army  and  the  organized  militia,  for  the  use  of  rifle  clubs 
formed  under  regulations  prepared  by  the  national  board  for  the 
promotion  of  rifle  practice  and  approved  by  the  Secretary  of  War. 
Sec.  1,  Act  of  March  3, 1905  (33  Stats.,  986). 

(See  paragraphs  1692a  and  1692c.) 

1700f .  The  Secretary  of  War  is  hereby  authorized  in  his  discretion 
to  sell  to  the  several  States  and  Territories,  as  prescribed  in  section 
seventeen  of  the  Act  approved  January  twenty-first,  nineteen  hun- 
dred and  three,  for  the  use  of  said  clubs,  ammunition,  ordnance 
stores,  and  equipments  of  the  Government  standard  at  tKe  prices  at 
which  they  are  listed  for  the  Army.  The  practice  of  the  rifle  clubs 
herein  provided  shall  be  carried  on  in  conformity  to  regulations  pre- 
scribed by  the  national  board  for  the  promotion  of  rifle  practice, 
approved  by  the  Secretary  of  War,  and  the  results  thereof  shall  be 
filed  in  the  office  of  the  Military  Secretary  of  the  Army.  Sec.  2,  Act  of 
March  3, 1905  (33  Stats.,  987). 

1705a.  Section  two  of  the  Act  approved  May  nineteenth,  eighteen 
hundred  and  eighty-two,  authorizing  the  Secretary  of  War  to  issue, 
on  the  requisition  of  the  governor  of  a  State  bordering  on  the  sea  or 


SUPPLEMENT.  1259 

Gulf  coast,  and  having  a  permanent  camping  ground  for  the  encamp- 
ment of  the  militia  not  less  than  six  days  annually,  two  heavy  guns 
and  four  mortars,  with  carriages  and  platforms,  for  their  instruction, 
and  for  the  construction  of  a  suitable  battery  for  the  cannon  so  issued, 
and  appropriating  five  thousand  dollars  for  each  State  to  carry  out 
the  above-mentioned  objects,  is  hereby  repealed:  Provided,  That 
this  repeal  shall  not  affect  the  existing  law  regarding  the  disposition 
of  the  cannon  and  other  stores  already  issued.  Act  of  March  2, 
1907  (3 1^  Stats.,  1060). 

(This  paragraph  repeals  paragraph  1705.) 

THE    MILITIA    OF    THE    DISTRICT    OF    COLUMBIA. 
ARMS,    UNIFORMS,    AND    EQUIPMENTS. 

1742a.  All  moneys  collected  on  account  of  deductions  made  from 
the  pay  of  any  officer  or  enlisted  man  of  the  National  Guard  of  the 
District  of  Columbia  on  account  of  Government  property  lost  or 
destroyed  by  such  individual  shall  be  repaid  into  the  United  States 
Treasury  to  the  credit  of  the  officer  of  the  militia  of  the  District  of 
Columbia  who  is  accountable  to  the  United  States  Government  for 
such  property  lost  or  destroyed.  Act  of  April  27,  1904  (33  Stats., 
389). 

1750a.  All  moneys  collected  on  account  of  deductions  made  from 
the  pay  of  any  officer  or  enlisted  man  of  the  National  Guard  of  the 
District  of  Columbia  for  or  on  account  of  any  violation  of  the  regu- 
lations governing  said  National  Guard  shall  be  held  by  the  com- 
manding general  of  the  militia  of  the  District  of  Columbia,  who  is 
authorized  to  expend  such  moneys  so  collected  for  necessary  clerical 
and  general  incidental  expenses  of  the  service,  including  books,  or  for 
the  pay  of  troops,  other  than  Government  employees;  and  for  all 
moneys  so  collected  and  expended  the  commanding  general  shall 
make  an  accounting  in  like  manner  as  for  the  appropriation  disbursed 
for  pay  of  troops.  Act  of  April  27, 1904  (33  Stats.,  389) . 

(This  paragraph  amends  paragraph  1750.) 

EXPENSES   AND    ALLOWANCES,    DISTRICT   OF    COLUMBIA. 

1770a.  For  the  following,  to  be  expended  under  the  authority  of 
the  commanding  general,  who  is  hereby  authorized  and  empowered  to 
make  necessary  contracts  and  leases,  and  to  be  accounted  for  in  like 
manner  as  the  appropriations  disbursed  for  pay  of  troops,  namely: 

For  rent,  fuel,  light,  heat,  care,  and  repair  of  armories,  practice 
ships,  boats,  machinery,  and  dock,  dredging  alongside  of  dock,  and 
for  telephone  service,  eighteen  thousand  dollars. 


1260  MILITARY   LAWS    OF    THE    UNITED    STATES. 

For  lockers,  furniture,  and  gymnastic  aparatus  for  armories,  four 
hundred  dollars. 

For  printing  and  stationery,  six  hundred  and  fifty  dollars. 

For  cleaning  and  repairing  uniforms,  arms,  and  equipments,  and 
contingent  expenses,  one  thousand  two  hundred  and  fifty  dollars. 

For  custodian  in  charge  of  United  States  property  and  storerooms, 
nine  hundred  dollars. 

For  clerk,  office  of  the  Adjutant-General,  seven  hundred  and  twenty 
dollars. 

For  expenses  of  drills  and  parades,  one  thousand  seven  hundred 
dollars. 

For  expenses  of  rifle  practice  and  matches,  three  thousand  six  hun- 
dred dollars. 

For  expenses  of  camps,  instruction,  practice  marches,  and  practice 
cruises,  including  fuel  for  cruising  purposes,  fifteen  thousand  two 
hundred  dollars. 

For  pay  of  troops,  other  than  Government  employees,  to  be  dis- 
bursed under  the  direction  of  the  commanding-general,  seventeen 
thousand  six  hundred  dollars.  Act  of  April  27, 1904  (33  Stats.,  389) . 

(See  paragraphs  1766,  1769-1770.) 

NAVAL   BATTALION,   DISTRICT   OF   COLUMBIA. 

1781a.  In  addition  to  the  companies  of  volunteer  militia  now  au- 
thorized in  the  District  of  Columbia  there  may  be  organized  not  more 
than  four  companies  of  naval  militia,  which  shall  constitute  a  bat- 
talion to  be  known  as  the  naval  battalion  of  the  National  Guard  of 
the  District  of  Columbia. 

SEC.  2.  That  the  officers  of  the  naval  battalion  shall  consist  of  one 
commander,  and  a  staif  to  consist  of  one  executive  officer  with  the 
rank  of  lieutenant-commander,  one  navigating  officer  with  the  rank 
of  lieutenant,  one  signal,  ordnance,  and  equipment  officer  with  the 
rank  of  lieutenant,  one  chief  engineer,  one  paymaster,  and  one  sur- 
geon, each  with  the  relative  rank  of  lieutenant.  . 

SEC.  3.  That  each  company  shall  consist  of  one  lieutenant,  one  lieu- 
tenant, junior  grade,  two  ensigns,  and  not  less  than  sixty  nor  more 
than  one  hundred  petty  officers  and  enlisted  men. 

SEC.  4.  That  in  all  matters  not  otherwise  specially  provided  for, 
the  provisions  of  law  which  provide  for  the  organization  of  the 
militia  of  the  District  of  Columbia  shall  apply  to  the  naval  battalion. 

SEC.  5.  That  general  routine  of  duty,  discipline,  and  exercises  of 
the  naval  battalion,  and  parts  thereof,  shall  conform  with  the  laws, 
customs,  and  usages  of  the  Navy,  as  far  as  the  same  apply,  and  where 
they  do  not  apply  then  such  routine  of  duty,  discipline,  and  exercises 


SUPPLEMENT.  1261 

shall  conform  to  the  laws  governing  the  volunteer  forces  of  the  Dis- 
trict of  Columbia.    Sees.  1  to  o,  Act  of  May  11, 1898  (30  Stats.,  404.) 

CHAPTER  XXXVI. 

MILITARY  TRIBUNALS. 
ARREST  AND  CONFINEMENT. 

1788a.  For  a  donation  of  five  dollars  to  each  dishonorably  dis- 
charged prisoner  upon  his  release  from  confinement,  under  court- 
martial  sentence,  involving  dishonorable  discharge.  *  *  *  Act 
of  April  23, 1904  (33  Stats.,  269). 

(This  paragraph  is  a  reeuactraent  of  similar  provisions  contained  in  the  an- 
nual appropriation  acts  for  the  support  of  the  Army.) 

1788b.  For  a  suit  of  citizen's  outer  clothing,  to  cost  not  exceeding 
ten  dollars,  to  be  issued  upon  release  from  confinement  to  each  pris- 
oner who  has  been  confined  under  a  court-martial  sentence  involving 
dishonorable  discharge.  *  *  *  Act  of  April  23,  1904  (33  Stats., 
721). 

(This  paragraph  is  a  reenactment  of  similar  provisions  contained  in  the  an- 
nual appropriation  acts  for  the  support  of  the  Army.) 

1788c.  Transportation  of  the  Army,  including  *  *  *  the  trans- 
portation of  persons  on  their  discharge  from  the  United  States  mili- 
tary prison  to  their  homes  (or  elsewhere  as  they  may  elect),  provided 
the  cost  in  each  case  shall  not  be  greater  than  to  the  place  of  last  en- 
listment, *  *  *  dollars.  Act  of  March  2, 1907  (34  Stats.,  1169). 

PRISONS. 

1788d.  Hereafter  any  military  prison  that  the  Secretary  of  War 
may  designate  for  the  confinement  of  general  prisoners  for  whom 
there  is  no  room  at  the  United  States  Military  Prison  at  Fort  Leaven- 
worth,  Kansas,  or  whom  it  is  impracticable  to  send  there,  shall  be  re- 
garded as  a  branch  of  the  said  United  States  Military  Prison  and 
equally  with  it  shall  be  subject  to  the  laws  relating  thereto,  including 
chapter  six,  title  fourteen,  of  the  Revised  Statutes.  Act  of  March  2, 
1907  (34  Stats.,  1169). 

RULES    OF   EVIDENCE. 

1815a.  The  competency  of  a  witness  to  testify  in  any  civil  action, 
suit,  or  proceeding  in  the  courts  of  the  United  States  shall  be  deter- 


1262  MILITARY   LAWS    OF    THE    UNITED    STATES. 

mined  by  the  laws  of  the  State  or  Territory  in  which  the  court  is 
held.    Act  of  June  29, 1906  (34  Stats.,  618) . 

(This  paragraph  amends  section  858  of  the  Revised  Statutes,  and  paragraph 
1815.) 

UNITED    STATES    PRISONERS  I    GOOD    CONDUCT   ALLOWANCE. 

1837a.  Each  prisoner  who  has  been  or  shall  hereafter  be  convicted 
of  any  offense  against  the  laws  of  the  United  States,  and  is  confined, 
in  execution  of  the  judgment  or  sentence  upon  any  such  conviction, 
in  any  United  States  penitentiary  or  jail,  or  in  any  penitentiary, 
prison,  or  jail  of  any  State  or'Territory,  for  a  definite  term,  other  than 
for  life,  whose  record  of  conduct  shows  that  he  has  faithfully  observed 
all  the  rules  and  has  not  been  subjected  to  punishment,  shall  be  enti- 
tled to  a  deduction  from  the  term  of  his  sentence  to  be  estimated  as 
follows,  commencing  on  the  first  day  of  his  arrival  at  the  penitentiary, 
prison,  or  jail :  Upon  a  sentence  of  not  less  than  six  months  nor  more 
than  one  year,  five  days  for  each  month ;  upon  a  sentence  of  more  than 
one  year  and  less  than  three  years,  six  days  for  each  month ;  upon  a 
sentence  of  not  less  than  three  years  and  less  than  five  years,  seven 
days  for  each  month ;  upon  a  sentence  of  not  less  than  five  years  and 
less  than  ten  years,  eight  days  for  each  month;  upon  a  sentence  of 
ten  years  or  more,  ten  days  for  each  month.  When  a  prisoner  has  two 
or  more  sentences,  the  aggregate  of  his  several  sentences  shall  be  the 
basis  upon  which  his  deduction  shall  be  estimated.  Sec.  1,  Act  of 
June  21, 1902  (32  Stats.,  397). 

1837b.  In  the  case  of  convicts  in  any  United  States  penitentiary, 
the  Attorney-General  shall  have  the  power  to  restore  to  any  such 
convict  who  has  heretofore  or  m&y  hereafter  forfeit  any  good  time 
by  violating  any  existing  law  or  prison  regulation  such  portion  of 
lost  good  time  as  may  be  proper,  in  his  judgment,  upon  recommen- 
dations and  evidence  submitted  to  him  by  the  warden  in  charge.  Res- 
toration, in  the  case  of  United  States  convicts  confined  in  State  and 
Territorial  institutions,  shall  be  regulated  in  accordance  with  the 
rules  governing  such  institutions,  respectively.  Sec.  2,  Act  of  June 
21,1902  (32  Stats.,  397). 

1837c.  This  Act  shall  take  effect  and  be  in  force  from  and  after 
thirty  days  from  the  date  of  its  approval,  and  shall  apply  only  to  sen- 
tences imposed  by  courts  subsequent  to  the  time  that  this  Act  takes 
effect,  as  hereinbefore  provided.  Prisoners  serving  under  any  sentence 
imposed  prior  to  such  time  shall  be  entitled  and  receive  the  commuta- 
tion heretofore  allowed  under  existing  laws.  Such  existing  laws  are 
hereby  repealed  as  to  all  sentences  imposed  subsequent  to  the  time 
when  this  Act  takes  effect.  Sec.  3,  Act  of  June  21,  1906  (32  Stats., 


SUPPLEMENT.  1263 

CHAPTER   XXXVII. 

CITIZENSHIP  AND  NATURALIZATION. 
CITIZENSHIP. 

1871a.  All  children  born  outside  the  limits  of  the  United  States 
who  are  citizens  thereof  in  accordance  with  the  provisions  of  section 
nineteen  hundred  and  ninety-three  of  the  Revised  Statutes  of  the 
United  States  and  who  continue  to  reside  outside  the  United  States 
shall,  in  order  to  receive  the  protection  of  this  Government,  be  re- 
quired upon  reaching  the  age  of  eighteen  years  to  record  at  an  Ameri- 
can consulate  their  intention -to  become  residents  and  remain  citizens 
of  the  United  States  and  shall  be  further  required  to  take  the  oath  of 
allegiance  to  the  United  States  upon  attaining  their  majority.  Sec. 
6,  Act  of  March  2,  1907  (34  Stats.,  1229}. 

(This  paragraph  takes  the  place  of  paragraph  1871.) 

1872a.  Any  American  woman  who  marries  a  foreigner  shall  take 
the  nationality  of  her  husband.  At  the  termination  of  the  martial 
relation  she  may  resume  her  American  citizenship,  if  abroad,  by 
registering  as  an  American  citizen  within  one  year  with  a  consul  of 
the  United  States,  or  by  returning  tp  reside  in  the  United  States,  or, 
if  residing  in  the  United  States  at  the  termination  of  the  marital  rela- 
tion, by  continuing  to  reside  therein.  Sec.  3,  Act  of  March  2,  1907 
(34  Stats.,  1228). 

1877a.  Any  American  citizen  shall  be  deemed  to  have  expatriated 
himself  when  he  has  been  naturalized  in  any  foreign  state  in  con- 
formity with  its  laws,  or  when  he  has  taken  an  oath  of  allegiance  to 
any  foreign  state. 

When  any  naturalized 'citizen  shall  have  resided  for  two  years  in 
the  foreign  state  from  which  he  came,  or  for  five  years  in  any  other 
foreign  state  it  shall  be  presumed  that  he  has  ceased  to  be  an  Ameri- 
can citizen,  and  the  place  of  his  general  abode  shall  be  deemed  his 
place  of  residence  during  said  years:  Provided,  however,  That  such 
presumption  may  be  overcome  on  the  presentation  of  satisfactory  evi- 
dence to  a  diplomatic  or  consular  officer  of  the  United  States,  under 
such  rules  and  regulations  as  the  Department  of  State  may  prescribe : 
And  provided  also',  That  no  American  citizen  shall  be  allowed  to  ex- 
patriate himself  when  this  country  is  at  war.  Sec.  2,  Act  of  March 
2,1907  (34  Stats.,  1228). 

(See  paragraph  1877.) 


1264  MILITARY   LAWS    OF    THE    UNITED    STATES. 

1879a.  The  Secretary  of  State  shall  be  authorized,  in  his  discretion, 
to  issue  passports  to  persons  not  citizens  of  the  United  States  as  fol- 
lows: Where  any  person  has  made  a  declaration  of  intention  to 
become  such  a  citizen  as  provided  by  law  and  has  resided  in  the 
United  States  for  three  years  a  passport  may  be  issued  to  him  enti- 
tling him  to  the  protection  of  the  Government  in  any  foreign  coun- 
try: Provided,  That  such  passport  shall  not  be  valid  for  more  than 
six  months  and  shall  not  be  renewed^  and  that  such  passport  shall  not 
entitle  the  holder  to  the  protection  of  this  Government  in  the  coun- 
try of  which  he  was  a  citizen  prior  to  making  such  declaration  of 
intention.  Sec.  1,  Act  of  March  2, 1907  (34  Stats.,  1228). 

(This  paragraph  amends  section  4076  of  the  Revised  Statutes.) 

NATURALIZATION. 

1880a.  Exclusive  jurisdiction  to  naturalize  aliens  as  citizens  of  the 
United  States  is  hereby  conferred  upon  the  following  specified  courts : 

United  States  circuit  and  district  courts  now  existing,  or  which 
may  hereafter  be  established  by  Congress  in  any  State,  United  States 
district  courts  for  the  Territories  of  Arizona,  New  Mexico,  Oklahoma, 
Hawaii,  and  Alaska,  the  supreme  court  of  the  District  of  Columbia, 
and  the  United  States  courts  for  the  Indian  Territory ;  also  all  courts 
of  record  in  any  State  or  Territory  now  existing,  or  which  may  here- 
after be  created,  having  a  seal,  a  clerk,  and  jurisdiction  in  actions  at 
law  or  equity,  or  law  and  equity,  in  which  the  amount  in  controversy 
is  unlimited. 

That  the  naturalization  jurisdiction  of  all  courts  herein  specified, 
State,  Territorial,  and  Federal,  shall  extend  only  to  aliens  resident 
within  the  respective  judicial  districts  of  such  courts. 

The  courts  herein  specified  shall,  upon  the  requisition  of  the  clerks 
of  such  courts,  be  furnished  from  time  to  time  by  the  Bureau  of  Immi- 
gration and  Naturalization  with  such  blank  forms  as  may  be  required 
in  the  naturalization  of  aliens,  and  all  certificates  of  naturalization 
shall  be  consecutively  numbered  and  printed  on  safety  paper  fur- 
nished by  said  Bureau.  Sec.  3,  Act  of  June  29, 1906  (34  Stats.,  596). 

(This  and  the  following  paragraph — 1880b — take  the  place  of  paragraphs 
1880,  1884,  and  1885,  which  are  repealed  by  section  26  of  the  act  above  cited. ) 

1880b.  An  alien  may  be  admitted  to  become  a  citizen  of  the  United 
States  in  the  following  manner  and  not  otherwise : 

First.  He  shall  declare  on  oath  before  the  clerk  of  any  court  author- 
ized by  this  Act  to  naturalize  aliens,  or  his  authorized  deputy,  in  the 
district  in  which  such  alien  resides,  two  years  at  least  prior  to  his  ad- 
mission, and  after  he  has  reached  the  age  of  eighteen  years,  that  it  is 
bona  fide  his  intention  to  become  a  citizen  of  the  United  States,  and  to 


SUPPLEMENT.  1265 

renounce  forever  all  allegiance  and  fidelity  to  any  foreign  prince,  po- 
tentate, state,  or  sovereignty,  and  particularly,  by  name,  to  the  prince, 
potentate,  state,  or  sovereignty  of  which  the  alien  may  be  at  the  time 
a  citizen  or  subject.  And  such  declaration  shall  set  forth  the  name, 
age,  occupation,  personal  description,  place  of  birth,  last  foreign  resi- 
dence and  allegiance,  the  date  of  arrival,  the  name  of  the  vessel,  if  any, 
in  which  he  came  to  the  United  States,  and  the  present  place  of  resi- 
dence in  the  United  States  of  said  alien :  Provided,  however,  That  no 
alien  who,  in  conformity  with  the  law  in  force  at  the  date  of  his  decla- 
ration, has  declared  his  intention  to  become  a  citizen  of  the  United 
States  shall  be  required  to  renew  such  declaration. 

Second.  Not  less  than  two  years  nor  more  than  seven  years  after  he 
has  made  such  declaration  of  intention  he  shall  make  and  file,  in  dupli- 
cate, a  petition  in  writing,  signed  by  the  applicant  in  his  own  hand- 
writing and  duly  verified,  in  which  petition  such  applicant  shall  state 
his  full  name,  his  place  of  residence  (by  street  and  number,  if  possi- 
ble), his  occupation,  and,  if  possible,  the  date  and  place  of  his  birth; 
the  place  from  which  he  emigrated,  and  the  date  and  place  of  his  ar- 
rival in  the  United  States,  and,  if  he  entered  through  a  port,  the  name 
of  the  vessel  on  which  he  arrived;  the  time  when  and  the  place  and 
name  of  the  court  where  he  declared  his  intention  to  become  a  citizen 
of  the  United  States ;  if  he  is  married  he  shall  state  the  name  of  his 
wife  and,  if  possible,  the  country  of  her  nativity  and  her  place  of  resi- 
dence at  the  time  of  filing  his  petition;  and  if  he  has  children,  the 
name,  date,  and  place  of  birth  and  place  of  residence  of  each  child 
living  at  the  time  of  the  filing  of  his  petition :  Provided,  That  if  he 
has  filed  his  declaration  before  the  passage  of  this  Act  he  shall  not  be 
required  to  sign  the  petition  in  his  own  handwriting. 

The  petition  shall  set  forth  that  he  is  not  a  disbeliever  in  or  opposed 
to  organized  government,  or  a  member  of  or  affiliated  with  any  organ- 
ization or  body  of  persons  teaching  disbelief  in  or  opposed  to  organ- 
ized government,  a  polygamist  or  believer  in  the  practice  of  polygamy, 
and  that  it  is  his  intention  to  become  a  citizen  of  the  United  States  and 
to  renounce  absolutely  and  forever  all  allegiance  and  fidelity  to  any 
foreign  prince,  potentate,  state,  or  sovereignty,  and  particularly  by 
name  to  the  prince,  potentate,  state,  or  sovereignty  of  which  he  at  the 
time  of  filing  of  his  petition  may  be  a  citizen  or  subject,  and  that  it  is 
his  intention  to  reside  permanently  within  the  United  States,  and 
whether  or  not  he  has  been  denied  admission  as  a  citizen  of  the  United 
States,  and,  if  denied,  the  ground  or  grounds  of  such  denial,  the  court 
or  courts  in  which  such  decision  was  rendered,  and  that  the  cause  for 
such  denial  has  since  been  cured  or  removed,  and  every  fact  material 
to  his  naturalization  and  required  to  be  proved  upon  the  final  hearing 
of  his. application. 
22924—08 80 


1266  MILITAKY   LAWS    OF    THE    UNITED    STATES.  > 

• 

The  petition  shall  also  be  verified  by  the  affidavits  of  at  least  two 
credible  witnesses,  who  are  citizens  of  the  United  States,  and  who 
shall  state  in  their  affidavits  that  they  have  personally  known  the 
applicant  to  be  a  resident  of  the  United  States  for  a  period  of  at  least 
five  years  continuously,  and  of  the  State,  Territory,  or  district  in 
which  the  application  is  made  for  a  period  of  at  least  one  year  imme- 
diately preceding  the  date  of  the  filing  of  his  petition,  and  that  they 
each  have  personal  knowledge  that  the  petitioner  is  a  person  of  good 
moral  character,  and  that  he  is  in  every  way  qualified,  in  their  opinion, 
to  be  admitted  as  a  citizen  of  the  United  States. 

At  the  time  of  filing  his  petition  there  shall  be  filed  with  the  clerk 
of  the  court  a  certificate  from  the  Department  of  Commerce  and 
Labor,  if  the  petitioner  arrives  in  the  United  States  after  the  passage 
of  this  Act,  stating  the  date,  place,  and  manner  of  his  arrival  in  the 
United  States,  and  the  declaration  of  intention  of  such  petitioner, 
which  certificate  and  declaration  shall  be  attached  to  and  made  a  part 
of  said  petition. 

Third.  He  shall,  before  he  is  admitted  to  citizenship,  declare  on 
oath  in  open  court  that  he  will  support  the  Constitution  of  the  United 
States,  and  that  he  absolutely  and  entirely  renounces  and  abjures  all 
allegiance  and  fidelity  to  any  foreign  prince*,  potentate,  state,  or 
sovereignty,  and  particularly  by  name  of  the  prince,  potentate,  state, 
or  sovereignty  of  which  he  was  before  a  citizen  or  subject;  that  he  will 
support  and  defend  the  Constitution  and  laws  of  the  United  States 
against  all  enemies,  foreign  and  domestic,  and  bear  true  faith  and 
allegiance  to  the  same. 

Fourth.  It  shall  be  made  to  appear  to  the  satisfaction  of  the  court 
admitting  any  alien  to  citizenship  that  immediately  preceding  the 
date  of  his  application  he  has  resided  continuously  within  the  United 
States  five  years  at  least,  and  within  the  State  or  Territory  where  such 
court  is  at  the  time  held  one  year  at  least,  and  that  during  that  time 
he  has  behaved  as  a  man  of  good  moral  character,  attached  to  the 
principles  of  the  Constitution  of  the  United  States,  and  well  disposed 
to  the  good  order  and  happiness  of  the  same.  In  addition  to  the  oath 
of  the  applicant,  the  testimony  of  at  least  two  witnesses,  citizens  of  the 
United  States,  as  to  the  facts  of  residence,  moral  character,  and  at- 
tachment to  the  principles  of  the  Constitution  shall  be  required,  and 
the  name,  place  of  residence,  and  occupation  of  each  witness  shall  be 
set  forth  in  the  record. 

Fifth.  In  case  the  alien  applying  to  be  admitted  to  citizenship  has 
borne  any  hereditary  title,  or  has  been  of  any  of  the  orders  of  nobility 
in  the  kingdom  or  state  from  which  he  came,  he  shall,  in  addition  to 
the  above  requisites,  make  an  express  renunciation  of  his  title  or  order 


SUPPLEMENT.  1267 

of  nobility  in  the  court  to  which  his  application  is  made,  and  his  re- 
nunciation shall  be  recorded  in  the  court. 

Sixth.  When  any  alien  who  has  declared  his  intention  to  become  a 
citizen  of  the  United  States  dies  before  he  is  actually  naturalized  the 
widow  and  minor  children  of  such  alien  may,  by  complying  with  the 
other  provisions  of  this  Act,  be  naturalized  without  making  any  decla- 
raton  of  intention.  Sec.  4,  Act  of  June  29, 1906  (3 '4  Stats,  596). 

(This  and  the  preceding  paragraph — 1880a — take  the  place  of  paragraphs 
1880,  1884,  and  1885,  which  are  repealed  by  section  26  of  the  act  above  cited.) 

1881a.  The  clerk  of  the  court  shall,  immediately  after  filing  the 
petition,  give  notice  thereof  by  posting  in  a  public  and  conspjcious 
place  in  his  office,  or  in  the  building  in  which  his  office  is  situated, 
under  an  appropriate  heading,  the  name,  nativity,  and  residence  of 
the  alien,  the  date  and  place  of  his  arrival  in  the  United  States,  and 
the  date,  as  nearly  as  may  be,  for  the  final  hearing  of  his  petition, 
and  the  names  of  the  witnesses  whom  the  applicant  expects  to  summon 
in  his  behalf;  and  the  clerk  shall,  if  the  applicant  requests  it,  issue 
a  subpoena  for  the  witnesses  so  named  by  the  said  applicant  to  appear 
upon  the  day  set  for  the  final  hearing,  but  in  case  such  witnesses  can 
not  be  produced  upon  the  final  hearing  other  witnesses  may  be  sum- 
moned. Sec.  6,  Act  of  June  29, 1906  (34  Stats.,  598). 

(This  paragraph  takes  the  place  of  paragraph  1881,  which  is  repealed  by 
section  26  of  the  act  above  cited.) 

1881b.  Petitions  for  naturalization  may  be  made  and  filed  during, 
term  time  or  vacation  of  the  court  and  shall  be  docketed  the  same  day 
a-  filed,  but  final  action  thereon  shall  be  had  only  on  stated  days,  to 
be  fixed  by  rule  of  the  court,  and  in  no  case  shall  final  action  be  had 
upon  a  petition  until  at  least  ninety  days  have  elapsed  after  filing  and 
posting  the  notice  of  such  petition:  Provided,  That  no  person  shall 
be  naturalized  nor  shall  any  certificate  of  naturalization  be  issued 
by  any  court  within  thirty  days  preceding  the  holding  of  any  gen- 
eral election  within  its  territorical  jurisdiction.  It  shall  be  lawful, 
at  the  time  and  as  a  part  of  the  naturalization  of  any  alien,  for  the 
court,  in  its  discretion,  upon  the  petition  of  such  alien,  to  make  a  de- 
cree changing  the  name  of  said  alien,  and  his  certificate  of  naturaliza- 
tion shall  be  issued  to  him  in  accordance  therewith.  Sec.  6,  Act  of 
June  .'.9. 1906  (34  Stats.,  598). 

1885a.  Any  foreign  woman  who  acquires  American  citizenship  by 
marriage  to  an  American  shall  be  assumed  to  retain  the  same  after 
the  termination  of  the  marital  relation  if  she  continue,  to  reside  in 
the  United  State,  unless  she  makes  formal  renunciation  thereof  be- 
fore a  court  having  jurisdiction  to  naturalize  aliens,  or  if  she  resides 


1268  MILITARY   LAWS    OF    THE    UNITED    STATES. 

abroad  she  may  retain  her  citizenship  by  registering  as  such  before 
a  United  States  consul  within  one  year  after  the  termination  of  such 
marital  relation.  Sec.  4,  Act  of  March  2, 1907  (34  Stats.,  1229}. 

(This  paragraph  takes  the  place  of  paragraph  1885,  which  was  repealed  by 
section  26  of  the  act  of  June  29,  1906.) 

1887a.  In  case  the  petitioner  has  not  resided  in  the  State,  Territory, 
or  district  for  a  period  of  five  years  continuously  and  immediately 
preceding  the  filing  of  his  petition  he  may  establish  by  two  witnesses, 
both  in  his  petition  and  at  the  hearing,  the  time  of  his  residence 
within  the  State,  provided  that  it  has  been  for  more  than  one  year, 
and  the  remaining  portion  of  his  five  years'  residence  within  the 
United  States  required  by  law  to  be  established  may  be  proved  by  the 
depositions  of  two  or  more  witnesses  who  are  citizens  of  the  United 
States,  upon  notice  to  the  Bureau  of  Immigration  and  Naturalization 
and  the  United  States  attorney  for  the  district  in  which  said  wit- 
nesses may  reside.  Sec.  10,  Act  of  June  29,  1906  (34  Stats.,  599). 

1889a.  A  child  born  without  the  United  States  of  alien  parents 
shall  be  deemed  a  citizen  of  the  United  States  by  virtue  of  the  natu- 
ralization of  or  resumption  of  American  citizenship  by  the  parent : 
Provided,  That  such  naturalization  or  resumption  takes  place  during 
the  minority  of  such  child:  And  provided  further,  That  the  citizen- 
ship of  such  minor  child  shall  begin  at  the  time  such  minor  child 
begins  to  reside  permanently  in  the  United  States.  Sec.  5,  Act  of 
March  2,  1907  (34  Stats.,  1229). 

(See  paragraph  1889.) 

1892a.  No  person  who  disbelieves  in  or  who  is  opposed  to  all  organ- 
ized government,  or  who  is  a  member  of  or  affiliated  with  any  organi- 
zation entertaining  and  teaching  such  disbelief  in  or  opposition  to  all 
organized  government,  or  who  advocates  or  teaches  the  duty,  neces- 
sity, or  propriety  of  the  unlawful  assaulting  or  killing  of  any  officer 
or  officers,  either  of  specific  individuals  or  of  officers  generally,  of  the 
Government  of  the  United  States  or  of  any  other  organized  govern- 
ment, because  of  his  or  their  official  character,  or  who  has  violated 
any  of  the  provisions  of  this  Act,  shall  be  naturalized  or  be  made  a 
citizen  of  the  United  States.  All  courts  and  tribunals  and  all  judges 
and  officers  thereof  having  jurisdiction  of  naturalization  proceedings 
or  duties  to  perform  in  regard  thereto  shall,  on  the  final  application 
for  naturalization,  make  careful  inquiry  into  such  matters,  and  before 
issuing  the  final  order  or  certificate  of  naturalization  cause  to  be 
entered  of  record  the  affidavit  of  the  applicant  and  of  his  witnesses 
so  far  as  applicable,  reciting  and  affirming  the  truth  of  every  material 
fact  requisite  for  naturalization.  All  final  orders  and  certificates  of 
naturalization  hereafter  made  shall  show  on  their  face  specifically 


SUPPLEMENT.  1269 

that  said  affidavits  were  duly  made  and  recorded,  and  all  orders  and 
certificates  that  fail  to  show  such  facts  shall  be  null  and  void. 

That  any  person  who  purposely  procures  naturalization  in  viola- 
tion of  the  provisions  of  this  section  shall  be  fined  not  more  than  five 
thousand  dollars,  or  shall  be  imprisoned  not  less  than  one  nor  more 
than  ten  years,  or  both,  and  the  court  in  which  such  conviction  is  had 
shall  thereupon  adjudge  and  declare  the  order  or  decree  and  all  cer- 
tificates admitting  such  person  to  citizenship  null  and  void.  Juris- 
diction is  hereby  conferred  on  the  courts  having  jurisdiction  of  the 
trial  of  such  offense  to  make  such  adjudication. 

That  any  person  who  knowingly  aids,  advises,  or  encourages  any 
such  person  to  apply  for  or  to  secure  naturalization  or  to  file  the  pre- 
liminary papers  declaring  an  intent  to  become  a  citizen  of  the  United 
States,  or  who  in  any  naturalization  proceeding  knowingly  procures 
or  gives  false  testimony  as  to  any  material  fact,  or  who  knowingly 
makes  an  affidavit  false  as  to  any  material  fact  required  to  be  proved 
in. such  proceeding,  shall  be  fined  not  more  than  five  thousand  dollars, 
or  imprisoned  not  less  than  one  nor  more  than  ten  years,  or  both. 
Sec.  39,  Act  of  March  3,  1903  (32  Stats.,  128%). 

1892b.  No  person  who  disbelieves  in  or  who  is  opposed  to  organized 
government,  or  who  is  a  member  of  or  affiliated  with  any  organization 
entertaining  and  teaching  such  disbelief  in  or  opposition  to  organized 
government,  or  who  advocates  or  teaches  the  duty,  necessity,  or 
propriety  of  the  unlawful  assaulting  or  killing  of  any  officer  or  offi- 
cers, either  of  specific  individuals  or  of  officers  generally,  of  the  Gov- 
ernment of  the  United  States,  or  of  any  other  organized  government, 
because  of  his  or  their  official  character,  or  who  is  a  polygamist,  shall 
be  naturalized  or  be  made  a  citizen  of  the  United  States.  Sec.  7,  Act 
of  June  29,  1906  (31^  Stats.,  598). 

(This  provision  takes  the  place  of  a  similar  provision  contained  in  paragraph 
1892a,  the  whole  of  which  is  repealed  by  section  26  of  the  act  above  cited.) 

1892c.  No  alien  shall  hereafter  be  naturalized  or  admitted  as  a  citi- 
zen of  the  United  States  who  can  not  speak  the  English  language: 
Provided,  That  this  requirement  shall  not  apply  to  aliens  who  are 
physically  unable  to  comply  therewith,  if  they  are  otherwise  qualified 
to  become  citizens  of  the  United  States :  And  provided  further,  That 
the  requirements  of  this  section  shall  not  apply  to  any  alien  who  has 
prior  to  the  passage  of  this  Act  declared  his  intention  to  become  a  citi- 
zen of  the  United  States  in  conformity  with  the  law  in  force  at  the 
date  of  making  such  declaration :  Provided  further,  That  the  require- 
ments of  section  eight  shall  not  apply  to  aliens  who  shall  -hereafter 
declare  their  intention  to  become  citizens  and  who  shall  make  home- 


1270  MILITAKY   LAWS    OF   THE   UNITED   STATES. 

stead  entries  upon  the  public  lands  of  the  United  States  and  comply 
in  all  respects  with  the  laws  providing  for  homestead  entries  on  such 
lands.  Sec.  8,  Act  of  June  29, 1906  (34  Stats.,  599). 

1892d.  Every  final  hearing  upon  such  petition  shall  be  had  in  open 
court  before  a  judge  or  judges  thereof,  and  every  final  order  which 
may  be  made  upon  such  petition  shall  be  under  the  hand  of  the  court 
and  entered  in  full  upon  a  record  kept  for  that  purpose,  and  upon 
such  final  hearing  of  such  petition  the  applicant  and  witnesses  shall 
be  examined  under  oath  before  the  court  and  in  the  presence  of  the 
court.  Sec.  9,  Act  of  June  %9, 1906  (34  Stats.,  599). 

(This  provision  takes  the  place  of  a  similar  provision  contained  in  paragraph 
1892a,  the  whole  of  which  is  repealed  by  section  26  of  the  act  above  cited.) 

1892e.  The  United  States  shall  have  the  right  to  appear  before  any 
court  or  courts  exercising  jurisdiction  in  naturalization  proceedings 
for  the  purpose  of  cross-examining  the  petitioner  and  the  witnesses 
produced  in  support  of  his  petition  concerning  any  matter  touching  or 
in  any  way  affecting  his  right  to  admission  to  citizenship,  and  shall 
have  the  right  to  call  witnesses,  produce  evidence,  and  be  heard  in 
opposition  to  the  granting  of  any  petition  in  naturalization  proceed- 
ings. Sec.  11,  Act  of  June  29, 1906  (34  Stats.,  599). 

1892f.  It  shall  be  the  duty  of  the  United  States  district  attorneys 
for  the  respective  districts,  upon  affidavit  showing  good  cause  there- 
for, to  institute  proceedings  in  any  court  having  jurisdiction  to 
naturalize  aliens  in  the  judicial  district  in  which  the  naturalized  citi- 
zen may  reside  at  the  time  of  bringing  the  suit,  for  the  purpose  of 
setting  aside  and  canceling  the  certificate  of  citizenship  on  the  ground 
of  fraud  or  on  the  ground  that  such  certificate  of  citizenship  was 
illegally  procured.  In  any  such  proceedings  the  party  holding  the 
certificate  of  citizenship  alleged  to  have  been  fraudulently  or  ille- 
gally procured  shall  have  sixty  days  personal  notice  in  which  to  make 
answer  to  the  petition  of  the  United  States ;  and  if  the  holder  of  such 
certificate  be  absent  from  the  United  States  or  from  the  district  in 
which  he  last  had  his  residence,  such  notice  shall  be  given  by  publica- 
tion in  the  manner  provided  for  the  service  of  summons  by  publica- 
•tion  or  upon  absentees  by  the  laws  of  the  State  or  the  place  where 
such  suit  is  brought. 

If  any  alien  who  shall  have  secured  a  certificate  of  citizenship 
under  the  provisions  of  this  Act  shall,  within  five  years  after  the 
issuance  of  such  certificate,  return  to  the  country  of  his  nativity,  or 
go  to  any  other  foreign  country,  and  take  permanent  residence 
therein,  it  shall  be  considered  prima  facie  evidence  of  a  lack  of  inten- 
tion on  the  part  of  such  alien  to  become  a  permanent  citizen  of  the 
United  States  at  the  time  of  filing  his  aplication  for  citizenship,  and, 


SUPPLEMENT.  1271 

in  the  absence  of  countervailing  evidence,  it  shall  be  sufficient  in  the 
proper  proceeding  to  authorize  the  cancellation  of  his  certificate  of 
citizenship  as  fraudulent,  and  the  diplomatic  and  consular  officers  of 
the  United  States  in  foreign  countries  shall  from  time  to  time, 
through  the  Department  of  State,  furnish  the  Department  of  Justice 
with  the  names  of  those  within  their  respective  jurisdictions  who  have 
such  certificates  of  citizenship  and  who  have  taken  permanent  resi- 
dence in  the  country  of  their  nativity,  or  in  any  other  foreign  coun- 
try, and  such  statements,  duly  certified,  shall  be  admissible  in  evidence 
in  all  courts'  in  proceedings  to  cancel  certificates  of  citizenship. 

Whenever  any  certificate  of  citizenship  shall  be  set  aside  or  can- 
celed, as  herein  provided,  the  court  in  which  such  judgment  or  decree 
is  rendered  shall  make  an  order  canceling  such  certificate  of  citizen- 
ship and  shall  send  a  certified  copy  of  such  order  to  the  Bureau  of 
Immigration  and  Naturalization ;  and  in  case  such  certificate  was  not 
originally  issued  by  the  court  making  such  order  it  shall  direct  the 
clerk  of  the  court  to  transmit  a  copy  of  such  order  and  judgment  to 
the  court  out  of  which  such  certificate  of  citizenship  shall  have  been 
originally  issued.  And  it  shall  thereupon  be  the  duty  of  the  clerk  of 
the  court  receiving  such  certified  copy  of  the  order  and  judgment  of 
the  court  to  enter  the  same  of  record  and  to  cancel  such  original 
certificate  of  citizenship  upon  the  records  and  to  notify  the  Bureau 
of  Immigration  and  Naturalization  of  such  cancellation. 

The  provisions  of  this  section  shall  apply  not  only  to  certificates  of 
citizenship  issued  under  the  provisions  of  this  Act,  but  to  all  certifi- 
cates of  citizenship  which  may  have  been  issued  heretofore  by  any 
court  exercising  jurisdiction  in  naturalization  proceedings  under 
prior  laws.  Sec.  15,  Act  of  June  29, 1906  (34  Stats.,  601). 

1892^.  Every  person  who  falsely  makes,  forges,  counterfeits,  or 
causes  or  procures  to  be  falsely  made,  forged,  or  counterfeited,  or 
knowingly  aids  or  assists  in  falsely  making,  forging,  or  counterfeit- 
ing any  certificate  of  citizenship,  with  intent  to  use  the  same,  or  with 
the  intent  that  the  same  may  be  used  by  some  other  person  or  per- 
sons, shall  be  guilty  of  a  felony,  and  a  person  convicted  of  such  of- 
fense shall  be  punished  by  imprisonment  for  not  more  than  ten  years, 
or  by  a  fine  of  not  more  than  ten  thousand  dollars,  or  by  both  such 
fine  and  imprisonment.  Sec.  16,  Act  of  June  29, 1906  (34  Stats.,  602} . 

1892h.  No  person  shall  be  prosecuted,  tried,  or  punished  for  any 
crime  arising  under  the  provisions  of  this  Act  unless  the  indictment  is 
found  or  the  information  is  filed  within  five  years  next  after  the 
commission  of  such  crime.  Sec.  24,  Act  of  June  29, 1906  (34  Stats., 
603). 

1892i.  Any  person  who  knowingly  procures  naturalization  in  viola- 
tion of  the  provisions  of  this  Act  shall  be  fined  not  more  than  five 


}'2,-  MILITARY    LAWS    OF    THE    UNITED    STATES. 

thousand  dollars,  or  shall  be  imprisoned  not  more  than  five  years,  or 
both,  and  upon  conviction  the  court  in  which  such  conviction  is  had 
shall  thereupon  adjudge  and  declare  the  final  order  admitting  such 
person  to  citizenship  void.  Jurisdiction  is  hereby  conferred  on  the 
courts  having  jurisdiction  of  the  trial  of  such  offense  to  make  such 
adjudication.  Any  person  who  knowingly  aids,  advi<es.  or  en- 
courages any  person  not  entitled  thereto  to  apply  for  or  to  secure 
naturalization,  or  to  file  the  preliminary  papers  declaring  an  intent 
to  become  a  citizen  of  the  United  States,  or  who  in  any  naturaliza- 
tion proceeding  knowingly  procures  or  gives  false  testimony  as*  to 
any  material  fact,  or  who  knowingly  makes  an  affidavit  false  as  to 
any  material  fact  required  to  be  proved  in  such  proceeding,  shall 
be  fined  not  more  than  five  thousand  dollars,  or  imprisoned  not  more 
than  five  years,  or  both.  Sec.  83,  Act  of  June  89,  1906  (34  Stats., 
60S). 

(These  provisions  take  the  place  of  similar  provisions  contained  in  para- 
graph 1892a.  which  is  repealed  by  section  26  of  the  act  above  cited.) 

1892J.  For  the  purpose  of  the  prosecution  of  all  crimes  and  offei 
against  the  naturalization  laws  of  the  United  States  which  may  have 
been  committed  prior  to  the  date  when  this  Act  shall  go  into  effect, 
the  existing  naturalization  laws  shall  remain  in  full  force  and  effect. 
Sec.  26,  Act  of  June  89, 1906  (34  Stats.,  603). 

1892k.  Sections  twenty-one  hundred  and  sixty-five,  twenty-one 
hundred  and  sixty-seven,  twenty-one  hundred  and  sixty-eight. 
twenty-one  hundred  and  seventy-three,  of  the  Revised  Statutes  of  the 
United  States  of  America,  and  section  thirty-nine  of  chapter  one 
thousand  and  twelve  of  the  Statutes  at  Large  of  the  United  States  of 
America  for  the  year  nineteen  hundred  and  three,  and  all  Acts  or 
parts  of  Acts  inconsistent  with  or  repugnant  to  the  provisions  of  this 
Act  are  hereby  repealed.  Sec.  86,  Act  of  June  89,  1906  (34  Stats., 
603). 

(This  paragraph  repeals  paragraphs  1880,  1881,  1884,  1885,  1890,  and  1892a.) 

18921.  The  Secretary  of  Commerce  and  Labor  shall  have  power  to 
make  such  rules  and  regulations  as  may  be  necessary  for  properly 
carrying  into  execution  the  various  provisions  of  this  Act.  Certified 
copies  of  all  papers,  documents,  certificates,  and  records  required  to 
be  used,  filed,  recorded,  or  kept  under  any  and  aH  of  the  provisions  of 
this  Act  shall  be  admitted  in  evidence  equally  with  the  originals  in 
any  and  all  proceedings  under  this  Act  and  in  all  cases  in  which  the 
originals  thereof  might  be  admissible  as  evidence.  Sec.  88,  Act  of 
June  89, 1906  (34  Stats.,  606). 


SUPPLEMENT.  1273 

1892m.  All  the  applicable  provisions  of  the  naturalization  laws  of 
the  United  States  shall  apply  to  and  be  held  to  authorize  the  admis- 
-ioij  to  citizenship  of  all  persons  not  citizens  who  owe  permanent 
allegiance  to  the  United  States,  and  who  may  become  residents  of 
any  State  or  organized  Territory  of  the  United  States,  with  the  fol- 
lowing modifications:  The  applicant  shall  not  be  required  to  re- 
nounce allegiance  to  any  foreign  sovereignty;  he  shall  make  his  decla- 
ration of  intention  to  become  a  citizen  of  the  United  States  at  least 
two  years  prior  to  his  admission;  and  residence  within  the  jurisdic- 
tion of  the  United  States,  owing  such  permanent  allegiance,  shall  be 
regarded  as  residence  within  the  United  States  within  the  meaning 
of  the  five  years'  residence  clause  of  the  existing  law.  Sec.  30,  Act  of 
June  29, 1906  (34  Stats.,  606). 

(See  paragraph  1882.) 

CHAPTER  XXXIX. 

THE  EMPLOYMENT  OF  MILITARY  FORCE. 

NATIONAL  QUARANTINE. 

206 8a.  The  Secretary  of  the  Treasury  shall  have  the  control,  direc- 
tion, and  management  of  all  quarantine  stations,  grounds,  and 
anchora^  lished  by  authority  of  the  United  States,  and  as  soon 

as  practicable  after  the  approval  of  this  Act  shall  select  and  designate 
such  suitable  places  for  them  and  establish  the  same  at  such  points 
on  or  near  the  coast  line  of  the  United  States  or  the  border  of  the 
United  States  and  a  foreign  country,  as  in  his  judgment  are  best 
suited  for  the  same  and  necessary  to  prevent  the  introduction  of 
yellow  fever  into  the  United  States,  and,  in  his  discretion,  he  may 
also  establish  at  the  group  of  islands  known  as  the  Dry  Tortugas,  at 
the  western  end  of  the  Florida  reef,  and  at  such  other  point  or 
points  on  or  near  the  coast  line  of  the  United  States  (not  to  exceed 
four  in  the  aggregate)  as  he  deems  necessary,  quarantine  grounds, 
stations,  and  anchorages,  whereat  or  whereto  infected  vessels  bound 
for  any  port  in  the  United  States  may  be  detained  or  sent  for  the 
purpose  of  being  disinfected,  having  their  cargos  disinfected  and 
discharged,  if  necessary,  and  their  sick  treated  in  hospitals  until  all 
danger  of  infection  or  contagion  from  such  vessels,  their  cargoes, 
passengers,  or  crews  has  been  removed.  Sec.  1,  Act  of  June  19, 
1906  ( 3 4  Stats.,  299). 

2068b.  In  cases  in  which  the  title  to  the  land  and  water  so  selected 
and  designated  is  in  the  United  States  it  shall  be  the  duty  of  the 
department,  bureau,  or  official  of  the  United  States  having  custody 


127.4  MILITARY   LAWS    OF    THE    UNITED    STATES. 

or  possession  of  such  land  and  water,  or  any  part  thereof,  not  used  by 
the  Government  for  other  purposes  designated  by  law,  or  possession 
of  said  Dry  Tortugas  Islands,  on  demand  of  the  Secretary  of  the 
Treasury,  to  deliver  the  same  into  his  custody  and  possession  for  the 
use  of  the  Public  Health  and  Marine-Hospital  Service,  evidencing 
such  delivery  by  a  suitable  instrument  in  writing  to  be  delivered  to 
the  Secretary  of  the  Treasury.  That  in  cases  in  which  the  title  to 
such  land  and  water,  or  any  part  thereof,  is  in  any  other  owner  than 
the  United  States  it  shall  be  the  duty  of  the  Secretary  of  the  Treas- 
ury to  secure  the  title  and  possession  of  the  same  to  the  United  States 
for  the  use  of  the  Public  Health  and  Marine- Hospital  Service  of  the 
United  States,  by  purchase  at  a  reasonable  price,  if  possible;  but  if, 
in  his  judgment,  the  price  demanded  for  such  property  be  excessive, 
he  is  hereby  authorized  to  apply  to  the  Attorney-General  of  the 
United  States  to  cause  to  be  instituted,  in  the  proper  tribunal,  con- 
demnation proceedings  in  the  name  of  the  United  States  for  the  pur- 
pose of  acquiring  for  the  United  States  the  title  and  possession  of 
such  land  and  water,  and  said  Attorney-General  shall,  as  soon  as  pos- 
sible after  such  application  by  the  Secretary  of  the  Treasury,  cause 
such  proceedings  to  be  instituted  and  conducted  to  a  conclusion,  and 
the  custody  and  possession  of  such  land  and  water,  when  duly  ac- 
quired in  accordance  with  the  award  made  in  such  condemnation 
proceedings,  shall  be  delivered  to  the  Secretary  of  the  Treasury  for 
the  use  of  the  Public  Health  and  Marine-Hospital  Service.  Sec.  2, 
Act  of  June  19, 1906  (34  Stats.,  299}. 

2068c.  Any  vessel,  or  any  officer  of  any  vessel,  or  other  person  other 
than  State  health  or  quarantine  officers,  entering  within  the  limits 
of  any  quarantine  grounds  and  anchorages,  or  any  quarantine  station 
and  anchorage,  or  departing  therefrom,  in  disregard  of  the  quaran- 
tine rules  and  regulations  or  without  the  permission  of  the  officer  in 
charge  of  such  quarantine  ground  and  anchorage,  or  of  such  quaran- 
tine station  and  anchorage,  shall  be  deemed  guilty  of  a  misdemeanor, 
and  upon  conviction  thereof  shall  be  punished  by  a  fine  of  not  more 
than  three  hundred  dollars  or  by  imprisonment  for  not  more  than 
one  year,  or  both,  in  the  discretion  of  the  court.  That  any  master  or 
owner  of  any  vessel  violating  any  provision  of  this  Act,  or  any  pro- 
vision of  an  Act  entitled  "An  Act  granting  additional  powers  and 
imposing  additional  duties  on  the  Marine-Hospital  Service,"  approved 
February  fifteenth,  eighteen  hundred  and  ninety-three,  or  violating 
any  rule  or  regulation  made  in  accordance  with  this  Act  or  said  Act 
of  February  fifteenth,  eighteen  hundred  and  ninety-three,  relating  to 
the  inspection  of  vessels,  or  to  the  prevention  of  the  introduction  of 
contagious  or  infectious  diseases  into  the  United  States,  or  any  mas- 


SUPPLEMENT.  1275 

ter,  owner,  or  agent  of  any  vessel  making  a  false  statement  relative 
to  the  sanitary  condition  of  such  vessel  or  its  contents,  or  as  to  the 
health  of  any  passenger  or  person  thereon  shall  be  deemed  guilty  of 
a  misdemeanor,  and  on  conviction  thereof  shall  be  punished  by  a  fine 
of  not  more  than  five  hundred  dollars  or  imprisonment  for  not  more 
than  one  year,  or  both,  in  the  discretion  of  the  court.  Sec.  4?  Act  of 
June  19, 1906  (34  Stats.,  300). 

EXTRADITION. 

2093a.  The  provisions  of  section  ten  hundred  and  fourteen  of  the 
•Revised  Statutes,1  so  far  as  applicable,  shall  apply  throughout  the 
United  States  for  the  arrest  and  removal  therefrom  to  the  Philippine 
Islands  of  any  fugitive  from  justice  charged  with  the  commission  of 
any  crime  or  offense  against  the  United  States  within  the  Philippine 
Islands,  and  shall  apply  within  the  Philippine  Islands  for  the  arrest 
and  removal  therefrom  to  the  United  States  of  any  fugitive  from  jus- 
tice charged  with  the  commission  of  any  crime  or  offense  against  the 
United  States.  Such  fugitive  may,  by  any  judge  or  magistrate  of  the 
Philippine  Islands,  and  agreeably  to  the  usual  mode  of  process 
against  offenders  therein,  be  arrested  and  imprisoned,  or  bailed,  as  the 
case  may  be,  pending  the  issuance  of  a  warrant  for  his  removal  to  the 
United  States,  which  warrant  it  shall  be  the  duty  of  a  judge  of  the 
court  of  first  instance  seasonably  to  issue,  and  of  the  officer  or  agent 
of  the  United  States  designated  for  the  purpose  to  execute.  Such 
officer  or  agent,  when  engaged  in  executing  such  warrant  without  the 
Philippine  Islands,  shall  have  all  the  powers  of  a  marshal  of  the 
United  States  so  far  as  such  powers  are  requisite  for  the  prisoner's 
safe-keeping  and  the  execution  of  the  warrant.  Sec.  1,  Act  of  Feb- 
ruary 9,  1903  (32  Stats.,  806). 

2093b.  The  provisions  of  sections  fifty-two  hundred  and  seventy- 
eight  and  fifty-two  hundred  and  seventy-nine  of  the  Revised  Stat- 

1  SEC.  1014,  R.  S.  For  any  crime  or  offense  against  the  United  States,  the 
offender  may,  by  any  justice  or  judge  of  the  United  States,  or  by  any  commis- 
sioner of  a  circuit  court  to  take  bail,  or  by  any  chancellor,  judge  of  a  supreme 
or  superior  court,  chief  or  first  judge  of  common  pleas,  mayor  of  a  city,  justice 
of  the  peace,  or  other  magistrate,  of  any  State  where  he  may  be  found,  and 
agreeably  to  the  usual  mode  of  process  against  offenders  in  such  State;  and  at 
the  expense  of  the  United  States,  be  arrested  and  imprisoned,  or  bailed,  as  the 
case  may  be,  for  trial  before  such  court  of  the  United  States  as  by  law  has  cog- 
nizance of  the  offense.  Copies  of  the  process  shall  be  returned  as  speedily  as 
may  be  into  the  clerk's  office  of  such  court,  together  with  the  recognizances  of 
the  witnesses  for  their  appearance  to  testify  in  the  case.  And  where  any 
offender  or  witness  is  committed  in  any  district  other  than  that  where  the 
offense  is  to  be  tried,  it  shall  be  the  duty  of  the  judge  of  the  district  where 
such  offender  or  witness  is  imprisoned,  seasonably  to  issue,  and  of  the  marshal 
to  execute,  a  warrant  for  his  removal  to  the  district  where  the  trial  is  to  be 
had. 


1276  MILITARY   LAWS    OF    THE    UNITED    STATES. 

utes,1  so  far  as  applicable,  shall  apply  to  the  Philippine  Islands, 
which,  for  the  purposes  of  said  sections,  shall  be  deemed  a  Territory 
within  the  meaning  thereof.  Sec.  2,  Act  of  February  9,  1903  (32 
Stats.,  807). 

2093c.  The  provisions  of  sections  fifty-two  hundred  and  seventy, 
fifty-two  hundred  and  seventy-one,  fifty-two  hundred  and  seventy- 
two,  fifty-two  hundred  and  seventy-three,  fifty-two  hundred  and 
seventy-four,  fifty-two  hundred  and  seventy-five,  fifty-twro  hundred 
and  seventy-six,,  and  fifty-two  hundred  and  seventy-seven  of  the  Re- 
vised Statutes  (as -amended  by  the  Act  approved  August  third, 
eighteen  hundred  and  eighty-two),  so  far  as  applicable,  shall  apply 
to  the  Philippine  Islands  for  the  arrest  and  removal  therefrom  of  any 
fugitives  from  justice  charged  with  the  commission  within  the  juris- 
diction of  any  foreign  government  of  any  of  the  crimes  provided  for 
by  treaty  between  the  United  States  and  such  foreign  nation,  and  for 
the  delivery  by  a  foreign  government  of  any  person  accused  of  crime 
committed  within  the  jurisdiction  of  the  Philippine  Islands.  Such 
fugitive  from  justice  of  a  foreign  country  may,  upon  warrant  duly 
issued  by  any  judge  or  magistrate  of  the  Philippine  Islands,  and 
agreeably  to  the  usual  mode  of  process  against  offenders  therein,  be 
arrested  and  brought  before  such  judge  or  magistrate,  who  shall  pro- 
ceed in  the  matter  in  accordance  with  the  provisions  of  the  Revised 
Statutes  hereby  made  applicable  to  the  Philippine  Islands :  Provided, 
That  for  the  purposes  of  this  section  the  order  or  warrant  for  delivery 
of  a  person  committed  for  extradition  prescribed  by  section  fifty-two 
hundred  and  seventy-two  of  the  Revised  Statutes  shall  be  issued  by 
the  governor  of  the  Philippine  Islands  under  his  hand  and  seal  of 
office,  and  not  by  the  Secretary  of  State. 

SEC.  2.  That  the  provisions  of  sections  fifty-four  hundred  and  nine 
and  fifty-four  hundred  and  ten  of  the  Revised  Statutes  are  hereby 

1  SEC.  5278,  R.  S.  Whenever  the  executive  authority  of  any  State  or  Territory 
demands  any  person  as  a  fugitive  from  justice,  of  the  executive  authority  of 
any  State  or  Territory,  to  which  such  person  has  fled,  and  produces  a  copy  of 
an  indictment  found  or  an  affidavit  made  before  a  magistrate  of  any  State  or 
Territory,  charging  the  person  demanded  with  having  committed  treason,  fel- 
ony, or  other  crime,  certified  as  authentic  by  the  governor  or  chief  magistrate 
of  the  State  or  Territory  from  whence  the  person  so  charged  has  fled,  it  shall 
be  the  duty  of  the  executive  authority  of  the  State  or  Territory  to  which  such 
person  has  fled  to  cause  him  to  be  arrested  and  secured,  and  to  cause  notice  of 
the  arrest  to  be  given  to  the  executive  authority  making  such  demand,  or  to  the 
agent  of  such  authority  appointed  to  receive  the  fugitive,  and  to  cause  the  fugi- 
tive to  be  delivered  to  such  agent  when  he  shall  appear.  If  no  such  agent  ap- 
pears within  six  months  from  the  time  of  the  arrest,  the  prisoner  may  be  dis- 
charged. All  costs  of  expenses  incurred  in  the  apprehending,  securing,  and 
transmitting  such  fugitive  to  the  State  or  Territory  making  such  demand,  shall 
be  paid  by  such  State  or  Territory. 

SEC.  5279,  R.  S.     Any  agent  so  appointed  who  receives  the  fugitive  into  his 
custody,  shall  be  empowered  to  transport  him  to  the  State  or  Territory  from 
which  he  has  fled.     And  every  person  who,  by  force,  sets  at  liberty  or  rescues 
the  fugitive  from  such  agent  while  so  transporting  him,  shall  be  fined  not  more^ 
than  five  hundred  dollars  or  imprisoned  not  more  than  one  year. 


SUPPLEMENT.  1277 

made  applicable  to  proceedings  in  extradition  from  the  Philippine 
Islands,  either  to  the  United  States  under  an  Act  entitled  "An  Act  to 
provide  for  the  removal  of  persons  accused  of  crime  to  and  from  the 
Philippine  Islands  for  trial,"  approved  February  ninth,  nineteen  hun- 
dred and  three,  or  to  foreign  countries  under  the  provisions  of  this 
Act.  Sees.  1  and  2,  Act  of  February  6, 1905  (33  Stats.,  698} . 

(This  paragraph  makes  applicable  to  the  Philippine  Islands  paragraphs 
2090-2092.) 

RESTRICTION  UPON  THE  USE  OF  MILITARY  FORCE. 

2103a.  From  and  after  the  passage  of  this  act  it  shall  not  be  lawful 
to  employ  any  part  of  the  Army  of  the  United  States,  as  a  posse 
comitatus,  or  otherwise,  for  the  purpose  of  executing  the  laws,  except 
in  such  cases  and  under  such  circumstances  as  such  employment  of 
said  force  may  be  expressly  authorized  by  the  Constitution  or  by  act 
of  Congress ;  and  no  money  appropriated  by  this  act  shall  be  used  to 
pay  any  of  the  expenses  incurred  in  the  employment  of  any  troops  in 
violation  of  this  section  and  any  person  wilfully  violating  the  pro- 
visions of  this  section  shall  be  deemed  guilty  of  a  misdemeanor  and 
on  conviction  thereof  shall  be  punished  by  fine  not  exceeding  ten  thou- 
sand dollars  or  imprisonment  not  exceeding  two  years  or  by  both  such 
fine  and  imprisonment.  Sec.  15,  Act  of  June  18, 1878  (20  Stats.,  152) . 

(This  paragraph  takes  the  place  of  paragraph  2103,  from  which  a  portion  of 
the  text  was  omitted.) 

THE   LAW   OF   WAR MILITARY   OCCUPATION. 

2112a.  The  action  of  the  President  of  the  United  States  heretofore 
taken  by  virtue  of  the  authority  vested  in  him  as  Commander  in  Chief 
of  the  Army  and  Navy,  as  set  forth  in  his  order  of  July  twelfth, 
eighteen  hundred  and  ninety-eight,  whereby  a  tariff  of  duties  and 
taxes  as  set  forth  by  said  order  was  to  be  levied  and  collected  at  all 
ports  and  places  in  the  Philippine  Islands  upon  passing  into  the  occu- 
pation and  possession  of  the  forces  of  the  United  States,  together  with 
the  subsequent  amendments  of  said  order,  are  hereby  approved,  rati- 
fied, and  confirmed,  and  the  actions  of  the  authorities  of  the  govern- 
ment of  the  Philippine  Islands,  taken  in  accordance  with  the  provi- 
sions of  said  order  and  subsequent  amendments,  are  hereby  approved : 
Provided,  That  nothing  contained  in  this  section  shall  be  held  to 
amend  or  repeal  an  Act  entitled  "  An  Act  temporarily  to  provide 
revenue  for  the  Philippine  Islands,  and  for  other  purposes,"  approved 
March  eight,  nineteen  hundred  and  two.  Sec.  2,  Act  of  July  1,  1902 
(32  Stats.,  692). 

2112b.  The  President  of  the  United  States,  during  such  time  as  and 
whenever  the  sovereignty  and  authority  of  the  United  States  encoun- 


1278  MILITABY   LAWS    OF    THE    UNITED    STATES. 

ter  armed  resistance  in  the  Philippine  Islands,  until  otherwise  pro- 
vided by  Congress,  shall  continue  to  regulate  and  control  commercial 
intercourse  with  and  within  said  Islands  by  such  general  rules  and 
regulations  as.  he,  in  his  discretion,  may  deem  most  conducive  to  the 
public  interests  and  the  general  welfare.  Sec.  3,  Act  of  July  1, 1902 
(32  Stats.,  692). 


CHAPTER  XL. 

PENSIONS. 
THE  GENERAL  PENSION  LAW. 

2125a.  From  and  after  the  passage  of  this  Act  all  persons  on  the 
pension  roll,  and  all  persons  hereafter  granted  a  pension,  who,  while 
in  the  military  or  naval  service  of  the  United  States  and  in  the  line  of 
duty,  shall  have  lost  both  eyes,  or  who  have  become  totally  blind  from 
causes  occurring  in  the  service  of  the  United  States,  shall  receive  a 
pension  at  the  rate  of  one  hundred  dollars  per  month :  Provided,  how- 
ever, That  this  Act  shall  not  be  so  construed  as  to  reduce  any  pension 
under  any  Act,  public  or  private.  Act  of  April  8,  190 1+  (33  Stats., 
163). 

(This  paragraph  amends  paragraph  2125.) 

2131a.  From  and  after  the  passage  of  this  Act  all  persons  on  the 
pension  roll,  and  all  persons  hereafter  granted  a  pension,  who,  while 
in  the  military  or  naval  service  of  the  United  States  and  in  the  line  of 
duty,  shall  have  lost  one  hand  or  one  foot,  or  been  totally  disabled  in 
the  same,  shall  receive  a  pension  at  the  rate  of  forty  dollars  per 
month ;  that  all  persons  who,  in  like  manner,  shall  have  lost  an  arm  at 
or  above  the  elbow  or  a  leg  at  or  above  the  knee,  or  been  totally  dis- 
abled in  the  same,  shall  receive  a  pension  at  the  rate  of  forty-six  dol- 
lars per  month ;  that  all  persons  who,  in  like  manner,  shall  have  lost 
an  arm  at  the  shoulder  joint  or  a  leg  at  the  hip  joint,  or  so  near  the 
shoulder  or  hip  joint  or  where  the  same  is  in  such  a  condition  as  to 
prevent  the  use  of  an  artificial  limb,  shall  receive  a  pension  at  the 
rate  of  fifty-five  dollars  per  month,  and  that  all  persons  who,  in  like 
manner,  shall  have  lost  one  hand  and  one  foot,  or  been  totally  dis- 
abled in  the  same,  shall  receive  a  pension  at  the  rate  of  sixty  dollars 
per  month;  and  that  all  persons  who,  in  like  manner,  shall  have  lost 
both  feet  shall  receive  a  pension  at  the  rate  of  one  hundred  dollars  per 
month :  Provided,  however,  That  this  Act  shall  not  be  so  construed  as 
to  reduce  any  pension  under  any  act,  public  or  private.  Act  of 
March  2,  1903  (32  Stats.,  944). 

(This  paragraph  amends  paragraph  2131.) 


SUPPLEMENT.  1279 

2136a.  The  investigation  of  claims  for  the  reimbursement  of  ex- 
penses of  the  last  sickness  and  burial  of  deceased  pensioners  shall  be 
at  the  instance  and  under  the  direction  of  the  Secretary  of  the  Treas- 
ury, and  no  part  of  any  accrued  pension  shall  hereafter  be  used  to 
reimburse  any  State,  county,  or  municipal  corporation  for  expenses 
incurred  by  such  State,  county,  or  municipal  corporation  under  State 
law  for  expenses  of  the  last  sickness  or  burial  of  a  deceased  pen- 
sioner. Act  of  March  3,  1903  (32  Stats.,  1111}. 

DEPENDENT    RELATIVES. 

2149a.  Section  forty-seven  hundred  and  eight  of  the  laws  of  the 
United  States  governing  the  granting  of  army  and  navy  pensions,  is 
amended  to  read  as  follows : 

"  SEC.  4708.  The  remarriage  of  any  widow,  dependent  mother,  or 
dependent  sister  entitled  to  pension  shall  not  bar  her  right  to  such  pen- 
sion to  the  date  of  her  remarriage,  wrhether  an  application  therefor  was 
filed  before  or  after  such  marriage;  but  on  the  remarriage  of  any 
widow,  dependent  mother,  or  dependent  sister  having  a  pension  such 
pension  shall  cease :  Provided,  however,  That  any  widow  who  was  the 
lawful  wife  of  any  officer  or  enlisted  man  or  other  person  in  the  Army, 
Navy,  or  Marine  Corps  of  the  United  States,  as  described  in  para- 
graphs one,  two,  and  three  of  section  forty-six  hundred  and  ninety- 
three  of  the  Revised  Statutes  of  the  United  States,  during  the  period 
of  his  service  in  any  war,  and  whose  name  was  placed  or  shall  here- 
after be  placed  on  the  pension  roll  because  of  her  husband's  death  as 
the  result  of  wound  or  injury  received  or  disease  contracted  in  such 
military  or  naval  service,  and  whose  name  has  been  or  shall  hereafter 
be  dropped  from  said  pension  roll  by  reason  of  her  marriage  to  another 
person  who  has  since  died  or  shall  hereafter  die,  or  from  whom  she 
has  been  heretofore  or  shall  be  hereafter  divorced,  upon  her  own  appli- 
cation and  without  fault  on  her  part,  and  if  she  is  without  means  of 
support  other  than  her  daily  labor,  as  defined  by  the  Acts  of  June 
twenty-seventh,  eighteen  hundred  and  ninety,  and  May  ninth,  nineteen 
hundred,  shall  be  entitled  to  have  her  name  again  placed  on  the  pen- 
sion roll  at  the  rate  now  provided  for  widows  by  the  Acts  of  July  four- 
teenth, eighteen  hundred  and  sixty-two,  March  third,  eighteen  hun- 
dred and  seventy-three,  and  March  nineteenth,  eighteen  hundred  and 
eighty-six,  such  pension  to  commence  from  the  date  of  the  filing  of 
her  application  in  the  Pension  Bureau  after  the  approval  of  this  Act: 
And  provided  further,  That  where  such  widow  is  already  in  receipt  of 
a  pension  from  the  United  States  she  shall  not  be  entitled  to  restora- 
tion under  this  Act:  And  provided  further,  That  where  the  pension 
of  said  widow  on  her  second  or  subsequent  marriage  has  accrued  to  a 


1280  MILITARY   LAWS    OF    THE    UNITED    STATES. 

helpless  or  idiotic  child,  or  a  child  or  children  under  the  age  of  sixteen 
years,  she  shall  not  be  entitled  to  restoration  under  this  Act  unless  said 
helpless  or  idiotic  child,  or  child  or  children  under  sixteen  years  of 
age,  be  then  a  member  or  members  of  her  family  and  cared  for  by  her, 
and  upon  the  restoration  of  said  widow  the  payment  of  pension  to  said 
child  or  children  shall  cease."  Sec.  1,  Act  of  February  28, 1903  (3% 
Stats.,  920). 

(This  paragraph  takes  the  place  of  paragraph  2149.) 

2149b.  The  provisions  of  this  Act  shall  be  extended  to  those  widows 
otherwise  entitled  whose  husbands  died  of  wounds,  injuries,  or  disease 
contracted  during  the  period  of  their  military  and  naval  service,  but 
who  were  deprived  of  pension  under  the  Act  of  March  third,  eighteen 
hundred  and  sixty-five,  because  of  their  failure  to  draw  any  pension 
by  reason  of  their  remarriage.  Sec.  2,  Act  of  February  28, 1903  (32 
Stats.,  921). 

THE  DEPENDENT  PENSION   LAW. 

2151a.  Any  person  who  served  ninety  days  or  more  in  the  military 
or  naval  service  of  the  United  States  during  the  late  civil  war  or  sixty 
days  in  the  war  with  Mexico,  and  who  has  been  honorably  discharged 
therefrom,  and  who  has  reached  the  age  of  sixty-two  years  or  over, 
shall,  upon  making  proof  of  such  facts  according  to  such  rules  and 
regulations  as  the  Secretary  of  the  Interior  may  provide,  be  placed 
upon  the  pension  roll,  and  be  entitled  to  receive  a  pension  as  follows : 
In  case  such  person  has  reached  the  age  of  sixty-two  years,  twelve  dol- 
lars per  month ;  seventy  years,  fifteen  dollars  per  month ;  seventy-five 
years  or  over,  twenty  dollars  per  month ;  and  such  pension  shall  com- 
mence from  the  date  of  the  filing  of  the  application  in  the  Bureau  of 
Pensions  after  the  passage  and  approval  of  this  Act :  Provided,  That 
pensioners  who  are  sixty -two  years  of  age  or  over,  and  who  are  now 
receiving  pensions  under  existing  laws,  or  whose  claims  are  pending 
in  the  Bureau  of  Pensions,  may,  by  application  to  the  Commissioner 
of  Pensions  in  such  form  as  he  may  prescribe,  receive  the  benefits  of 
this  Act;  and  nothing  herein  contained  shall  prevent  any  pensioner 
or  person  entitled  to  a  pension  from  prosecuting  his  claim  and  receiv- 
ing a  pension  under  any  other  general  or  special  Act :  Provided,  That 
no  person  shall  receive  a  pension  under  any  other  law  at  the  same  time 
or  for  the,same  period  that  he  is  receiving  a  pension  under  the  pro- 
visions of  this  Act :  Provided  further,  That  no  person  who  is  now  re- 
ceiving or  shall  hereafter  receive  a  greater  pension  under  any  other 
general  or  special  law  than  he  would  be  entitled  to  receive  under  the 
provisions  herein  shall  be  pensionable  under  this  Act. 

SEC.  2.  That  rank  in  the  service  shall  not  be  considered  in  applica- 
tions filed  hereunder. 


SUPPLEMENT.  1281 

SEC.  3.  That  no  pension  attorney,  claim  agent,  or  other  person  shall 
be  entitled  to  receive  any  compensation  for  services  rendered  in  pre- 
senting any  claim  to  the  Bureau  of  Pensions,  or  securing  any  pension, 
under  this  Act.  Act  of  February  6, 1907  (34  Stats.,  879). 

(See  paragraphs  2166  and  2166a.) 

2151b.  The  benefits  of  the  Act  of  February  sixth,  nineteen  hundred 
and  seven,  entitled  "An  Act  granting  pensions  to  certain  enlisted  men, 
soldiers,  and  officers  who  served  in  the  civil  war  and  the  war  with 
Mexico,"  are  hereby  extended  to  include  any  person  who  served  the 
period  of  time  therein  specified  during  the  late  civil  war  or  in  the  war 
with  Mexico  and  who  is  now  or  may  hereafter  become  entitled  to 
pension  under  the  Acts  of  June  twenty-seventh,  eighteen  hundred 
and  ninety,  February  fifteenth,  eighteen  hundred  and  ninety-five, 
and  the  joint  resolution  of  July  first,  nineteen  hundred  and  two,  or 
the  Acts  of  January  twenty-ninth,  eighteen  hundred  and  eighty- 
seven,  March  third,  eighteen  hundred  and  ninety-one,  and  February 
seventeenth,  eighteen  hundred  and  ninety-seven.  Act  of  March  4, 
1907  (34  Stats.,  1406). 

(See  paragraphs  2166,  2166a,  and  2151a.) 

2151c.  Hereafter  the  age  of  sixty-two  years  and  over  shall  be  con- 
sidered a  permanent  specific  disability  within  the  meaning  of  the 
pension  laws.  Act  of  March  4, 1907  (34  Stats.,  1406). 

(See  paragraph  2151.) 

2154a.  The  Act  approved  June  twenty-seventh,  eighteen  hundred 
and  ninety,  entitled  "An  Act  granting  pensions  to  soldiers  and  sailors 
who  are  incapacitated  for  the  performance  of  manual  labor,  and  pro- 
viding for  pensions  to  widows,  minor  children,  and  dependent 
parents,"  is  construed  and  held  to  include  all  persons  and  the  widows 
and  minor  children  of  all  deceased  persons,  subject  to  the  limitations 
of  said  Act,  who  served  for  ninety  days  in  the  military  or  naval  serv- 
ice of  the  United  States  during  the  late  war  of  the  rebellion,  and  who 
have  been  honorably  discharged  therefrom,  and  section  forty-seven 
hundred  and  sixteen,  Revised  Statutes  United  States,  is  amended 
accordingly :  Provided,  however,  That  the  foregoing  shall  not  apply 
to  those  who  served  in  the  First,  Second,  Third,  Fourth,  Fifth,  and 
Sixth  regiments  United  States  Volunteer  Infantry  who  had  a  prior 
service  in  the  Confederate  army  or  navy  and  who  enlisted  in  said 
regiments  while  confined  as  prisoners  of  war  under  a  stipulation 
that  they  were  not  to  be  pensionable  under  the  laws  of  the  United 
States,  nor  to  those  who,  having  had  such  prior  service,  enlisted  in 
the  military  or  naval  service  of  the  United  States  after  the  first  day 
22924—08 81 


1282  MILITARY   LAWS    OF    THE    UNITED    STATES. 

of  January,  eighteen  hundred  and  sixty-five.     Sec.  1,  Act  of  July  1, 
1902  (32  Stats.,  750). 

(This  paragraph  amends  paragraph  2227.) 

MEXICAN    WAR   PENSIONS. 

2166a.  The  Secretary  of  the  Interior  is  hereby  authorized  and 
directed  to  place  on  the  pension  roll,  at  the  rate  of  twelve  dollars  per 
month,  all  Mexican  war  survivors  now  on  the  roll,  or  who  may  here- 
after be  placed  on  the  roll,  under  the  Acts  of  January  twenty-ninth, 
eighteen  hundred  and  eighty-seven,  March  third,  eighteen  hundred 
and  ninety-one,  and  February  fifth,  eighteen  hundred  and  ninety- 
seven.  Act  of  March  3,  1903  (32  Stats., 


PENSIONS    FOR    INDIAN    WARS,    1832-1842. 

2167a.  The  provisions,  limitations,  and  benefits  of  the  Act  entitled 
"An  Act  granting  pensions  to  survivors  of  the  Indian  wars  of  eight- 
een hundred  and  thirty-two  to  eighteen  hundred  and  forty-two,  in- 
clusive, known  as  the  Black  Hawk  war,  Creek  war,  Cherokee  disturb- 
ances, and  the  Seminole  war,"  approved  July  twenty-seventh,  eight- 
een hundred  and  ninety-two,  be,  and  the  same  are  hereby,  extended, 
from  the  date  of  the  passage  of  this  Act,  to  the  surviving  officers  and 
enlisted  men,  including  marines,  militia,  and  volunteers  of  the  mili- 
tary and  naval  service  of  the  United  States  who  served  for  thirty 
days  or  more  and  were  honorably  discharged  under  the  United 
States  military,  State,  Territorial,  or  provisional  authorities  in  the 
Florida  and  Georgia  Seminole  Indian  war  of  eighteen  hundred  and 
seventeen  and  eighteen  hundred  and  eighteen;  the  Fevre  River  In- 
dian war  of  Illinois  of  eighteen  hundred  and  twenty-seven;  the  Sac 
and  Fox  Indian  war  of  eighteen  hundred  and  thirty-one  ;  the  Sabine 
Indian  disturbances  of  eighteen  hundred  and  thirty-six  and  eight- 
een hundred  and  thirty-seven;  the  Cayuse  Indian  war  of  eighteen 
hundred  and  forty-seven  and  eighteen  hundred  and  forty-eight,  on 
the  Pacific  coast;  the  Florida  wars  with  the  Seminole  Indians,  from 
eighteen  hundred  and  forty-two  to  eighteen  hundred  and  fifty-eight, 
inclusive;  the  Texas  and  New  Mexico  Indian  war  of  eighteen  hun- 
dred and  forty-nine  to  eighteen  hundred  and  fifty-six;  the  Califor- 
nia Indian  disturbances  of  eighteen  hundred  and  fifty-one  and  eight- 
een hundred  and  fifty-two;  the  Utah  Indian  disturbances  of  eight- 
een hundred  and  fifty  to  eighteen  hundred  and  fifty-three,  inclusive, 
and  the  Oregon  and  Washington  Territory  Indian  wars  from  eight- 
een hundred  and  fifty-one  to  eighteen  hundred  and  fifty-six,  inclu- 
sive; and  also  to  include  the  surviving  widows  of  such  officers  and 


SUPPLEMENT.  1283 

enlisted  men :  Provided,  That  such  widows  have  not  remarried.     Act 
of  June  27, 1902  (32  Stats.,  399}. 
(See  paragraph  2167.) 

2167b.  Where  there  is  no  record  of  enlistment  or  muster  into  the 
service  of  the  United  States  in  any  of  the  wars  mentioned  in  this  Act 
the  record  of  pay  by  the  United  States  shall  be  accepted  as  full  and 
satisfactory  proof  of  such  enlistment  and  service.  Act  of  June  27, 

1902  (32  Stats.,  399}. 

*» 

DECLARATION  AND  EVIDENCE  IN   PENSION   CASES. 

220 la.  In  the  administration  of  the  pension  laws  any  enlisted  man 
of  the  Army,  including  regulars,  volunteers,  and  militia,  or  any 
appointed  or  enlisted  man  of  the  Navy  or  Marine  Corps,  who  was 
honorably  discharged  from  the  last  contract  of  service  entered  into 
by  him  during  the  late  war  of  the  rebellion,  shall  be  held  and  consid- 
ered to  have  been  honorably  discharged  from  all  similar  contracts 
of  service  previously  entered  into  by  him  with  the  United  States  dur- 
ing said  war :  Provided,  That  such  enlisted  or  appointed  man  served 
not  less  than  six  months  under  said  last  enlistment  or  appointment, 
that  his  entire  service  under  said  last  enlistment  or  appointment  was 
faithful,  and  that  he  did  not  receive  by  reason  of  said  last  enlistment 
or  appointment  any  bounty  or  gratuity  other  than  from  the  United 
States  in  excess  of  that  to  which  he  would  have  been  entitled  if  he 
had  continued  to  serve  faithfully  until  honorably  discharged  under 
any  contract  of  service  previously  entered  into  by  him,  either  in  the 
Army,  Navy,  or  Marine  Corps,  during  the  war  of  the  rebellion.  Sec. 
2,  Joint  Res.  of  July  1, 1902  (32  Stats.,  750}. 

2201b.  In  the  administration  of  the  pension  laws  any  enlisted  man 
or  commissioned  officer  of  the  Army,  including  regulars,  volunteers, 
and  militia,  or  any  appointed  or  enlisted  man  or  commissioned 
officer  of  the  Navy  or  Marine  Corps,  who  was  honorably  discharged 
from  any  subsequent  contract  of  service  entered  into  by  him  during 
the  late  war  of  the  rebellion,  shall  be  held  and  considered  to  have 
been  honorably  discharged  from  all  previous  contracts  of  service  as 
commissioned  officer  or  enlisted  man  previously  entered  into  by  him 
with  the  United  States  during  said  war :  Provided,  That  such  enlisted 
or  appointed  man  or  commissioned  officer  served  not  less  than  six 
months  under  any  subsequent  enlistment,  appointment,  or  commis- 
sion; that  his  entire  service  under  any  said  subsequent  enlistment, 
appointment,  or  commission  was  faithful,  and  that  he  did  not  receive 
by  reason  of  said  enlistment,  appointment,  or  commission  any  bounty 
or  gratuity  other  than  from  the  United  States  in  excess  of  that  to 
which  he  would  have  been  entitled  if  he  had  continued  to  serve  faith- 


1284  MILITARY   LAWS    OF    THE    UNITED    STATES. 

fully  until  honorably  discharged  under  any  contract  of  service  pre- 
viously entered  into  by  him,  either  in  the  Army,  Navy,  or  Marine 
Corps,  during  the  war  of  the  rebellion.  Joint  Res.  of  June  28,  1906 
(34  Stats.,  836) . 

(This  paragraph  amends  section  2  of  the  joint  resolution  of  July  1,  1902,  and 
takes  the  place  of  paragraph  2201a.) 


2g03a.  No  pension  attorney,  claim  agent,  or  other  person  shall  be 
entitled  to  receive  any  compensation  for  services  rendered  in  secur- 
ing the  introduction  of  a  bill  or  the  passage  thereof  through  Congress 
granting  pension  or  increase  of  pension;  and  any  person  who  shall, 
directly  or  indirectly,  contract  for,  demand,  receive,  or  retain  any 
compensation  for  such  services  shall  be  deemed  guilty  of  an  offense, 
and  upon  conviction  thereof  shall,  for  each  and  every  such  offense, 
be  fined  not  exceeding  five  hundred  dollars  or  imprisoned  not  exceed- 
ing two  years,  or  both,  in  the  discretion  of  the  court.  Act  of  March 
4,1907  (34  Stats.,  1407). 


CHAPTER  XLI. 

THE    SOLDIERS'  HOME. 
BOARD  OF  COMMISSIONERS. 

2263a.  The  chief  of  the  Military  Secretary's  Department  shall  be  a 
member  of  the  Board  of  Commissioners  of  the  United  States  Soldiers' 
Home.  Act  of  April  23, 1904  (33  Stats.,  263) . 


CHAPTER  XLII. 

THE  NATIONAL  HOME  FOR  DISABLED  VOLUNTEER  SOLDIERS. 
OFFICERS  OF  THE  BRANCHES  OF  THE  NATIONAL  HOME. 

2298a.  Hereafter  the  officers  of  the  National  Home  for  Disabled 
Volunteer  Soldiers,  and  officers  under  the  Board  of  Managers  thereof, 
shall  be  appointed,  so  far  as  may  be  practicable,  from  persons  whose 
military  or  naval  service  would  render  them  eligible,  if  disabled  and 
not  otherwise  provided  for,  for  admission  to  the  Home,  and  they  may 
be  appointed,  removed,  and  transferred,  from  time  to  time,  as  the 
interests  of  the  institution  may  require,  by  the  Board  of  Managers. 
Act  of  June  28,  1902  (32  Stats.,  472). 

(This  paragraph  amends  paragraph  2298.) 


SUPPLEMENT.  1285 

ACCOUNTS. 

2316a.  At  the  Central  Branch,  at  Dayton,  Ohio:  For  current  ex- 
penses, namely:  Pay  of  officers  and  noncommissioned  officers  of  the 
Home,  with  such  exceptions  as  are  hereinafter  noted,  and  their  clerks 
and  orderlies  ;  also  payments  for  chaplains  and  religious  instruction, 
printers,  bookbinders,  librarians,  musicians,  telegraph  and  telephone 
operators,  guards,  policemen,  watchmen,  and  fire  company;  for  all 
property  and  materials  purchased  for  their  use,  including  repairs  not 
done  by  the  Home  ;  for  necessary  expenditures  for  articles  of  amuse- 
ment, boats,  library  books,  magazines,  papers,  pictures,  and  musical 
instruments,  and  for  repairs  not  done  by  the  Home  ;  and  for  station- 
ery, advertising,  legal  advice,  for  payments  due  heirs  of  deceased 
members:  Provided,  That  all  receipts  on  acount  of  the  effects  of  de- 
ceased members  during  the  fiscal  year  shall  be  also  available  for  such 
payments;  and  for  such  other  expenditures  as  can  not  properly  be 
included  under  other  heads  of  expenditure,  sixty  thousand  dollars. 
Act  of  April  28,  1904  (33  Stats.,  500). 

(This  paragraph  relates  to  the  sundry  civil  appropriation  act  for  the  fiscal 
year  ending  June  30,  1905,  and  is  a  reenactment  of  previous  legislation  on  the 
subject.) 

STATE    AND    TERRITORIAL    HOMES. 

232la.  No  part  of  this  appropriation  shall  be  apportioned  to  any 
State  or  Territorial  Home  until  its  laws,  rules,  or  regulations  respect- 
ing the  pensions  of  its  inmates  be  made  to  conform  to  the  provisions 
of  section  four  of  an  Act  approved  March  third,  eighteen  hundred 
and  eighty-three,  entitled  "An  Act  prescribing  regulations  for  the 
Soldiers'  Home  located  at  Washington,  in  the  District  of  Columbia, 
and  for  other  purposes  ;"  but  the  above  proviso  shall  not  apply  to  any 
State  or  Territorial  Home  into  which  the  wives  or  widows  of  soldiers 
are  admitted  and  maintained.  Act  of  April  28,  1904  ($$  Stats.,  604). 


(This  paragraph  relates  to  the  sundry  civil  appropriation  for  the  fiscal  year 
ending  June  30,  1905.  See  paragraphs  2263-2266,  2268,  2272-2274,  2279,  2281, 

2284,  and  2285.) 

2324a.  No  part  of  this  appropriation  shall  be  apportioned  to  any 
State  or  Territorial  Home  that  maintains  a  bar  or  canteen  where 
intoxicating  liquors  are  sold.  Act  of  April  28,  1904  (33  Stats.,  504). 

(This  provision  appears  for  the  first  time  in  the  annual  appropriation  for 
sundry  civil  expenses,  of  April  28,  1904,  and  is  inserted  here  because  it  is  prob- 
able it  will  become  a  part  of  the  annual  legislation  for  these  Homes.) 

2324b.  One-half  of  any  sum  or  sums  retained  by  State  Homes  on 
account  of  pensions  received  from  inmates  shall  be  deducted  from  the 
aid  herein  provided  for.  Act  of  March  3,  1905  (33  Stats.,  1227). 


1286  MILITAKY   LAWS    OF    THE   UNITED   STATES. 

PENSIONS  TO  INMATES. 

2328a.  Any  balance  of  pension  money  due  a  member  of  the 
National  Home  for  Disabled  Volunteer  Soldiers  at  the  time  of  his 
death  shall  be  paid  to  his  widow,  minor  children  or  dependent  mother 
or  father  in  the  order  named,  and  should  no  widow,  minor  child,  or 
dependent  parent  be  discovered  within  one  year  from  the  time  of  the 
death  of  the  pensioner,  said  balance  shall  be  paid  to  the  post  fund  of 
the  Branch  of  said  National  Home  of  which  the  pensioner  was  a 
member  at  the  time  of  his  death,  to  be  used  for  the  common  benefit  of 
the  members  of  the  Home  under  the  direction  of  the  Board  of  Man- 
agers, subject  to  future  reclamation  by  the  relatives  hereinbefore 
designated,  upon  application  filed  with  the  Board  of  Managers  within 
five  years  after  the  pensioner's  death.  Act  of  July  1, 1902  (32  Stats., 
564}- 

(See  paragraph  2328.) 


CHAPTEK  XLIII. 

THE  GOVERNMENT  HOSPITAL  FOR  THE  INSANE. 
ADMISSIONS. 

2347a.  The  proviso  in  the  Act  approved  August  seventh,  eighteen 
hundred  and  eighty-two,  appearing  on  page  three  hundred  and  thirty 
of  the  Twenty-second  Statutes  at  Large,  and  relating  to  pensions  of 
inmates  of  the  Government  Hospital  for  the  Insane,  is  hereby  stricken 
out  and  the  following  inserted : 

"Provided,  That  in  addition  to  the  persons  now  entitled  to  admis- 
sion to  said  hospital,  any  inmate  of  the  National  Home  for  Disabled 
Volunteer  Soldiers  who  is  now  or  may  hereafter  become  insane  shall, 
upon  an  order  of  the  president  of  the  Board  of  Managers  of  the  said 
National  Home,  be  admitted  to  said  hospital  and  treated  therein. 
During  the  time  that  any  pensioner  shall  be  an  inmate  of  the  Govern- 
ment Hospital  for  the  Insane  all  money  due  or  becoming  due  upon  his 
or  her  pension  shall  be  paid  by  the  pension  agent  to  the  superintendent 
of  the  hospital,  upon  a  certificate  by  such  superintendent  that  the 
pensioner  is  an  inmate  of  the  hospital  and  is  living,  and  such  pension 
money  shall  be  by  said  superintendent  disbursed  and  used,  under  regu- 
lations to  be  prescribed  by  the  Secretary  of  the  Interior,  for  the  benefit 
of  the  pensioner,  and,  in  the  case  of  a  male  pensioner,  his  wife,  minor 
children,  and  dependent  parents,  or,  if  a  female  pensioner,  her  minor 
children,  if  any,  in  the  order  named,  and  to  pay  his  or  her  board  and 
maintenance  in  the  hospital;  the  remainder  of  such  pension  money,  if 


SUPPLEMENT.  1287 

any,  to  be  placed  to  the  credit  of  the  pensioner  and  to  be  paid  to 
the  pensioner  or  the  guardian  of  the  pensioner  in  the  event  of  his 
or  her  discharge  from  the  hospital;  or,  in  the  event  of  the  death  of 
said  pensioner  while  an  inmate  of  said  hospital,  shall,  if  a  female 
pensioner,  be  paid  to  her  minor  children,  and,  in  the  case  of  a  male 
pensioner,  to  be  paid  to  his  wife,  if  living;  if  no  wife  survives  him, 
then  to  his  minor  children;  and  in  case  there  is  no  wife  nor  minor 
children,  then  the  said  unexpended  balance  to  his  or  her  credit  shall 
be  applied  to  the  general  uses  of  said  hospital:  Provided  further, 
That  in  the  case  of  pensioners  transferred  to  the  hospital  from  the 
National  Home  for  Disabled  Volunteer  Soldiers,  any  pension  money 
to  his  credit  at  said  Home  at  the  time  of  his  said  transfer  shall  be 
transferred  with  him  to  said  hospital  and  placed  to  his  credit  therein, 
to  be  expended  as  hereinbefore  provided;  and  in  case  of  his  return 
from  said  hospital  to  the  Home,  any  balance  to  his  credit  at  said  hos- 
pital shall,  in  like  manner,  be  transferred  to  said  Home,  to  be  ex- 
pended in  accordance  with  the  rules  established  in  regard  thereto. 
This  provision  shall  also  be  applicable  to  all  unexpended  pension 
money  heretofore  paid  to  the  officers  of  the  said  hospital  on  account 
of  pensioners  who  were  but  are  not  now  inmates  thereof."  l  Act  of 
February  W, 1905  (33  Stats.,  731). 

(This  paragraph  takes  the  place  of  paragraph  2347.) 

2347b.  In  addition  to  the  persons  now  entitled  to  admission  to  the 
Government  Hospital  for  the  Insane,  any  inmate  of  the  Soldiers' 
Home  who  is  now  or  may  hereafter  become  insane  shall,  upon  an 
order  of  the  president  of  the  Board  of  Commissioners  of  the  Soldiers7 
Home,  be  admitted  to  said  hospital  and  treated  therein;  and  the 
expenses  of  maintaining  any  such  person  shall  be  paid  from  the 
Soldiers'  Home  fund.  Act  of  July  7,  1884  (23  'Stats.,  213). 

2348a.  The  Secretary  of  War  may,  in  his  discretion,  contract  for 
the  care,  maintenance,  and  treatment  of  the  insane  natives  of  the 
Philippine  Islands  serving  in  the  Army  of  the  United  States  at  any 
asylum  in  the  Philippine  Islands  in  all  cases  which  he  is  now  author- 
ized by  law  to  cause  to  be  sent  to  the  Government  Hospital  for  the 
Insane  in  the  District  of  Columbia.  Act  of  March  2, 1907  (34  Stats., 
1173). 

(See  paragraphs  2340-2348.) 

'Under  the  provisions  of  the  Act  of  February  20,  1905  (33  Stats.,  731),  the 
regulations  established  by  the  Secretary  of  the  Interior  fix  the  amount  to  be 
charged  to  any  pensioner  for  support  in  the  Government  Hospital  for  the  Insane 
at  not  to  exceed  $6.66  per  month. 

In  regard  to  the  general  status  of  pensioners  committed  to  the  Government 
Hospital  for  the  Insane  see  Logue  v.  Penning  (29  Appeal  Cases.  Dist.  of  Col., 
519-530). 


1288  MILITARY   LAWS    OF    THE    UNITED    STATES. 

CHAPTER  XLIV. 

NATIONAL  PARKS. 
THE  GETTYSBURG  NATIONAL  PARK. 

ERECTION    OF    MONUMENTS. 

2391a.  The  Gettysburg  National  Park  Commission  are  authorized 
and  directed,  under  the  supervision  of  the  Secretary  of  War,  to  erect 
such  monuments  and  markers  of  granite  and  bronze  upon  the  battle- 
field of  Gettysburg,  in  the  State  of  Pennsylvania,  as  will  fittingly 
designate  the  positions,  indicate  the  movements,  and  commemorate 
the  valorous  services  of  the  following  batteries  and  regiments  of 
United  States  Regulars  upon  the  battlefield:  Batteries  E,  G,  H,  I, 
and  K,  First  United  States  Artillery ;  A,  B,  D,  G,  L,  and  M,  Second 
United  States  Artillery ;  C,  F,  and  K,  Third  United  States  Artillery ; 
A,  B,  C,  F,  G,  and  K,  Fourth  United  States  Artillery;  C,  D,  F,  I, 
and  K,  Fifth  United  States  Artillery ;  Second,  Third,  Fourth,  Sixth, 
Seventh,  Eighth,  Tenth,  Eleventh,  Twelfth,  Fourteenth,  and  Seven- 
teenth Regiments  of  United  States  Infantry;  First,  Second,  Fifth, 
and  Sixth  Regiments  of  Cavalry ;  and  United  States  Engineers  De- 
tachment. 

The  Secretary  of  War  shall,  so  far  as  practicable,  procure  the  ap- 
pointment of  committees  of  the  survivors  of  these  regiments  and 
batteries,  with  whom  the  said  commission  shall  consult,  and,  with  the 
approval  of  the  Secretary  of  War,  determine  the  designs  and  posi- 
tions of  said  monuments  and  markers  and  the  inscriptions  they  shall 
bear,  and  for  the  purpose  of  carrying  out  the  provisions  of  this  act, 
sixty-one  thousand  five  hundred  dollars  is  hereby  appropriated,  out 
of  any  moneys  not  otherwise  appropriated,  and  the  disbursements 
under  this  act  shall  be  made  on  the  approval  of  the  Secretary  of  War. 
Act  of  February  18, 1903  (32  Stats.,  838). 

2391b.  The  Act  of  Congress  authorizing  the  Secretary  of  War  to 
cause  to  be  erected  monuments  and  markers  on  the  battlefield  of 
Gettysburg,  in  the  State  of  Pennsylvania,  to  commemorate  the  valor- 
ous deeds  of  certain  regiments  and  batteries  of  the  United  States 
Army,  approved  the  eighteenth  of  February,  nineteen  hundred  and 
three,  be,  and  hereby  is,  amended  by  adding  to  the  names  of  batteries 
therein  mentioned  Battery  E,  Fourth  United  States  Artillery.  And 
for  the  purpose  of  carrying  out  the  provisions  of  said  Act  as  hereby 
amended  the  sum  of  one  thousand  five  hundred  dollars  is  hereby 
appropriated  out  of  any  money  not  otherwise  appropriated.  Act  of 
March  3,  1905  (33  Stats.,  980). 

(This  paragraph  amends  paragraph  2391a.) 


SUPPLEMENT.  1289 

THE   ANTIETAM   BATTLEFIELD. 

2422a.  For  pay  of  superintendent  of  Antietam  battlefield,  said  su- 
perintendent to  perform  his  duties  under  the  direction  of  the  Quar- 
termaster's Department  and  to  be  selected  and  appointed  by  the 
Secretary  of  War,  at  his  discretion,  the  person  selected  and  appointed 
to  this  position  to  be  an  honorably  discharged  Union  soldier,  one 
thousand  five  hundred  dollars.  Act  of  April  28,  1904  (33  Stats., 
496). 

(This  paragraph  amends  paragraph  2422.) 

THE  YELLOWSTONE   NATIONAL   PARK. 

2443a.  Private  parties  or  companies  doing  business  in  the  Yellow- 
stone National  Park  under  authority  from  the  Government  may  be 
permitted,  in  the  discretion  of  the  Secretary  of  War,  to  use  electricity 
furnished  by  the  electric  lighting  and  power  plant  of  Fort  Yellow- 
stone and  Mammoth  Hot  Springs  at  actual  cost  to  the^  Government 
for  operation,  maintenance,  and  depreciation  of  the  plant  and  ten  per 
centum  additional,  under  such  regulations  as  may  be  prescribed  by 
the  Secretary  of  War.  Act  of  March  3,  1903  (32  Stats.,  1130}. 

STATUE  OF  LIBERTY,  BEDLOES  ISLAND. 

2447a.  The  Treasurer  of  the  United  States  is  hereby  authorized  and 
directed  to  receive  the  sum  of  thirty-five  thousand  dollars,  more  or 
less,  from  the  executive  committee  of  the  Statue  of  Liberty  erected 
on  land  belonging  to  the  United  States  on  Bedloes  Island,  New  York 
Harbor;  and  the  Secretary  of  War  is  hereby  authorized  to  keep  the 
said  statue  in  repair,  and  to  pay  for  the  same  from  the  appropriation 
for  "  Regular  supplies,"  under  the  Quartermaster's  Department,  in 
the  appropriation  for  the  support  of  the  Army  for  the  fiscal  year  in 
which  such  expenses  shall  be  incurred.  Act  of  April  28,  1904 
Stats.,  498). 


CHAPTER  XLV. 

NATIONAL  CEMETERIES. 
INTERMENTS. 

2460a.  For  expenses  of  burying  in  the  Arlington  National  Ceme- 
etery,  or  in  the  cemeteries  of  the  District  of  Columbia,  indigent  ex- 
Union  soldiers,  sailors,  and  marines  of  the  late  civil  war  and  soldiers 


1290  MILITARY   LAWS   OF   THE   UNITED   STATES. 

and  sailors  of  the  war  with  Spain  who  die  in  the  District  of  Colum- 
bia, or  in  the  immediate  vicinity  thereof,  and  of  such  soldiers,  sailors, 
and  marines  who  die  in  the  District  of  Columbia  and  are  buried  in 
the  immediate  vicinity  thereof,  to  be  disbursed  by  the  Secretary  of 
War,  at  a  cost  not  exceeding  forty-five  dollars  for  such  burial  ex- 
penses in  each  case,  exclusive  of  cost  of  grave,  three  thousand  dollars. 
Act  of  April  28,  1904  (33  Stats.,  495). 

(This  paragraph  amends  paragraph  2460  and  the  note  thereto.) 

ROADWAYS. 

2465a.  No  part  of  this  sum  shall  be  used  for  repairing  any  roadway 
within  the  corporate  limits  of  any  city,  town,  or  village.  Act  of  April 
28,  1904  (33  Stats.,  495). 


CHAPTER  XLVIII. 

GENERAL  STAFF  CORPS. 

ESTABLISHMENT. 

2470.  There  is  hereby  established  a  General  Staff  Corps,  to  be  com- 
posed of  officers  detailed  from  the  Army  at  large,  under  such  rules  as 
may  be  prescribed  by  the  President.    Sec.  1,  Act  of  February  1!±,  1903 
(32  Stats.,  830}. 

COMPOSITION. 

2471.  The  General  Staff  Corps  shall  consist  of  one  Chief  of  Staff 
and  two  general  officers,  all  to  be  detailed  by  the  President  from  offi- 
cer of  the  Army  at  large  not  below  the  grade  of  brigadier-general; 
four  colonels,  six  lieutenant-colonels,  and  twelve  majors,  to  be  detailed 
from  the  corresponding  grades  in  the  Army  at  large,  under  such 
rules  for  selection  as  the  President  may  prescribe ;  twenty  captains,  to 
be  detailed  from  officers  of  the  Army  at  large  of  the  grades  of  captain 
or  first  lieutenant,  who  while  so  serving  shall  have  the  rank,  pay,  and 
allowances  of  captain  mounted.    All  officers  detailed  in  the  General 
Staff  Corps  shall  be  detailed  therein  for  periods  of  four  years,  unless 
sooner  relieved.     While  serving  in  the  General  Staff  Corps,  officers 
may  be  temporarily  assigned  to  duty  with  any  branch  of  the  Army. 
Upon  being  relieved  from  duty  in  the  General  Staff  Corps,  officers 
shall  return  to  the  branch  of  the  Army  in  which  they  hold  permanent 
commission,  and  no  officer  shall  be  eligible  to  a  further  detail  in  the 
General  Staff  Corps  until  he  shall  have  served  two  years  with  the 
branch  of  the  Army  in  which  commissioned,  except  in  case  of  emer- 


SUPPLEMENT.  1291 

gency  or  in  time  of  war.    Sec.  3,  Act  of  February  lit,  1903  (32  Stats., 
831}. 

DUTIES. 

2472.  The  duties  of  the  General  Staff  Corps  shall  be  to  prepare 
plans  for  the  national  defense  and  for  the  mobilization  of  the  mili- 
tary forces  in  time  of  war;  to  investigate  and  report  upon  all  ques- 
tions affecting  the  efficiency  of  the  Army  and  its  state  of  preparation 
for  military  operations;  to  render  professional  aid  and  assistance 
to  the  Secretary  of  War  and  to  general  officers  and  other  superior 
commanders,  and  to  act  as  their  agents  in  informing  and  coordinating 
the  action  of  all  the  different  officers  who  are  subject  under  the  terms 
of  this  Act  to  the  supervision  of  the  Chief  of  Staff ;  and  to  perform 
such  other  military  duties  not  otherwise  assigned  by  law  as  may  be 
from  time  to  time  prescribed  by  the  President.    Sec.  2,  Act  of  Feb- 
ruary 14, 1903  (32  Stats.,  831}. 

2473.  The  Chief  of  Staff,  under  the  direction  of  the  President  or  of 
the  Secretary  of  War,  under  the  direction  of  the  President,  shall  have 
supervision  of  all  troops  of  the  line  and  of  the  Ad  jut  ant- General's, 
Inspector- General's,  Judge- Advocate's,  Quartermaster's,  Subsistence, 
Medical,  Pay  and  Ordnance  departments,  the  Corps  of  Engineers, 
and  the  Signal  Corps,  and  shall  perform  such  other  military  duties 
not  otherwise  assigned  by  law  as  may  be  assigned  to  him  by  the  Presi- 
dent.    Duties  now  prescribed  by  statute  for  the  Commanding  Gen- 
eral of  the  Army  as  a  member  of  the  Board  of  Ordnance  and  Forti- 
fication and  of  the  Board  of  Commissioners  of  the  Soldiers'  Home 
shall  be  performed  by  the  Chief  of  Staff  or  other  officer  designated 
by  the  President.     Acts  and  parts  of  Acts  authorizing  aids- de-camp 
and  military  secretaries  shall  not  apply  to  general    officers    of   the 
General  Staff  Corps.    Sec.  4,  Act  of  February  14,  1903  (32  Stats., 
831}. 

CHIEF  OF  ARTILLERY. 

2474.  Section  five  of  the  Act  entitled  uAn  Act  to  increase  the  effi- 
ciency of  the  Army,"  approved  February  fourteenth,  nineteen  hun- 
dred and  three,  is  hereby  amended  to  read  as  follows: 

"  SEC.  5.  That  the  Chief  of  Artillery  shall  hereafter  serve  as  an 
additional  member  of  the  General  Staff,  and  by  and  with  the  advice 
and  consent  of  the  Senate  shall  have  the  rank,  pay,  and  allowances  of 
a  brigadier-general,  and  when  the  next  vacancy  occurs  in  the  office  of 
colonel  of  artillery  it  shall  not  be  filled,  and  thereafter  the  number 
of  colonels  of  artillery  shall  not  exceed  thirteen;  and  the  provisions 
of  the  foregoing  sections  of  this  Act  shall  take  effect  on  August  fif- 
teenth, nineteen  hundred  and  three."  Act  of  March  3, 1903  (32  Stats., 
1021}. 


1292  MILITABY   LAWS    OF    THE    UNITED    STATES. 

2474a.  The  Chief  of  Artillery  or  Chief  of  Coast  Artillery  shall  be 
an  additional  member  of  the  General  Staff  Corps,  and  his  other 
duties  shall  be  prescribed  by  the  Secretary  of  War. 

When  a  vacancy  occurs  in  the  office  of  the  Chief  of  Artillery  or 
Chief  of  Coast  Artillery  the  President  may  appoint  to  such  vacancy, 
by  and  with  the  advice  and  consent  of  the  Senate,  an  officer  selected 
from  the  coast  artillery,  who  shall  serve  for  a  period  of  four  years 
unless  reappointed  for  further  periods  of  four  years ;  and  any  officer 
who  shall  hereafter  serve  as  Chief  of  Artillery  or  Chief  of  Coast 
Artillery  shall,  when  retired,  be  retired  with  the  rank,  pay,  and  allow- 
ances authorized  by  law  for  a  brigadier-general  on  the  retired  list. 
The  position  vacated  by  an  officer  appointed  Chief  of  Artillery  or 
Chief  of  Coast  Artillery  shall  be  filled  by  promotion  in  that  arm 
according  to  existing  law,  but  the  officer  thus  appointed  shall  con- 
tinue in  the  same  lineal  position  in  his  arm  which  he  would  have  held 
if  he  had  not  been  so  appointed,  and  shall  be  an  additional  number  in 
the  grade  from  which  he  was  appointed  or  to  which  he  may  be  pro- 
moted: Provided,  That  there  shall  not  be  at  any  time  in  the  coast 
artillery  more  than  one  additional  officer  by  reason  of  the  appoint- 
ment of  a  Chief  of  Artillery  or  Chief  of  Coast  Artillery  and  the 
relief  of  an  officer  from  such  duty.  Sec.  2^  Act  of  January  %5, 1907 
(34  Stats.,  861). 

(This  paragraph  amends  paragraph  2474.) 


CHAPTER  XLIX. 

PHILIPPINE  ISLANDS — ACTS  OF  THE  PHILIPPINE  COMMISSION  RELATING 

TO  THE  ARMY. 

ATTORNEYS. 

2475.  Any  officer  of  the  United  States  Army  designated  by  the 
commanding  general  of  the  Division  of  the  Philippines  for  such  pur- 
pose shall  have  the  right  to  appear  as  attorney  before  any  court  in  the 
Philippine  Islands  in  all  cases  in  which  the  United  States  Government 
shall  have  an  interest  direct  or  indirect.    Sec.  1,  Act  of  the  Philippine 
Commission  of  April  27, 1903  (No.  856). 

PROVOST  COURTS. 

2476.  Section  78  of  said  Act  is  hereby  amended  so  as  to  read  as 
follows : 

"  SEC.  78.  JURISDICTION  or  PROVOST  COURTS  OVER  CIVIL  AND  CRIM- 
INAL ACTIONS  REPEALED,  WITH  CERTAIN  EXCEPTIONS,  AND  ACTIONS 
PENDING  THEREIN  TO  BE  TRANSFERRED. — All  military  orders,  and  all 
acts  conferring  upon  Provost  Courts  in  the  Philippine  Islands  juris- 
diction over  civil  actions  and  criminal  actions,  including  criminal 


SUPPLEMENT.  1293 

actions  in  admiralty,  are  hereby  repealed,  except  as  in  this  section 
hereinafter  provided.  All  civil  actions  now  pending  in  the  Provost 
Courts  are  hereby  transferred  to  the  proper  tribunal  in  which  they 
would  have  been  brought  under  the  provisions  of  this  act,  had  this 
act  been  in  force  at  the  time  such  actions  were  commenced,  and  the 
Supreme  Court  and  Courts  of  First  Instance  and  Courts  of  Justices 
of  the  Peace  established  by  this  act  are  authorized  to  try  and  deter- 
mine the  actions  so  transferred  to  them  respectively  from  the  Provost 
Courts,  in  the  same  manner  and  with  the  same  legal  effect  as  though 
such  actions  had  originally  been  commenced  in  the  courts  created  by 
virtue  of  this  act:  Provided,  however,  that  the  criminal  jurisdiction 
of  Provost  Courts  in  any  province  or  district  exclusively  under  mili- 
tary control  shall  not  be  affected  by  this  act,  and  Provost  Courts  in 
such  provinces  and  districts  shall  have  concurrent  jurisdiction  with 
the  Courts  of  First  Instance  over  criminal  actions  in  admiralty." 
Sec.  2,  Act  of  the  Philippine  Commission  of  May  16, 1902  (No.  400). 

GENERAL    COURTS- MARTIAL CIVILIAN    WITNESSES FEES. 

2477.  Every  person  not  belonging  to  the  Army  of  the  United  States, 
who,  in  the  Philippine  Islands,  being  duly  subpoenaed  to  appear 
therein  as  a  witness  before  a  general  court-martial  of  said  Army,  will- 
fully neglects  or  refuses  to  appear,  or  refuses  to  qualify  as  a  witness 
or  to  testify  or  produce  documentary  evidence  which  such  person 
may  have  been  legally  subpoenaed  to  produce,  shall  be  punished  by  a 
fine  of  not  more  than  five  hundred  dollars,  United  States  currency,  or 
imprisonment  not  to  exceed  six  months,  or  both,  at  the  discretion  of 
the  court,  and  it  shall  be  the  duty  of  the  proper  fiscal  or  prosecuting 
officer,  on  the  certification  of  the  facts  to  him  by  the  general  court- 
martial,  to  file  in  the  proper  court  a  complaint  against  and  prosecute 
the  person  so  offending:  Provided,  That  one  dollar  and  fifty  cents, 
United  States  currency,  for  each  day's  attendance,  and  five  cents, 
United  States  currency,  per  mile  for  going  from  his  place  of  residence 
to  the  place  of  trial  or  hearing  and  five  cents  per  mile  for  returning, 
shall  be  duly  tendered  to  said  witness:  Provided  further,  That  no 
witness  shall  be  compelled  to  incriminate  himself  or  to  answer  any 
question  which  may  tend  to  incriminate  him.     Sec.  1,  Act  of  the 
Philippine  Commission  of  April  28,  1904  (No.  1130). 

HABEAS    CORPUS. 

2478.  Nothing  in  this  chapter  shall  authorize  the  discharge  of  any 
person  convicted  of  an  offense  or  charged  with  an  offense  committed 
in  any  other  part  of  the  Philippine  Islands,  or  in  any  part  of  the 
United.  States,  and  who,  agreeable  to  law,  ougkt  to  be  delivered  up  to 
the  executive  power  of  the  United  States,  or  of  any  State  thereof, 


1294  MILITARY   LAWS    OF    THE    UNITED    STATES. 

where  the  offense  is  charged  to  have  been  committed ;  nor  of  any  per- 
son suffering  imprisonment  under  lawful  judgment;  nor  shall  any 
writ  of  habeas  corpus  be  issued  against  a  military  officer  or  soldier 
who  is  detaining  a  prisoner  in  the  Provinces  of  Batangas,  La  Laguna, 
Tayabas,  Samar,  Cebii  and  Bohol,  and  in  any  unorganized  province 
or  territory.  It  shall  be  a  conclusive  answer  to  a  writ  of  habeas  cor- 
pus against  a  military  officer  or  soldier,  and  a  sufficient  excuse  for  not 
producing  the  prisoner  in  all  other  organized  provinces  than  those 
herein  named,  if  the  Commanding  General  or  any  general  officer  in 
command  of  the  department  or  district  shall  certify  that  the  prisoner 
is  held  by  him  either: 

"  1.  As  a  prisoner  of  war ;  or 

"  2.  As  a  member  of  the  Army,  a  civilian  employe  thereof,  or  a 
camp  follower  and  subject  to  its  discipline ;  but  this  paragraph  shall 
not  apply  to  pending  cases;  or 

"  3.  As  a  prisoner  committed  by  a  military  court  or  commission 
prior  to  October  1,  1901 ;  or 

"  4.  As  a  prisoner  arrested  and  held  for  trial  before  a  military 
court  or  commission  before  October  15,  1901,  for  a  violation  of  the 
laws  of  war  committed  before  the  same  date ;  or 

"  5.  As  a  prisoner  guilty  of  violations  of  the  laws  of  war  committed 
in  the  unpacified  provinces  and  territory  in  this  section  named  and 
who  has  escaped  into  provinces  officially  declared  to  be  under  civil 
control  and  has  been  there  captured  by  military  authorities  and  is 
held  for  trial  for  such  violations  of  the  laws  of  war." 

All  the  other  provisions  of  this  chapter  shall  be  subject  to  the  limi- 
tations and  restrictions  contained  in  this  section.  Sec.  1,  Act  of  the 
Philippine  Commission  of  October  1,  1901  (No.  272}. 

2479.  So  much  of  section  one  of  Act  Numbered  Two  hundred  and 
seventy-two,  entitled  "An  Act  amending  Chapter  XXVI,  relating  to 
proceedings  in  habeas  corpus,  of  Act  Numbered  One  hundred  and 
ninety,  providing  for  a  code  of  procedure  in  civil  actions  and  special 
proceedings,"  as  forbids  the  issuing  of  any  writ  of  habeas  corpus 
against  a  military  officer  or  soldier  who  is  detaining  a  prisoner  in  the 
Provinces  of  Batangas,  La  Laguna,  Tayabas,   Samar,   Cebu,   and 
Bohol,  or  in  any  other  province  which  has  been  organized  under 
"  The  Provincial  Government  Act,"  or  by  a  special  Act,  or  which 
may  be  hereafter  so  organized,  is  hereby  expressly  repealed.    Sec. 
h  Act  of  the  Philippine  Commission  of  June  23, 1902  (No.  1$!}. 

JURISDICTION  OVER  RESERVATIONS. 

2480.  SECTION  1.  No  licenses  shall  be  granted  for  the  sale  of  or 
dealing  in  any  intoxicating  liquors  on  any  public  land  reserved  by  the 
President  of  the  United  States  for  military  purposes  in  the  Philippine 
Islands. 


SUPPLEMENT.  1295 

SEC.  2.  The  military  authorities  shall  have  the  right  to  reject 
[eject]  any  intruder  or  trespasser  on  any  public  lands  reserved  by  the 
President  for  military  purposes  in  the  Philippine  Islands,  and  to 
suppress  open  breaches  of  the  peace  and  abate  nuisances  thereon. 

SEC.  3.  No  branch  of  the  Civil  Government  in  force  on  or  over  any 
public  lands  reserved  by  the  President  for  military  purposes,  and  no 
civilian  residents  thereon,  shall  interfere  with  military  administra- 
tion or  the  use  of  such  lands  for  military  purposes. 

SEC.  4.  The  personal  property  of  persons  employed  in  the  military 
service  of  the  United  States  in  the  Philippine  Islands  and  used  by 
them  incident  to  said  service  shall  be  exempt  from  all  taxation  under 
the  laws  in  force  in  said  Islands. 

SEC.  5.  No  mining  claims  shall  be  located  by  any  person  on  any 
public  lands  reserved  by  the  President  for  military  purposes  in  the 
Philippine  Islands. 

SEC.  6.  Every  person  who  unlawfully  cuts,  or  aids,  or  is  employed 
in  unlawfully  cutting,  or  wantonly  destroys,  or  procures  to  be  wan- 
tonly destroyed,  any  timber  standing  upon  lands  of  the  United  States, 
which  in  pursuance  of  law  may  be  reserved  or  purchased  for  military 
purposes  in  the  Philippine  Islands,  or  removes  any  other  public  prop- 
erty, shall,  upon  conviction,  be  fined  for  each  offense  a  sum  not 
exceeding  five  hundred  dollars,  or  be  imprisoned  for  a  period  not 
exceeding  twelve  months,  or  both,  in  the  discretion  of  the  court. 

SEC.  7.  No  arrest  of  any  officer,  soldier,  or  civilian  employee,  in 
the  military  service  of  the  United  States  on  any  military  reservation, 
camp,  or  barracks,  shall  be  made  except  on  warrant  in  due  form  in 
writing  and  served  upon  the  commanding  officer  thereof. 

SEC.  8.  All  laws  or  parts  of  laws  in  force  in  the  Philippine  Islands 
not  inconsistent  with  military  use  of  any  public  lands  reserved  by  the 
President  for  military  purposes  shall  be  in  full  force  and  effect  over 
said  lands. 

SEC.  9.  The  public  good  requiring  the  speedy  enactment  of  this 
bill,  the  passage  of  the  same  is  hereby  expedited  in  accordance  with 
section  two  of  "  An  Act  prescribing  the  order  of  procedure  by  the 
Commission  in  the  enactment  of  laws,"  passed  September  twenty- 
sixth,  nineteen  hundred.  Sees.  1  to  9,  Act  of  the  Philippine  Commis- 
sion of  November  24, 1902  (No.  530}. 

SALES    OF    LIQUOR. 

2481.  SECTION  1.  No  license  shall  be  granted  by  a  municipal  coun- 
cil or  other  municipal  authority  or  provincial  authority  for  the  sale 
of  any  intoxicating  liquors,  beer,  or  wine,  at  any  place  or  on  any  prem- 
ises situated  within  a  distance  of  two  miles  of  land  now  used  or  here- 
after to  be  used  by  the  United  States  for  military  purposes  at  Camp 
Stotsenberg,  in  the  municipality  of  Mabalacat,  Province  of  Pampan- 


1296  MILITAKY   LAWS    OF    THE    UNITED    STATES. 

ga ;  Camp  Morrison,  municipality  of  Salomague,  Province  of  Hocus 
Sur;  Camp  Jossman,  municipality  of  Guimaras,  Province  of  Iloilo; 
Camp  Gregg,  municipality  of  Bayambang,  Province  of  Pangasinan ; 
in  or  near  the  municipality  of  Los  Banos,  Province  of  La  Laguna ;  in 
or  near  the  municipality  of  Iligan,  Province  of  Misamis ;  in  or  near 
the  municipality  of  Batangas,  Province  of  Batangas;  in  or  near  the 
municipality  of  Legaspi,  Province  of  Albay;  in  or  near  the  munici- 
pality of  Sorsogon,  Province  of  Sorsogon;  in  or  near  the  munici- 
pality of  Santo  Tomas,  Province  of  La  Laguna;  at  Fort  William 
McKinley,  near  San  Pedro  Macati,  Province  of  Kizal;  or  within  a 
distance  of  one  and  one-half  miles  of  land  used  or  to  be  used  by  the 
United  States  for  military  purposes  at  Camp  Wallace,  in  the  munici- 
pality of  San  Fernando,  Province  of  La  Union;  at  Pasay  barracks, 
municipality  of  Pasay,  Province  of  Rizal ;  in  or  near  the  municipality 
of  Nueva  Caceres,  Province  of  Ambos  Camarines ;  in  or  near  the  mu- 
nicipality of  Lucena,  Province  of  Tayabas;  in  or  near  the  munici- 
pality of  Calamba,  Province  of  La  Laguna;  or  within  a  distance  of 
one  mile  of  land  rased  by  the  United  States  for  military  purposes  at 
Santa  Mesa  in  the  city  of  Manila :  Provided,  however,  That  the  pro- 
hibitions herein  provided  shall  not  extend  to  the  following-described 
land  within  the  prohibited  areas:  Land  situated  on  the  left  bank  of 
the  Pasig  river  within  one  mile  of  Santa  Mesa  in  the  city  of  Manila ; 
land  within  a  circle  with  a  radius  of  five  hundred  and  eighty  yards 
with  a  center  at  the  middle  of  the  road  in  the  immediate  front  of  the 
parish  church  of  the  municipality  of  Batangas,  Province  of  Batan- 
gas; land  within  a  circle  with  a  radius  of  four  hundred  yards  with 
the  center  at  the  southwest  corner  of  the  prison  in  Albay,  Province  of 
Albay ;  land  within  a  circle  with  a  radius  of  four  hundred  yards  with 
the  center  at  the  southeast  corner  of  the  old  Tribunal  at  Daraga,  in 
the  Province  of  Albay ;  land  within  a  circle  of  seven  hundred  yards 
with  the  center  at  the  door  of  the  church  of  San  Rafael,  in  the  town 
of  Legaspi,  Province  of  Albay;  land  within  a  circle  with  a  radius  of 
three  hundred  yards  with  the  center  at  the  door  of  the  parish  church 
in  Santo  Tomas,  Province  of  Batangas;  land  within  a  circle  with  a 
radius  of  five  hundred  yards  with  the  center  at  the  center  of  the  pub- 
lic square  in  the  town  of  Pasig,  Province  of  Rizal;  land  within  a 
circle  with  a  radius  of  seven  hundred  yards  with  the  center  at  the 
center  of  the  public  square  in  the  municipality  of  Nueva  Caceres, 
Province  of  Ambos  Camarines. 

SEC.  2.  Any  person  who  shall  sell,  furnish  or  give  away  any  intoxi- 
cating liquors,  wine  or  beer,  within  the  boundaries  prohibited  in  the 
preceding  section  shall  be  punished  for  each  offense  by  a  fine  not 
exceeding  one  hundred  dollars,  in  money  of  the  United  States,  or  by 
imprisonment  at  hard  labor  not  exceeding  six  months,  or  by  both  said 
punishments,  in  the  discretion  of  the  court. 


SUPPLEMENT.  1297 

SEC.  3.  Persons  to  whom  licenses  have  heretofore  been  granted  for 
the  sale  of  intoxicating  liquors  within  the  limits  prohibited  by  this 
Act,  and  whose  licenses  have  not  yet  expired,  shall  be  entitled  to  be 
reimbursed,  from  the  treasury  into  which  their  license  fees  have  been 
paid,  such  a  proportion  of  the  fees  paid  as  the  time  for  which  the 
license  has  yet  to  run  bears  to  the  whole  time  for  which  the  license 
was  granted ;  but  shall  be  subject  to  all  the  penalties  provided  by  law 
for  selling,  furnishing,  or  giving  away  intoxicating  liquors  without  a 
license  after  this  Act  shall  come  into  force. 

SEC.  4.  For  the  purpose  of  enforcing  this  Act,  and  for  no  other  pur- 
pose, the  commanding  officers  of  the  United  States  troops  stationed  at 
the  places  named  in  the  first  section  of  the  law  shall  have  the  powers 
of  a  justice  of  the  peace,  as  defined  by  existing  laws.  Prosecutions 
before  such  officers,  acting  as  justices  of  the  peace,  shall  be  governed 
by  the  provisions  of  General  Orders  Numbered  Fifty-eight,  Office  of 
the  Military  Governor  for  the  Philippine  Islands,  dated  Manila,  Phil- 
ippine Islands,  April  twenty -third,  nineteen  hundred,  and  the  amend- 
ments thereof,  and  all  rights  of  appeals  secured  by  such  order  and  the 
amendments  thereof  shall  be  allowed  to  defendants  prosecuted  under 
this  Act.  Any  order  for  arrest  issued  by  authority  of  this  Act  may  be 
executed  by  a  military  officer  or  soldier  designated  for  that  purpose  by 
the  officer  commanding,  as  justice  of  the  peace.  The  imprisonment 
of  defendants  convicted  under  this  Act  shall  be  in  the  civil  jail  of  the 
province,  or  the  city  of  Manila,  as  the  case  may  be.  All  questions  of 
appeal  shall  be  determined  in  the  manner  provided  in  said  General 
Orders  Numbered  Fifty-eight.  Commanding  officers,  acting  as  jus- 
tices of  the  peace  by  virtue  of  this  section,  shall  not  be  entitled  to  fees 
as  justices  of  the  peace  for  services  so  rendered;  nor  shall  military 
officers  or  soldiers  making  arrests  or  serving  process  be  entitled  to  fees 
for  said  services.  All  fines  and  costs  imposed  by  virtue  of  this  Act 
shall  be  paid  into  the  treasury  of  the  municipality  in  which  the  offense 
was  committed,  or  into  the  Insular  Treasury  for  the  benefit  of  the  city 
of  Manila,  as  the  case  may  be. 

SEC.  5.  For  the  purpose  of  avoiding  future  misunderstandings  and 
of  facilitating  the  enforcement  of  this  Act,  it  shall  be  the  duty  of  the 
commanding  officer  of  the  United  States  troops  stationed  at  each  of 
the  places  named  in  the  first  section  of  this  Act  to  notify  the  munic- 
ipal authorities  of  the  municipalities  affected  hereby  of  the  making 
of  a  survey  and  the  running  of  the  line  of  the  precincts  within  which, 
by  virtue  of  this  Act,  the  licensing  of  saloons  for  the  sale  of  intoxicat- 
ing liquors  is  prohibited ;  and  it  shall  be  the  duty  of  such  commanding 
officer  and  of  the  municipal  officers,  after  the  line  shall  have  been  run, 
to  notify  all  persons  then  engaged  in  the  sale  of  intoxicating  liquors 
within  the  prohibited  territory  of  the  operation  of  this  Act  and  of 
the  time  within  which  they  must  remove  their  places  of  business. 
22924—08 82 


1298  MILITAKY   LAWS    OF    THE    UNITED    STATES. 

SEC.  6.  This  Act  shall  take  effect  on  the  first  day  of  May,  nineteen 
hundred  and  three,  except  in  so  far  as  it  applies  to  the  saloons  now 
licensed  within  the  municipality  of  Bayambang,  in  the  Province 
of  Pangasinan,  and  the  municipality  of  Los  Bafios,  in  the  Province 
of  La  Laguna,  and  as  to  the  municipality  of  Bayambang  and  the 
municipality  of  Los  Baiios,  this  Act  shall  take  effect  six  months 
from  the  date  of  its  passage.  Sees.  1  to  6,  Act  of  the  Philippine 
Commission  of  March  28, 1903  (No.  709). 

248 la.  The  sale,  gift,  or  other  disposal,  in  the  Province  of  Zam- 
bales,  to  any  soldier  of  the  United  States  Army,  Filipino  Scouts  ex- 
cepted,  or  to  any  sailor  or  enlisted  man  of  the  United  States  Navy 
or  Marine  Corps,  of  any  of  the  so-called  native  wines  or  liquors,  such 
as  "  vino,"  "  anisado,"  and  "  tuba,"  is  hereby  prohibited  and  declared 
to  be  unlawful. 

SEC.  2.  Any  person  violating  the  provisions  of  section  one  of  this 
Act  shall,  upon  conviction  thereof,  be  punishable  for  each  offense  by 
a  fine  not  to  exceed  two  hundred  pesos,  or  by  imprisonment  for  a 
term  not  exceeding  six  months,  or  by  both  such  fine  and  imprisonment, 
in  the  discretion  of  the  court.  Sees.  1  and  2,  Act  of  the  Philippine 
Commission  of  July  7, 1905  (No.  1369). 

(This  paragraph,  in  effect,  amends  sections  1  and  2  of  paragraph  2481.) 

2482.  SECTION  1.  Section  1  of  Act  Numbered  Seven  hundred  and 
nine,  entitled  "An  Act  prohibiting  the  traffic  in  intoxicating  liquors 
within  certain  distances  of  land  used  by  the  United  States  for  mili- 
tary  purposes   and    at   certain   camps   therein   named,"    is   hereby 
amended  by  inserting  after  the  words  "  for  military  purposes  at 
Santa  Mesa  in  the  city  of  Manila,"  and  before  the  words  "Provided, 
however"  the   following  words :  "  or   within   a   distance   of  three- 
quarters  of  a  mile  of  land  used  by  the  United  States  for  military  pur- 
poses near  the  town  of  Calbayog,  in  the  Province  of  Samar." 

SEC.  2.  Section  one  of  said  Act  Numbered  Seven  hundred  and  nine 
is  hereby  further  amended  by  adding  at  the  end  thereof  the  following 
words :  "  and  land  within  a  circle  with  a  radius  of  seven  hundred 
yards  with  the  center  at  the  middle  of  the  road  immediately  in  front 
of  the  parish  church  at  Lucena,  in  the  Province  of  Tayabas."  Sees. 
1  and  2,  Act  of  the  Philippine  Commission  of  May  31,  1904  (jVo. 
1169). 

EMINENT   DOMAIN. 

2483.  SECTION  1.  Section  two  hundred  and  forty-one  of  Act  Num- 
bered One  hundred  and  ninety,  entitled  "An  Act  providing  a  code  of 

Erocedure  in  civil  actions  and  special  proceedings  in  the  Philippine 
slands,"  is  hereby  amended  by  adding  at  the  end  thereof  the  follow- 
ing words : 

"  The  words  '  public  use  '  in  this  section  shall  include  the  use  of  land 
in  these  islands  for  the  construction  and  maintenance  of  military 


SUPPLEMENT.  1299 

posts  to  be  occupied  by  United  States  forces  stationed  in  the  Phil- 
ippine Islands,  and  an  action  in  the  name  of  and  on  behalf  of  the 
Philippine  Insular  Government  for  the  enforcement  of  the  right  of 
eminent  domain  for  the  public  use  thus  described  may  be  instituted 
under  this  section  and  the  title  acquired  by  the  Philippine  Govern- 
ment in  this  land  shall  be  indefeasible  and,  in  furtherance  of  the  use 
herein  described,  may  be  by  the  Philippine  Government,  in  accord- 
ance with  a  resolution  of  the  Philippine  Commission,  transferred  by 
a  duly  executed  deed  of  the  Civil  Governor  to  the  United  States 
forever." 

SEC.  2.  An  action  for  the  enforcement  of  the  right  of  eminent 
domain  on  behalf  of  the  Government  of  the  United  States  may  be 
instituted  in  the  name  of  the  Government  of  the  United  States  upon 
the  direction  of  the  President  of  the  United  States  or  the  Secretary  of 
War,  or  upon  the  application  of  the  Commanding  General  of  the 
United  States  Army,  Division  of  the  Philippines.  Sees.  1  and  2,  Act 
of  the  Philippine  Commission  of  March  5,  1903  (No.  665). 

LOCUST   PEST. 

2484.  Nothing  in  Act  Numbered  Eight  hundred  and  seventeen,  en- 
titled "An  Act  declaring  that  the  presence  of  locusts  in  various  prov- 
inces of  the  islands  so  threatens  the  food  supply  for  the  coming  year  as 
to  present  a  public  emergency  requiring  radical  action,  and  author- 
izing and  providing  for  the  appointment  of  a  board  in  each  province 
with  full  powers  to  call  upon  all  able-bodied  inhabitants  thereof  to 
take  united  action  to  suppress  the  pest,  and  for  other  purposes,"  shall 
require  the  services  in  the  suppression  of  the  locust  pest  of  officers  or 
men  of  the  Army  or  Navy  of  the  United  States,  civil  employees  of  the 
United  States  Government,  officers  or  employees  of  the  Insular  Gov- 
ernment, or  the  officers  or  servants  of  conipanies  or  individuals  en- 
gaged in  the  business  of  common  carriers  on  sea  or  land,  or  priests, 
ministers  of  the  Gospel,  physicians,  practicantes,  druggists  or  prac- 
ticantes  de  farmacia  actually  engaged  in  business,  or  lawyers  when 
actually  engaged  in  court  proceedings.     Sec.  1,  Act  of  the  Philippine 
Commission  of  August  17,  1903  (No.  834). 

RESIDENCE    FOR    VOTING. 

2485.  SECTION  1.  Act  No.  82,  entitled  "  The  Municipal  Code  "  is 
hereby  amended  as  follows: 

******* 

(c)  By  adding  at  the  close  of  section  6  the  words  "  Provided,  that 
officers,  soldiers,  sailors  or  marines  of  the  Army  or  Navy  of  the  United 
States  shall  not  be  considered  as  having  acquired  legal  residence 


1300  MILITARY   LAWS    OF    THE    UNITED    STATES. 

within  the  meaning  of  this  section  by  reason  of  their  having  been 
stationed  in  the  municipalities  for  the  required  six  months." 

******* 

Sec.  1,  Act  of  the  Philippine  Commission  of  November  27, 1901  (No. 
80S}. 

QUALIFICATIONS   OF   ELECTORS ELECTIONS. 

2485a.  The  electors  exercising  the  privilege  of  choosing  elective 
officers  shall  be  male  persons  eighteen  or  more  years  of  age  who 
have  had  a  legal  residence  in  the  township  in  which  they  exercise  the 
right  of  suffrage  for  a  period  of  six  months  immediately  preceding 
the  election,  and  who  are  not  citizens  or  subjects  of  any  foreign 
power:  Provided,  That  officers,  soldiers,  sailors,  or  marines  of  the 
Army  or  Navy  of  the  United  States  shall  not  be  considered  as  hav- 
ing acquired  legal  residence  within  the  meaning  of  this  section  by 
reason  of  their  having  been  stationed  in  the  township  for  the  required 
six  months.  Sec.  6,  Act  of  the  Philippine  Commission  of  September 
H,  1905  (No.  1397}. 

(This  paragraph  amends  paragraph  2485.) 

2485b.  In  no  case  shall  there  be  elected  or  appointed  to  a  township 
office  ecclesiastics;  soldiers  in  active  service;  persons  receiving  sal- 
aries from  provincial,  departmental,  or  governmental  funds;  those 
who  are  delinquent  in  the  payment  of  public  taxes  assessed  after  the 
passage  of  this  Act;  or  contractors  for  public  works  within  the 
province.  Sec.  15,  Act  of  Philippine  Commission  of  September  H, 
1905  (No.  1397}. 

2485c.  The  following  persons  shall  be  disqualified  from  voting : 

(a)  Any  person  who  is  delinquent  in  the  payment  of  public  taxes. 

(b}  Any  person  who  has  been  deprived  of  the  right  to  vote  by  the 
sentence  of  a  court  of  competent  jurisdiction  since  August  thirteenth, 
eighteen  hundred  and  ninety-eight,  unless  and  until  acquitted  upon 
appeal  to  a  higher  court  or  restored  to  all  civil  rights  by  amnesty  or 
pardon. 

(c)  Any  person  who  has  taken  and  violated  the  oath  of  allegiance 
to  the  United  States. 

(d)  Any  person  who,  after  April  ninth,  nineteen  hundred  and  two, 
has  been  or  shall  be  in  arms  in  the  Philippine  Islands  against  the 
authority  or  sovereignty  of  the  United  States,  whether  such  person 
be  an  officer,  soldier,  or  civilian. 

(e)  Any  person  who,  after  April  ninth,  nineteen  hundred  and  two, 
has  made  or  shall  make  contribution  of  money  or  other  valuable 
thing  in  aid  of  any  person  or  organization  against  the  authority  or 
sovereignty  of  the  United  States,  or  who  shall  demand  or  receive 
such  contribution  from  others,  or  who  shall  make  any  contribution  to 


SUPPLEMENT.  1301 

any  person  or  organization  hostile  to  or  in  arms  against  the  authority 
or  sovereignty  of  the  United  States  for  the  purpose  of  securing  any 
protection,  immunity,  or  benefit,  and  who  has  not  received  the  benefit 
of  the  Amnesty  Proclamation. 

(/)  Any  person  who,  after  April  ninth,  nineteen  hundred  and  two, 
has  given  or  in  any  manner  whatsoever  shall  give  aid  and  comfort  to 
any  person  or  organization  in  the  Philippine  Islands  in  opposition 
to  or  in  arms  against  the  authority  or  sovereignty  of  the  United 
States,  and  who  has  not  received  the  benefit  of  the  Amnesty  Proclama- 
tion. Sec.  8,  Act  of  the  Philippine  Commission  of  September  H, 
1905  (No.  1397). 

TAXATION. 

2486.  SECTION  1.  Section  two  of  Act  Numbered  One  hundred  and 
thirty-three,  entitled  "An  Act  to  amend  the  Provincial  Government 
Act,  Numbered  Eighty-three,"  shall  be  amended  by  adding  to  subsec- 
tion twenty-six  thereunder,  after  the  word  "  navy  "  in  the  eighth  line 
of  said  subsection,  the  following :  "  or  a  civilian  employee  in  the  per- 
manent employment  of  the  War  or  Navy  Department  of  the  United 
States,  who  was  not  a  resident  of  the  Islands  before  his  employment 
in  such  service,  but  was  brought  here  for  the  purpose  of  such  employ- 
ment," so  that  the  said  subsection  shall  read  as  follows : 

"  SEC.  26.  There  shall  be  collected  in  each  province,  by  the  provin- 
cial treasurer,  an  annual  tax  of  one  peso  or  one  dollar,  Mexican,  to  be 
called  the  cedula  or  registration  tax,  from  every  male  person  of 
eighteen  years  of  age  and  not  more  than  fifty-five  years  of  age  resid- 
ing in  such  province,  whether  a  native  of  the  Philippine  Islands,  a 
citizen  of  the  United  States,  or  a  foreigner,  except  a  soldier,  sailor,  or 
officer  of  the  United  States  Army  or  Navy,  or  a  civilian  employee  in 
the  permanent  employment  of  the  War  or  Navy  Department  of  the 
United  States,  who  was  not  a  resident  of  the  Islands  before  his  em- 
ployment in  such  service,  but  was  brought  here  for  the  purpose  of 
such  employment,  a  member  of  a  non-Christian  tribe,  or  a  foreign 
consular  officer  exempted  by  treaty  or  international  law."  Sec.  1, 
Act  of  the  Philippine  Commission  of  June  1, 1903  (No.  785). 

GOVERNMENT  OF  THE  MORO  PROVINCE. 

2487.  SECTION  1.  Section  fifteen  of  Act  Numbered  Seven  hundred 
and  eighty-seven,  entitled  "An  Act  providing  for  the  organization 
and  government  of  the  Moro  Province,"  is  hereby  amended  by  adding 
at  the  end  thereof  the  following : 

"Provided,  however,  That  the  legislative  council  shall  have  the 
power  to  unite  the  offices  of  district  secretary  and  district  treasurer, 
and  to  provide  for  the  filling  of  such  offices,  whether  united  or  sepa- 


1302  MILITAKY   LAWS    OF    THE    UNITED    STATES. 

rate,  by  detail  of  Army  officers  without  civil-service  examination,  in 
the  interest  of  economy  in  the  public  service.  Army  officers  thus  de- 
tailed shall  receive  the  same  allowance  and  expenses  from  the  provin- 
cial treasury  as  are  allowed  to  detailed  Army  officers  under  section 
eleven  of  Act  Numbered  Seven  hundred  and  eighty-seven."  Sec.  1, 
Act  of  the  Philippine  Commission  of  September  17, 1903  (No.  889). 

GOVERNMENT   OF   THE    MORO   PROVINCE SALARIES. 

2488.  SEC.  11.  The  provincial  governor  shall  receive  an  annual  sal- 
ary of  six  thousand  dollars  and  each  of  the  provincial  officers  shall 
receive  an  annual  salary  of  not  exceeding  four  thousand  dollars  each, 
in  United  States  currency,  to  be  fixed  by  the  Civil  Governor  in  the 
appointment  and  to  be  approved  with  the  appointment  by  the  Com- 
mission.   The  governors  of  the  districts  hereinafter  authorized  shall 
receive  not  exceeding  three  thousand  five  hundred  dollars  annual 
salary,  in  United  States  currency,  to  be  fixed  in  the  case  of  each  dis- 
trict by  the  legislative  council;  and  the  district  secretaries  and  the 
district  treasurers  hereinafter  authorized  shall  each  receive  an  annual 
salary  of  not  exceeding  two  thousand  five  hundred  dollars,  in  United 
States  currency,  to  be  fixed  for  each  district  by  the  legislative  coun- 
cil.   The  lieutenant-governor  of  Dapitan  shall  receive  an  annual  sal- 
ary of  not  exceeding  two  thousand  dollars,  in  United  States  currency, 
to  be  fixed  by  the  legislative  council.    In  case  an  officer  of  the  Army 
is  detailed  to  perform  the  duties  of  provincial  governor,  or  provincial 
engineer,  or  a  governor  of  a  district,  he  shall  receive  an  allowance 
equal  to  twenty  per  centum  of  his  current  proper  yearly  pay  as  an 
officer  of  the  Army  and  the  actual  and  necessary  expenses  incurred 
while  absent  from  his  station  in  the  performance  of  his  necessary  civil 
duties. 

The  salaries  of  all  officers  and  employees  of  the  province  and  dis- 
tricts shall  be  payable  out  of  the  revenues  of  the  province.  The  sal- 
aries of  the  officers  and  employees  of  such  municipalities  as  may  be 
organized  within  the  province  shall  be  payable  out  of  the  treasury  of 
the  respective  municipalities.  Sec.  11,  Act  of  the  Philippine  Com- 
mission of  June  1,  1903  (No.  787}. 

2489.  Section  eleven  of  said  Act  is  hereby  amended  by  striking  out 
the  words  "  the  lieutenant-governor  of  Dapitan  shall  receive  an  an- 
nual salary  of  not  exceeding  two  thousand  dollars,  in  United  States 
currency,  to  be  fixed  by  the  legislative  council  "  and  by  making  the  next 
sentence  of  said  section,  after  the  words  so  stricken  out,  to  read  as  fol- 
lows :    "  In  case  an  officer  of  the  Army  is  detailed  to  perform  the 
duties  of  provincial  governor  or  secretary  or  provincial  engineer,  or 
a  governor  or  a  secretary  of  a  district,  he  shall  receive  an  allowance 
equal  to  twenty  per  centum  of  his  current  proper  yearly  pay  as  an 


SUPPLEMENT.  1303 

officer  of  the  Army  and  the  actual  and  necessary  expenses  incurred 
while  absent  from  his  station  in  the  performance  of  his  necessary 
civil  duties."  Sec.  h  Act  of  the  Philippine  Commission  of  January 
13,  1905  (No.  1283}. 

(This  paragraph  amends  paragraph  2488.) 

2490.  Section  eleven  of  Act  Numbered  Seven  hundred  and  eighty- 
seven,  entitled  "  An  Act  providing  for  the  organization  and  gov- 
ernment of  the  Moro  Province,"  as  amended  by  section  four  of  Act 
Numbered   Twelve   hundred   and   eighty-three,   is   hereby    further 
amended  by  making  the  last  sentence  of  the  first  paragraph  of  said 
section  read  as  follows : 

"  In  case  officers  of  the  Army  are  detailed  to  perform  the  duties 
of  provincial  or  district  officials  of  the  Moro  Province  they  may  be 
paid  an  allowance,  in  the  discretion  of  the  legislative  council,  as 
follows:  Officers  above  the  grade  of  colonel,  not  exceeding  twenty 
per  centum,  and  officers  of  the  grade  of  colonel  and  below  said  grade 
not  exceeding  fifty  per  centum,  of  their  current  proper  yearly  pay  as 
officers  of  the  Army,  and  they  shall  also  receive  the  actual  and  neces- 
sary expenses  incurred  while  absent  from  their  stations  in  the  per- 
formance of  their  necessary  civil  duties."  Sec.  1,  Act  of  the  Phil- 
ippine Commission  of  September  #, 1905  (No.  1391). 

(This  paragraph  amends  paragraphs  2488  and  2489.) 

ESTABLISHMENT   OF   PROVINCIAL   GOVERNMENTS. 

2491.  A  civil  provincial  government  is  hereby  established  for  each 
province  of  the  Philippine  Islands  not  organized  under  the  Provin- 
cial Government  Act  Numbered  Eighty-three,  except  the  Moro  Prov- 
ince.    Every  provincial  government  established  under  this  Act  shall 
be  a  body  corporate,  with  power  to  sue  and  be  sued,  to  have  and  use 
a  corporate  seal,  to  hold  property,  real  and  personal,  to  make  con- 
tracts for  labor  and  material  needed  in  the  construction  of  duly  au- 
thorized public  works,  and  to  incur  such  other  obligations  as  are 
expressly  authorized  by  law. 

SEC.  2.  Except  as  hereinafter  provided,  the  officers  of  each  pro- 
vincial government  organized  under  this  Act  shall  be  a  provincial 
governor,  a  provincial  secretary,  a  provincial  treasurer,  a  provincial 
supervisor,  and  a  provincial  fiscal.  No  person  shall  be  eligible  for 
any  of  these  offices  who  is  not  either  a  citizen  of  the  United  States, 
a  native  of  the  Philippine  Islands,  a  person  who  has  taken  the  oath 
of  allegiance  to  the  United  States  and  served  as  a  member  of  the 
Army  or  Navy  of  the  United  States  and  been  honorably  discharged 
therefrom,  or  who,  not  being  a  subject  or  citizen  of  any  other  power 
or  government,  may  have  under  or  by  virtue  of  the  treaty  of  Paris 


1304  MILITAKY   LAWS    OF    THE    UNITED    STATES. 

acquired  the  political  rights  of  a  native  of  the  Philippine  Islands, 
or  who,  having  taken  the  oath  of  allegiance  to  the  United  States, 
shall  violate  the  same.  Nonresidence  in  the  province  shall  not  ren- 
der the  person  appointed  to  the  office  ineligible. 

SEC.  3.  The  provincial  officers  shall  be  appointed  by  the  Governor- 
General,  with  the  advice  and  consent  of  the  Philippine  Commission, 
and  shall  hold  office  during  his  pleasure.  They  shall  reside  and  have 
their  offices  at  the  capital  of  the  province.  Sees.  1  to  3,  Act  of  the 
Philippine  Commission  of  September  14,  1905  (No.  1396) . 

ANNUAL   TAX   FOR   ROADS,   ETC. 

2492.  (a)  There  is  hereby  imposed,  for  the  purpose  of  protecting, 
improving,  and  extending  the  roads  and  trails  of  the  province  and  of 
constructing  public  works,  an  annual  tax  of  two  pesos  on  every  male 
inhabitant  of  the  province  over  eighteen  years  and  under  sixty  years 
of  age,  except  soldiers  and  sailors  of  the  United  States  Army  and 
Navy,  civilian  employees  of  the  military  branch  of  the  United  States 
Government  in  the  Philippine  Islands,  consular  and  diplomatic  rep- 
resentatives and  of  officials  of  foreign  powers  in  the   Philippine 
Islands,  paupers,  insane  persons,  and  persons  serving  a  sentence  of 
more  than  one  year  in  a  public  prison.     This  tax  shall  be  collected 
by  the  provincial  treasurer  and  his  deputies.     It  shall  be  deemed  to 
be  delinquent  after  the  first  da}7  of  February  of  each  year:  Provided, 
That  the  amount  of  taxes  due  and  payable  for  the  period  from  the 
date  of  this  Act  to  the  first  day  of  January,  nineteen  hundred  and 
seven,  shall  be  two  pesos:  And  provided  further,  That  this  amount 
shall  be  due  and  payable  on  the  first  day  of  December,  nineteen  hun- 
dred and  five,  and  shall  become  delinquent  on  the  first  day  of  Janu- 
ary, nineteen  hundred  and  six:  And  provided  further,  That  persons 
liable  to  pay  this  tax  not  residents  of  the  province  prior  to  February 
first  of  any  year,  but  who  enter  and  reside  in. the  province  after  that 
date,  may  pay  the  tax  within  thirty  days  after  their  arrival  in  the 
province.     Sec.  19,  Act  of  the  Philippine  Commission  of  September 
14,1905  (No.  1396). 

OATH  OF  OFFICE. 

2493.  Before  assuming  office  each  provincial  officer  shall  take  and 
subscribe  to  the  following  oath  or  affirmation : 

"I, ,  having  been 

appointed  to  the  office  of of  the  Province 

of ,  do  hereby  solemnly  swear   (or 

affirm)  that  I  will  well  and  truly  perform  all  the  duties  of  said 
office;  that  I  will  faithfully  account  for  all  moneys  coming  into  my 
hands  as  such  officer ;  that  I  will  bear  true  faith  and  allegiance  to  the 


SUPPLEMENT.  1305 

Government  of  the  United  States ;  that  I  take  this  oath  without  any 
mental  reservation  whatsoever.  So  help  me  God.  (In  case  of  af- 
firmation the  last  four  words  shall  be  omitted.)" 

The  oaths  of  office  may  be  administered  to  provincial  officers  by  a 
member  of  the  Commission,  the  Executive  Secretary,  the  Assistant 
Executive  Secretary,  the  governor  of  the  province,  or  any  United 
States  Army  officer  stationed  in  the  province,  by  the  judge  of  First 
Instance  within  whose  judicial  district  the  said  province  lies,  by  any 
notary  public  or  justice  of  the  peace,  or  by  any  other  person  duly 
authorized  in  such  case  to  administer  oaths.  Sec.  5,  Act  of  the  Phil- 
ippine Commission  of  September  1%.,  1905  (No.  1396} . 

TOLL  ROADS  AND   BRIDGES. 

2494.  Whenever  the  provincial  board  of  any  province  shall  decide 
it  to  be  necessary  for  the  proper  maintenance  of  any  road  or  highway 
within  the  province,  it  may  designate  any  such  road  or  highway,  or 
any  part  of  any  road  or  highway,  or  any  bridge,  which  is  maintained, 
or  intended  to  be  built  and  maintained  wholly  by  provincial  funds,  as 
a  toll  road  or  toll  bridge,  and  may  fix,  and  from  time  to  time  may 
change,  the  rates  of  toll  to  be  paid  for  the  use  thereof,  which  shall  be 
reasonable  and  shall  not  be  greater  than  is  necessary  to  produce  the 
revenue  requisite  for  the  proper  building,  maintenance,  or  improve- 
ment thereof  during  the  period  while  the  toll  rates  are  in  force.     The 
rates  fixed  shall  be  subject  to  the  approval  of  the  Governor-General : 
Provided,  That  no  toll  shall  be  collected  from  persons  passing  over 
such  road  or  bridge  on  foot :  And  provided  further,  That  officers  and 
enlisted  men  and  civil  employees  of  the  United  States  Army,  Navy, 
and  Marine  Corps  shall  be  exempt  from  the  payment  of  tolls  or 
charges  under  this  Act.     Sec.  1,  Act  of  the  Philippine  Commission  of 
March  20,  1907  (No.  1617). 

LEAVE    PRIVILEGES. 

2495.  The  provisions  of  Act  Numbered  One  thousand  and  forty,  in 
regard  to  all  leave  privileges,  shall  hereafter  apply  to  Army  officers 
serving    with    the    Philippines    Constabulary:  Provided,    however, 
That  the  provisions  of  said  Act  in  regard  to  half  pay  while  going  to 
and  returning  from  the  United  States  shall  apply  only  to  that  por- 
tion of  the  compensation  of  said  officers  paid  from  Insular  funds. 
Sec.   1,   Act   of    the    Philippine    Commission    of   March    13,   1907 
(No.  1607). 

ACTS    OF    CONGRESS. 
ARTICLES    FREE    OF    DUTY. 

2496.  Used  household  furniture  of  persons  coming  to  settle  in  the 
Philippine  Islands,  including  such  articles,  effects,  and  furnishings 


1306  MILITARY   LAWS    OF    THE    UNITED    STATES. 

as  pictures,  books,  pianos,  organs,  chinaware,  and  kitchen  utensils, 
in  quantities  and  of  the  class  suitable  to  the  rank  and  position  of 
the  persons  bringing  the  same  and  intended  for  their  own  use  and 
benefit  and  not  for  barter  or  sale :  Provided,  That  they  have  all  been 
used  by  said  persons  for  more  than  one  year;  that  they  are  brought 
within  a  reasonable  time  after  the  arrival  of  the  owners,  in  the 
discretion  of  the  collector  of  customs:  And  provided  further,  That 
satisfactory  evidence  be  produced  that  such  persons  are  actually 
coming  to  settle  in  the  Philippine  Islands;  that  the  change  of  resi- 
dence is  bona  fide,  and  that  the  privilege  of  free  entry  under  this 
paragraph  has  never  been  previously  granted  to  them :  And  provided 
further,  That  if  such  persons  are  coming  to  the  Philippine  Islands 
from  the  United  States  and  are  citizens  thereof,  the  period  of  one 
year  specified  in  the  first  proviso  of  this  paragraph  shall  not  be 
effective.  Officers  of  the  United  States  Army,  Navy,  and  Marine 
Corps  and  religious  missionaries  taking  stations  in  the  islands  shall 
be  given  the  same  privileges  granted  to  other  persons  in  this  article : 
And  provided  further,  That  all  articles  of  professional  equipment, 
wearing  apparel,  and  household  goods  belonging  to  officers  of  the 
United  States  Army,  Navy,  and  Marine  Corps,  officers  of  the  Philip- 
pine government,  and  religious  missionaries  who  are  citizens  of  the 
United  States,  imported  from  the  United  States  for  their  personal 
use  and  benefit  and  not  for  barter  or  sale,  may  be  entered  free  of 
duty  on  the  personal  certificate  of  such  person  that  they  fulfill  the 
above  conditions:  Provided,  however,  That  United  States  Govern- 
ment vessels,  whether  transports  of  the  Army  or  naval  vessels,  when 
coming  from  the  United  States  or  a  foreign  port  to  the  ports  of  the 
Philippine  Islands,  shall  be  subject  to  the  same  inspection  by  customs 
officers  of  the  Philippine  government,  for  the  purpose  of  determin- 
ing whether  they  have  on  board  articles  or  merchandise  dutiable 
under  the  laws  of  the  Philippine  Islands,  as  such  United  States 
Government  vessels  are  subject  to  by  customs  officers  of  the  United 
States  Government  when  such  vessels  enter  ports  of  the  United 
States  from  foreign  countries  for  the  purpose  of  determining 
whether  such  vessels  have  on  board  articles  or  merchandise  dutiable 
under  the  laws  of  the  United  States.  Sec.  12,  Act  of  March  3,  1905 
(33  Stats.,  974). 


TONNAGE     DUES. 


2497.  The  following  shall  be  exempt  from  tonnage  dues: 

A  vessel  belonging  to  or  employed  in  the  service  of  the  Government 

of  the  United  States.     *     *     *    Sec.  15,  Act  of  March  3,  1905  (33 

Stats.,  976). 


SUPPLEMENT.        .  1307 

CHAPTER  L. 
DISTRICT  OF  ALASKA. 

2498.  All  moneys  derived  from  and  collected  for  liquor  licenses, 
occupation  or  trade  licenses  outside  of  the  incorporated  towns  in 
the  district  of  Alaska  shall  be  deposited  in  the  Treasury  Depart- 
ment of  the  United  States,  there  to  remain  as  a  separate  and  distinct 
fund,  to  be  known  as  the  '  Alaska  fund,'  and  to  be  wholly  devoted  to 
the  purposes  hereinafter  stated  in  the  district  of  Alaska.    One-fourth 
of  said  fund,  or  so  much  thereof  as  may  be  necessary,  shall  be  devoted 
to  the  establishment  and  maintenance  of  public  schools  in  said  dis- 
trict; five  per  centum  of  said  fund  shall  be  devoted  to  the  care  and 
maintenance  of  insane  persons  in  said  district,  or  so  much  of  said 
five  per  centum  as  may  be  needed;  and  all  the  residue  of  said  fund 
shall  be  devoted  to  the  construction  and  maintenance  of  wagon  roads, 
bridges,  and  trails  in  said  district:  And  provided  further,  That  the 
clerk  of  the  court  of  each  judicial  division  of  said  district  is  author- 
ized, and  he  is  hereby  directed,  whenever  considered  necessary,  to  call 

•upon  the  United  States  marshal  of  said  judicial  division  to  aid  in 
the  collection  of  said  license  moneys  by  designating  regular  or  special 
deputies  of  his  office  to  act  as  temporary  license  inspectors,  and  it 
shall  be  the  duty  of  said  United  States  marshal  to  render  such  aid ; 
and  the  said  regular  or  special  deputies,  while  actually  engaged  in  the 
performance  of  this  duty,  shall  receive  the  same  fees  and  allowances 
and  be  paid  in  the  same  manner  as  when  performing  their  regular 
duties.  Sec.  1,  Act  of  May  14, 1906  (3Jf  Stats.,  192) .. 

(This  paragraph  amends  and  takes  the  place  of  section  1  of  the  act  of  Jan- 
uary 27,  1905.) 

2499.  There  shall  be  a  board  of  road  commissioners  in  said  district, 
to  be  composed  of  an  engineer  officer  of  the  United  States  Army  to 
be  detailed  and  appointed  by  the  Secretary  of  War,  and  two  other 
officers  of  that  part  of  the  Army  stationed  in  said  district  and  to  be 
designated  by  the  Secretary  of  War.     The  said  engineer  officer  shall, 
during  the  term  of  his  said  detail  and  appointment,  abide  in  said  dis- 
trict.    The  said  board  shall  have  the  power,  and  it  shall  be  their  duty, 
upon  their  own  motion  or  upon  petition,  to  locate,  lay  out,  construct, 
and  maintain  wagon  roads  and  pack  trails  from  any  point  on  the 
navigable  waters  of  said  district  to  any  town,  mining  or  other  indus- 
trial camp  or  settlement,  or  between  any  such  town,  camps,  or  settle- 
ments therein,  if  in  their  judgment  such  roads  or  trails  are  needed 
and  will  be  of  permanent  value  for  the  development  of  the  district; 
but  no  such  road  or  trail  shall  be  constructed  to  any  town,  camp,  or 
settlement  which  is  wholly  transitory  or  of  no  substantial  value  or 


1308  MILITARY   LAWS    OF    THE    UNITED    STATES. 

importance  for  mining,  trade,  agricultural,  or  manufacturing  pur- 
poses. The  said  board  shall  prepare  maps,  plans,  and  specifications 
of  every  road  or  trail  they  may  locate  and  lay  out,  and  whenever 
more  than  twenty  thousand  dollars,  in  the  aggregate,  shall  have  to  be 
expended  upon  the  actual  construction  of  any  road  or  section  of  road 
designed  to  be  permanent,  contract  for  the  work  shall  be  let  by  them 
to  the  lowest  responsible  bidder,  upon  sealed  bids,  after  due  notice, 
under  rules  and  regulations  to  be  prescribed  by  the  Secretary  of  War. 
The  board  may  reject  any  bid  if  they  deem  the  same  unreasonably 
high  or  if  they  find  that  there  is  a  combination  among  bidders.  In 
case  no  responsible  and  reasonable  bid  can  be  secured,  then  the  work 
may  be  carried  on  with  material  and  men  procured  and  hired  by  the 
board.  The  engineer  officer  of  the  board  shall  in  all  cases  supervise 
the  work  of  construction  and  see  that  the  same  is  properly  performed. 
As  soon  as  any  road  or  trail  laid  out  by  the  board  has  been  constructed 
and  completed  they  shall  examine  the  same  and  make  a  full  and  de- 
tailed report  of  the  work  done  on  the  same  to  the  Secretary  of  War, 
and  in  such  report  they  shall  state  whether  the  road  or  trail  has  been 
completed  conformably  to  the  maps,  plans,  and  specifications  of  the 
same.  It  shall  be  the  duty  of  said  board,  as  far  as  practicable,'  t6 
keep  in  proper  repair  all  roads  and  trails  constructed  under  their  su- 
pervision, and  the  same  rules  as  to  the  manner  in  which  the  work  of 
repair  shall  be  done,  whether  by  contract  or  otherwise,  shall  govern  as 
in  the  case  of  the  original  construction  of  the  road  or  trail.  The 
cost  and  expenses  of  laying  out,  constructing,  and  repairing  such 
roads  and  trails  shall  be  paid  by  the  Secretary  of  the  Treasury, 
through  the  authorized  disbursing  officer  of  the  board  designated  by 
the  Secretary  of  War,  out  of  the  road  and  trail  portion  of  said  'Alaska 
fund '  upon  vouchers  approved  and  certified  by  said  board.  The 
Secretary  of  the  Treasury  shall,  at  the  end  of  each  month,  send  by 
mail  to  each  of  the  members  of  said  board  a  statement  of  the  amount 
available  of  said  'Alaska  fund '  for  the  construction  and  repair  of 
roads  and  trails,  and  no  greater  liability  for  construction  or  repair 
shall  at  any  time  be  incurred  by  said  board  than  the  money  avail- 
able therefor  at  that  time  in  said  fund.  The  members  of  said  board 
shall,  in  addition  to  their  salaries,  be  reimbursed  in  the  sums  actually 
paid  or  incurred  by  them  in  traveling  expenses  in  the  performance 
of  their  duties,  and  shall  be  entitled  to  receive  their  actual  expenses 
of  living  while  serving  as  members  of  said  board  within  the  limits 
of  the  district  and  not  stationed  at  a  military  post.  Sec.  2,  Act  of 
May  14, 1906  (34  Stats.,  192}. 

(This  paragraph  amends  and  takes  the  place  of  section  2  of  the  act  of  Janu- 
ary 27,  1905,  33  Stats.,  616.) 


APPENDIX   A. 


CONVENTION  BETWEEN  THE  UNITED  STATES  OF  AMERICA  AND 
CERTAIN  POWERS  FOR  THE  ADAPTATION  TO  MARITIME  WAR- 
FARE OF  THE  PRINCIPLES  OF  THE  GENEVA  CONVENTION  OF 
AUGUST  22,  1864. 

Signed  at  The  Hague  July  29,  1899. 

Ratification  advised  by  the  Senate  May  4,  1900. 

Ratified  by  the  President  of  the  United  States  August  3,  1900. 

Ratification  deposited  with  the  Netherlands  Government  September  4, 1900. 

Proclaimed  November  1,  1901. 

BY  THE  PRESIDENT  OF  THE  UNITED  STATES  or  AMERICA. 
A  PROCLAMATION. 

Whereas  a  Convention  for  the  adaptation  to  Maritime  Warfare  of 
the  principles  of  the  Geneva  Convention  of  August  22,  1864,  was  con- 
cluded and  signed  on  July  29,  1899,  by  the  Plenipotentiaries  of  the 
United  States  of  America,  Germany,  Austria-Hungary,  Belgium, 
China,  Denmark,  Spain,  Mexico,  France,  Great  Britain  and  Ireland, 
Greece,  Italy,  Japan,  Luxembourg,  Montenegro,  the  Netherlands, 
Persia,  Portugal,  Roumania,  Russia,  Servia,  Siam,  Sweden  and  Nor- 
way, Switzerland,  Turkey,  and  Bulgaria,  the  original  of  which  Con- 
vention, in  the  French  language,  is  word  for  word  as  follows : 

His  Majesty  the  Emperor  of  Germany,  King  of  Prussia;  His  Maj- 
esty the  Emperor  of  Austria,  King  of  Bohemia  etc.  and  Apostolic 
King  of  Hungary;  His  Majesty  the  King  of  the  Belgians;  His  Maj- 
esty the  Emperor  of  China ;  His  Majesty  the  King  of  Denmark ;  His 
Majesty  the  King  of  Spain  and  in  His  Name  Her  Majesty  the  Queen 
Regent  of  the  Kingdom ;  the  President  of  the  United  States  of  Amer- 
ica ;  the  President  of  the  United  Mexican  States ;  the  President  of  the 
French  Republic ;  Her  Majesty  the  Queen  of  the  United  Kingdom  of 
Great  Britain  and  Ireland,  Empress  of  India ;  His  Majesty  the  King 
of  the  Hellenes;  His  Majesty  the  King  of  Italy;  His  Majesty  the 
Emperor  of  Japan ;  His  Royal  Highness  the  Grand  Duke  of  Luxem- 
burg, Duke  of  Nassau ;  His  Highness  the  Prince  of  Montenegro ;  Her 
Majesty  the  Queen  of  the  Netherlands;  His  Imperial  Majesty  the 

1309 


1310  MILITAKY   LAWS    OF    THE    UNITED    STATES. 

Shah  of  Persia;  His  Majesty  the  King  of  Portugal  and  of  the  Al- 
garves  etc.;  His  Majesty  the  King  of  Roumania;  His  Majesty  the 
Emperor  of  all  the  Russias;  His  Majesty  the  King  of  Servia;  His 
Majesty  the  King  of  Siam;  His  Majesty  the  King  of  Sweden  and 
Norway;  the  Swiss  Federal  Council;  His  Majesty  the  Emperor  of 
the  Ottomans  and  His  Royal  Highness  the  Prince  of  Bulgaria. 

Alike  animated  by  the  desire  to  diminish,  as  far  as  depends  on 
them  the  evils  inseparable  from  warfare,  and  wishing  with  this  ob- 
ject to  adapt  to  maritime  warfare  the  principles  of  the  Geneva  Con- 
vention of  the  22nd  August,  1864,  have  decided  to  conclude  a  con- 
vention to  this  effect: 

******* 

ARTICLE  I. 

Military  hospital  ships,  that  is  to  say,  ships  constructed  or  as- 
signed by  States  specially  and  solely  for  the  purpose  of  assisting  the 
wounded,  sick  or  shipwrecked,  and  the  names  of  which  shall  have 
been  communicated  to  the  belligerent  Powers  at  the  beginning  or 
during  the  course  of  hostilities,  and  in  any  case  before  they  are  em- 
ployed, shall  be  respected  and  cannot  be  captured  while  hostilities 
last. 

These  ships,  moreover,  are  not  on  the  same  footing  as  men-of-war 
as  regards  their  stay  in  a  neutral  port. 

ARTICLE  II. 

Hospital  ships,  equipped  wholly  or  in  part  at  the  cost  of  private 
individuals  or  officially  recognized  relief  Societies,  shall  likewise  be 
respected  and  exempt  from  capture,  provided  the  belligerent  Power 
to  whom  they  belong  has  given  them  an  official  commission  and  has 
notified  their  names  to  the  hostile  Power  at  the  commencement  of 
or  during  hostilities,  and  in  any  case  before  they  are  employed. 

These  ships  should  be  furnished  with  a  certificate  from  the  compe- 
tent authorities,  declaring  that  they  had  been  under  their  control 
while  fitting  out  and  on  final  departure. 

ARTICLE  III. 

Hospital-ships,  equipped  wholly  or  in  part  at  the  cost  of  private 
individuals  or  officially  recognized  Societies  of  neutral  countries, 
shall  be  respected  and  exempt  from  capture,  if  the  neutral  Power  to 
whom  they  belong  has  given  them  an  official  commission  and  notified 
their  names  to  the  belligerent  powers  at  the  commencement  of  or 
during  hostilities,  and  in  any  case  before  they  are  employed. 


SUPPLEMENT.  1311 

ARTICLE  IV. 

The  ships  mentioned  in  Articles  I,  II,  and  III  shall  afford  relief 
and  assistance  to  the  wounded,  sick,  and  shipwrecked  of  the  bellig- 
erents independently  of  their  nationality. 

The  Governments  engage  not  to  use  these  ships  for  any  military 
purpose. 

These  ships  must  not  in  any  way  hamper  the  movements  of  the 
combatants. 

During  and  after  an  engagement  they  will  act  at  their  own  risk  and 
peril. 

The  belligerents  will  have  the  right  to  control  and  visit  them ;  they 
can  refuse  to  help  them,  order  them  off,  make  them  take  a  certain 
course,  and  put  a  Commissioner  on  board ;  they  can  even  detain  them, 
if  important  circumstances  require  it. 

As  far  as  possible  the  belligerents  shall  inscribe  in  the  sailing  papers 
of  the  hospital-ships  the  orders  they  give  them. 

ARTICLE  V. 

The  military  hospital-ships  shall  be  distinguished  by  being  painted 
white  outside  with  a  horizontal  band  of  green  about  a  metre  and  a 
half  in  breadth. 

The  ships  mentioned  in  Articles  II  and  III  shall  be  distinguished 
by  being  painted  white  outside  with  a  horizontal  band  of  red  about  a 
metre  and  a  half  in  breadth. 

The  boats  of  the  ships  above  mentioned,  as  also  small  craft  which 
may  be  used  for  hospital  work,  shall  be  distinguished  by  similar 
painting. 

All  hospital  ships  shall  make  themselves  known  by  hoisting, 
together  with  their  national  flag,  the  white  flag  with  a  red  cross  pro- 
vided by  the  Geneva  Convention. 

ARTICLE  VI. 

Neutral  merchantmen,  yachts,  or  vessels,  having,  or  taking  on 
board,  sick,  wounded,  or  shipwrecked  of  the  belligerents,  cannot  be 
captured  for  so  doing,  but  they  are  liable  to  capture  for  any  violation 
of  neutrality  they  may  have  committed. 

ARTICLE  VII. 

The  religious,  medical,  or  hospital  staff  of  any  captured  ship  is 
inviolable,  and  its  members  cannot  be  made  prisoners  of  war.  On 
leaving  the  ship  they  take  with  them  the  objects  and  surgical  instru- 
ments which  are  their  own  private  property. 


1312  MILITARY   LAWS    OF    THE    UNITED    STATES. 

This  staff  shall  continue  to  discharge  its  duties  while  necessary,  and 
can  afterwards  leave  when  the  Commander-in-Chief  considers  it 
possible. 

The  belligerents  must  guarantee  to  the  staff  that  has  fallen  into 
their  hands  the  enjoyment  of  their  salaries  intact. 

ARTICLE  VIII. 

Sailors  and  soldiers  who  are  taken  on  board  when  sick  or  wounded, 
to  whatever  nation  they  belong,  shall  be  protected  and  looked  after 
by  the  captors. 

ARTICLE  IX. 

The  shipwrecked,  wounded,  or  sick  of  one  of  the  belligerents  who 
fall  into  the  hands  of  the  other,  are  prisoners  of  war.  The  captor 
must  decide,  according  to  circumstances,  if  it  is  best  to  keep  them  or 
send  them  to  a  port  of  his  own  country,  to  a  neutral  port,  or  even  to 
a  hostile  port.  In  the  last  case,  prisoners  thus  repatriated  cannot 
serve  as  long  as  the  war  lasts. 

ARTICLE  X. 

(Excluded) 

ARTICLE  XL 

The  rules  contained  in  the  above  Articles  are  binding  only  on  the 
Contracting  Powers,  in  case  of  War  between  two  or  more  of  them. 

The  said  rules  shall  cease  to  be  binding  from  the  time  when,  in  n 
war  between  the  Contracting  Powers,  one  of  the  belligerents  is  joined 
by  a  non-Contracting  Power. 

ARTICLE  XII. 

The  present  Convention  shall  be  ratified  as  soon  as  possible. 

The  ratifications  shall  be  deposited  at  The  Hague. 

On  the  receipt  of  each  ratification  a  proces-verbal  shall  be  drawn 
up,  a  copy  of  which,  duly  certified,  shall  be  sent  through  the  diplo- 
matic channel  to  all  the  Contracting  Powers. 

ARTICLE  XIII. 

The  non-Signatory  Powers  who  accepted  the  Geneva  Convention  of 
the  22nd  August,  1864,  are  allowed  to  adhere  to  the  present  Conven- 
tion. 

For  this  purpose  they  must  make  their  adhesion  known  to  the  Con- 
tracting Powers  by  means  of  a  written  notification  addressed  to  the 


SUPPLEMENT.  1313 

Netherlands  Government,  and  by  it  communicated  to  all  the  other 
Contracting  Powers. 

ARTICLE  XIV. 

In  the  event  of  one  of  the  High  Contracting  Parties  denouncing  the 
present  Convention,  such  denunciation  shall  not  take  effect  until  #  year 
after  the  notification  made  in  writing  to  the  Netherlands  Government, 
and  forthwith  communicated  by  it  to  'all  the  other  Contracting 
Powers. 

This  denunciation  shall  only  affect  the  notifying  Power. 

In  testimony  whereof  the  respective  Plenipotentiaries  have  signed 
the  present  Convention  and  affixed  their  seals  thereto. 

Done  at  The  Hague  the  29th  July,  1899,  in  single  copy,  which  shall 
be  kept  in  the  archives  of  the  Government  of  the  Netherlands,  and 
copies  of  which  duly  certified,  shall.be  sent  through  the  diplomatic 
channel  to  the  Contracting  Powers. 

******* 

And  whereas  on  an  understanding  reached  by  the  Government  of 
the  Netherlands  with  the  signatory  powers  it  was  agreed  to  exclude 
from  the  ratifications  of  said  Convention  its  Article  X ; 

And  whereas  the  said  Convention,  with  its  Article  X  excluded,  was 
ratified  by  the  Government  of  the  United  States,  by  and  with  the 
advice  and  consent  of  the  Senate  thereof,  and  by  the  Governments 
of  the  other  Powers  aforesaid,  with  the  exception  of  those  of  China 
and  Turkey; 

And  whereas,  in  pursuance  of  the  stipulations  of  Article  XII  of  the 
said  Convention  the  ratifications  of  the  said  Convention  were  de- 
posited at  the  Hague  on  the  4th.  day  of  September,  1900,  by  the 
Plenipotentiaries  of  the  Governments  of  the  United  States  of  America, 
Germany,  Austria-Hungary,  Belgium,  Denmark,  Spain,  France, 
Great  Britain,  Italy,  the  Netherlands,  Persia,  Portugal,  Roumania, 
Russia,  Siam,  Sweden  and  Norway  and  Bulgaria;  on  the  6th.  day  of 
October,  1900,  by  the  Plenipotentiary  of  the  Government  of  Japan ; 
on  the  16th.  day  of  October,  1900,  by  the  Plenipotentiary  of  the 
Government  of  Montenegro ;  on  the  29th.  day  of  December,  1900,  by 
the  Plenipotentiary  of  the  Government  of  Switzerland;  on  the  4th. 
day  of  April,  1901,  by  the  Plenipotentiary  of  the  Government  of 
Greece ;  on  the  17th.  day  of  April,  1901,  by  the  Plenipotentiary  of  the 
Government  of  Mexico;  on  the  llth.  day  of  May,  1901,  by  the  Pleni- 
potentiary of  the  Government  of  Servia,  and  on  the  12th.  day  of 
July,  1901,  by  the  Plenipotentiary  of  the  Government  of  Luxembourg : 

Now,  therefore,  be  it  known  that  I,  Theodore  Roosevelt,  President 
of  the  United  States  of  America,  have  caused  the  said  Convention, 
with  its  Article  X  excluded,  to  be  made  public,  to  the  end  that  the 

22924—08 83 


1314  MILITARY   LAWS    OF    THE    UNITED    STATES. 

same  and  every  clause  thereof,  may  be  observed  and  fulfilled  with 
good  faith  by  the  United  States  and  the  citizens  thereof, 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  caused  the 
seal  of  the  United  States  to  be  affixed. 

Done  at  the  City  of  Washington,  this  first  day  of  November  in  the 
year  of  our  Lord  one  thousand  nine  hundred  and  one,  and 
[L.*S.]     of  the  Independence  of  the  United  States,  the  one  hundred 
and  twenty-sixth. 

THEODORE  ROOSEVELT 
By  the  President: 
JOHN  HAY 

Secretary  of  State. 


APPENDIX   B. 


CONVENTION  BETWEEN  THE  UNITED  STATES  OF  AMERICA  AND 
CERTAIN  POWERS,  WITH  RESPECT  TO  THE  LAWS  AND  CUSTOMS 
OF  WAR  ON 'LAND. 

Signed  at  The  Hague  July  29,  1899. 

Ratification  advised   by   the  Senate  March  14,    1902. 

Ratified  by  the  President  of  the  United  States  March  19,  1902. 

Ratifications  deposited  with  the  Netherlands  Government  September  4, 

1900. 
Proclaimed  April  11,  1902. 

BY  THE  PRESIDENT  OF  THE  UNITED  STATES  OF  AMERICA. 
* 

A  PROCLAMATION. 

Whereas  a  Convention  with  respect  to  the  laws  and  customs  of  war 
on  land  was  concluded  and  signed  on  July  29,  1899,  by  the  Plenipo- 
tentiaries of  the  United  States  of  America,  Germany,  Austria-Hun- 
gary, Belgium,  Denmark,  Spain,  Mexico,  France,  Great  Britain  and 
Ireland,  Greece,  Italy,  Japan,  Luxembourg,  Montenegro,  the  Nether- 
lands, Persia,  Portugal,  Roumania,  Russia,  Servia,  Siam,  Sweden 
and  Norway,  Turkey,  and  Bulgaria,  the  original  of  which  Conven- 
tion, in  the  French  language,  is  word  for  word  as  follows : 

CONVENTION     WITH    RESPECT    TO    THE    LAWS    AND     CUSTOMS    OF    WAR    ON 

LAND. 

His  Majesty  the  Emperor  of  Germany,  King  of  Prussia;  His  Maj- 
esty the  Emperor  of  Austria,  King  of  Bohemia  etc.,  and  Apostolic 
King  of  Hungary;  His  Majesty  the  King  of  the  Belgians;  His  Maj- 
esty the  King  of  Denmark;  His  Majesty  the  King  of  Spain  and  in 
His  Name  Her  Majesty  the  Queen  Regent  of  the  Kingdom ;  the  Presi- 
dent of  the  United  States  of  America;  the  President  of  the  United 
Mexican  States ;  the  President  of  the  French  Republic ;  Her  Majesty 
the  Queen  of  the  United  Kingdom  of  Great  Britain  and  Ireland, 
Empress  of  India;  His  Majesty  the  King  of  the  Hellenes;  His  Maj- 

1315 


1316  MILITARY   LAWS    OF    THE    UNITED    STATES. 

esty  the  King  of  Italy;  His  Majesty  the  Emperor  of  Japan;  His 
Royal  Highness  the  Grand  Duke  of  Luxemburg,  Duke  of  Nassau; 
His  Highness  the  Prince  of  Montenegro ;  Her  Majesty  the  Queen  of 
the  Netherlands;  His  Imperial  Majesty  the  Shah  of  Persia;  His 
Majesty  the  King  of  Portugal  and  of  the  Algarves  etc.;  His  Majesty 
the  King  of  Roumania ;  His  Majesty  the  Emperor  of  all  the  Russias ; 
His  Majesty  the  King  of  Servia ;  His  Majesty  the  King  of  Siam ;  His 
Majesty  the  King  of  Sweden  and  Norway ;  His  Majesty  the  Emperor 
of  the  Ottomans  and  His  Royal  Highness  the  Prince  of  Bulgaria. 

Considering  that,  while  seeking  means  to  preserve  peace  and  pre- 
vent armed  conflicts  among  nations,  it  is  likewise  necessary  to  have 
regard  to  cases  where  an  appeal  to  arms  may  be  caused  by  events 
which  their  solicitude  could  not  avert; 

Animated  by  the  desire  to  serve,  even  in  this  extreme  hypothesis, 
the  interests  of  humanity  and  the  ever  increasing  requirements  of 
civilization ; 

Thinking  it  important,  with  this  object,  to  revise  the  laws  and  gen- 
eral customs  of  war,  either  with  the  view  of  defining  them  more 
precisely,  or  of  laying  down  certain  limits  for  the  purpose  of  modi- 
fying their  severity  as  far  as  possible ; 

Inspired  by  these  views  which  are  enjoined  at  the  present  day,  as 
they  were  twenty-five  years  ago  at  the  time  of  the  Brussels  Confer- 
ence in  1874,  by  a  wise  and  generous  foresight; 

Have,  in  this  spirit,  adopted  a  great  number  of  provisions,  the 
object  of  which  is  to  define  and  govern  the  usages  of  war  on  land. 

In  view  of  the  High  Contracting  Parties,  these  provisions,  the 
wording  of  which  has  been  inspired  by  the  desire  to  diminish  the 
evils  of  war  so  far  as  military  necessities  permit,  are  destined  to 
serve  as  general  rules  of  conduct  for  belligerents  in  their  relations 
with  each  other  and  with  populations. 

It  has  not,  however,  been  possible  to  agree  forthwith  on  provisions 
embracing  all  the  circumstances  which  occur  in  practice. 

On  the  other  hand,  it  could  not  be  intended  by  the  High  Contract- 
ing Parties  that  the  cases  not  provided  for  should,  for  want  of  a 
written  provision,  be  left  to  the  arbitrary  judgment  of  the  military 
Commanders. 

Until  a  more  complete  code  of  the  laws  of  war  is  issued,  the  High 
Contracting  Parties  think  it  right  to  declare  that  in  cases  not 
included  in  the  Regulations  adopted  by  them,  populations  and  bellig- 
erents remain  under  the  protection  and  empire  of  the  principles  of 
international  law,  as  they  result  from  the  usages  established  between 
civilized  nations,  from  the  laws  of  humanity,  and  the  requirements 
of  the  public  conscience; 

They  declare  that  it  is  in  this  sense  especially  that  Articles  I  and 
II  of  the  Regulations  adopted  must  be  understood ; 


SUPPLEMENT.  1317 

The  High  Contracting  Parties,  desiring  to  conclude  a  Convention 
to  this  effect,  have  appointed  as  their  Plenipotentiaries,  to-wit: — 
******* 

Who,  after  communication  of  their  full  powers,  found  in  good  and 
due  form,  have  agreed  on  the  following : — 

ARTICLE  I. 

The  High  Contracting  Parties  shall  issue  instructions  to  their 
armed  land  forces,  which  shall  be  in  conformity  with  the  "  Regula- 
tions respecting  the  Laws  and  Customs  of  War  on  Land  "  annexed  to 
the  present  Convention. 

ARTICLE  II. 

The  provisions  contained  in  the  Regulations  mentioned  in  Article  I 
are  only  binding  on  the  Contracting  Powers,  in  case  of  war  between 
two  or  more  of  them. 

These  provisions  shall  cease  to  be  binding  from  the  time  when,  in  a 
war  between  Contracting  Powers,  a  non-Contracting  Power  joins  one 
of  the  belligerents. 

ARTICLE  III. 

The  present  Convention  shall  be  ratified  as  speedily  as  possible. 

The  ratifications  shall  be  deposited  at  the  Hague. 

A  proces-verbal  shall  be  drawn  up  recording  the  receipt  of  each 
ratification,  and  a  copy,  duly  certified,  shall  be  sent  through  the  diplo- 
matic channel,  to  all  the  Contracting  Powers. 

ARTICLE  IV. 

Non-Signatory  Powers  are  allowed  to  adhere  to  the  Present  Con- 
vention. 

For  this  purpose  they  must  make  their  adhesion  known  to  the  Con- 
tracting Powers  by  means  of  a  written  notification,  addressed  to  the 
Netherland  Government,  and  by  it  communicated  to  all  the  other 
Contracting  Powers. 

ARTICLE  V. 

In  the  event  of  one  of  the  High  Contracting  Parties  denouncing 
the  present  Convention,  such  denunciation  would  not  take  effect 
until  a  year  after  the  written  notification  made  to  the  Netherland 
Government,  and  by  it  at  once  communicated  to  all  the  other  Con- 
tracting Powers. 

This  denunciation  shall  affect  only  the  notifying  Power. 

In  faith  of  which  the  Plenipotentiaries  have  signed  the  present 
Convention  and  affixed  their  seals  thereto. 


1318  MILITARY   LAWS    OF.  THE    UNITED    STATES, 

Done  at  the  Hague  the  29th  July  1899,  in  a  single  copy,  which 
shall  be  kept  in  the  archives  of  the  Netherland  Government,  and 
copies  of  which,  duly  certified,  shall  be  delivered  to  the  Contracting 
Powers  through  the  diplomatic  channel. 

ANNEX  TO  THE  CONVENTION. 

EEGULATIONS    RESPECTING    THE    LAWS    AND    CUSTOMS    OF    WAR 

ON  LAND. 

SECTION  I. — ON  BELLIGERENTS. 

CHAPTER  I. — On  the  Qualifications  of  Belligerents. 

ARTICLE  I. 

The  laws,  rights,  and  duties  of  war  apply  not  only  to  armies,  but 
also  to  militia  and  volunteer  corps,  fulfilling  the  following  condi- 
tions : 

1.  To  be  commanded  by  a  person  responsible  for  his  subordinates; 

2.  To  have  a  fixed  distinctive  emblem  recognizable  at  a  distance ; 

3.  To  carry  arms  openly;  and 

4.  To  conduct  their  operations  in  accordance  with  the  laws  and 
customs  of  war. 

In  countries  where  militia  or  volunteer  corps  constitute  the  army, 
or  form  part  of  it,  they  are  included  under  the  denomination  "  army." 

ARTICLE  II. 

The  population  of  a  territory  which  has  not  been  occupied  who,  on 
the  enemy's  approach,  spontaneously  take  up  arms  to  resist  the  invad- 
ing troops  without  having  time  to  organize  themselves  in  accordance 
with  Article  I,  shall  be  regarded  a  belligerent,  if  they  respect  the  laws 
and  customs  of  war. 

ARTICLE  III. 

The  armed  forces  of  the  belligerent  parties  may  consist  of  com- 
batants and  non-combatants.  In  case  of  capture  by  the  enemy  both 
have  a  right  to  be  treated  as  prisoners  of  war. 

CHAPTER  II. — On  Prisoners  of  War. 
ARTICLE  IV. 

Prisoners  of  war  are  in  the  power  of  the  hostile  Government,  but 
not  in  that  of  the  individuals  or  corps  who  captured  them. 

They  must  be  humanely  treated. 

All  their  personal  belongings,  except  arms,  horses,  and  military 
papers  remain  their  property. 


SUPPLEMENT.  1319 

ARTICLE  Y. 

Prisoners  of  war* may  be  interned  in  a  town,  fortress,  camp,  or  any 
other  locality,  and  bound  not  to  go  beyond  certain  fixed  limits;  but 
they  can  only  be  confined  as  an  indispensable  measure  of  safety. 

ARTICLE  VI. 

The  State  may  utilize  the  labor  of  prisoners  of  war  according  to 
their  rank  and  aptitude.  Their  tasks  shall  not  be  excessive,  and  shall 
have  nothing  to  do  with  the  military  operations. 

Prisoners  may  be  authorized  to  work  for  the  Public  Service,  for 
private  persons,  or  on  their 'own  account. 

Work  done  for  the  State  shall  be  paid  for  according  to  the  tariffs 
in  force  for  soldiers  of  the  national  army  employed  on  similar  tasks. 

When  the  work  is  for  other  branches  of  the  Public  Service  or  for 
private  persons,  the  conditions  shall  be  settled  in  agreement  with  the 
military  authorities. 

The  wages  of  the  prisoners  shall  go  towards  improving  their  posi- 
tion, and  the  balance  shall  be  paid  them  at  the  time  of  their  release, 
after  deducting  the  cost  of  their  maintenance. 

ARTICLE  VII. 

i     The  Government  into  whose  hands  prisoners  of  war  have  fallen  is 
bound  to  maintain  them. 

Failing  a  special  agreement  between  the  belligerents,  prisoners  of 
war  shall  be  treated  as  regards  food,  quarters,  and  clothing,  on  the 
same  footing  as  the  troops  of  the  Government  which  has  captured 
them. 

ARTICLE  VIII. 

Prisoners  of  war  shall  be  subject  to  the  laws,  regulations,  and 
orders  in  force  in  the  army  of  the  State  into  whose  hands  they  have 
fallen. 

Any  act  of  insubordination  warrants  the  adoption,  as  regards  them, 
of  such  measures  of  severity  as  may  be  necessary. 

Escaped  prisoners,  recaptured  before  they  have  succeeded  in  rejoin- 
ing their  army,  or  before  quitting  the  territory  occupied  by  the  army 
that  captured  them,  are  liable  to  disciplinary  punishment. 

Prisoners  who,  after  succeeding  in  escaping  are  again  taken  pris- 
oners, are  not  liable  to  any  punishment  for  the  previous  flight. 

ARTICLE  IX. 

Every  prisoner  of  war,  if  questioned,  is  bound  to  declare  his  true 
name  and  rank,  and  if  he  disregards  this  rule,  he  is  liable  to  a  curtail- 
ment of  the  advantages  accorded  to  the  prisoners  of  war  of  his  class. 


1320  MILITAKY   LAWS    OF    THE    UNITED    STATES. 

ARTICLE  X. 

Prisoners  of  war  may  be  set  at  liberty  on  parole  if  the  laws  of  their 
country  authorized  it,  and,  in  such  a  case,  they  are  bound,  on  their 
personal  honour,  scrupulously  to  fulfill,  both  as  regards  their  own 
Government  and  the  Government  by  whom  they  were  made  prisoners, 
the  engagements  they  have  contracted. 

In  such  cases,  their  own  Government  shall  not  require  of  nor  accept 
from  them  any  service  incompatible  with  the  parole  given. 

ARTICLE  XI. 

A  prisoner  of  war  can  not  be  forced  to  accept  his  liberty  on  parole ; 
similarly  the  hostile  Government  is  not  obliged  to  assent  to  the  pris- 
oner's request  to  be  set  at  liberty  on  parole. 

ARTICLE  XII. 

Any  prisoner  of  war,  who  is  liberated  on  parole  and  recaptured, 
bearing  arms  against  the  Government  to  whom  he  had  pledged  his 
honor,  or  against  the  allies  of  that  Government,  forfeits  his  right  to 
be  treated  as  a  prisoner  o.f  war,  and  can  be  brought  before  the  Courts. 

ARTICLE  XIII. 

Individuals  who  follow  an  army  without  directly  belonging  to  it, 
such  as  newspaper  correspondents  and  reporters,  sutlers,  contractors, 
who  fall  into  the  enemy's  hands,  and  whom  the  latter  think  fit  to 
detain,  have  a  right  to  be  treated  as  prisoners  of  war,  provided  they 
can  produce  a  certificate  from  the  military  authorities  of  the  army 
they  were  accompanying. 

ARTICLE  XIV. 

A  Bureau  for  information  relative  to  prisoners  of  war  is  instituted, 
on  the  commencement  of  hostilities,  in  each  of  the  belligerent  States, 
and,  when  necessary,  in  the  neutral  countries  on  whose  territory  bel- 
ligerents have  been  received.  This  Bureau  is  intended  to  answer  all 
inquiries  about  prisoners  of  war,  and  is  furnished  by  the  various  serv- 
ices concerned  with  all  the  necessary  information  to  enable  it  to. keep 
an  individual  return  for  each  prisoner  of  war.  It  is  kept  informed  of 
internments  and  changes,  as  well  as  of  admissions  into  hospital  and 
deaths. 

It  is  also  the  duty  of  the  Information  Bureau  to  receive  and  collect 
all  objects  of  personal  use,  valuables,  letters,  &c.,  found  on  the  battle- 
fields or  left  by  prisoners  who  have  died  in  hospital  or  ambulance,  and 
to  transmit  them  to  those  interested. 


SUPPLEMENT.  1321 

ARTICLE  XV. 

Eelief  Societies  for  prisoners  of  war,  which  are  regularly  consti- 
tuted in  accordance  with  the  law  of  the  country  with  the  object  of 
serving  as  the  intermediary  for  charity,  shall  receive  from  the  bel- 
ligerents for  themselves  and  their  duly  accredited  agents  every  facil- 
ity, within  the  bounds  of  military  requirements  and  Administrative 
Regulations,  for  the  effective  accomplishment  of  their  humane  task. 
Delegates  of  these  Societies  may  be  admitted  to  the  places  of  intern- 
ment for  the  distribution  of  relief,  as  also  to  the  halting  places  of  re- 
patriated prisoners,  if  furnished  with  a.  personal  permit  by  the  mili- 
tary authorities,  and  on  giving  an  engagement  in  writing  to  comply 
with  all  their  Regulations  for  order  and  police. 

ARTICLE  XVI. 

The  Information  Bureau  shall  have  the  privilege  of  free  postage. 
Letters,  money  orders,  and  valuables,  as  well  as  postal  parcels  des- 
tined for  the  prisoners  of  war  or  dispatched  by  them,  shall  be  free 
of  all  postal  duties  both  in  the  countries  of  origin  and  destination, 
as  well  as  in  those  they  pass  through. 

Gifts  and  relief  in  kind  for  prisoners  of  war  shall  be  admitted 
free  of  all  duties  of  entry  and  others,  as  well  as  of  payments  for  car- 
riage by  the  Government  railways. 

ARTICLE  XVII. 

Officers  taken  prisoners  may  receive,  if  necessary,  the  full  pay 
allowed  them  in  this  position  by  their  country's  regulations,  the 
amount  to  be  repaid  by  their  Government. 

ARTICLE  XVIII. 

Prisoners  of  war  shall  enjoy  every  latitude  in  the  exercise  of  their 
religion,  including  attendance  at  their  own  church  services,  provided 
only  they  comply  with  the  regulations  for  order  and  police  issued  by 
the  military  authorities. 

ARTICLE  XIX. 

The  wills  of  prisoners  of  war  are  received  or  drawn  up  on  the  same 
conditions  as  for  soldiers  of  the  National  Army. 

The  same  rules  shall  be  observed  regarding  death  certificates,  as 
well  as  for  the  burial  of  prisoners  of  war,  due  regard  being  paid  to 
their  grade  and  rank. 


1322  MILITARY   LAWS    OF    THE    UNITED    STATES. 

ARTICLE  XX. 

After  the  conclusion  of  peace,  the  repatriation  of  prisoners  of  war 
shall  take  place  as  speedily  as  possible. 

CHAPTER  III. — On  the  Sick  and  Wounded. 

ARTICLE  XXI. 

The  obligations  of  belligerents  with  regard  to  the  sick  and  wounded 
are  governed  by  the  Geneva  Convention  of  the  22nd  August,  1864. 
subject  to  any  modifications  which  may  be  introduced  into  it. 

SECTION  II. — ON  HOSTILITIES. 

CHAPTER  I. — On  means  of  injuring  the  Enemy,  Sieges,  and  Bom- 
bardments. 

ARTICLE  XXII. 

The  right  of  belligerents  to  adopt  means  of  injuring  the  enemy  is 
not  unlimited. 

ARTICLE  XXIII. 

Besides  the  prohibitions  provided  by  special  Conventions,  it  is 
especially  prohibited  :— 

(a.)   To  employ  poison  or  poisoned  arms; 

(b.)  To  kill  or  wound  treacherously  individuals  belonging  to  the 
hostile  nation  or  army; 

(c.)  To  kill  or  wound  an  enemy  who,  having  laid  down  arms,  or 
having  no  longer  means  of  defence,  has  surrendered  at  discretion ; 

(d.)   To  declare  that  no  quarter  will  be  given ; 

(e.)  To  employ  arms,  projectiles,  or  material  of  a  nature  to  cause 
superfluous  injury; 

(f.)  To  make  improper  use  of  a  flag  of  truce,  the  national  flag,  or 
military  ensigns  and  the  enemy's  uniform,  as  well  as  the  distinctive 
badges  of  the  Geneva  Convention; 

(g.)  To  destroy  or  seize  the  enemy's  property,  unless  such  destruc- 
tion or  seizure  be  imperatively  demanded  by  the  necessities  of  war. 

ARTICLE  XXIV. 

Ruses  of  war  and  the  employment  of  methods  necessary  to  obtain 
information  about  the  enemy  and  the  country,  are  considered  allow- 
able. 

ARTICLE  XXV. 

The  attack  or  bombardment  of  towns,  villages,  habitations  or  build- 
ings which  are  not  defended,  is»  prohibited. 


SUPPLEMENT.  1323 

ARTICLE  XXVI. 

The  Commander  of  an  attacking  force,  before  commencing  a  bom- 
bardment, except  in  the  case  of  an  assault,  should  do  all  he  can  to 
warn  the  authorities. 

ARTICLE  XXVII. 

In  sieges  and  bombardments  all  necessary  steps  should  be  taken  to 
spare  as  far  as  possible  edifices  devoted  to  religion,  art,  science,  and 
charity,  hospitals,  and  places  where  the  sick  and  wounded  are  col- 
lected, provided  they  are  not  used  at  the  same  time  for  military 
purposes. 

The  besieged  should  indicate  these  buildings  .or  places  by  some  par- 
ticular and  visible  signs,  which  should  previously  be  notified  to  the 
assailants. 

ARTICLE  XXVIII. 

The  pillage  of  a  town  or  place,  even  when  taken  by  assault,  is  pro- 
hibited. 

CHAPTER  II. — On  Spies. 
ARTICLE  XXIX. 

An  individual  can  only  be  considered  a  spy  if,  acting  clandestinely, 
or  on  false  pretences,  he  obtains,  or  seeks  to  obtain  information  in  the 
zone  of  operations  of  a  belligerent,  with  the  intention  of  communicat- 
ing it  to  the  hostile  party. 

Thus,  soldiers  not  in  disguise  who  have  penetrated  into  the  zone  of 
operations  of  a  hostile  army  to  obtain  information  are  not  considered 
spies.  Similarly,  the  following  are  not  considered  spies:  soldiers  or 
civilians,  carrying  out  their'mission  openly,  charged  with  the  delivery 
of  despatches  destined  either  for  their  own  army  or  for  that  of  the 
enemy.  To  this  class  belong  likewise  individuals  sent  in  balloons  to 
deliver  despatches,  and  generally  to  maintain  communication  between 
the  various  parts  of  an  army  or  a  territory. 

ARTICLE  XXX. 

A  spy  taken  in  the  act  cannot  be  punished  without  previous  trial. 

ARTICLE  XXXI. 

A  spy  who,  after  rejoining  the  army  to  which  he  belongs,  is  subse- 
quently captured  by  the  enemy,  is  treated  as  a  prisoner  of  war,  and 
incurs  no  responsibility  for  his  previous  acts  of  espionage. 


1324  MILITARY   LAWS    OF    THE    UNITED    STATES. 

CHAPTER  III. — On  Flags  of  Truce. 
ARTICLE  XXXII. 

An  individual  is  considered  as  bearing  a  flag  of  truce  who  is  author- 
ized by  one  of  the  belligerents  to  enter  into  communication  with  the 
other,  and  who  carries  a  white  flag.  He  has  a  right  to  inviolability, 
as  well  as  the  trumpeter,  bugler,  or  drummer,  the  flag-bearer,  and  the 
interpreter  who  may  accompany  him. 

ARTICLE  XXXIII. 

The  Chief  to  whom  a  flag  of  truce  is  sent  is  not  obliged  to  receive 
it  in  all  circumstances." 

He  can  take  all  steps  necessary  to  prevent  the  envoy  taking  advan- 
tage of  his  mission  to  obtain  information. 

In  case  of  abuse,  he  has  the  right  to  detain  the  envoy  temporarily. 

ARTICLE  XXXIV, 

The  envoy  loses  his  rights  of  inviolability  if  it  is  proved  beyond 
doubt  that  he  has  taken  advantage  of  his  privileged  position  to  pro- 
voke or  commit  an  act  of  treachery. 

CHAPTER  IV. — On  Capitulations. 
ARTICLE  XXXV. 

Capitulations  agreed  on  between  the  Contracting  Parties  must  be  in 
accordance  with  the  rules  of  military  honour. 

When  once  settled,  they  must  be  scrupulously  observed  by  both  the 
parties. 

CHAPTER  V. — On  Armistices. 

ARTICLE  XXXVI. 

An  armistice  suspends  military  operations  by  mutual  agreement 
between  the  belligerent  parties.  If  its  duration  is  not  fixed,  the  bel- 
ligerent parties  can  resume  operations  at  any  time,  provided  always 
the  enemy  is  warned  within  the  time  agreed  upon,  in  accordance  with 
the  terms  of  the  armistice. 

ARTICLE  XXXVII. 

An  armistice  may  be  general  or  local.  The  first  suspends  all  mili- 
tary operations  of  the  belligerent  States;  the  second,  only  those  be- 
tween certain  fractions  of  the  belligerent  armies  and  in  a  fixed  radius. 


SUPPLEMENT.  1325 

ARTICLE  XXXVIII. 

An  armistice  must  be  notified  officially,  and  in  good  time,  to  the 
competent  authorities  and  the  troops.  Hostilities  are  suspended 
immediately  after  the  notification,  or  at  a  fixed  date. 

ARTICLE  XXXIX. 

It  is  for  the  Contracting  Parties  to  settle,  in  the  terms  of  the  armis- 
tice, what  communications  may  be  held,  on  the  theatre  of  war,  with 
the  population  and  with  each  other. 

ARTICLE  XL. 

Any  serious  violation  of  the  armistice  by  one  of  the  parties  gives 
the  other  party  the  right  to  denounce  it,  and  even,  in  case  of  urgency, 
to  recommence  hostilities  at  once. 

ARTICLE  XLI. 

A  violation  of  the  terms  of  the  armistice  by  private  individuals 
acting  on  their  own  initiative,  only  confers  the  right  of  demanding 
the  punishment  of  the  offenders,  and,  if  necessary,  indemnity  for  the 
losses  sustained. 

SECTION  III. — ON  MILITARY  AUTHORITY  OVER  HOSTILE  TERRI- 
TORY. 

ARTICLE  XLII. 

Territory  is  considered  occupied  when  it  is  actually  placed  under 
the  authority  of  the  hostile  army. 

The  occupation  applies  only  to  the  territory  where  such  authority  is 
established,  and  in  a  position  to  assert  itself. 

ARTICLE  XLIII. 

The  authority  of  the  legitimate  power  having  actually  passed  into 
the  hands  of  the  occupant,  the  latter  shall  take  all  steps  in  his  power 
to  re-establish  and  insure,  as  far  as  possible,  public  order  and  safety, 
while  respecting,  unless  absolutely  prevented,  the  laws  in  force  in  the 
country. 

ARTICLE  XLIV. 

Any  compulsion  of  the  population  of  occupied  territory  to  -take 
part  in  military  operations  against  its  own  country  is  prohibited. 


1326  MILITARY   LAWS    OF    THE    UNITED    STATES. 

ARTICLE  XLV. 

Any  pressure  on  the  population  of  occupied  territory  to  take  the 
oath  to  the  hostile  Power  is  prohibited. 

ARTICLE  XLV  I. 

Family  honour  and  rights,  individual  lives  and  private  property, 
as  well  as  religious  convictions  and  liberty,  must  be  respected. 
Private  property  cannot  be  confiscated. 

ARTICLE  XLVIL 
Pillage  is  formally  prohibited. 

ARTICLE  XL VIII. 

If,  in  the  territory  occupied,  the  occupant  collects  the  taxes,  dues, 
and  'tolls  imposed  for  the  benefit  of  the  State,  he  shall  do  it,  as  far  as 
possible,  in  accordance  with  the  rules  in  existence  and  the  assessment 
in  force,  and  will  in  consequence  be  bound  to  defray  the  expenses  of 
the  administration  of  the  occupied  territory  on  the  same  scale  as  that 
by  which  the  legitimate  Government  was  bound. 

ARTICLE  XLIX. 

If,  besides  the  taxes  mentioned  in  the  preceding  Article,  the  occu- 
pant levies  other  money  taxes  in  the  occupied  territory,  this  can  only 
be  for  military  necessities  or  the  administration  of  such  territory. 

ARTICLE  L. 

No  general  penalty,  pecuniary  or  otherwise,  can  be  inflicted  on  the 
population  on  account  of  the  acts  of  individuals  for  which  it  can  not 
be  regarded  as  collectively  responsible. 

ARTICLE  LI. 

No  tax  shall  be  collected  except  under  a  written  order  and  on  the 
responsibility  of  a  Cominander-in-Chief. 

This  collection  shall  only  take  place,  as  far  as  possible,  in  accord- 
ance with  the  rules  in  existence  and  the  assessment  of  taxes  in  force. 

For  every  payment  a  receipt  shall  be  given  to  the  taxpayer. 


SUPPLEMENT.  1327 

ARTICLE  LII. 

Neither  requisition  in  kind  nor  services  can  be  demanded  from 
communes  or  inhabitants  except  for  the  necessities  of  the  army  of 
occupation.  They  must  be  in  proportion  to  the  resources  of  the 
country,  and  of  such  a  nature  as  not  to  involve  the  population  in  the 
obligation  of  taking  part  in  military  operations  against  their  country. 

These  requisitions  and  services  shall  only  be  demanded  on  the 
authority  of  the  Commander  in  the  locality  occupied. 

The  contributions  in  kind  shall,  as  far  as  possible,  be  paid  for  in 
ready  money ;  if  not,  their  receipt  shall  be  acknowledged. 

ARTICLE  LIU. 

An  army  of  occupation  can  only  take  possession  of  the  cash,  funds, 
and  property  liable  to  requisition  belonging  strictly  to  the  State,  de- 
pots of  arms,  means  of  transport,  stores  and  supplies,  and,  generally, 
all  movable  property  of  the  State  which  may  be  used  for  military 
operations. 

Eailway  plant,  land  telegraphs,  telephones,  steamers,  and  other 
ships,  apart  from  cases  governed  by  maritime  law,  as  well  as  depots 
of  arms  and,  generally,  all  kinds  of  war  material,  even  though  be- 
longing to  Companies  or  to  private  persons,  are  likewise  material 
which  may  serve  for  military  operations,  but  they  must  be  restored  at 
the  conclusion  of  peace,  and  indemnities  paid  for  them. 

ARTICLE  LIV. 

The  plant  of  railways  coming  from  neutral  States,  whether  the 
property  of  those  States,  or  of  Companies,  or  of  private  persons,  shall 
be  sent  back  to  them  as  soon  as  possible. 

ARTICLE  LV. 

The  occupying  State  shall  only  be  regarded  as  administrator  and 
usufructuary  of  the  public  buildings,  real  property,  forests,  and  agri- 
cultural works  belonging  to  the  hostile  State,  and  situated  in  the 
occupied  country.  It  must  protect  the  capital  of  these  properties, 
and  administer  it  according  to  the  rules  of  usufruct. 

ARTICLE  LVI. 

The  property  of  the  communes,  that  of  religious,  charitable,  and 
educational  institutions,  and  those  of  arts  and  science,  even  when 
State  property,  shall  be  treated  as  private  property. 


1328  MILITABY   LAWS    OF    THE    UNITED    STATES. 

All  seizure  of,  and  destruction,  or  intentional  damage  done  to  such 
institutions,  to  historical  monuments,  works  of  art  or  science,  is  pro- 
hibited, and  should  be  made  the  subject  of  proceedings. 

SECTION  IV. — ON  THE  INTERNMENT  OF  BELLIGERENTS  AND  THE  CARE 
OF  THE  WOUNDED  IN  NEUTRAL  COUNTRIES. 

ARTICLE  LVIL. 

A  neutral  State  which  receives  in  its  territory  troops  belonging  to 
the  belligerent  armies  shall  intern  them,  as  far  as  possible,  at  a  dis- 
tance from  the  theatre  of  war. 

It  can  keep  them  in  camps,  and  even  confine  them  in  fortresses  or 
locations  assigned  for  this  purpose. 

It  shall  decide  whether  officers  may  be  left  at  liberty  on  giving 
their  parole  that  they  will  not  leave  the  neutral  territory  without 
authorization. 

ARTICLE  LVIII. 

Failing  a  special  Convention,  the  neutral  State  shall  supply  the 
interned  with  the  food,  clothing,  and  relief  required  by  humanity. 

At  the  conclusion  of  peace,  the  expenses  caused  by  the  internment 
shall  be  made  good. 

ARTICLE  LIX. 

A  neutral  State  may  authorize  the  passage  through  its  territory  of 
wounded  or  sick  belonging  to  the  Belligerent  armies,  on  condition 
that  the  trains  bringing  them  shall  carry  neithei*  combatants  nor  war 
material.  In  such  a  case,  the  neutral  State  is  bound  to  adopt  such 
measures  of  safety  and  control  as  may  be  necessary  for  the  purpose. 

Wounded  and  sick  brought  under  these  conditions  into  neutral  ter- 
ritory by  one  of  the  belligerents,  and  belonging  to  the  hostile  party, 
must  be  guarded  by  the  neutral  State,,  so  as  to  insure  their  not  taking 
part  again  in  the  military  operations.  The  same  duty  shall  devolve 
on  the  neutral  State  with  regard  to  wounded  or  sick  of  the  other 
army  who  may  be  committed  to  its  care. 

ARTICLE  LX. 

The  Geneva  Convention  applies  to  sick  and  wounded  interned  in 
neutral  territory. 

tf  *  *  *  *  *  * 

And  whereas  the  said  Convention  was  duly  ratified  by  the  Govern- 
ment of  the  United  States  of  America,  by  and  with  the  advice  and 
consent  of  the  Senate  thereof,  and  by  the  Governments  of  the  other 


SUPPLEMENT.  1329 

Powers  aforesaid  with  the  exception  of  Sweden  and  Norway  and 
Turkey ; 

And  whereas,  in  pursuance  of  the  stipulations  of  Article  III  of  the 
said  Convention  the  ratifications  of  the  said  Convention  were  depos- 
ited at  The  Hague  on  the  4th  day  of  September,  1900,  by  the  Pleni- 
potentiaries of  the  Governments  of  Germany,  Austria -Hungary, 
Belgium,  Denmark,  Spain,  France,  Great  Britain.  Italy,  the  Nether- 
lands, Persia,  Portugal,  Roumania.,  Russia,  Siam,  and  Bulgaria;  on 
the  6th  day  of  October,  1900,  by  the  Plenipotentiary  of  the  Govern- 
ment of  Japan ;  on  the  16th  day  of  October,  1900,  by  the  Plenipoten- 
tiary of  the  Government  of  Montenegro ;  on  the  4th  day  of  April, 
1901,  by  the  Plenipotentiary  of  the  Government  of  Greece;  on  the 
17th  day  of  April,  1901,  by  the  Plenipotentiary  of  the  Government 
of  Mexico;  on  the  llth  day  of  May,  1901,  by  the  Plenipotentiary  of 
the  Government  of  Servia;  on  the  12th  day  of  July,  1901,  by  the 
Plenipotentiary  of  the  Government  of  Luxembourg;  and  on  the  5th 
day  of  April,  1902,  by  the  Plenipotentiary  of  the  Government  of  the 
United  States  of  America: 

Now,  therefore,  be  it  known  that  I,  Theodore  Roosevelt,  President 
of  the  United  States  of  America,  have  caused  the  said  Convention  to 
be  made  public,  to  the  end  that  the  same  and  every  clause  thereof  may 
be  observed  and  fulfilled  with  good  faith  by  the  United  States  and 
the  citizens  thereof. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  caused  the 
seal  of  the  United  States  to  be  affixed. 

Done  at  the  City  of  Washington  this  eleventh  day  of  April,  in  the 
year  of  our  Lord  one  thousand  nine  hundred  and  two,  and  of 
[SEAL]     the  Independence  of  the  United  States  the  one  hundred  and 
twenty-sixth. 

THEODORE  ROOSEVELT 

By  the  President : 

DAVID  J.  HILL, 

Acting  Secretary  of  State. 
22924—08 84 


APPENDIX    C. 


THE  AMERICAN   NATIONAL  BED   CROSS. 

Whereas  on  the  twenty-second  of  August,  eighteen  hundred  and 
sixty-four,  at  Geneva,  Switzerland,  plenipotentiaries  respectively  rep- 
resenting Italy,  Baden,  Belgium,  Denmark,  Spain,  Portugal,  France, 
Prussia,  Saxony,  and  Wurttemberg  and  the  Federal  Council  of 
Switzerland  agreed  upon  ten  articles  of  a  treaty  or  convention  for 
the  purpose  of  mitigating  the  evils  inseparable  from  war;  of  amel- 
iorating the  condition  of  soldiers  wounded  on  the  field  of  battle,  and 
particularly  providing,  among  other  things,  in  effect,  that  persons 
employed  in  hospitals  and  in  according  relief  to  the  sick  and  wounded 
and  supplies  for  this  purpose  shall  be  deemed  neutral  and  entitled  to 
protection ;  and-  that  a  distinctive  and  uniform  flag  shall  be  adopted 
for  hospitals  and  ambulances  and  convoys  of  sick  and  wounded  and 
an  arm  badge  for  individuals  neutralized ;  and 

Whereas  said  treaty  has  been  ratified  by  all  of  said  nations,  and  by 
others  subsequently,  to  the  number  of  forty-three  or  more,  including 
the  United  States  of  America ;  and 

Whereas  the  International  Conference  of  Geneva  of  eighteen  hun- 
dred and  sixty-three  recommended  "  that  there  exist  in  every  country 
a  committee  whose  mission  consists  in  cooperating  in  times  of  war 
with  the  hospital  service  of  the  armies  by  all  means  in  its  power;" 
and 

Whereas  a  permanent  organization  is  an  agency  needed  in  every 
nation  to  carry  out  the  purposes  of  said  treaty,  and  especially  to 
secure  supplies  and  to  execute  the  humane  objects  contemplated  by 
said  treaty,  with  the  power  to  adopt  and  use  the  distinctive  flag  and 
arm  badge  specified  by  said  treaty  in  article  seven,  on  which  shall  be 
the  sign  of  the  Red  Cross,  for  the  purpose  of  cooperating  with  the 
"  Comite  International  de  Secours  aux  Militaires  Blesses"  (Inter- 
national Committee  of  Relief  for  the  Wounded  in  War)  ;  and 

Whereas  in  accordance  with  the  requirements  and  customs  of  said 
international  body  such  an  association  adopting  and  using  said  in- 
signia was  formed  in  the  city  of  Washington,  District  of  Columbia, 
in  July,  eighteen  hundred  and  eighty-one,  known  as  "  The  American 

1330 


SUPPLEMENT.  1331 

National  Association  of  the  Red  Cross,"  reincorporated  April  seven- 
teenth, eighteen  hundred  and  ninety-three,  under  the  laws  of  the 
District  of  Columbia,  and  reincorporated  by  Act  of  Congress  in 
June,  nineteen  hundred ;  and 

Whereas  it  is  believed  that  the  importance  of  the  work  demands  a 
repeal  of  the  present  charter  and  a  reincorporation  of  the  society 
under  Government  supervision :  Now,  therefore, 

Be  it  enacted  ~by  the  Senate  and  House  of  Representatives  of  the 
United  States  of  America  in  Congress  assembled,  That  Clara  Barton, 
Hilary  A.  Herbert,  Thomas  F.  Walsh,  Charles  C.  Glover,  Charles  J. 
Bell,  Mabel  T.  Boardman,  George  Dewey,  William  R.  Day,  Nelson  A. 
Miles,  James  Tanner,  William  K.  Van  Reypen,  John  M.  Wilson, 
Simon  Wolf,  James  R.  Garfield,  Gifford  Pinchot,  S.  W.  Woodward, 
Mary  A.  Logan,  Walter  Wyman,  of  Washington,  District  of  Colum- 
bia ;  George  H.  Shields,  of  Missouri ;  William  H.  Taf t,  F.  B.  Loomis, 
Samuel  Mather,  of  Ohio ;  Spencer  Trask,  Robert  C.  Ogden,  Cleveland 
H.  Dodge,  George  C.  Boldt,  William  T.  Wardwell,  John  G.  Carlisle, 
George  B.  McClellan,  Elizabeth  Mills  Reid,  Margaret  Carnegie,  of 
New  York;  John  H.  Converse,  Alexander  Mackay- Smith,  J.  Wilkes 
O'Neill,  H.  Kirke  Porter,  of  Pennsylvania;  Richard  Olney,  W. 
Murray  Crane,  Henry  L.  Higginson,  William  Draper,  Frederick  H. 
Gillett,  of  Massachusetts;  Marshall  Field,  Robert  T.  Lincoln,  Lam- 
bert Tree,  of  Illinois ;  A.  G.  Kaufman,  of  South  Carolina ;  Alexander 
W.  Terrell,  of  Texas;  George  Gray,  of  Delaware;  Redfield  Proctor, 
of  Vermont ;  John  W.  Foster,  Noble  C.  Butler,  Robert  W.  Miers,  of 
Indiana;  John  Sharp  Williams,  of  Mississippi;  William  Alden 
Smith,  of  Michigan;  Horace  Davis,  W.  W.  Morrow,  of  California; 
Daniel  C.  Gilman,  Eugene  Lovering,  of  Maryland ;  J.  Taylor  Ellyson, 
of  Virginia ;  Daniel  R.  Noyes,  of  Minnesota ;  Emanuel  Fiske,  Mar- 
shall Fiske,  of  Connecticut,  together  with  five  other  persons  to  be 
named  by  the  President  of  the  United  States,  one  to  be  chosen  from 
each  of  the  Departments  of  State,  War,  Navy,  Treasury,  and  Justice, 
their  associates  and  successors,  are  hereby  created  a  body  corporate 
and  politic  in  the  District  of  Columbia. 

SEC.  2.  That  the  name  of  this  corporation  shall  be  "  The  American 
National  Red  Cross,"  and  by  that  name  shall  have  perpetual  suc- 
cession, with  the  power  to  sue  and  be  sued  in  courts  of  law  and  equity 
within  the  jurisdiction  of  the  United  States;  to  have  and  to  hold  such 
real  and  personal  estate  as  shall  be  deemed  advisable  and  to  accept 
bequests  for  the  purposes  of  this  corporation  hereinafter  set  forth ;  to 
adopt  a  seal  and  the  same  to  alter  and  destroy  at  pleasure;  and  to 
have  the  right  to  have. and  to  use,  in  carrying  out  its  purposes  herein- 
after designated,  as  an  emblem  and  badge,  a  Greek  red  cross  on  a 
white  ground,  as  the  same  has  been  described  in  the  treaty  of  Geneva, 
August  twenty-second,  eighteen  hundred  and  sixty- four,  and  adopted 


1332  MILITAKY   LAWS    OF    THE    UNITED    STATES. 

by  the  several  nations  acceding  thereto ;  to  ordain  and  establish  by- 
laws and  regulations  not  inconsistent  with  the  laws  of  the  United 
States  of  America  or  any  State  thereof,  and  generally  to  do  all  such 
acts  and  things  (including  the  establishment  of  regulations  for  the 
election  of  associates  and  successors)  as  may  be  necessary  to  carry 
into  effect  the  provisions  of  this  Act  and  promote  the  purposes  of  said 
organization;  and  the  corporation  hereby  created  is  designated  as 
the  organization  which  is  authorized  to  act  in  matters  of  relief  under 
said  treaty.  In  accordance  with  article  seven  of  the  treaty,  the 
delivery  of  the  brassard  allowed  for  individuals  neutralized  in  time 
of  war  shall  be  left  to  military  authority. 

SEC.  3.  That  the  purposes  of  this  corporation  are  and  shall  be — 

First.  To  furnish  volunteer  aid  to  the  sick  and  wounded  of  armies 
in  time  of  war,  in  accordai^e  with  the  spirit  and  conditions  of  the 
conference  of  Geneva  of  October,  eighteen  hundred  and  sixty-three, 
and  also  of  the  treaty  of  the  Red  Cross,  or  the  treaty  of  Geneva,  of 
August  twenty-second,  eighteen  hundred  and  sixty-four,  to  which 
the  United  States  of  America  gave  its  adhesion  on  March  first,  eight- 
een hundred  and  eighty-two. 

Second.  And  for  said  purposes  to  perform  all  the  duties  devolved 
upon  a  national  society  by  each  nation  which  has  acceded  to  said 
treaty. 

Third.  To  succeed  to  all  the  rights  and  property  which  have  been 
hitherto  held  and  to  all  the  duties  which  have  heretofore  been  per- 
formed by  the  American  National  Red  Cross  as  a  corporation  duly 
incorporated  by  Act  of  Congress  June  sixth,  nineteen  hundred,  which 
Act  is  hereby  repealed  and  the  organization  created  thereby  is  here- 
by dissolved. 

Fourth.  To  act  in  matters  of  voluntary  relief  and  in  accord  with 
the  military  and  naval  authorities  as  a  medium  of  communication 
between  the  people  of  the  United  States  of  America  and  their  Army 
and  Navy,  and  to  act  in  such  matters  between  similar  national  so- 
cieties of  other  governments  through  the  "  Comite  International  de 
Secours,"  and  the  Government  and  the  people  and  the  Army  and 
Navy  of  the  United  States  of  America. 

Fifth.  And  to  continue  and  carry  on  a  system  of  national  and 
international  relief  in  time  of  peace  and  apply  the  same  in  mitigat- 
ing the  sufferings  caused  by  pestilence,  famine,  fire,  floods,  and  other 
great  national  calamities,  and  to  devise  and  carry  on  measures  for 
preventing  the  same. 

SEC.  4.  That  from  and  after  the  passage  of  this  Act  it  shall  be 
unlawful  for  any  person  within  the  jurisdiction  of  the  United  States 
to  falsely  and  fraudulently  hold  himself  out  as,  or  represent  or  pre- 
tend himself  to  be,  a  member  of,  or  an  agent  for,  the  American 
National  Red  Cross,  for  the  purpose  of  soliciting,  collecting,  or  re- 


SUPPLEMENT.  1333 

ceiving  money  or  material ;  or  for  any  person  to  wear  or  display  the 
sign  of  the  Red  Cross,  or  any  insignia  colored  in  imitation  thereof 
for  the  fraudulent  purpose  of  inducing  the  belief  that  he  is  a  member 
of,  or  an  agent  for,  the  American  National  Red  Cross.  Nor  shall  it 
be  lawful  for  any  person  or  corporation,  other  than  the  Red  Cross  of 
America,  not  now  lawfully  entitled  to  use  the  sign  of  the  Red  Cross, 
hereafter  to  use  such  sign  or  any  insignia  colored  in  imitation  thereof 
for  the  purposes  of  trade  or  as  an  advertisement  to  induce  the  sale  of 
any  article  whatsoever.  If  any  person  violates  the  provisions  of  this 
section,  he  shall  be  guilty  of  a  misdemeanor  and  shall  be  liable  to  a 
fine  of  not  less  than  one  nor  more  than  five  hundred  dollars,  or  im- 
prisonment for  a  term  not  exceeding  one  year,  or  both,  for  each  and 
every  offense.  The  fine  so  collected  shall  be  paid  to  the  American 
National  Red  Cross. 

SEC.  5.  That  the  governing  body  of  the  said  American  National 
Red  Cross  shall  consist,  in  the  first  instance,  of  a  central  committee 
numbering  eighteen  persons,  to  be  appointed  in  the  manner  following, 
namely:  Six  by  the  incorporators  herein  named  and  twelve  by  the 
President  of  the  United  States,  one  of  whom  shall  be  designated  by 
the  President  to  act  as  chairman.  It  shall  be  the  duty  of  the  central 
committee  to  organize  with  as  little  delay  as  possible  State  and  Terri- 
torial societies,  including  the  District  of  Columbia,  under  such  rules 
as  the  said  committee  may  prescribe.  When  six  or  more  State  or  Ter- 
ritorial societies  have  been  formed,  thereafter  the  central  committee 
shall  be  composed  as  follows :  Six  to  be  appointed  by  the  incorpora- 
tors, six  by  the  representatives  of  the  State  and  Territorial  societies 
at  the  annual  meeting  of  the  incorporators  and  societies,  and  six  by 
the  President  of  the  United  States,  one  of  whom  shall  be  designated 
by  him  as  chairman  and  one  each  to  be  named  by  him  from  the 
Departments  of  State,  War,  Navy,  Treasury,  and  Justice. 

The  first  six  members  of  the  central  committee  elected  by  the  incor- 
porators at  the  first  annual  meeting,  and  the  first  six  members  of  the 
central  committee  elected  by  the  State  and  Territorial  delegates,  shall 
when  elected  select  by  lot  from  their  number  two  members  to  serve 
one  year,  two  members  to  serve  two  years,  and  two  members  to  serve 
three  years,  and  each  subsequent  election  of  members  shall  be  for  a 
period  of  three  years  or  until  their  successors  are  duly  elected  and 
qualify.  The  six  members  of  the  central  committee  appointed  by  the 
President  at  the  annual  meeting  shall  serve  for  one  year. 

The  President  shall  fill  as  soon  as  may  be  any  vacancy  that  may 
occur  by  death,  resignation,  or  otherwise  in  the  chairmanship  or  in 
the  membership  of  the  central  committee  appointed  by  him.  And 
any  vacancy  that  may  occur  in  the  six  members  of  the  central  commit- 
tee herein  provided  to  be  appointed  by  the  incorporators  or  in  the  six 
to  be  appointed  by  the  representatives  of  the  State  societies  shall  be 


1334  MILITARY   LAWS    OF    THE   UNITED   STATES. 

filled  by  temporary  appointments  to  be  made  by  the  remaining  mem- 
bers of  the  six  in  which  the  vacancy  or  vacancies  may  occur,  such 
appointees  to  serve  until  the  next  annual  meeting. 

The  central  committee  shall  have  power  to  appoint  from  its  own 
members  an  executive  committee  of  seven  persons,  five  of  whom  shall 
be  a  quorum,  who,  when  the  central  committee  is  not  in  session,  shall 
have  and  exercise  all  the  powers  of  the  central  committee. 

The  Secretary  of  War  shall  within  thirty  days  after  the  passage  of 
this  Act  call  a  meeting  at  a  time  and  place  to  be  designated  by  him  in 
the  city  of  Washington  of  the  incorporators  hereunder,  giving  at 
least  thirty  days'  notice  thereof  in  one  or  more  newspapers,  and  the 
annual  meeting  of  said  incorporators,  their  associates  and  successors, 
shall  thereafter  be  held  in  said  city  on  the  first  Tuesday  after  the  first 
Monday  in  December,  the  first  of  said  meetings  to  be  held  in  Decem- 
ber, nineteen  hundred  and  five.  Fifteen  members  shall  constitute  a 
quorum  at  any  annual  or  special  meeting. 

Voting  by  proxy  shall  not  be  allowed  at  any  meeting  of  the  incor- 
porators, annual  or  special,  nor  at  any  meeting  of  State  or  Territorial 
societies  organized  under  the  provisions  of  this  charter. 

SEC.  6.  That  the  said  American  National  Red  Cross  shall  on  the 
first  day  of  January  of  each  year  make  and  transmit  to  the  Secretary 
of  War  a  report  of  its  proceedings  for  the  preceding  year,  including  a 
full,  complete,  and  itemized  report  of  receipts,  and  expenditures  of 
whatever  kind,  which  report  shall  be  duly  audited  by  the  War  De- 
partment, and  a  copy  of  said  report  shall  be  transmitted  to  Congress 
by  the  War  Department. 

SEC.  7.  That  Congress  shall  have  the  right  to  repeal,  alter,  or  amend 
this  Act  at  any  time.  Act  of  January  5, 1905  (33  Stats.,  599). 

(This  act  takes  the  place  of  the  act  of  June  6,  1900,  31  Stats.,  277.  See  pages 
1044  to  1047  herein.) 


INDEX. 


[The  references  are  to  paragraphs  unless  pages  are  indicated.     Articles  of  War  are  indi- 
cated by  their  numbers,  the  letters  A.  W.  following  the  number  of  the  article.] 


Absence,  828a,   1287a.      (See  Leaves   of  ab- 
sence.) 
Accountability   (see  Accounts)  : 

property.  1742a. 

Accountant,  847a.     (See  Expert  Accountant.) 
Accounting   Officers    (see   Accounts,   Disburs- 
ing    Officers,     and     Treasury    Depart- 
ment )  : 

allowances   for   losses,   605a. 
army  appropriation,  disbursement  of,  etc., 

801a,   801d. 

closing  of  accounts,  605b. 
disbursement  of  army  appropriation,  801a, 

801d. 

limitation  of  accounts,  605b. 
paymasters'  accounts,  801c,  801e. 
Accounts    (see  Disbursing   Officers,  Account- 
ing    Officers,    and     Treasury    Depart- 
ment ) : 

allowances  for  losses,  G05a. 
appropriations  for  Army,  801a,  801d. 
disbursing  officer,   605a,   605b. 
limitation   of,   605b. 
militia,   1693a. 
paymasters,    801  c,    801e. 
recorded  by  Paymaster-General,  801c. 
Acquisition   of    Lands: 

historic,    1614b. 

Acting  Assistant  Surgeon,  1417a.      (See  Sur- 
geons  and   Contract  Surgeons.) 
Acts    of    the    Philippine     Commission,     2475- 

2488. 
Adjutant-General's    Department    (see    Military 

Secretary's  Department]  : 
consolation    of,    with    Record   and    Pen- 
sion Office,  663a. 
reestablishment  of,   663d. 
Alaska: 

"Alaska  fund,"   2498,  2499. 
bridges,  2498. 

collection   of   license  fees,   2498. 
extension,  etc.,  military  telegraph  system, 

1233a. 

insane   persons,   2498. 
liquor  licenses,  money  collected  for,  2498. 
military,   telegraph,  and  cable  lines,  esti- 
mates for  extension  of,  1233a. 
public  schools,  2498. 
road  commissioners,  2499. 
sea  travel,  841a. 

telegraph  and  cable  lines,  1233a. 
wagon  roads,  bridges,  etc.,  2498,  2499. 


Aliens.      (See    Citizenship    and    Naturaliza- 
tion.) 
Allowances : 

assistant    to    Chief    of    Insular    Bureau, 
141d. 

cadets,   1485a. 

chaplains,   1258a. 

militia,  1662a,  1663a,  1693a. 

officers  detailed  with  Philippine  Constab- 
ulary,   1332a. 

Porto  Rican  Regiment,  505b. 
Ammunition : 

morning  and  evening  gun,  1184a. 
Amusement    Booms.      (See    Post    Exchange.) 
Annual  compensation.      (See  Pay.) 
Antietam  Battlefield: 

superintendent,   2422a. 
Antiquities,  1614a-1614d.      (See  Ruins,  and 

Monuments.) 
Appointments : 

age   limit,   Regular  Army,   1270a. 
Volunteer  Army,  522a. 

Chief  of  Bureau  of  Insular  Affairs,  141c. 

extending     beyond     date     of     retirement, 
577a. 

Judge  -  Advocate  -  General's      Department, 
694a. 

Military    Secretary's    Department,    663a. 

Porto  Rican  Regiment,  505b. 

reappointments,    505b. 

Regular  Army,  age  limit,  1270a.     ' 

second   lieutenants,   1270a. 

Signal  Corps,   1218a,   1219a,  1222a. 

Volunteer  Army,  522a. 

age  limit,  522a. 
Apportionment : 

appropriations,  272a. 

militia,  1670a. 
Appropriations : 

allotments,  272a. 

amusement  rooms,  715a. 

apportionment,  272a. 

army,  how  disbursed,  etc.,  801a. 
not  available  for  militia,  1662b. 

available  for  two  years,  279a. 

burial  of  indigent  soldiers,  2460a. 

contract  not  to  exceed,  272a,  272b. 

contract  surgeons,  907a. 

deficiencies,  272a. 

District  of  Columbia  Militia,   1770a. 

dredges,   1103a. 

emergencies,  272a. 

1335 


1336 


INDEX. 


Appropriations — Continued, 
expenditures  in  excess  of,  272a,  272b. 
fortifications,   1086a,  1086b. 
general    or    indirect    expenses,    Ordnance 

Department,    1201c. 
gymnasium,  715a. 
libraries,  715a. 
lunch  rooms,  715a. 
medals  and  trophies,  1201a. 
Military  Secretary's  Office,  663c. 
militia,  801b,  1662b,  1692a,  1700a,  1700b, 

1700c. 

District  of  Columbia,  1770a. 
mileage  allowances,   801b. 
not  available  for,  1662b. 
payments  to,  801b. 
miscellaneous,   801a. 
morning  and  evening  gun,   1184a. 
National     Sanitarium,     Hot     Springs,     S. 

Dak.,   939a,  939b. 
"  Ordnance     stores,      ammunition,"     etc., 

279a. 

Panama  Canal  Zone,  1085k 
paymasters'    accounts,    801c. 
post  exchange,  715a. 
post   schools,   715a. 
reading  rooms,  715a. 
restrictions  on,  715a. 
river  and  harbor  works,  1103a. 
schools,  715a,  1514a,  1515a,  1515b,  1519a. 
skilled  draftsmen,   116la. 
State  Soldiers'  Homes,  2321  a,  2324a. 
superintendent    of    Antietam    battlefield, 

2422a. 
Arlington  National  Cemetery: 

burial  of  indigent  soldiers  in,  2460a. 
Armament.     (See  Militia.) 
Arms.      (See  Militia.) 
Army    (see    Regular    Army,    and    Volunteer 

Army)  : 

acts  of  Philippine  Commission,  2475-2488. 
annual  compensation,  monthly  payments, 

635a,  635b. 

appointments  in  Regular,  1270a. 
appointments  in  Volunteer,  522a. 
appropriation     acts,     monthly    payments, 

635a,  635b. 

appropriation,     how     disbursed     and     ac- 
counted  for,    801d. 
appropriation    not    available    for    militia, 

1662b. 

artillery  reorganization,   1443b-1443k. 
chaplains,  1258a,  1258b,  1258c. 
chief    of    telegraph    and    cipher    bureau, 

1219a. 
civilian   employees,   medical   supplies   for, 

934a. 

clothing  balances,  753a. 
Coast   Artillery,   1443b-1443h. 
computing  time  for  retirement,  1379a. 
continuous-service  pay,  869a. 
contract  surgeons,  913a. 
Corps  of  Engineers,  953a. 
deposit  fund,  879a. 
details  to  colleges,  1290a,  1291a. 
electricians,  1443a. 
examinations,  522a. 


Army — Continued, 
extra-duty  pay,  745a,   1510a. 
Field  Artillery,  1443b-1443e,  1443i-1443k. 
forage,  741b. 
fuel,  740a. 
Hospital  Corps,  composition,  914a. 

organization,   924a. 

pay,   919a. 
leaves    of    absence,    credit    for    volunteer 

service,  1287a. 

Lieutenant-General,  office  to  cease,  555a. 
longevity  pay,  retired  officers,  824a,  824b. 
material  for  tests,  etc.,   1215a. 
medals,  contests  for,  1201a. 
medical  stores,  purchase  of,  932a. 
medical   supplies,  934a. 
militia,    appropriation   not   available   for, 

1662b. 

open-market   purchases,    1169a,    1230a. 
Ordnance  Department,  pay  of  employees, 

1192a. 

payments  to,  801a. 

Philippine     Islands      (see     Philippine    Is- 
lands) : 

acts  of  Congress  relating  to,  2496. 

attorneys,    2475. 

civilian  witness,  2477. 

courts-martial,  2477. 

details  to  civil  office,  2487-2490. 

elections,  2485a-2485c. 

government    of    Moro    Province,    2487- 
2490. 

insane,    2348a. 

leave  privileges,  2495. 

leaves  of  officers  serving  with  constab- 
ulary,   2495. 

legal   residence,  2485. 

locust  pest,  2484. 

Moro  Province,  .government    of,     2487- 
2490. 

oath    of   office,    2493. 

persons  disqualified  from  voting,  2485c. 

provincial    officers,    2491. 

provost   courts,    2476. 

public  lands,   2480. 

qualifications   of   electors,   2485a-2485c. 

registration    tax,    2486. 

restrictions  on  election  or  appointment 
to   office,    2485b. 

right   of   eminent   domain,    2483^ 

sale  of  liquors,  2481,   2481a,  2482. 

tariff  duties,   2112a,   2496,   2497. 

tax  for  roads,  etc.,  2492. 

toll  roads  and  bridges,  2494. 

witness  fees,  2477. 
post  commissary-sergeants,   762a. 
post   quartermaster-sergeants,    707a. 
retired   enlisted   men,    1379a. 
retired  officers,  longevity  pay,  824a,  824b. 
retirement  of  enlisted  men,  1381a. 
schools,      714a,      1514a,      1515a,      1515b, 

1519a. 

Signal       Corps,       appointments,       1218a, 
1219a,  1222a. 

details,  1222a. 

enlisted  men,  1224a,  1224b. 

promotions,  1222a. 


INDEX. 


1337 


Army — Continued. 

transfer  of  officers  of  line,  141e. 

transportation  in  time  of  war,  720a. 

troops  in  time  of  war,  720a. 

trophies,  contests  for,  1201a. 

volunteer  service,  credit  for,  on  leaves  of 
absence,    1287a. 

War  College,  1514a. 
Army    and    Navy    Union: 

may  wear  distinctive  badge,  1362a. 
Army  War  College,  1514a.      (See  Schools.) 
Arrest : 

on  reservations,   Philippine  Islands,  2480. 
Articles  of  War: 

militia  subject  to,  1671a. 
Artillery  Corps: 

coast  artillery,  1443b-1443h. 

electrician  sergeants,  1443a. 

field  artillery,   1443b-1443e,  1443i-1443k. 

master  electricians,  1443a. 

number  of  colonels  limited,  2473. 

promotion,   1443c,   1443d. 

reorganization,   1443b-1443k. 

vacancies,  filling  of,  1443d. 
Artillery  School,  1519a. 
Assignments   (see  Details)  : 

civil   employees   at   headquarters   of  divi- 
sions, etc.,  573b. 

coast  artillery,  1443c. 

contract  surgeons,  pay  of,  909a. 

dental  surgeons,  pay  of,  909a. 

field  artillery,  1443c. 

General  Staff  Corps,  2472. 

militia,  1662e. 

paymasters'  clerks,  801e. 

pay  of  commissioned  officers,  811a,  909a. 
Attorneys : 

Philippine  Islands,  2475. 
Attorney-General   (see  Habeas  Corpus)  : 

habeas  corpus  in  Philippine  Islands,  361a. 
Badges    (see  Decorations,  Medals  of  Honor, 
and   Trophies)  : 

Army  and  Navy  Union,  1362a. 

Chinese  relief  expedition,  1363a. 

penalty  for  improper  use  of,  1363b. 
Bakers : 

prizes,  714a. 
Bands : 

cavalry,  1424a. 

Military  Academy,  1508a. 
Barracks  (see  Fortifications  and  Posts)  : 

artillery  troops,  1086a. 

restrictions  on  expenditures,   1086a. 
Bedding: 

gratuitous  issues,  750a. 
Blanks : 

manifold,  etc.,  68a. 
Board : 

commissioner    of    Soldiers'    Eome,    2263a, 
2347a,  2347b. 

engineers,  1098^. 

hygienic  laboratory,  910b. 
Board  of  Engineers: 

composition,   1098a. 

duties,  1098a. 


Board  of  Engineers — Continued. 

officers  for  Volunteer  Army,  522a. 

river  and  harbor  works,  1098a,  1103a. 
Board  of  Ordnance  and  Fortifications: 

material  for  tests,  etc.,  1215a. 
Bond-Aided  Railroads,  843a,  844a. 
Bonds : 

disbursing  officer  of  militia,  1693a. 
Books : 

binding,  cost  of,  68c. 

illustrations,  68f. 

manifold  processes,  68a. 

military  attaches,  58a. 

military  information  division,  58a. 

printing,  cost  of,  68c. 
restrictions  on,  68b. 

purchases   of,   58a. 
Bridges : 

Alaska,  2498. 

amendments,  etc.,  of  act,  1117e. 

changes,  1115a. 

draws,  etc.,  1115a. 

lawful  structures  and  post  routes,  1114a. 

lights,  etc.,   1115a. 

litigation,  1114f,  1115b. 

obstructions  to  navigation,  1115a. 

penalties,   1115b. 

"  persons  "  defined,  1117d,  1119b. 

Philippine  Islands,  2494. 

Porto  Rico,  time  limit,  1119c. 

telegraph  and  telephone  rights,  1114a. 

time  limit,   1117c,  1119c. 

tolls,  1115a. 

use  of,  by  other  companies,  1117b. 
Buildings : 

permits,  District  of  Columbia,  980a. 
Burial   (see  Deceased  Officers  and  Soldiers, 
and  Funeral  Expenses)  : 

deceased  pensioners,  2136a. 

indigent  soldiers,  2460a. 

officers,  141 7a. 

transportation  of  remains,   1416a,   1417a, 

1418a. 
Cadets  (see  Military  Academy)  : 

allowances,  1485a. 

appointments,  1479a. 

date  of  admission,  1480b. 

pay,  1485a. 

promotion  to  Corps  of  Engineers,  953a. 

traveling  expenses  of  candidates,  1480a. 
California  Debris  Commission: 

expenses,  lOGla. 

favorable    decision    within    thirty    days, 
1061a. 

hydraulic  mining,  1061a. 
-   mileage,  1081a. 

order  directing  methods  of  mining,  1061a. 

taxes  on  gross  proceeds,  1061a. 
Canal  Zone  at  Panama    (see  Panama  Canal 
Zone,    and    Isthmian    Canal    Commis- 
sion) : 

alien  labor,  eight-hour  law  not  applicable 
to,  1085m,  1085n,  1573a,  1573b. 

articles,  etc.,  imported  from,  1085k. 


1338 


INDEX. 


Canal  Zone  at  Panama — Continued. 

eight-hour     law,     1085m,     1085n,     1573a, 
1573b. 

entry  of  persons  into  United  States  from, 
1085k. 

imports  from,  1085k. 

purchase  of,  etc.,  1085b. 

tariff  laws,  1085k. 

Canals  (see  Isthmian  Canal,  Navigable 
Waters,  and  River  and  Harbor 
Works)  : 

regulations  for  use  of,  1113a,  1117a. 

enforcement  of,  1117a. 
Carriages : 

restrictions  on,  lOOa,  lOOb. 
Caralry  Band,  1424a. 
Chaplains: 

coast  artillery,  1258c. 

Corps  of  Engineers,  1258b. 

field  artillery,   1258c. 

pay,  1258a,  1258c. 

promotions,    limitations   on,    1258a. 

rank,   1258a,   1258c. 

special  distinction  for  efficiency,  1258a. 

uniform,    1258a. 
Checks: 

duplicate,  631a. 

lost,  etc.,  631a. 
Chief  of  Artillery: 

additional     member     of     General      Staff 
Corps,   2474a. 

rank,  pay,  etc.,  upon  retirement,  2474a. 

vacancies,  how  filled,  2474a. 
Chief  of  Bureau  of  Insular  Affairs: 

appointment,  rank,  pay,  etc.,  141c. 

assistant  to,  141d. 
Chief  of  Coast  Artillery: 

additional      member     of      General      Staff 
Corps,  2474a. 

rank,  pay,  etc.,  upon  retirement,  2474a. 

vacancies,   how  filled,  2474a. 
Chief  of  Engineers: 

Board  of  Engineers,  1098a. 

river  and  harbor  works,   1098a,  1103a. 
Chief  of  Ordnance: 

indirect    expenses,    method    of    charging, 
1201c. 

skilled  draftsman,   1161a. 
Chief  of  Staff: 

civilian  details  prohibited,  573b. 
Chief  of  Telegraph  and  Cipher  Bureau,  1219a. 

(See  Signal  Corps.) 
Citizenship   (see  Naturalization)  : 

anarchists,   etc.,   forbidden,   1892b. 

cancellation  of  certificate  of,  1892e. 

certificate  of,  cancellation  of,  1892f. 

certificates  of,   penalty   for   issuing  false, 
1892g. 

children  born  abroad,   1871a,  1889a. 

enlistment  of  Porto  Ricang,  505a. 

expatriation,  1877a. 

married  women,  1872a. 

minors,  1871a,  1880b,  1889a. 

naturalization,  1892a. 

naturalized      citizens      residing      abroad, 
1877a. 

passports,  1879a. 


Citizenship— Continued, 
penalty   for   issuing  false   certificates   of, 

1892g. 

polygamists,  etc.,   forbidden,   1892b. 
residence  abroad  of  naturalized   persons, 

1877a. 

time  of  war,  1877a. 
Civilians : 
assignments     office    of    Chief    of    Staff, 

573b. 
details,  office  of  Chief  of  Staff,  573b. 

office  of  General  Staff,  573a. 
employees     of    Army,     medical     supplies, 

934a. 

employees  of  Army,  transportation  of  re- 
mains, 1418a. 

enlistment  of,  in  Porto  Rico,  505a,  505b. 
physicians,   909b. 
witnesses    on    courts-martial,     Philippine 

Islands,  2477. 
Civil  War: 
honorable     discharge,     effect    of,     2201a, 

2201b. 

Clerks  and  Messengers  at  Headquarters: 
assignment  of,   to   duty   in   War   Depart- 
ment, 573b. 
number,  572a. 
pay,  572a. 

Clerks,  Executive  Department: 
details,   lla,   28a. 
headquarters,    572a. 
incapacitated,  restriction,  31a. 
Ordnance  Department,   1192a. 
pay,  572a,  635a,  635b,  1192a. 
transfers,  28b. 
Clothing: 
balances,  753a. 

destroyed  to  prevent  disease,  950b. 
donations  to  prisoners,  1788b. 
gratuitous  issues,  750a. 
Clubs,  Rifle,  1700e,  1700f.     (See  Militia,  and 

Rifle  Clubs.) 
Coast  Artillery: 
additional  pay,  1443e. 
assignments,  1443c. 
bands,  1443g. 
chaplains,  1258c. 
chief  of,  1443b. 

composition  of  companies,  1443h. 
corps,   1443h. 

corps,  to  constitute,  1443g. 
duties,  1443f. 

electricians,  etc.,  additional  pay  of,  1443e. 
maximum  number,  1443e. 
pay  of,  1443g. 
enlisted  strength,  1443h. 
noncommissioned    staff    officers,    pay    of, 

1443e. 

number  of  officers,  1443g. 
organization,    1443g. 
promotion,   1443c,  1443d. 
reorganization,  1443b. 
separation  from  field  artillery,  1443c. 
vacancies,  filling  of,  1443d. 
Coast  Artillery  Corps: 
composition  of,  1443h. 


INDEX. 


1339 


Colleges  (see  Details,  and  Retired  Officers)  : 
issues  of  ordnance  and  ordnance  stores  to, 

1292a,   1292b. 

officers,  commutation  of  quarters,  830a. 
details,   1290a,   1291   a. 
extra  duty  pay,  1291a. 
ordnance,  etc.,  issues  to,   1292a. 
Command : 

militia,  1662a. 

Commercial  Intercourse,  2112b. 
Commissioned  Officers : 

additional,  to  Signal  Corps,  1218a,  1219a. 
appointments  extending  beyond  date  of  re- 
tirement, 577a. 

appointments  in  Volunteer  Army,  522a. 
assignments  of  pay,  81  la,  909a. 
assignments  to  militia,  1062e. 
assistant  to  Chief  of  Insular  Bureau,  141d. 
deceased  officers,  1416a,  1417a. 
details   extending   beyond   date   of   retire- 
ment, 577a. 

of  officers  of  line,  14 le. 
to    civil    offices    in    Philippine    Islands, 

2487,  2488. 

to  colleges,  1290a,  1291a. 
to  Philippine  Constabulary,  1332a. 
horses,  purchase  of,  74  la. 
Military     Secretary's    Department,    663a, 

663b. 

militia,  assignments  to,  1662e. 
mounted,  purchase  of  horses  from,  741a. 
pay  of  retired   officers  assigned  to  active 

duty,  1303b. 

retired,  assignment  to  active  duty,  1303a. 
details  to  colleges,  1290a,  1291a. 
details  to  militia,  1323a. 
increase  of  rank  and  pay,  1303a. 
sales  of  fuel  to,  740a. 
service     of     generals     before     retirement, 

1299a. 

Signal  Corps,  additional  to,  1218a,  1219a. 
transfers  of,  141e,  81  la,  909a. 
transportation  of  remains,   1416a,  1417a. 
Volunteer   Army,   522a. 
Commutation  of  Quarters: 
militia  officers,  1663a. 
officers  of  Regular  Army,  830a. 
Congress  of  Navigation,  141a. 
Contingent   Expenses : 
military  attaches  abroad,  58a. 
military  information  division,  58a. 
newspapers,   58a. 
periodicals,  58a. 
Continuous  Service  (see  Pay)  : 
enlisted   men  as  commissioned  officers  of 

volunteers,  869a. 
Philippine  Scouts,  869a,  869b. 
Porto  Rican  Regiment,  officers  of,  869a. 
Contract  Surgeons  (see  Surgeons)  : 
appropriations,    907a. 
'assignment  of  pay,  909a. 
burial  expenses,  1417a. 
dental    surgeons,    assignment    of    pay   by, 

909a. 

hospitals  in  charge  of,  913a. 
pay,  assignment  of,  909a. 


Contract  Surgeons — Continued. 

sea  travel,  841a. 

transfer  of  pay,  909a. 

transportation  of  remains"  of,  1417a. 
Contracts : 

Isthmian  Canal,  1085d,  1085e. 

labor  and  material,  protection  of,   1576a. 

not  to  exceed  appropriation,  272a,  272b. 
Cooks : 

prizes,  714a. 

Signal  Corps,  1224b. 

Corps  of  Engineers  (see  Engineer  Corps,  En- 
gineer Department,  and  Chief  of  En- 
gineers) : 

chaplains,  1258b. 

composition,  953a. 

details,  1098a. 

enlisted  force,  953a. 

organization,  953aN. 

public  buildings  and  grounds,  978a,  978b. 

rank,  953a. 

vacancies,  953a. 

Washington  Monument,  990a. 
Courts-Martial : 

civilian     witnesses,     Philippine     Islands, 
2477. 

militia,  1672a. 

witness  fees,  Philippine  Islands,  2477. 
Dams: 

damages  to  private  property,   1114d. 

flshways,   1114d. 

forfeiture  of  rights,  1114e. 

lights,  signals,  etc.,  1114d. 

penalties,   1114f. 

"  persons  "  defined,  11141. 

regulations    for    construction    of,    1114b. 

removal  of,   1114f. 

rights  forfeited,   1114e. 

rights  reserved  for  navigation,  1114c. 

right  to  alter,  etc.,  reserved,  1114h. 

time  limit,  1114g. 

Debris  Commission,  1061a,  1081a.     (See  Cali- 
fornia Debris  Commission;) 
Deceased  Officers   and   Soldiers    (see  Burial)  : 

accounts,  settlement  of,  1415a. 

funeral  expenses,   1415a. 

transportation  of  remains,   1416a,  1417a, 

1418a. 
Decorations,    1356a,    1356b.       (See    Badges, 

Medals,  and  Medals  of  Honor.) 
Deeds: 

acknowledgment  of,  1599d. 
Dental  Surgeons: 

assignment  of  pay,  909a. 

Military  Academy,  908a. 

number  authorized,  908a. 

sea  travel,  84  la. 

Department  of  Commerce  and  Labor,  1028b. 
Department    of    Justice     (see    Attorney-Gen- 
eral) : 

habeas  corpus,  Philippine  Islands,  361a. 
Departments.     (See  Executive  Departments.) 
Depositories    (see   Treasury,  Public  Moneys, 
and  Philippine  Islands)  : 

in  Philippine  Islands,  290a. 


1340 


INDEX. 


Deposits : 

enlisted  men,  879a. 

funds    for    stores    tranferred    to    Insular 

Department,  607a. 
savings  of  enlisted  men,  879a. 
Deserters  (see  Prisoners,  and  Reward)  : 
apprehension,  1409a. 
reward,  1409a. 

Details    (see  Army,  Appointments,  Commis- 
sioned Officers,  and  Enlisted  Men)  : 
assistant    to    chief    of    Insular    Bureau, 

141d. 
civil  employees,  lla,  28a,  28b. 

divisions,    departments,    and    office    of 

Chief  of  Staff,  573b. 
General  Staff,  573a. 
office     in     Philippine     Islands,     2487- 

2490. 

colleges,  1290a,  1291a. 
Corps  of  Engineers,  1098a. 
dental     surgeon     to     Military     Academy, 

908a. 
extending     beyond     date    of     retirement, 

577a. 

General  Staff  dorps,  2470,  2472. 
Military   Secretary's   Department,   663a. 
militia,  1662d,  1662e. 
noncommissioned  officers,   1290a,   1291a. 
officers,  as  chief,  etc.,  Philippine  Constab- 
ulary,   1332a. 

officers  in  Ordnance  Department,  1155a. 
officers  of  the  line,  141e. 
Ordnance   Department,   1155b. 
paymasters'  clerks,  801e. 
Porto  Rican  Regiment,  505b. 
retired  officers,  1290a,  1291a,  1323a. 

with  organized  militia,  1323a. 
river  and  harbor  works,  1103a. 
Signal  Corps,  1222a. 

Disbursing  Officers  (see  Accounts,  Account- 
ing Officers,  and  Treasury  Depart- 
ment) : 

accounts,  closing  of,  605b. 
limitation  of,  605b. 
of  payments  to  Army,  801c,  801d. 
recorded  by  Paymaster-General,  801c. 
allowances  for  losses,  605a. 
annual   compensation,   635a,   635b. 
army  appropriation,   how  disbursed,   etc., 

801a,  801d. 
check,   duplicate,   631a. 

lost,   etc.,    631a. 
closing  of  accounts,  605b. 
credits  for  payments  and  for  losses,  605a. 
limitation  of  accounts,  605b. 
lost  check,   631a. 
militia,  I693a. 
pay  of  the  Army,   disbursement  of,   etc., 

801a. 

paymasters'  accounts,  801c. 
payments  of  small  amounts,  768a. 
small  purchases,  768a. 
Discharge.     (See  Pensions.) 
Discharge  Certificate: 

duplicate,    in    lieu   of    lost    or    destroyed, 
1388a. 


Discharged  Soldiers: 

transportation  of  remains  of,   1418a. 
District  of  Columbia: 
acknowledgment  of  deeds,  etc.,   ir>99d. 
building  permits,   980a. 
public  buildings  and  grounds,  978a,  978b. 
District  of  Columbia  Militia   (see  Militia,  and 

Naval  Battalion)  : 
adjutant-general,  1664a. 
apportionment,  1691b. 
appropriation,  1691b,  1770a. 
camp  expenses,  1770a. 
deductions  of  pay,  1742a,  1750a. 
expense,  1770a. 

minimum  quota  required,  1691b. 
National  Gu-ard,  1742a,  1750a,  1770a. 
naval  battalion,  1781a. 
pay,  deductions  from,  1742a,  1750a. 
property  lost  or  destroyed,  1696a,   1742a. 
sale  of  unserviceable  property,   1696a. 
unserviceable  property,  1696a. 
Documents  : 

binding,  cost  of,  68c. 
extra  copies,  68d. 
illustrations,  etc.,  68f. 
printing,  cost  of,  68c. 
restrictions  on,  68b. 
Donations   to   Prisoners,    1788a,    1788b. 
Draftsmen  : 

office  of  Chief  of  Ordnance,  1161a. 
Signal  office,  1224c. 
Duplicating  Processes,  68a. 
Duties  : 

Philippine  Islands,  2112a. 
Eight-Dour    Law: 
alien    labor    within    Canal    Zone,    1085m, 

1085n,  1573a,  1573b. 

Canal  Zone,  1085m,  1085n,  1573a,  1573b. 
Electric  Plants: 
sale  of  surplus  light  and  power,  719a. 

use  of  proceeds,  719a. 
Electricians,     1224b,     1443a.        (See     Signal 

Corps.  ) 

Eminent  Domain,  2483. 
Employees  : 

transportation  of  remains  of,  1418a. 
Employment  of  Military  Force: 
commercial  intercourse  during  hostilities, 

2112b. 

extradition,  2093a,  2093b. 
restriction  on  employment  of,  2103a. 
tariff  duties  and  taxes,  2112a. 
Engineer    Corps     (see    Chief    of    Engineers, 
Bridges,  Dams,  and  Engineer  Depart- 
ment) : 

composition,  953a. 
Engineer  Department: 
board  of  engineers,  1098a. 
bridges    over    navigable    waters,     1114a, 


canals,  etc.,  regulations  for  use  of,  1113at 

1117a. 
dams,   1114b,   1114c,  1114d,   1114e,   1114f, 


dredges,  1103a. 
fortifications,   1086a,  1086b. 


INDEX. 


1341 


Engineer  Department — Continued. 

Isthmian  Canal  Commission,  1085a. 

Light-House  Board,  1028a. 

Niagara  Falls,  1150a,  1150b,  1150c,  1150d. 

Panama  Canal  Zone,  1085b. 

river    and    harbor    works,    1098a,    1103a, 
1106a,  1113a,  1117a. 

sale  of  public  lands,  1106a. 
of  unserviceable  property,  1106a.- 

telegraph  and  telephone  lines,  1114a. 

transfer  of  property,  1106a. 
Engineer  School,  1515a,  1515b. 
Enlisted   Men    (see   Enlistments,   and    Reen- 
listments)  : 

commissioned  officers,  service  as,  869a. 

continuous  service,  869a,  869b. 

deceased,  accounts  of,  1415a. 

deposit  of  savings,  879a. 

details  to  colleges,  1290a,  1291a. 

electricians,  1224b,  1443a. 

extra-duty  pay,   745a,   1510a. 

funeral  expenses,  1415a. 

gunners,  additional  pay,  862a. 

Hospital  Corps,  composition,  914a. 
pay,  919a. 

ice,  769a. 

issues  of  rations,  769a. 

medical  attendance,  909b. 

pay  and  allowances,  505b,  862a,  919a. 

Porto  Rican  Regiment,  505b. 

prizes,  714a. 

rations,  769a. 

remains   of   honorably   discharged,    1418a. 

retired,  details  to  colleges,  1290a,  1291a. 
extra-duty,  pay,  1291a. 
increase  of  rank  and  pay,   1303a. 

retirement,  869a,  1381a. 

service  as  commissioned  officer,  869a. 

Signal  Corps,  1224a,  1224b. 

transportation  of  remains  of,  1416a-1418a. 
Enlistments    (see   Enlisted   Men,    and   Reen- 
listments)  : 

civilian  physicians,  909b. 

Porto  Rico  Regiment,  505a,  505b. 
Envelopes,   68e. 
Epidemics : 

clothing,  etc.,  destroyed,  950b. 
Equipments.      (See  Militia.) 
Estimates : 

Book  of,  64a. 

changes  to  be  noted,  64a. 

duplicating  processes,  etc.,  68a. 

employees  of  signal  office,  1224c. 

extension  of  cable,  etc.,  in  Alaska,  1233a. 

Isthmian  Canal,  1085c. 

manner  of  preparing,  64a. 

preceding  year  a  guide,  64a. 

printing  and  binding,  68e. 

restrictions  on  special,  64a. 

skilled  draftsmen,  etc.,  signal  office,  1224c. 
Examinations: 

Ordnance  Department,  1155a,  1155b. 

officers  for  Volunteer  Army,  522a. 

Porto  Rican   Regiment,   505b. 

Volunteer  Army,  officers  for,  522a. 


Executive  Departments: 

annual  statement  to  Congress,  75a. 
books,  cost  of  printing  and  binding,  68c. 
books,  restrictions  on  printing,  68b. 
carriages,  restrictions  on,  lOOa,  lOOb. 
civil  employees,  lla,  28a,  28b,  31a. 

details  of,  lla,  28a,  28b. 
.  incapacitated,  31a. 

transfer  of,  28b. 
clerks  and  messengers,  lla,  28a,  28b,  31a, 

572a. 

details  of  civil  employees,  lla,  28a,  28b. 
documents,  cost  of  printing  and  binding, 

68c. 

extra  copies,  68d. 
illustrations,  68f. 
restrictions  on  printing,  68b. 
duplicating  processes,  etc.,  68a. 
estimates,  64a,  68e. 
proceeds  of  public  property,  75a. 
reports,  cost  of  printing  and  binding,  68c. 
extra  copies,  68d. 
illustrations,   68f. 
statement  to  Congress,  75a. 
transfers,  28b. 
Executive  Office: 
chief    of    telegraph    and    cipher    bureau, 

1219a. 
Expenses: 
militia,     encampments     and     maneuvers, 

1692b. 

Expert  Accountant: 

Inspector-General's  Department,  847a. 
sea  travel,  847a. 
travel  allowances,  847a. 
Expert  Riflemen: 

additional  pay,  865a,  865b. 
Extortion,  1566a. 

Extra-Duty  Pay,  1291a.     (See  Pay.) 
Extradition,  2093a,   2093b,   2093c. 
Fees: 

civilian    witnesses,   2477. 
justices  of  the  peace,  2481. 
Field  Artillery: 
additional  pay,  1443e. 
assignments,  1443c. 

batteries,  increase  in  strength  of,   1443k. 
chaplains,  1258c. 
composition  of  batteries,  1443k. 
denned,  14431. 
detail  of  officers,  1443J. 
electricians,  etc.,  additional  pay  of,  1443e. 

maximum  number,  1443e. 
gunners,  additional  pay,  862a. 
increase  of  mounted  orderlies,  1443J. 

of,  in  strength  of  batteries,   1443k. 
limit  to  enlisted  strength,  1443k. 
noncommissioned    staff    officers,    pay    of, 

1443e. 

organization,    1443J. 
promotion,  1443c,  1443d. 
regimental  strength,  increase  of,  1443j. 
reorganization,  1443b. 
separation  from  coast  artillery,  1443c. 
vacancies,  filling  of,  1443d. 


1342 


INDEX. 


Field  Officer: 

Porto  Rican  Regiment,  505b. 
Filing  Devices,  68a.      (See  Estimates.) 
Forage,  74  Ib. 
Fort  Bayard,  N.  Mex.: 

hospital  at,  admission  to,  939c. 

rules  governing,  931a. 
Fortifications : 

advertisements,  1086b. 

artillery  troops,  1086a. 

contracts,  1086b. 

material  for  experiments  and  tests,  1215a. 

method    for    charging    indirect    expenses, 
1201c. 

purchase  of  sites,  1086a. 

restrictions  on  expenditures,  1086a. 

skilled     draftsmen,     etc.,      signal      office, 

1224c. 
Forms : 

duplicating  processes,  etc.,  68a. 
Fuel: 

sales  to  officers,  740a. 
Funds: 

credits   for  deductions   from   carriers  for 
loss,  etc.,  of  stores,  1178a,  1640a. 

depositories  of  public  moneys,  290a. 

from    stores    transferred    to    Insular    De- 
partment, 607a. 
Funeral  Expenses    (see  Burial)  : 

deceased  pensioner,  2136a. 

indigent  soldiers,  2460a. 

officers,   1417a. 
Furloughs : 

medical  treatment,  933a. 
General  Courts-Martial   (see  Courts-Martial)  : 

civilian     witnesses,     Philippine     Islands, 

2477. 
General  Officers: 

Lieutenant-General,  555a. 
General  Service  and  Staff  College,  1519a.   (See 

Schools. ) 
General  Staff: 

civilian  details  prohibited,  573a. 
General  Staff  Corps: 

aids-de-camp,  2474. 

assignments,  temporary,  2471. 

captains,  rank,  pay,  etc.,  2471. 

Chief  of  Artillery,  an  additional  member 

of,  2474a. 
rank,  pay,  etc.,  '2474. 

upon  retirement,  2474a. 

to  serve  on,  2474. 

Chief  of  Coast  Artillery,   rank,  pay,  etc., 
upon  retirement,  2474a. 

Chief  of  Staff,  duties  of,  2473. 

composition,  2471. 

details,  2471. 

duties,  2472-2474. 

establishment,  2470. 

lieutenants,  rank,  pay,  etc.,  2471. 

military  secretaries,  2473. 

organization,  2470. 

pay  and  allowances,  2471,  2474. 

rank,  pay,  and  allowances,  2471,  2474. 

temporary  assignments,  2471. 

terms  of  service,  2471. 


Gettysburg  National  Park: 

monuments,  2391a,  2391b. 
Good  Conduct  Allowances  (see  Penitentiary)  : 

United    States    prisoners,    1837a,    1837b, 

1837c. 
Government  Agents: 

official  misconduct,  1566a. 
Government  Hospital  for  the  Insane: 

admissions,  2347a,  2347b,  2348a. 

insane    natives   of    Philippine    Islands    in 
Army,  2348a. 

insane  soldiers,  pensions  of,  2347a,  2347a, 
note,  2347b. 

pension  of  soldier  inmates,  2347a,  2347a, 

note,  2347b. 
Grand  Army  of  the  Republic: 

penalty    for    improper    use    of    badge    of, 

1363b. 
Gratuitous  Issues : 

clothing  to  prisoners,  1788b. 

bedding,  etc.,  750a. 
Gunners : 

additional  pay,  862a. 
Gymnasium,    715a. 
Habeas  Corpus: 

Philippine  Islands,  361ar  2478,  2479. 
Hague  Convention: 

laws   and   customs   of   war   on   land,   Ap- 
pendix B,  pages  1315-1329. 

maritime     warfare,     Appendix    A,     pages 

1309-1314. 
Hawaii : 

public  lands,  1625a. 

sea  travel,  841a. 
Heads  of  Departments : 

appointments    extending    beyond    date    of 
retirement,  577a. 

details   extending  beyond   date   of   retire- 
ment, 577a. 
Heat,  740b. 

Historic  Ruins,   1614a-1614d.      (See  Ruins.) 
Homesteads,    1587a. 
Honorably  Discharged  Soldiers: 

homestead  rights,  1587a. 

transportation  of  remains  of,   1418a. 
Horses : 

forage,  74 Ib. 

open-market  purchases,  732a. 

purchase  of,  from  officers,  741a. 
Hospital  Corps: 

composition,  914a. 

corporals,  914a,  919a. 

organization,  924a. 

pay,  919a. 

privates,  914a,  919a. 

rank,  919a. 

sergeants,  914a,  919a. 

Hospitals  (see  Hospital  Corps,  Government 
Hospital  -for  the  Insane,  and  Medical 
Department)  : 

contract  surgeons,  913a. 

Fort  Bayard,  N.  Mex.,  931a,  939c. 

furloughs,  93 3a. 

private,   933a. 

sales  of  medical  supplies,  935a. 
Hot  Springs,  S.  Dak.: 

national  sanitarium  at,  939a,  939b. 


INDEX, 


1343 


Hygienic  Laboratory: 

advisory  board,  910b. 
Ice: 

issues  of,  769a. 
Ice  Machines: 

disposal  of  surplus  products,  etc.,  719a. 
Illustrations,  68f. 
Indian  Wars  (see  Pensions)  : 

pension  for  service  in,  2167a,  2167b. 
Infantry : 

Porto  Rican  Regiment,  505b. 
Insane,    2347a,    2347b,    2348a,    2498.       (See 
Government  Hospital  for  the  Insane.) 
Inspections : 
militia  1662c. 

report  of,   1693a. 
Inspector-General's  Department : 

expert  accountant,  847a. 
Insular  Affairs   (see  Insular  Affairs,  Bureau 
of;   Insular  Department,   and   Insular 
Possessions): 

Acts  of  Philippine  Commission,  2475-2488. 
Insular  Affairs,  Bureau   of    (see  Insular  Af- 
fairs, Insular  Department,  and  Insu- 
lar Possessions) : 
assistant  to  Chief  of,  141d. 
business  assigned  to,  141b. 
chief  of,  appointment,  rank,  pay,  etc.,  of, 

141c. 

detail  of  officer  as  chief  of,  141b. 
pay  of  chief  of,  141b. 
rank  of  chief  of,  141b. 

Insular  Department  (see  Insular  Affairs,  Bu- 
reau of,  and  Insular  Possessions)  : 
military  stores   transferred  to,  607a. 
Insular  Possessions   (see  Insular  Affairs,  Bu- 
reau of)  : 
commercial  intercourse  during  hostilities, 

2112b. 
extradition,     Philippine     Islands,     2093a, 

2093b. 

tariff  duties  and  taxes,  2112a. 
International   Commission,   141a. 
Issues : 

rations,  etc.,  769a. 
ice,  etc.,  769a. 
clothing,  750a,  1788b. 
Isthmian  Canal: 
alien  labor,  eight-hour  law  not  applicable 

to,   1085m,   1085n,  1573a,  1573b. 
annual  reports,  1085f. 
appropriations,  limitations  on,  1085g. 

restrictions  on,  1085f. 
bonds,  1085c,  1085d,  1085e. 
contracts,   1085g,  1085h. 
detail    of    officers    and    employees    away 

from  Isthmus,   1085L 
eight-hour    law,     1085m,     1085n,     1573a, 

1573b. 

estimates,  1085f. 
expenditures,  1085d. 

material    restricted    to    domestic    produc- 
tion, 1085J. 
pay  while   detailed   away   from    Isthmus, 

1085i. 
reports,  1085f. 


Isthmian    Canal    Commission,    1085a,    1085b. 
(See  Isthmian  Canal  and  Panama  Ca- 
nal Zone.) 

Judge-Advocate  General's  Department: 
appointments,  age  limit,  694a. 
vacancies,   how  filled,  694a. 
Jurisdiction : 

reservations  in  Philippine  Islands,  2480. 
Justice  of  the  Peace,  Philippine  Islands,  2481. 
Labor  and  Material: 

protection  to  persons  furnishing,   1576a. 
Land  and   Submarine   Mines,    1515b. 
Land-Grant  Railroads,  843a,  844a. 
Lands  (see  Public  Lands)  : 
condemnation  proceedings,   1106b. 
Hawaii,  1625a. 

historic,  acquisition  of,  1614b. 
regulations  concerning,   1614d. 
reserving,  1614b. 
Philippine      Islands,      laws      concerning, 

2480. 

public    1599a,  1599b,  1599c,  2480. 
right  of  eminent  domain,  2483. 
sale  of,  1106a. 
Laundries : 
outside  work  permitted,  719a. 

use  of  proceeds,  719a. 
Laws  of  War,  2112a,  2112b. 
Leaves  of  Absence: 
change  of  station,  840b. 
credit  for  volunteer  service  in  computing, 

1287a. 

mileage  on  change  of  station,  840b. 
officers  serving  with  Philippine  Constab- 
ulary, 2495. 

Philippine  Islands,  828a. 
Libraries : 

engineer  school,  1515b. 
post  libraries,  71 5a. 
Lieutenant-General : 

office  to  cease,  555a. 
Light,  740b. 

Light-House  Board  (see  Department  9f  Com- 
merce and  Labor)  : 
transfer  to  Department  of  Commerce  and 

Labor,  1028a. 
Liquors : 
moneys  collected   for  licenses  in  Alaska, 

2498. 
sale    of,     in     Philippine     Islands,     2481, 

2481a,  2482. 
on      reservations,      Philippine     Islands, 

2480. 
prohibited    at     State    soldiers'     homes, 

2324a. 
Loans : 
ordnance,    etc.,    to     State    schools,    etc., 

1292a,  1292b. 

Locusts,  Extermination  of,  2484. 
Longevity   Pay    (see  Pay,   and   Retired   Offi- 
cers) : 

retired  officers,  824a,  824b. 
Manifold  Processes,  68a. 
Marine  Corps: 

computing  time  for  retirement,  1379a. 
contests  for  medals,  etc.,  1201a,  1201b. 


1344 


INDEX. 


Marine  Corps — Continued, 
medals  and  troophies,  contests  for,  1201a. 
pay,  retired  enlisted  men,  1379a. 
retired  enlisted  men,  1379a. 
Master  Electricians,  1224b,  1443a.     (See  Sig- 
nal Corps.) 
Materials: 

domestic  preferred,  1085J. 
protection  to  persons  furnishing,  1576a. 
Medals: 

contests  for,   1201a,  1201b. 
surrendered    medals    of   honor    to    be    re- 
turned, 1356c. 
Medals  of  Honor,  1356a,  1356b,  1356c.      (See 

Medals,  Decorations,  and  Badges.) 
Medical  Department   (see  Surgeon-General  of 

the  Army,  and  Surgeons)  : 
bedding,  etc.,  destroyed,  950b. 
civilian  employees,  934a. 
civilian  physicians,  909b. 
contagious  diseases,  950b. 
contract  surgeons,  9O7a,  909a,  913a. 

assignment  of  pay,  909a. 
dental     surgeons,     assignment     of     pay, 

909a. 

epidemics,  950b. 
furloughs,  933a. 

Hospital  Corps,  compensation,  914a. 
organizations,  924a. 
pay,  919a. 
rank,  919a. 
medical  supplies  for  civilian  employees  of 

Army,  934a. 

medical  treatment,  exceptions,  933a. 
purchases,  932a. 
sales  of  medical  supplies,  935a. 
services  not  personal,  932a. 
stores,  purchases  of,  932a. 
Mexican  War  Pensions,  2166a,  2151a,  2151b, 

2151c. 

Mileage  (see  Travel  Allowances)  : 
California  Debris  Commission,   lOSla. 
change  of  station,  840b. 
deductions  from,  843a. 
expert  accountant,  847a. 
militia,  801b. 

officers  traveling  without  troops,  840a. 
paymasters'  clerks,  847a. 
transportation  requests,  843a. 
Military  Academy  (see  Cadets)  : 
academic  staff,  1471a. 
associate  professors,  1458a,  1471a. 
band,  1508a. 

cadets,  appointments,  1479a. 
date  of  admission,  1480b. 
expenses  of  candidates,  1480a. 
pay  and  allowances,   1458b. 
civilian  instructors  In  French,  1458b. 

in  Spanish,  1458b. 
dental  surgeon,  908a. 
organization,  1458a,  1458b. 
professors,  1458a,  1458c,  1471a. 
rank.  1471a. 
Military  Attached,  58a. 
Military    Establishment    (see   Volunteers,  and 

\'nlunt<'t-r   .\rniii)  : 
organization  of  volunteer  forces,  518a. 


Military  Force: 

restriction  on  employment  of,  2103a. 
Military  Information  Division: 
Manila    branch,    purchase    of   books,    etc., 

58a. 

Military  Occupation,  2112a,  2112b. 
Military  Order  of  the  Loyal  Legion: 
penalty    for    improper    use    of    badge    of, 

1363b. 

Military  Posts: 
restrictions    on    establishment    of,    734a, 

1621a. 

Military  Prisoners   (see  Prisoners)  : 
donation  of  clothing  to,  1788b. 

of  money   to,   1788a. 

reward  for  apprehension  of  escaped,  1409a. 
transportation  of  discharged,  1788c. 
Military    Keservations,    1599a,     1625a,    2480. 
(Sec  Reservations,  and  Public  L>intl*.> 
Military  Schools  (see  Schools)  : 

appointments  to  Volunteer  Army,  5l^a. 
Military  Secretary's  Department   (see  Military 

Secretary's  Office)  : 
appointments,  663a. 
appropriation,  663c. 
changed     to    Adjutant-General's     Depart 

ment,  663d. 
chief  of,  a  member  of  Board  of  Commis 

sioners  of  Soldiers'  Home,  2263a. 
commissioned  officers,  663b. 
composition,  663a. 
details,  663a. 
employees,  663c. 

Military  Secretary,  rank  of,  663a. 
officers,   effect   of  consolidation,   663b. 
officers  subject  to  Chief  of  Staff,  663a. 
promotions,  663a. 
rank,  663a. 

Military  Secretary's  Office,  663a,  663b,  663c, 
663d.  (See  Military  Secretary's  Dc- 
imrtment.) 

Military  Storekeeper,  706a. 
Military   Stores,   607a,    1178a.      (See  Funds. 
Ordnance      Department,      Sales,      and 
Stores.) 

Military  Telegraph  and  Cable  Lines: 
Alaska,    estimates   for  extension   of,   etc., 

1233a. 
Military  Traffic: 

time  of  war,  720a. 

Militia  (sec  District  of  Columbia  M  Hit  in. 
National  Guard,  and  JYarol  Battal- 
ion: 

accounts,  1693a. 
accouterments,  issue  of,  1700a. 
active  service,  1669a,  1670a,  1671a,  1672a, 

1673a,  1674a. 

actual  service,  allotments,  1693a. 
adjutant-general,  1664a. 
allotment,  1693a. 
allowances,  1662a,  I663a. 
ammunition.  If.'.Oa.  1700a. 
exchange  of.  1700a. 
issue  of,   17'Hia. 
annual  drill.  10f.iv. 

appointments  to  Volunteer  Army,  522a. 
apportionments,  1670a,  1691b. 


IMS 


1346 


INDEX. 


National  Home  for  Disabled  Tolnnteer  Soldiers : 
admission    to    Government    Hospital    for 

Insane,  2347a,  2347a,  note,  2347b. 
Board  of  Managers,  939a,  939b. 
National    Sanitarium  at   Hot  Springs,   S. 

Dak.,  939a,  939b. 
National  Parks: 
Gettysburg,  2391a. 

Statue  of  Liberty,  Bedloes  Island,  2447a. 
Yellowstone,  2443a. 
National     Quarantine,     2068a-2068c.        (See 

Quarantine.) 

National  Bed  Cross  Society: 
act  of  incorporation,   Appendix   C,   pages 

1330-1334. 
National   Sanitarium   at   Hot   Springs,   S.   Dak, 

939a,  939b. 

National  Society,  Daughters  of  American  Revo- 
lution : 
penalty    for    improper    use    of    badge    of, 

1363b. 
National  Trophy,   1201a.      (See  Medals,  and 

Decorations. ) 

Naturalization  (see  Citizenship)  : 
anarchists,  penalty  for  aiding  to  procure, 

1892a. 

anarchy,  etc.,  declaration  as  to,  1880b. 
cancellation  of   certificate  of  citizenship, 

1892f. 

certificate  as  to  arrival,  1880b. 
of  citizenship,  cancellation  of,   1892f. 

penalty  for  isuing  false,  1892g. 
certified  copies  of  records,  etc.,  to  be  evi- 
dence, 18921. 
change  of  name,  1881b. 
children,  1871a,  1880b,  1889a. 
courts  having  jurisdiction,   1880a,   1892a. 

jurisdiction  restricted,  1880a. 
declaration  in  open  court,  1880b. 

of  intention,  1880b. 
election-day  restrictions,  1881b. 
examination  by  United  States,  1892e. 
evidence  as  to  character,  1880b. 
as  to  residence,  1880b,  1887a. 
filing  and  docketing,  1881b. 
Filipinos,  1892m. 
-final  hearing,  1881a,  1892d. 
foreign  titles,  renunciation  of,  1880b. 

women  married  to  Americans,  1885a. 
fraudulent,     punishment     for     obtaining, 

18921. 

intention  of  permanent  residence,  1880b. 
judicial  inquiry,  1892a. 
jurisdiction  restricted  to  residents  of  dis- 
trict, 1880a. 
language,  1892c. 
limit  to  prosecutions,  1892h. 
minors,  1871a,  1880b,  1889a. 
name,  change  of,  1881b. 
oath  of  allegiance  to  United  States,  1880b. 
parents     during     minority     of     children, 

1889a. 

penalty  for  obtaining  fraudulent,  1892i. 
for  issuing  false  certificates  of  citizen- 
ship,  1892g. 


Naturalization  —  Continued. 

persons  owing  allegiance,  but  not  citizens, 

1892m. 

petition,  final  hearing,  1892d. 
for  citizenship,  1880b. 
public  notice  of,  1881a. 
polygamists,  etc.,  forbidden,  1892b. 
polygamy,  etc.,  declaration  as  to,  1880b. 
Porto  Ricans,  1892m. 
previous  declaration,  1880b. 
procedure,  1880b. 
prosecutions,  limit  to,  1892h. 

of  prior  offenses,  1892J. 
qualifications,  etc.,  1880b. 
records,  certified  copies  to  be  evidence, 

18921. 

of  orders,  etc.,  1892d. 
renunciation   of   other   allegiance,    1880b. 
repealing  section,  1892k. 
residence,  evidence  as  to,  1880b,  1887a. 

intention  as  to  permanent,   1880b. 
restricted    to    residents    of    judicial    dis- 

trict, 1880a. 
rules  and  regulations,  authority  to  make, 

18921. 

titles  of  nobility,  renunciation  of,   1880b. 
United  States,  rights  of,  in  opposition  to, 

1892e. 
widows  and  minor  children,  1880b. 

who  are  aliens,  1885a. 
witnesses,   examination  of,    1892d,   1892e. 

subpoenas  to,  1881a. 
Naval   Battalion: 
District  of  Columbia,  1781a. 
duties,  1781a. 
laws  applicable  to,  1781a. 
officers,  1781a. 
Navigable    Waters     (see    River    and    Harbor 

Works)  : 

amendments,  etc.,  of  act,   1117e. 
bridges,  litigation,  1114f,  1115b. 
penalties,  1115b. 

"persons"  defined,  1117d,  1119b.. 
telephone  and  telegraph  rights,   1114a. 
time  limit,  1117c,  1119c. 
dams,      damages     to     private     property, 


fishways,  1114d. 

lights,  signals,  etc.,  1114d. 

penalties,  1114f. 

"persons"  defined,  1114i. 

regulations  for  construction  of,   1114b. 

removal    of,    1114f. 

right  to  alter,  etc.,  1114h. 

rights  forfeited,   1114e. 

rights  reserved  for  navigation,   1114c. 

time  limit,  1114g. 
Grand    River,     Missouri,     not    navigable, 

1097a. 

obstructions  to  navigation,  1115a. 
regulations  for  use  of,  1113a,  1117a. 
wharves,     etc.,     at    Porto     Rico,     1119a, 


Navy: 

computing  time  for  retirement,  1379a. 
contests  for  medals,  etc.,  1201a,  1201b. 


INDEX. 


1347 


Navy  —  Continued. 

enlisted   men,   computing  time  for  retire- 
ment,  1379a. 

medals  and  trophies,  contests  for,   1201a. 

pay,  retired  enlisted  men,  1379a. 

retired  enlisted  men,   1379a. 
Newspapers  : 

preservation  requirement  repealed,  56b. 

subscriptions,  56a,  56b,  58a. 
Niagara  Falls: 

diversion  of  waters,  1150a,  1150b,  1150c. 
1150d. 

permits,  1150b,  1150d. 

reservation  of,  1150a. 
Nurse  Corps: 

rations,  791a. 
Nurses  : 

rations,  791a. 
Oaths  : 

Philippine  Islands,  2493. 
Officers   (see  Commissioned  Officers)  : 

assignment  of  pay,  811a,  909a. 

assignment  to  militia,   1662e. 

deceased,  accounts  of,  1379a. 

funeral  expenses,  1415a. 

Porto  Rican  Regiment,  505b. 

sale  of  fuel  to,  740a. 

service    required    of    generals    before    re- 

tirement, 1299a. 
Official  Misconduct,  1566a. 
Open-Market  Purchases    (see  Purchases)  : 

horses,  732a. 

medical  supplies,  etc.,  932a. 

ordnance  stores,  etc.,  1169a. 

provision  for,  made  general,  1543a. 

reports,  932a,  1169a,  1230a,  1543a. 

Signal  Corps  stores,  etc.,  1230a. 
Ordnance  : 

colleges,  issues  to,  1292a. 

issues    to    colleges,     State    schools,    etc., 

1292a,  1292b. 
Ordnance  Department  : 

American  material  preferred,  1201a. 

annual  compensation,   1192a. 

appropriations    available    for    two    years, 
279a. 

composition,   1151a. 

contests  for  medals,  etc.,  1201a,  1201b. 

credits  for   deductions   from   carriers   for 
stores  lost,  etc.,  in  transit,  1178a. 

details,  1155a,  1155b. 

employees,  monthly  rate  of  pay,  1192a. 

examinations,  1155a,  1155b. 

experiments,  material  for,  1201a. 

funds    for    stores    transferred    to    Insular 
Department,  607a. 

loss,  etc.,  of  stores  in  transit,  1178a. 

medals,  etc.,  contests  for,  1201a,  1201b. 
method    for    charging    indirect    expenses, 
1201c. 

morning  and  evening  gun,  1184a. 

open-market,   procurement  of  services  in, 
1169a. 

open-market  purchases,  1169a. 

ordnance    and    ordnance    stores,    sale    of, 


organization,  1151a. 
pay,  1155a,  1192a. 


Ordnance  Department — Continued, 
purchases,  1169a. 
rifle  contests,  1201b. 
sale    of    obsolete    historical    guns,    1178a, 

1640a. 

of  ordnance  and  ordnance  stores,  1181a. 
services,  procurement  of,  in  open-market, 

1169a. 

skilled  draftsmen,  1161a. 
stores,  loss,  etc.,  of,  in  transit,  1178a. 
tests,  material  for,  1201a. 
trophies,  etc.,  contests  for,  1201a,  1201b. 
Organization : 

Board  of  Engineers,  1098a. 
Corps  of  Engineers,  953a. 
Hospital  Corps  detachment,  924a. 
Military  Academy  detachments,  924a. 
militia,  1656a,  1657a,  1661a. 
Signal  Corps,  1218a,  1219a. 
Panama   Canal.      (See   Isthmian   Canal,   and 

Panama  Canal  Zone.) 
Panama  Canal  Zone  (see  Isthmian  Canal,  and 

Isthmian  Canal  Commission)  : 
alien  labor,  eight-hour  law  not  applicable 

to,  1085m,  1085n,  1573a,  1573b. 
articles,  etc.,  imported  from,  1085k. 
eight-hour  law,  1085m,  1085n,  1573a, 

1573b. 
entry  of  persons  into  United  States  from, 

1085k. 

government  of,  1085b. 
imports  from,  1085k. 
payment  to  Panama,  1085b. 
possession,    etc.,   authorized,    1085b. 
tariff  laws,  1085k. 

temporary  government  in  President,  1085b. 
Patented  Devices,  68a. 
Pay   (see  Salaries)  : 
accounts,  paymaster,  801c. 
pay  of  army,  801a,  801d. 
additional,  expert  riflemen,  865a. 
first  class  gunners,  862a. 
second  class  gunners,  862a. 
annual   compensation,   monthly  payments, 

635a,  635b,  635c,  1192a. 
assignment  of,  81  la,  909a. 
assistant    to    Chief    of    Insular    Bureau, 

141d. 
associate  professor  of  modern   languages, 

Military  Academy,  1458a. 
cadets,  1485a. 
chaplains,  1258a,  1258c. 
continuous  service,  869a,  869b. 
contract  surgeons,  assignment  of,  909a. 
dental  surgeons,  assignment  of,  909a. 
doorkeeper,  White  House,  706a. 
electricians,    etc.,    coast    artillery    corps, 

1443g. 

coast  and  field  artillery,  1443e. 
employees  of  Ordnance  Department,  1192a. 
enlisted     men,     Porto     Rican     Regiment, 

505b. 

Signal  Corps,  1224a,  1224b. 
expert  riflemen,  865a,  865b. 
extra-duty,  745a,  1510a. 
college   details,   1291a. 
first-class  gunners,  862a. 


1348 


INDEX. 


Pay — Continued, 
gunners,  862a. 
Hospital  Corps,  919a. 
longevity    pay    to    retired    officers,    824a, 

824b. 

militia,  801b,  1662a,  1963a. 
National  Guard,  deductions  from,   1742a, 

1750a. 
officers  detailed  in  Ordnance  Department, 

1155a. 

with  Philippine  Constabulary,   1332a. 
Porto  Rican  Regiment,  505b. 
retired  brigadier-generals  having  civil  war 

service,  1303c. 

enlisted  men,  1303a,  1379a. 
officers,  824a,  824b,  1303a,  1323a,  2474a. 
officers  on  active  duty,  1303b. 
retired  officers  on  active  duty,  1303b. 
riflemen,  expert,  865a. 
second-class  gunners,  862a. 
transfer  of,  81  la,  909a. 
Pay  Accounts: 

appropriation  for  Army,  801d. 
assignment  of,  909a. 
paymasters'  accounts,  801e. 
Pay  Department  (see  Pay)  : 
accounts,  army  appropriation,  801a,  801d. 

of  paymasters,  801c,  801e. 
army  appropriation,  how  disbursed,   etc., 

801a,    801d. 

commutation  of  quarters,  830a. 
enlisted  men,  862a. 
paymasters'     clerks,     travel     allowances, 

847a. 

quarters,  830a. 
travel     allowances,     paymasters'     clerks, 

847a. 
Paymaster-General's  Office : 

assignment  of  paymasters'  clerk  to,  801e. 
Paymasters'  Clerks: 

assignment  of,  to  Paymaster-General's  of- 
fice, 801e. 

sea  travel,  847a,  847b. 
Penal  Offenses: 

extortion,  1566a. 
Penitentiary    (see  Prisoners)  : 
good    conduct    allowance,    1837a,     1837b, 

1837c. 

restoration  of,  forfeited,  1837b. 
Pensions : 

age  made  a  disability,  2151c. 
age  rating,  2151a. 
attorneys'  fees,  2203a. 
burial  expenses,  2136a. 
children's  pensions  to  cease,  2149a. 
civil    war,    2151a,    2151b,    2151c,    2201a, 

2201b. 
dependent    pension    laws,    2151a,    2151b, 

2151c,  2154a. 

dependent  relatives,  2149a,  2149b,  2154. 
discharge,  effect  upon  prior  service,  2201a, 

.    2201b. 

deceased  inmate  National  Home,  2328a. 
during  widowhood,  2149a. 
effect     of     honorable     discharge,     2201, 

2201b. 
evidence,  2201a,  2201b. 


Pensions — Continued. 

general  pension  laws,  2125a,  2131a,  2136a. 

honorable    discharge,    effect    of,    on    prior 
service,  2201a,  2201b. 

increase  of,  2125a,  2131a,  2166a,  2151a. 

Indian  war  service,  2167a,  2167b. 

inmates  of  Government  Hospital  for  the 
Insane,  2347a,  2347a,  note,  2347b. 

loss  of  limb,  2131a. 

Mexican  war,   increase  of,  2166a,   2151a, 
2151b. 

militia,  1687a. 

minor  children  of  insane  pensioner,  2347a. 

penalty    for    procuring    legislation,    etc., 
2203a. 

reimbursements,  2136a. 

remarriage,  2149a,  2149b,  2167a. 

restored  on  renewed  widowhood,  2149a. 

retained  by  State  Homes,  2324b. 

service  pension,  2151a,  2151b,  2151c. 

total  blindness,  2125a. 

widows,  2149a,  2149b,  2154a,  2167a. 

wife  of  insane  pensioner,  2347a. 
Periodicals,  58a. 
Permits,  980.    (See  District  of  Columbia,  and 

Buildings. ) 
Persons : 

denned,  11141,  1117d,  1119b. 
Philippine    Commission,    Acts    of,    2475-2495, 
2481a,  2485a-2485c.      (See  Army,  and 
Philippine  Islands.) 
Philippine  Constabulary : 

chiefs    and    assistant    chiefs,    officers   de- 
tailed as,  1332a. 

leaves  of  army  officers  serving  with,  2495. 
Philippine   Islands    (see   Philippine   Commis- 
sion, Philippine  Scouts,  and  Arnijj)  : 

acts  of  Congress  relating  to,  2496,  2497. 

annual  tax  for  roads,  etc.,  2492. 

army    officers    as    justices    of    the    peace, 
2481. 

arrest  on  reservations,  2480. 

attorneys,  2475. 

civil  actions,  2476. 

civilian  witnesses,  2477. 

commercial  intercourse,  2112b. 

criminal  actions,  2476. 

depositories  of  public  moneys,  290a. 

elections,  2485a-2485c. 

establishment   of  civil   provincial   govern- 
ments, 2491. 

extradition,  2093a,  2093b,  2093c. 

fees,  2477,  2481. 

fugitives  from  justice,  2093c. 

government  of  the  Moro  Province,  2487- 
2490. 

habeas  corpus,  2478,  2479. 

insane  natives  serving  in  Army,  2348a. 

inter-island  traffic,  126g. 

jurisdiction  over  reservations,  2480. 

justice  of  the  peace,  jurisdiction,  2476. 

lands,  public,  1599a,  1599b,  1599c,  2480. 

leaves  of  absence,  828a,  2495. 

licenses  for  sale  of  liquors,  2480,  2481. 
to  harbor  vessels,   126j. 

liquors,    penalty    for    sale,    gift,    etc.,    of, 
2481a. 


INDEX. 


1349 


Philippine  Islands— Continued. 

military  reservations,  1599a,  2480. 

mining  claims,  2480. 

Moro  Province,  salaries,  2488,  2489,  2490. 

navigation  laws,  enforcement  of,  126k. 

oath  of  office,  2493. 

office,  restrictions  on  election  or  appoint- 
ment to,  2485b. 

permits  to  foreign  vessels,  126j. 

property  exempt. from  taxation,  2480. 

provincial  officers,  eligibility,  2491. 

provost  courts,  jurisdiction,  2476. 

public  lands,  1599a,  1599b,  1599c,  2480. 

qualifications  of  electors,  2485a-2485c. 

registration  tax,  2485. 

regulations  governing  trade,  126k. 

reservations,  jurisdiction  over,  2480. 
military,  1599a,  2480. 

restrictions    on    trade    with,    126c,    126e, 
126f,  126g,  126h,  126i,  126j. 

right  of  eminent  domain,  2483. 

salaries,  Moro  Province,  2488,  2489,  2490. 

sales    of    liquors    in,    2480,    2481,    2481a, 

2482. 
on  reservations,  2480. 

saline  lands,  1599b,  1599c. 

sea  travel,  847b. 

tariff  duties,  2112a,  2496,  2497. 

tax  for  roads,  etc.,  2492. 

toll  roads  and  bridges,  2494. 

tonnage  tax  on  foreign  vessels,  126j. 

trade,  restrictions  on,  126c. 

transportation  of  passengers,   126f,  126g, 
126h,  126i. 

vessels  exempt  from  tonnage  dues,   2497. 
trading     between     United     States     and, 

126c. 
trading  with,   126e,    126f,    126g,    126h, 

126i,  126J,  126k. 

transporting     passengers,     126f,     126g, 
126h,  126i. 

voting,  persons  disqualified  from,  2485c. 

witnesses,  civilian,   2477. 
Philippine  Scouts    (see  Philippine  Islands)  : 

continuous  service,  869a,  869b. 

service  on  Philippine  Constabulary,  501a. 
Photographs,  68f. 
Porto  Rico  (see  Porto  Rican  Regiment)  : 

bridges,  time  limit,  1119c. 

enlistments  in  Regular  Army,  505a. 

wharves,  etc.,  1119a,  1119c,  1119d,  1119e. 
Porto   Bican  Regiment    (see  Porto   Rico)  : 

allowances,  505b. 

appointments,  505b. 

citizens,  appointments,  505b. 
enlistments,  505b. 

composition,  505b. 

continuous-service  pay,  869a. 

details,  505b. 

enlistments,  505b. 

examinations,  505b. 

field  officers,  505b. 

infantry,  505b. 

officers,  505b. 
-    pay  and  allowances,  505b. 

reserve,  505b. 


Porto  Rican  Regiment — Continued, 
retirement  of  enlisted  men,  services  as  an 

officer,  869a. 

services  of  enlisted  men  as  officer,  869a. 
service  outside  of  Island,  505a. 
vacancies,  505b. 
Post  Commissary-Sergeants : 

additional,   762a. 
Post  Exchange: 

amusement  rooms,  etc.,  715a. 
appropriation,  715a. 
buildings  and  equipments  for,  715a. 
Post  Quartermaster-Sergeants : 

additional,  707a. 
Post     Schools     (see     Schools,     and     Service 

Schools)  : 

buildings  and  equipments  for,  715a. 
prizes,  714a. 
Posts   (see  Barracks)  : 
artillery  troops,  1086a. 
restrictions  on  establishment  of,  1621a. 

on  expenditures,  1086a. 
President: 

cadets,  appointment  of,  1479a. 
commerce  during  hostilities  in  Philippine 

Islands,  2112b. 
detail  of  civil  employees,  lla. 

to  colleges,  1290a,  1291a. 
habeas  corpus,  suspension  of,  361a. 
militia,  appointment,  1670a. 
calling   forth   of,    1669a. 
length  of  service,  1673a. 
tariff  duties  and  taxes,  Philippine  Islands, 

2112a. 
Printing: 

appropriations,  restrictions  on,  68e. 
books  and  documents,  restrictions  on,  68b. 
documents,  cost  of  binding  and,  68c. 

restrictions   on,    68b. 
estimates  for  printing  and  binding,  68e. 
illustrations,  etc.,  68f. 
letter  heads,  68e. 
note  heads,  68e. 

Quartermaster's  Department,  716a. 
reports,  cost  of  binding  and,  68c. 
Prisoners   (see  Clothing,  Military  Prisoners, 

and  Penitentiary)  : 
donation  of  clothing  to,  1788b. 

of  money  to,  1788a. 
good  conduct  allowance  of  United  States 

prisoners,  1837a,  1837b,  1837c. 
rations,  791a. 

reward  for  escaped,   1409a. 
transportation  to  their  homes,  1788c. 
United    States,    good    conduct    allowance, 

1837a,  1837b,  1837c. 

restoration  of  forfeited  good  conduct  al- 
lowance, 1837b. 
Prisons : 

details  for,  679a,  679b. 
transportation    of    discharged    prisoners, 

1788c. 

Prizes    (see  Medals,  Trophies,  and  Decora- 
tions) : 

cooks  and  bakers,  714a. 
Proceeds  of  Sales  (see  Sales)  : 
disposition  of,  1106a,  1181a. 


1350 


INDEX. 


Promotions  (see  (Appointments)  : 
chaplains,  1258a. 

Military  Secretary's  Department,  663a. 
Porto  Rican  Regiment,  505b. 
Signal  Corps,  1222a. 
Property  (see  Public  Property)  : 
arms,  etc.,  issued  to  militia,  1700a,  1700b, 

1700c. 

lost  or  destroyed,  pay  for,  1742a. 
proceeds  of,  75a. 
sale  of,  1106a,  1181a. 
serviceable,  sale  of,  1181a. 
transfer  of,  1106a. 
unserviceable,  sale  of,  1106a. 
Public  Buildings  and  Grounds: 
Chief    of    Engineers    to    have    charge    of, 

973a. 

trespassers,  978a. 
use  of,  prohibited,  978b. 

Public  Lands  (see  Lands,  and  Reservations)  : 
Hawaii,  1625a. 
Mining  claims  on,   in  Philippine  Islands, 

2480. 
Philippine   Islands,    1599a,    l'599b,    1599c, 

2480. 

cutting  timber  on,  2480. 
law  concerning,  2480. 
mining  claim  on,  2480. 
sale  of,  1106a. 

Public   Moneys    (see   Depositories,    Treasury 
Department,  and  Philippine  Islands)  : 
depositories,  290a. 
received  for  stores  transferred  to  Insular 

Department,  607a. 
from  deductions  from  carriers  for  loss, 

etc.,  of  stores,  1640a. 
Public  Printer: 

duplicating  processes,  etc.,  68a. 
requisition  on,  for  extra  editions,  68d. 
Public  Property  (see  Property)  : 
arms,  etc.,   issued   to   militia,   annual   ac- 
count of,  1700a,  1700b,  1700c. 
lost  or  destroyed,  pay  for,  1742a. 
proceeds  of,  75a. 
Public  Works: 
eight-hour  law,  Canal  Zone,  1085m,  1085n, 

1573a,  1573b. 

labor  and  material,  protection  of,  1576a. 
Punishment: 

extortion,  1566a. 
Purchases : 

American  material  preferred,  1201a. 
books,  etc.,  58a. 

carriages,  prohibited,  lOOa,  lOOb. 
horses  from  officers,  741a. 
medical  stores,  932a. 
militia,  1692a. 
newspapers,  58a. 
open-market,    732a,    932a,    1169a,    1230a, 

1543a. 

ordnance  and  ordnance  stores,  etc.,  1169a. 
periodicals,  58a. 
river  and  harbor  works,  llOGa. 
schools,  1515b,  1519a. 
Signal     Corps,     stores     and     equipments, 

1230a. 
small  amounts,  768a. 


Quarantine : 

control  of  stations,  2068a,  2068b. 

detention      stations,      establishment      of, 
2068a. 

land,  condemnation  proceedings,  2068b. 
purchase  of,  2068b. 
transfer  of  title,  2068b. 
.    Marine-Hospital  Service,  2068b,  2068c. 

Public  Health  and  Marine-Hospital  Serv- 
ice, 2068b,  2068c. 

punishment   for   violations   of   laws,    etc., 
2068c. 

unlawful  entry  of  stations,  etc.,  2068c. 

yellow   fever   stations,    establishment    of, 

2068a. 
Quartermaster-Sergeants : 

additional,  707a. 
Quartermaster's  Department : 

amusement  rooms,  715a. 

army  service  men,  West  Point,  1510a. 

clothing  balances,  753a. 

doorkeeper  at  White  House,  706a. 

extra-duty  pay,  745a,  1510a. 

forage,  741b. 

fuel,  740a. 

gratuitous  issues,  750a. 

heat,  740b. 

libraries,  schools,  etc.,  715a. 

light,  740b. 

post-quartermaster    sergeants,    additional, 
707a. 

printing,  716a. 

purchase  of  horses  from  officers,  74 la. 

sale  of  fuel  to  officers,   740a. 
Quarters : 

commutation,  830a,  1663a. 
Bank: 

assistant  to  Chief  of  Insular  Bureau,  141d. 

captains  on  General  Staff  Corps,  2471. 

chaplains,  1258a,  1258c. 

Corps  of  Engineers,  953a. 

Hospital  Corps,  919a. 

Military  Secretary's  Department,  663a. 

Porto  Rican  Regiment,  505b. 

retired  brigadier-generals  having  civil  war 

service,  1303c. 
Rations  (see  Subsistence  Department)  : 

applicants  for  enlistment,  791a. 

emergency,  770a. 

enlisted  men,  etc.,  769a,  791a. 

enlisted  men  in  low  condition  of  health, 
769a. 

general  prisoners,  791a. 

issues  of,  769a. 

militia,  1681a,  1683a. 

nurses,  79 la. 

Record  and  Pension  Office  (see  Military  Sec- 
retary's Department,  Military  Secre- 
tary's Office,  and  Adjutant-General's 
Office)  : 

appropriation,  663c. 

consolidation  of,  with  Adjutant-General's 
Office,  663a. 

employees,   663c. 

officers  not  affected  by  consolidation,  663b. 

records    of    Indian    wars    transferred    to, 
1239a. 


INDEX. 


1351 


Records : 

transfer  of,  to  War  Department,  1239a. 
Recruiting  Service,  679a,  679b.    (See  Recruit- 
ing Stations  and  Prisons.) 
Recruiting  Stations: 

details  for,  679a,  679b. 
Red  Cross  Society: 
act   of   incorporation,   Appendix   C,   pages 

1330-1334. 

Reenlistment   (see  Enlisted  Men  and  Enlist- 
ment) : 

Porto  Rican  Regiment,  505b. 
Regular  Army  (see  Army)  : 
continuous-service  pay,  869a. 
Porto  Ricans  eligible  for  enlistment,  505a. 
retirement  of  enlisted  men,  869a. 
services  of  enlisted  men  as  officers,  869a. 
Regulations : 

for  canals,  etc.,  1113a,  1117a. 
Reports : 

board  of  examiners,  Volunteer  Army,  522a. 
cost  of  printing  and  binding,  68c. 
extra  copies,  68d. 
illustrations,  etc.,  68f. 
militia,  1662d,  1664a,  1692b. 

inspections  of,  1693a. 
open-market      purchases,      932a,      1169a, 

1230a. 

skilled  draftsmen,  etc.,  1161a. 
Reservations  (see  Lands,  and  Public  Lands)  : 
arrest  on,  2480. 
cutting  timber  on,  2480. 
Hawaii,  1625a. 
military  posts,  1625a. 
mining  claims  on,  2480. 
Philippine  Islands,  1599a,  2480. 
arrest  on,  2480. 
cutting  timber  on,  2480. 
jurisdiction. over,  2480. 
military  authorities  in  charge  of,  2480. 
mining  claims    on,  2480. 
sale  of  liquor  on,  2480. 
Reserves : 

Porto  Rico  Regiment,  505b. 
Residence : 

legal,  in  Philippine  Islands,  2485. 
Retired  Enlisted  Men: 

detail  of  noncommissioned  officers  to  col- 
leges, 1290a,  1291a. 
pay,  1379a. 
service  as  officers  of  volunteers,  869a. 

for  retirement,  869a,  1379a. 
Retired  Officers   (see  Retirement)  : 
active  duty  assignment  to,  1303a. 
allowances,  1323a. 
Chief    of    Artillery,    rank,    pay,    etc.,    of, 

2474a. 
of  Coast  Artillery,   rank,  pay,   etc.,   of, 

2474a. 

details  to  colleges,  1290a,  1291a. 
with  organized  militia,  1323a. 
doorkeeper  at  White  House,  706a. 
having  civil  war  service,  rank  and  pay  of, 

•  1303c. 

increase  of  rank  and  pay,  1303a. 
longevity  pay,  824a,  824b. 


Retired  Officers— Continued. 

pay,    824a,    824b,    1303a,    1303b,    1303c, 

1323a,  2474a. 
on  active  duty,  1303b. 

rank,  1303a. 
Retirement  (see  Retired  Officers)  : 

brigadier-generals   having  civil   war  serv- 
ice, 1303c. 

computing  time  for,  869a,  1379a,  1381a. 

continuous  service,  869a,  869b. 

detail  extending  beyond  date  of,  577a. 

double  time,  1381a. 

enlisted  men,  service  for,  1381a. 
service   as   commissioned   officer   of  vol- 
unteers, 869a. 

service  required  of  generals  before,  1299a. 
Returns : 

militia,  1664a. 
Revised  Statutes: 

section  192  amended,  56b. 

section  192  modified,  56a. 

section  232  repealed,  1650a. 

section  858  amended,  1815a. 

section  1014  modified,  2093a. 

section  1111  amended,  1508a. 

section  1305  amended,  879a. 

section  1308  amended,  753a. 

sections    1625    to    1660    repealed,    1650a, 
1661a. 

section  1661  amended,  1691a. 

section  2165  repealed,  1892k. 

section  2167  repealed,  1892k. 

section  2168  repealed,  1892k. 

section  2173  repealed,  1892k. 

section  3646  amended,  631a. 

section  3648  modified,  58a. 

section  3679  amended,   272a. 

section  4076  amended,  1879a. 

section  4693  modified,  2149a. 

section  4708  amended,  2149a. 

section  5270  extended,  2093c. 

section  5271  extended,  2093c. 

section  5272  extended,  2093c. 

section  5273  extended,  2093c. 

section  5274  extended,  2093c. 

section  5275  extended,  2093c. 

section  5276  extended,  2093c. 

section  5277  extended,   2093c. 

section  5278  modified,  2093b. 

section  5279  modified,  2093b. 

section  5481  amended,  1566a. 
Reward  (see  Deserters  and  Prisoners)  : 

apprehension  of  escaped  prisoners,  1409a. 

apprehension  of  deserters,  1409a. 
Rifle  clubs: 

sale  of  ammunition,  etc.,  to,  1700f. 

sale  of  arms  to,  1700e. 
Riflemen,  Expert,  865a,  865b. 
Right  of  Eminent  Domain,  2483. 
River    and    Harbor    Works     (see    Navigable 
Waters)  : 

board  of  engineers,  1098a. 

canals,  etc.,  regulations  for  use  of,  1113a. 

condemnation  proceedings,   1106b. 

dredges,  1103a. 

regulations  for  use  of  canals,  etc.,  1113a, 


1352 


INDEX. 


Hirer  and  Harbor  Works  —  Continued. 
sale  of  unserviceable  property,  llOGa. 
transfer  of  property,  llOGa. 
unserviceable  property,  sale  of,  llOGa. 

transfer  of,  1106a. 
use  of  canals  and  similar  works  of  navi- 

gation, 1113a. 
Roads: 

Alaska,  2498,  2499. 
Philippine  Islands,  2492,  2494. 
Ruins   (see  Monuments)  : 
acquisition  of  lands,  1614b. 
historic,     permits    for    excavations,     etc., 

1614c. 

regulations  concerning,  1614d. 
reserving  lands,  1614b. 
setting  apart  of,  1614b. 
penalty  for  injury  to,  1614a. 
Salaries   (see  Pay)  : 
annual,  how  paid,  etc.,  635a,  635b,  635c, 

1192a. 
clerks     and     messengers     at     department 

headquarters,  572a. 
custodian     and     others,    of     Washington 

Monument,  990a. 
employees      of      Ordnance      Department, 

1192a. 

forfeiture,   635c. 
monthly   payments  of,   annual   compensa- 

tion, 635a,  635b,  635c,  1192a. 
Sales  (see  Property,  and  Proceeds  of  Sales)  : 
disposition  of  proceeds,  1106a,  1181a. 
liquors  in  Philippine  Islands,  2481,  2482. 
on   reservations   in   Philippine    Islands, 

2480. 

medical   supplies,    935a. 
obsolete  historical  guns,   1178a,   1640a. 
public  lands  in  Philippine  Islands,  1599b. 
serviceable  ordnance  and  ordnance  stores, 


unserviceable  property,  1106a. 
Saline  Lands,  1599b,  1599c. 
Sappers  and  Miners,  1515b. 
School   of  Application   for   Cavalry    and   Field 

Artillery,  1519a. 

School  of  Submarine  Defense,  1519a. 
Schools    (see  Post  Schools,  Service  Schools, 
and  Army  War  College)  : 

Alaska,   2498. 

appointments    to    Volunteer    Army,    522a. 

Army  War  College,  1514a. 

artillery,   1519a. 

buildings  and  equipments  for,  715a. 

engineer,   lf>15a,  1515b. 

general  service  and  staff  college,  1519a. 

of  application  for  cavalry  and  field  artil- 
lery, 1519a. 

post  schools,  715a. 

prizes,  714a. 

purchases,  1515b,  1519a. 

submarine  defense,  1519a. 
Sea  Traffic: 

between  United  States  and  Philippine 
Islands,  126c,  126e,  126f,  126g,  126h, 
126i,  126j,  126k. 

inter-island,  Philippine  Archipelago,  126g. 


Sea  Traffic — Continued. 
Philippine  Islands,  licenses  to  harbor  ves- 
sels, 126j. 

navigation  laws,   126k. 
permits  to  foreign  vessels,  126j. 
regulations  governing,  126k. 
tonnage  tax,  126j. 
restrictions   on,    with    Philippine    Islands, 

126e,  126f,  126g,  126h,  126i,  126j. 
Sea  Travel    (see   SteamsJiips)  : 
contract  surgeons,  841a. 
dental  surgeons,  84 la. 
expert   accountants,    847a. 
paymasters'  clerks,  841a,  847a. 
Secretary  of  War: 

canals,  etc.,  regulations  for  use  of,  1113a. 
depositories,  designation  of,  290a. 
detail  of  army  officers  to  militia,   1662d, 

1662e. 

funds  far  levees,  Mississippi  River,  1036a. 
horses,  purchase  of,  from  officers,  74 la. 
maintenance  of  Statue  of  Liberty,  2447a. 
militia,  detail  of  army  officers  for,  Hir.i'd. 

1662e. 

reports  to  Congress,  1664a. 
open-market   purchases,    reports  of,   932a, 

1169a,   1230a. 

purchase  of  horses  from  officers,  741a. 
Sergeants : 

Signal  Corps,  1224a,  1224b. 
Serums,  910a. 
Service : 

continuous,  for  retirement,  869a. 
continuous-service  pay,  8G9a. 
not  personal,  932a. 

procurement  of,  in  open  market,  1169a. 
voluntary,  272a. 
Service  Schools  (see  Schools,  and  Army  War 

College)  : 

Army  War  College,  1514a. 
artillery   school,    1519a. 
engineer  school,   1515a,  1515b. 
general   service   and   staff   college,    1519a. 
of   application   for   cavalry   and   field   ar- 
tillery,   1519a. 

of  submarine  defense,   1519a. 
Sharpshooters,  865b. 
Signal  Corps: 
chief  of  telegraph  and  cipher  bureau   of 

executive  office,   1219a. 
composition,    1218a,    1219a. 
details,   1222a. 
enlisted  men,  1224a,   1224b. 
open-market   purchases,    1230a. 
organization,   1218a,   1219a. 
pay  of  enlisted  men,  1224a,  1224b. 
promotion,  1222a. 

purchases  of  stores  and  equipment,  1230a. 
vacancies,  how  filled,  1222a. 

Signal  Office: 

annual  estimates,  etc.,   1224c. 

'skilled  draftsmen,  etc.,  1224c. 
Skilled  Draftsmen,  1161a,  1224c. 
Soldiers : 

burial  of  indigent,  2460a. 
homestead  rights,  1587a. 


INDEX. 


1353 


Soldiers — Continued, 
transportation  of  remains,  1416a,   1417a, 

1418a. 
transportation    of    remains    of    honorably 

discharged,   1418a. 
Soldiers'    Home    (see   National   Homes,   and 

State  Homes)  : 

Board  of  Commissioners,   Military   Secre- 
tary a  member  of,  2263a. 
Sons  of  Veterans: 
penalty    for    improper    use    of    badge    of, 

1363b. 

Stamped  Envelopes,  68e. 

State    Homes,     2321a,     2324a,     2324b.        See 
National  Homes,  and  Soldiers'  Home.) 
States : 
issues   of   ordnance   and   ordnance   stores 

to,  1292a,  1292b. 
Statue  of  Liberty,  Itedloes  Island: 

maintenance  of.  2447a. 
Steam  Laundries: 
outside  work  permitted,   719a. 

use  of  proceeds,   719a. 
Steamships   (see  Sea  Traffic,  Sea  Travel,  and 

Transport  Service)  : 
in    transport   service   not   to   be   disposed 

of,  126a. 
Stores : 

issues  of,  to  States,  1292a,  1292b. 
military,  loss,  etc.,  of,  in  transit,  1178a. 
militia,  1692a. 

transferred  to  Insular  Department,  607a. 
Submarine  Mines,  1515b,  1443f. 
Subscriptions     (see    Purchases,    Newspapers, 

and  Disbursements)  : 
books,  newspapers,  etc.,  56a,  56b,  58a. 
Subsistence : 

militia,   1662a,   1693a. 
Subsistence  Department : 
emergency  ration,  770a. 
ice,  issue  of,  to  organizations  of  enlisted 

men,  769a. 
issues  of  rations  to  enlisted  men  in  low 

condition  of  health,  769a. 
payments  of  small  amounts,  768a. 
post     commissary     sergeants,     additional, 

762a. 

purchases  of  small  amounts,  768a. 
rations,  769a,  770a,  791a. 
Supplies    (see  Purchases)  : 
militia,   1692a. 
open-market  purchases,  932a,  1169a,  1230a, 

1543a. 

sales  of  medical,   935a. 
Surgeon-General    of    the    Army     (see    Medical 

Department)  : 
advisory    board    for    hygienic    laboratory, 

91  Ob. 

viruses,  toxins,  etc.,  910a. 
Surgeons  (see  Contract  Surgeons)  : 
acting     assistant,     burial     expenses     of, 

1417ft. 

contract,  907a. 
assignment  of  pay  by,  909a. 
authority  of  when  in  charge  of  hospital, 
91 3a. 


Surgeons — Continued, 
dental,  assignment  of  pay  by,  909a. 
number  authorized,  908a. 
detail  to  Military  Academy,  908a. 
sea  travel,  841a. 
Target  Practice: 
militia,  1662c. 
Tariff  Duties: 
Philippine  Islands,  2112a,  2496,  2497. 

vessels  exempt  from  tonnage  dues,  2497. 
Tax: 

Philippine  Islands,  2112a,  2492. 
property  exempt  from,  2480. 
registration,  2485. 
Telegraph  Lines: 
Alaska,   1233a. 

right  to  cross  bridges,  1114a. 
Telegraph    and    Cipher     Bureau    of    Executive 

Office,  1219a. 
Territories : 
issues    of   ordnance,    etc.,    to    educational 

institutions  in,  1292a,  1292b. 
Timber,  2480.     (See  Public  Lands  and  Res- 
ervation.) 

Tonnage  Dues,  2497. 
Toxins,  910a. 
Trade : 
Philippine     Islands,     126e,     126f,     126g, 

126h,  126i,  126j,  126k. 
permits  to  foreign  vessels,  126j. 
regulations  governing,   126k. 
tonnage  tax,   126j. 
restrictions   on,   with   Philippine   Islands, 

126c,   126e,   126f,   126g,   126h,   126i. 
Traffic : 

time  of  war,  720a. 
Transfers : 

civil  employees,  28b. 
Transport  Service: 
not  to  be  discontinued  without  action  of 

Congress,    126a. 

steamships  not  to  be  disposed  of,  126a. 
transports,    restrictions   on   use   of,   724a. 
Transportation : 

bond-aided  railroads,   843a,  844a. 
by  sea  of  army  supplies,  126d. 
discharged   military    prisoners,    1788c. 
in  kind,  843a,  844a. 
land-grant  railroads,  843a,  844a. 
mileage,    deductions   from,    843a. 
militia,  1662a,  1693a. 
passengers      to      and      from      Philippine 

Islands,   126f,   126g,   126h,   126i. 
Philippine    Islands,    vessels    trading    be- 
between  United  States  and,  126c-126k. 
remains     of    acting    assistant     surgeons, 

1417a. 

civilian  employees  of  Army,  1418a. 
deceased    officers    and    soldiers,    1416a, 

1417a. 

honorably  discharged  soldiers,   1418a. 
transports,   use  of,   724a. 
troops  in  time  of  war,  720a. 
vessels   trading  with   Philippine    Islands, 
126c-126k. 


1354 


INDEX. 


Transports : 

restriction  on  use  of,  724a. 
Travel  Allowances    (see  Mileage)  : 
bond-aided  railroad,  843a,  844a. 
militia,  1663a,  1693a. 
officers  traveling  without  troops,  840a. 
transportation  in  kind,  843a,  844a. 
Treasury    (see  Depositories,  Public  Moneys, 

and  Treasury  Department)  : 
depositories,  290a. 

Treasury  Department  (see  Accounts,  Account- 
ing Officers,  and  Disbursing  Officers)  : 
accounts,  closing  of,  605b. 
limitation  of,"  605b. 
paymasters',  801c. 
pay  of  the  Army,  801a. 
annual  statement  to  Congress,  75a. 
credits   for  deductions   from   carriers  for 

stores  lost,  etc.,  in  transit,  1640a. 
depositories,  290a. 
limitation  of  accounts,  605b. 
proceeds  of  public  property,  75a. 
Troops : 

transportation  of,  in  time  of  war,  720a. 
Troops  of  the  Line: 
Artillery  Corps,  1443a. 
cavalry  band,  1424a. 
Trophies      (see     Medals,     Decorations,     and 

Prizes)  : 

annual  contest  for,  1201a,  1201b. 
Uniform : 

chaplains,    1258a. ' 
Union  Veteran  Legion: 
penalty    for    improper   use    of    badge    of, 

1363b. 
Union  Veterans'  Union: 

penalty    for    improper   use    of   badge   of, 

1363b. 

United  Spanish  War  Veterans: 
penalty    for    improper    use    of   badge    of, 

1363b. 

United  States  Prisoners  (see  Penitentary)  : 
good-conduct     allowance,     1837a,     1837b, 

1837c. 

Vacancies    (see    Appointments,    and    Promo- 
tions) : 

Corps  of  Engineers,  953a. 
Judge  -  Advocate     General's     Department, 

694a. 

Porto  Rican  Regiment,  505b. 
Vehicles : 
name    of    Department    to    be    printed    on, 

lOOa,  lOOb. 
not  to  be  purchased  or  maintained,  lOOa, 

lOOb. 
Vessels    (see    Sea    Traffic,   Sea    Travel,    and 

Steamships)  : 

exempt  from  tonnage  dues,  2497. 
inter-island     traffic,     Philippine     Islands, 

126g. 

passengers  between  United  States  and 
Philippine  Islands,  126f,  126g,  126h, 
126i. 

Philippine  Islands,  license  to  harbor  ves- 
sels, 12GJ. 


Vessels — Continued. 

Philippine  Islands,  permits  to  foreign  ves- 
sels, 126j. 
tonnage   tax,    126j. 

trading  between  United  States  and  Phil- 
ippine Islands,  126c-126k. 
Vessels  of  the  United  States : 
exempt  from  tonnage  dues,  2497. 
transportation  of  army  supplies,   126d. 
Viruses,  910a. 

Voluntary  Service,  272a.      (See  Service.) 
Volunteers  (see  Volunteer  Army)  : 
appointments,  as  judge-advocates,  694a. 
continuous-service  pay,  869a. 
enlisted    men,     service    as    commissioned 

officers,   869a. 
how   organized,   518a. 
National    Sanitarium   at   Hot   Springs,    S. 

Dak.,  939a,  939b. 

service  as  commissioned   officer   of,   869a. 
time    computed    for    retirement,    869a. 

Volunteer  Army  (see  Volunteers)  : 

age  limit,   522a. 

appointments,    522a. 

board  of  examiners,  522a. 
reports,  522a. 

commissions    in,    522a. 

examinations  for  commissions,   522a. 

graduates  of  military  schools,   522a. 

military  schools,   522a. 

organization  of,  518a. 

rules  and  regulations,  522a. 

schools,   522a. 

service  in  militia,   522a. 
Volunteer  Forces    (see  Volunteer  Army,  and 
Military  Establishment)  : 

how  organized,  518a. 
Vote: 

legal     residence     in     Philippine     Islands, 

2485. 
War  Department: 

assignment    of    clerks,    messengers,    and 
laborers  to  duty  in,   573b. 

transfer  of  records  to,  1239a. 
Washington  Monument: 

care  of,  990a. 

salaries,  990a. 
Wharves,  etc. : 

Porto   Rico,   1119a,   1119c,   1119d,    1119e. 
White  House: 

doorkeeper,  pay  and  allowances  of,  706a. 
Witnesses : 

competency  determined,    1815a. 

fees  of  civilian,  Philippine  Islands,  2477. 

refusal  of  civilian  to  testify,  2477. 
Woman's  Relief  Corps: 

penalty    for    improper    use    of    badge    of, 

1363b. 
Writ  of  Habeas  Corpus: 

Philippine   Islands,  2478,  2479. 

suspension  of,  361a. 
Yellowstone  National  Park: 

Use    of    electricity    by    private    parties, 
2443a. 


TABLE  OF  REVISED  STATUTES  CITED  IN  THE  ORIGINAL  WORK  AND 
THE  SUPPLEMENT,  AND  THE  PARAGRAPHS  IN  WHICH  THE  CITA- 
TIONS OCCUR 


Revised  Statutes 
(sections). 

Military 
laws 
(para- 
graphs). 

Revised  Statutes 
(sections). 

Military 
laws 
(para- 
graphs). 

Revised  Statutes 
(sections). 

Military 
laws 
(para- 
graphs). 

152 

3 

f   1388 

437 

451 

224 

158 

12 

\  1388a 

f    452 

441 

159 

12 

225 

128 

\   1893 

161 

20 

226 

140 

442 

453 

163  

32 

(    141 

463  

1894 

164 

33 

£,£,1  

\    184 

467  

1970 

165 

34 

228 

129 

470 

2113 

166 

35 

229 

130 

471 

2114 

167 

38 

230 

131 

472    

2115 

168 

39 

231 

132 

751    

346 

169  

25 

/  1650a 

752  

347 

170 

40 

Z6Z  

\  1661a 

753  

348 

172 

28 

233 

183 

754 

349 

173  

21 

9QA 

f   219 

755  

350 

174 

22 

Zoo  — 

1    632 

756    

351 

175 

23 

237 

635 

757  

352 

176 

24 

255  

1640 

758  

353 

177 

13 

271 

193 

759 

354 

178 

14 

278 

215 

760 

355 

179 

15 

280 

216 

761       

356 

180 

17 

281    

217 

762    

357 

181  

18 

009 

/    218 

763  

358 

182 

19 

ZoZ  

1   1390 

764  

359 

/    51 

283 

197 

765      

360 

183  

\    691 

SOI 

283 

766 

361 

184.. 

110 

305  

284" 

/   1815 

185 

111 

306  

309 

oOo  

\  1815a 

186 

112 

307 

310 

882      

1818 

187 

113 

308 

311 

883  

1819 

188 

114 

309 

312 

886 

1820 

189 

115 

310 

304 

887 

1821 

190 

116 

346 

332 

888 

1822 

(    56 

347 

333 

895    

1823 

192 

56a 

354 

336 

896  

1824 

56b 

J    334 

905 

1825 

1OQ 

KG 

355  

I   1  5Q3 

qnfi 

1826 

194 

87 

356 

337 

908      

1827 

195 

86 

357 

338 

1014 

2093a 

196 

90 

f    313 

1059 

362 

358 

197 

92a 

1    339 

1060 

363 

214 

117 

359 

340 

1061   

364 

215 

135 

360  

341 

1062  

365 

216 

122 

361 

342 

1063 

366 

217 

123 

364 

343 

1064 

367 

218 

124 

367  

344 

1065 

368 

91  Q 

/    125 

383  

345 

1066  

369 

ziy  

1    709 

391 

314 

1067 

370 

/    126 

392  . 

315 

1068 

371 

220.. 

S       «r>/\ 

1355 


1356 


REVISED   STATUTES    CITED. 


Table  of  Revised  Statutes  cited  in  the  original  work  and  the  supplement,  and 
the  paragraphs  in  which  the  citations  occur — Continued. 


Revised  Statutes 
(sections). 

Military 
laws 
(para- 
graphs) . 

Revised  Statutes 
(sections). 

Military 
laws 
(para- 
graphs). 

Revised  Statutes 
(sections). 

Military 
laws 
(para- 
graphs). 

107(K  

373 

1128   ,  

662 

1187 

800 

1071  

374 

1130  

667 

1188 

801 

1072  

375 

1131  

680 

1189  

802 

1073  

376 

1  1  Q9 

I    121 

1190  

805 

1074 

377 

lloZ  

1    702 

1191 

592 

1075 

378 

1133 

708 

1192 

798 

1076 

379 

1134 

711 

1198 

692 

1077 

380 

1135 

710 

1199 

696 

1078 

381 

(    734 

1201  

697 

1080 

382 

1136 

\   1621 

1202 

1810 

1081 

383 

1622 

1203 

1801 

1082 

384 

1138 

719 

f   589 

1205 

1083 

385 

U40 

758 

I   1284 

1084 

386 

1141 

763 

1206       

958 

1085 

387 

1142 

762 

1207       

957 

1086 

388 

1143 

766 

1209    

1342 

1087 

389 

f    690 

1210  

1344 

1088  

390 

1144  

764 

f    566 

1089..  . 

391 

778 

1Z11  

\   1347 

1090 

392 

1145 

779 

1212 

1349 

1091 

393 

1147 

776 

1213 

1486 

1092 

394 

1148 

775 

1214       

1278 

1093 

395 

1149 

780 

1215      

1487 

1094 

500 

1150 

767 

1216    

1358 

1097 

556 

1151 

953 

1217 

558 

1098. 

557 

1152    

971 

1219  

565 

f   1437 

1153    

1089 

f    756 

1100 

{   1438 

1155 

968 

1220 

\    891 

1440 

1156  

967 

1175 

1102 

1419 

1157 

970 

1221     

751 

1103 

1427 

f    567 

1222    

1332 

1104 

1420 

1158 

590 

1223 

1327 

1105 

1421 

I    960 

1224 

1331 

1106  

1445 

1159  

1158 

1288 

1107  

1450 

1161  

1159 

1  99^ 

1289 

1108 

1446 

1162 

1164 

l^ZO.  

1290 

1109 

1162 

1163 

1165 

1290a 

1110 

1163 

1164 

1166 

(    493 

1226       .  .. 

1111 

1508a 

1165       

1168 

I   1351 

1112 

506 

1166 

1167 

1227.. 

1360 

1114 

570 

f   1172 

1228 

1328 

/   670 

1167 

\   1173 

1229      ..  .. 

1329 

1116 

1   1364 

1174 

1  230     

1330 

(    672 

1168 

899 

1231  

1627 

1117. 

\   1367 

1169 

f   568 

1232 

f   1335 

1118 

f    673 
\   1368 

1170 

\   913 
903 

1234 

\   1413 

788 

1401 

1172 

902 

1235     

743 

1119 

669 

1174 

912 

1  236  

744 

(    677 

1175  

933 

1237  

1412 

11ZU  

\   1371 

1176 

950 

1239 

929 

1121 

1258 

1177 

951 

1241     .  ... 

1641 

1122 

1258 

1178 

952 

1243  

1297 

/   1260 

1182 

792 

1244 

1298 

1123  

I    1  9fi~1 

(     PiAQ 

1  94^ 

1  °iO^ 

1124 

^    IZOl 
19R4 

1183  

1     £04 

1246 

1306 

1125 

1263 

1184 

793 

1247      

1307 

1126. 

1265 

1185 

794 

1248  

1308 

1127.. 

1266 

1186.. 

799 

1249.. 

1309 

REVISED   STATUTES    CITED. 


1357 


Table  of  Revised  Statutes  cited  in  the  original  work  and  the  supplement,  and 
the  paragraphs  in  which  the  citations  occur — Continued. 


Revised  Statutes 
(sections). 

Military 
laws 
(para- 
graphs). 

Revised  Statutes 
(sections). 

Military 
laws 
(para- 
graphs). 

Revised  Statutes 
(sections). 

Military 
laws 
(para- 
graphs). 

1250     

1310 

(    852 

1609.. 

437 

1251  

1311 

1  QHQ 

897 

1610  

438 

1252    

1312 

loUo  

1176 

1611  

422 

1253 

1313 

I   1638 

1612... 

429 

1254  

1314 

/   853 

1615  

439 

1255 

1317 

Iou4  

1   1637 

1619  

443 

1256 

1319 

f   879 

1620  

444 

1257 

1318 

1305  

\   8793 

1621  

445 

1258 

1301 

1403 

1623  

433 

1259     

1320 

1306  

880 

/  1650a 

1260 

1293 

1307 

881 

1625  to  1660  

1   Ififiln 

1261  

807 

f   753 

977 

1262  

818 

1  Qftft 

753a 

£t  1 

1691 

1263  

819 

1    882 

1  AQld 

1264 

811 

I    894 

1661 

-1  OC\f)n 

1265 

1286 

1309  

1458 

loy/a 

1  AQQ 

1266 

829 

1310  

1466 

loyo 

1  AQQo 

1267 

820 

1311  

1467 

loyoa 

19A8 

836 

1312 

1468 

1662.. 

1190 

19AQ 

817 

1313 

1463 

1663  

1191 

1270  

810 

1314 

/   1464 

1664  

1  AA^i 

1192 
1193 

1273  

849 
f    824 

1315 

\   1470 
1479 

1666  

1194 

1274  

i    1  Q1  A 

1017 

1  48O 

1667  

1195 

107K 

I   loio 

825 

1318 

1481 

1668  

1197 

197fi 

865 

1319 

1482 

1669  

1198 

f    JW 

1320 

1483 

1670...  

1702 

1277  

i   Q^O 

1001 

1484 

1671  

1199 

i    o.f\q 

1322 

1489 

1753  

142 

1279  

862 

1323  

1490 

1754 

/    143 

I   1157 

1324  

1491 

\    150 

1280 

862 

1325 

1494 

1755.. 

144 

1281 

863 

1326 

1495 

1757  

158 

/    868 

1397 

1497 

1758     

159 

1282  

)     1  f>7Q 

TOOQ 

1400 

1759 

162 

1283 

876 

1329 

1499 

1760  

163 

/   869 

1330  

1501 

1761  

164 

1284  

\   1374 

1331 

1462 

1762  

165 

/   883 

1332 

1502 

1763 

166 

1285 

\   1359 

1333  

1473 

1  7A4 

41 

1287      .  .  . 

742 

1334  

1469 

\    168 

/    790 

1335 

1477 

1765  

169 

1288  

I        DOO 

1  3^A 

1471 

t    170 

1289 

850 

1338 

1472 

1766  

855 

1291    

898 

1339 

1485 

856 

1292  

878a 

1340 

1476 

1769  

9 

/   777 

1341  

1511 

1773  

10 

1291  

\   789 

f  Pase 

1774 

11 

-10QK 

770 

1342  

1    Qfi4 

177^ 

11 

1296 

749 

1420 

1402 

1776 

180 

1298  

750 

1421 

/    447 

1777 

r   182 

1299  

/   782 

i     8^4 

1437 

\   1376 

448 

1  77C 

\   486 
160 

1300 

/   783 

1466  

564 

7179  *  . 

f    57 

1301  . 

\   896 
/   784 

1596  
1600  

419 
432 

1780  

\   181 
}    92 

1    895 

I    752 

1601  

1603 

420 
427 

1    171 

/   178 

1302.. 

1358 


REVISED    STATUTES    CITED. 


Table  of  Revised  (Statutes  cited  in  the  original  work  and  the  supplement,  and 
the  paragraphs  in  which  the  citations  occur — Continued. 


Revised  Statutes 
(sections). 

Military 
laws 
(para- 
graphs). 

Revised  Statutes 
(sections). 

Military 
laws 
(para- 
graphs). 

Revised  Statutes 
(sections). 

Military 
laws 
(para- 
graphs). 

f   1563 

f   1399 

2125 

1957 

1782 

1998 

1   2253 

\   1876 

2126 

1958 

1784 

179 

1999 

1877 

f   557 

2127   

1791      

2466 

2000  

1878 

\   1959 

1792  

2467 

2001  

1879 

2128.. 

1961 

1793  

2468 

2003  

2066 

2129  

1962 

1794 

2469 

2004 

2067 

2130 

1963 

f   978 

2043 

1896 

2131 

1964 

1797 

\   978a 

2045 

1897 

2132 

1965 

1798 

979 

2052 

1898 

2133 

1966 

f   255 

2053  

1916 

2134  

1968 

1799   

1    980 

2054  

1919 

2135  

1969 

1800.. 

995 

2055  

1907 

2136  

1971 

1801  

996 

2056  

1899 

2137  

1972 

1802 

1006 

2057 

1900 

2138 

1973 

1803 

1007 

2058 

1921 

2139 

1975 

1804 

1008 

2059 

1918 

2140 

1983 

1805 

1010 

2060 

1902 

2141  

1985 

1806 

1009 

2062 

1903 

2142  

1990 

1807 

997 

2063..  . 

1905 

2143  

1991 

1808  . 

998 

2064  

1910 

2144  

1986 

1809  

999 

2066  

1901 

2145  

,  1987 

1810 

1001 

2067 

1906 

2146 

1988 

1811  

1002 

2073  

1920 

91  A.n 

/   2001 

f    987 

2074 

1912 

\   2023 

1812 

\   1000 

2075 

1915 

/   2002 

2148  

1829 

988 

2076 

1913 

}2024 

1830  

985 

2077  

1914 

2003 

1835  

993 

2078  

1967 

zi4y  

1   2025 

1838  

1595 

2079  

1922 

91  f^n 

/   2004 

1841  

1777 

2080  

1923 

ZlOU  

\   2026 

1856  

1778 

2081  

1924 

91  f\1 

/   2005 

1857 

1779 

2082 

1925 

1   2027 

1860 

1321 

2083 

1926 

f   2006 

2152  .     

1977 

2051 

2084 

1927 

\   2028 

1978 

2052 

2085 

1928 

2153  

2008 

1979 

2053 

2086 

1929 

2154 

1996 

1980 

2054 

2087 

1930 

2155 

1997 

1981 

2055 

2088 

1931 

2156 

1998 

f   582 

2089 

1932 

2157 

2009 

1982 

\   2056 

2090 

1933 

f   1880 

1983 

2057 

2100 

1936 

2165  

\   1881 

1984..  . 

2058 

2101  

1937 

1892k 

1985 

2059 

2102 

1940 

2166 

1882 

1986 

2060 

2109 

1934 

f   1884 

2167 

1987 

2061 

2110 

774 

\  1892k 

1988 

2062 

2111 

1941 

f   1885 

2168  

1989 

2063 

2112 

1942 

\  1892k 

1990 

2064 

2113 

1943 

2169 

1886 

1991 

2065 

2114 

1944 

2170 

1887 

1992 

1870 

2115 

1945 

2171  

1888 

1993 

1871 

2116 

1950 

2172  

1889 

1994  

1872 

2117  

1951 

91  7Q 

/   1890 

1995  

1873 

2118  

1952 

Zl/O  

\  1892k 

f   1397 

2119 

1953 

2174 

1891 

1996 

\   1874 

2120 

1954 

2257  

1581 

/   1398 

2121 

1955 

2258  

1582 

1997  

1   1875 

2124.. 

1956 

2289.. 

1584 

REVISED    STATUTES    CITED. 


1359 


Table  of  Revised  Statutes  cited  in  the  original  work  and  the  supplement,  and 
the  paragraphs  in  which  the  citations  occur — Continued. 


Revised  Statutes 
(sections). 

Military 
laws 
(para- 
graphs) . 

Revised  Statutes 
(sections). 

Military 
laws 
(para- 
graphs). 

Revised  Statutes 
(sections). 

Military 
laws 
(para- 
graphs). 

2290  

1585 

f    186 

f    279 

3623  

3690  

2304 

1586 
1587a 

I    637 
f    250 

3691 

\    624 

281 

3624 

[   1592 

\    643 

3692 

f   613 

f   1587 

3625 

251 

1    786 

2305 

[  1587a 

3626    

252 

r   so 

2306. 

1588 

3627  

253 

81 

2307  

1589 

3628  

254 

3709  

I   1526 

2308 

1590 

3629 

255 

11527 

2309 

1591 

3630 

256 

1528 

2393 

1583 

3631 

257 

3710 

1536 

2438  

1400 

3632  

25"8 

j    83 

2460 

2069 

3633      

259 

o/  11  

1   1578 

2474  

2423 

3634  

260 

071  9 

f    84 

/   2424 

3635  

261 

O/l/  

1   1579 

2475  

1    94.9^ 

9A9 

f     85 

3713 

) 

2476 

1091 

3637 

263 

\   1580 

2477 

1619 

3638 

264 

3714    

1520 

3466 

245 

f    303 

3715  

1552 

3467  

246 

3639  

593 

071  f> 

f    712 

3468 

247 

608 

o/lo  

\   1533 

/    76 

3640 

297 

3717 

1537 

3469  

1    2'11 

621  • 

3731 

1555 

3470 

^      ^01 

232 

3644 

298 

f   717 

3732  

3471 

248 

3645 

630 

\   1521 

3472  

249 

/    631 

Q7QO 

/   1522 

3473 

305 

\   631a 

\   1623 

3474  

306 

3647-  

631 

Q7QC 

/    82 

3475  

307 

(    58a 

\   1556 

3476  

308 

3648  

617 

(   1523 

3477  

f    234 

3651 

812 
fiOQ 

Q7Q7 

\   1594 
1557 

3478 

235 

3652 

610 

3738 

1572 

3479 

236 

3653 

295a 

3739      

1558 

3480 

237 

3654      .  .  . 

293 

3740  

1559 

3489  

238 

3657  

291 

/   1540 

3490 

239 

3658 

292 

^±1.  

\   1560 

3491 

240 

3661 

68 

3742  

1561 

3492 

241 

3662 

69 

(   1541 

3743  

3493 

242 

3663    

71 

\   1571 

3494  

243 

3664  

72 

Q7A4 

f   1539 

3591 

285 

3665 

66 

1   1567 

3593 

296 

/    -62 

3745     

1568 

OQQ 

3669  

1    267 

1569 

3595 

286 

f    63 

3747 

1570 

3670 

3614 

295 

\    268 

f    754 

3748 

3615 

299 

3672 

75 

\   1646 

3616 

300 

f    271 

3752 

1596 

3678 

3617  

611 

\    620 

(79 

612 

f    272 

3828    

1532 

3618 

785 

3679  

<   272a 

1520 

290 

619 

3960 

67 

3620 

301 

3681 

273 

(    58 

3995     

606 
j    302 

3682  

f    42 
55 

4076  

\   2072 
1879a 

3621  

974 

1091 

(    185 

3683 

54 

4664 

1022 

3622  .  . 

-i  rvoo 

1360 


REVISED    STATUTES    CITED. 


Table  of  Revised  Statutes  cited  in  the  original  work  and  the  supplement,  and 
the  paragraphs  in  which  the  citations  occur — Continued. 


Revised  Statutes 
(sections)  . 

Military 
laws 
(para- 
graphs). 

Revised  Statutes 
(sections). 

Military 
laws 
(para- 
graphs). 

Revised  Statutes 
(sections). 

Military 
laws 
(para- 
graphs). 

4679.. 

1027 

4779 

2213 

5271 

2093c 

4680  

1028 

4783 

2256 

5272 

2093e 

4692  

2116 

4785 

2203 

5273 

2093c 

J.ftQQ 

/   2117 

4786  

2204 

5274  

2093c 

\  2149a 

4787 

942 

/   2090 

4694 

2118 

47»« 

Q44 

5275  

OAQO,, 

4695.. 

2119 

4790 

945 

/   2091 

4fiQfi 

9190 

(    Q47 

5276  

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4fiQ7 

9191 

4791  

1     Q4O 

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4698 

2122 

4792 

9Ofift 

5277  

i   £\jyz 

1   90Q3c 

4698£  

2186 

4814 

2275 

5278 

20931) 

4699  

2136 

4815  

2263 

5279 

2093b 

4700 

2197 

4817 

2264 

5281 

2079 

4701  

2198 

AO-\  O 

/   2267 

5282  

2080 

4702  

2137 

\   2269 

5283 

2081 

4703  

2138 

(    889 

5284 

2082 

4819 

4704  

2200 

\   2271 

5285 

2083 

4705  

2142 

4820 

2280 

5286 

2084 

4706  

2144 

4821  

2276 

5287 

2085 

4707 

2148 

4822 

2277 

5288 

2086 

J.7O8 

/   2149 

4823  

2278 

5289  

2087 

\  2149a 

4824  

2283 

5290 

2088 

4710.. 

2182 

/   2287 

5291 

2089 

4711 

2183 

4825  

1    2391 

^9Q7 

901  S 

4713  

2185 

4826 

2288 

5298 

2017 

4715  

2257 

4827 

2289 

5299 

2016 

J.71  A 

/  2154a 

4828  

2290 

5300  

2019 

\   2227 

4829  

2298 

5301 

2029 

4718.. 

2232 

4830 

2319 

5302 

2030 

4719  

2234 

4832 

2325 

5303 

2231 

4720  

2176 

4834 

2296 

5304 

2032 

4724  

2261 

4835 

2332 

5305 

2033 

4730  

2157 

4837  

2337 

5306 

2034 

4731 

2158 

4838 

2340 

5307 

2035 

4732  

2173 

4839  

2342 

5308    

2036 

4733  

2258 

4843 

2344 

5309 

2037 

4734  

2259 

4856 

2345 

5310 

2038 

4735  

2146 

g854 

2346 

5311 

2039 

4744  

2250 

4870    .  . 

2449 

5312 

2040 

(    624 

4871  

2450 

5313 

2041 

4746  

\   2211 

4872 

2451 

5314 

2042 

2254 

4873 

2452 

5315 

2043 

ATIA.1 

/    639 

4874  

2453 

5316  

2044 

\   2236 

4875. 

2454 

5317 

2045 

4748.. 

2193 

4877 

2455 

5318 

2046 

4749  

2201 

4878 

2458 

5319 

2047 

4764  

2216 

4879 

2463 

5320 

2048 

J.7AC» 

/   2217 

4880  

2464 

5321  

2049 

\   2223 

4881 

2462 

5322 

2050 

2147 

4882 

2461 

5331    

2104 

4.7fifi 

2224 

5153  

289 

5332  

2105 

2230 

5244 

1095 

5333 

2106 

2330 

5246 

1094 

5334 

2107 

4767.. 

2215 

5248 

1093 

5335    

2108 

4768  

2220 

5250 

1096 

5336 

2109 

4769  

2221 

5251 

1092 

5337 

2110 

4776 

2242 

5252 

1038 

5338 

2111 

4777  

2243 

5253  

973 

5388 

f   1604 

4778  

2212 

5254  

1039 

\   1999 

REVISED   STATUTES    CITED. 


1361 


Table  of  Revised  Statutes  cited  in  the  original  work  and  the  supplement,  and 
the  paragraphs  in  which  the  citations  occur — Continued. 


Revised  Statutes 
(sections). 

Military 
laws 
(para- 
graphs). 

Revised  Statutes 
(sections). 

Military 
laws 
(para- 
graphs). 

Revised  Statutes 
(sections). 

Military 
laws 
(para- 
graphs). 

5403 

103 

5493 

650 

5573 

2097 

5408       

104 

5494.   . 

651 

5574 

2098 

5418 

105 

5495     ,. 

652 

5575 

2099 

5451  

1564 

5496  

653 

5576.. 

2100 

5455  

1406 

[        654 

5577...  

2101 

5456 

1645 

5497 

655 

5578 

2102 

f      1566 

I       1644 

5595 

462 

5481 

\    1566a 

5598. 

656 

5596 

463 

5483 

644 

/        657 

5597 

464 

5501  

5486  

2255 

\      1565 

5598 

465 

5488  

645 

5502.. 

658 

5599     

466 

5489 

646 

5503 

659 

5600 

467 

5490 

647 

5570 

2094 

5601 

468 

5491 

648 

5571 

2095 

5492 

649 

5572.     .     . 

2096 

22924—08 86 


YC  53698 


166431 


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